By Katrin MacPhee, Articling Student
The Supreme Court of Canada struck down provisions of Quebec’s Pay Equity Act and clarified the law regarding systemic discrimination through two decisions released May 10th.
The Act was introduced to remedy the fact that occupations predominantly filled by women are systemically underpaid compared to male-dominated job categories. The Act promotes pay equity through mandatory audits of workplaces every five years. If an employer is found in violation of the Act, wages are adjusted from the date the audit results were posted in the workplace. The employer is not required to disclose when the pay gap emerged. Employees can only seek retroactive equity pay to the date of the gap’s emergence if they proved the employer’s conduct was in bad faith.
A majority of the Court in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 found that the Act violates the equality provision of Charter, section 15. Any pay inequities are uncorrected for up to five years, an approach which grants “amnesty to the employer for discrimination between audits.” Additionally, employees are effectively barred from proving intentional discrimination since they lack information about when the gap emerged. Instead of promoting equality, the provisions “codif(y) the denial to women of benefits routinely enjoyed by men.” The province of Quebec was unable to prove the discrimination was justified. The provisions regarding the Act’s retroactive application and information posting requirements were struck down. The provisions will remain in effect for one year while the province re-writes the legislation to be Charter-compliant.
The decision’s companion case, Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, challenged a delay in implementing the Act in workplaces lacking a comparator group of male workers. A majority of the Court found the delay was discriminatory. The delay perpetuated the disadvantage pay discrimination inflicts on women. However, the delay was caused by a need to develop a credible methodology in calculating pay equity without a comparator male workforce. The Court therefore found the delay was justified. A sole dissenter, the former Chief Justice, Beverely McLachlin, found the delay was unjustified. The former Justice McLachlin was widely considered to have a unifying effect on the Bench as the Chief Justice. Interestingly, this dissent was her last decision on the Supreme Court of Canada.
The decisions clarify the law surrounding systemic discrimination in several ways. The current test for prima facie discrimination under section 15 is now:
 …does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds; if so, does the law impose “burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating… disadvantage” (Taypotat, at paras. 19-20).
The Court reiterated that equity-seekers no longer need to establish discrimination in comparison to a “mirror” group. The indicia of discrimination in Law v. Canada (Minister of Employment and Immigration),  1 SCR 497 were also dismissed in short-order by the Court as outdated. These criteria were (1) a pre‑existing disadvantage, (2) a correspondence with actual characteristics, (3) the impact on other groups and (4) the nature of the affected interest.
Further, the Court seems to have abandoned the ambiguous and unhelpful term “arbitrary disadvantage” it used in Quebec (Attorney General) v. A,  1 S.C.R. 61; and Kahkewistahaw First Nation v. Taypotat,  2 S.C.R. 548).
The Court stated that it is irrelevant that the government did not cause the pre-existing pay disadvantage experienced by women. It is sufficient for a section 15 claim if a government action perpetuates a pre-existing disadvantage suffered by an equity-seeking group due to their oppression. Moreover, section 15 (2) of the Charter exists only to save affirmative action programs from claims of “reverse discrimination.” It is not a stand-alone shield against Charter claims regarding ameliorative social program brought by the program’s intended beneficiaries.
Finally, the Court’s section one analysis confirms that it is the objective of the impugned provision(s), and not the legislation as a whole, that is relevant to whether the government’s actions served a pressing and substantial purpose.