June 20, 2018

Supreme Court of Canada finds parts of Quebec pay equity legislation unconstitutional

Last month, the Supreme Court of Canada issued two decisions that found components of Quebec’s pay equity legislation, which was intended to ensure equal pay for men and women, were unconstitutional. Here, e2r’s Stuart Ducoffe provides details on the rulings, and what employers should be aware of.

Stuart Ducoffe

Stuart Ducoffe (B.C.L., LL.B.,CHRL) is a seasoned employment and labour lawyer as well as the co-founder of e2r®, which powers Ceridian HR Advisory Services. He is also a partner and co-founder of Woolgar VanWiechen Cosgriffe Ducoffe LLP, which practices exclusively in the area of employment and labour law. Follow @e2rSolutions on Twitter to stay up to date on Stuart and his team!

Last month, the Supreme Court of Canada issued two decisions that found that Quebec’s pay equity legislation, which was intended to ensure equal pay for men and women, is unconstitutional.

The court looked at two separate cases related to Quebec’s pay equity law.

The rulings

Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux

In 2009, the Quebec government amended the Pay Equity Act, which was passed in 1996 to combat wage discrimination against women. The amended legislation required employers to maintain pay equity with a system of mandatory audits every five years. Employers that did not comply had to adjust salaries, but there was no requirement for retroactive pay.

Labour organizations and women’s organizations challenged the new provisions, arguing that the amendments substantially reduced the rights and benefits of employees.

The Supreme Court criticized the legislation on the basis that even when an audit revealed the emergence of pay inequity during the previous five years, employers were only required to adjust payments going forward. As a result, the Supreme Court found that parts of the 2009 amendments were unconstitutional, and upheld the Quebec Court of Appeal decision that struck down provisions of the Quebec Pay Equity Act.

Centrale des syndicats du Quebec vs. Quebec (Attorney General)

When the changes to the Pay Equity Act were implemented, Quebec had difficulty finding appropriate compensation for women in mostly female workplaces. Quebec gave the Pay Equity Commission six years to find a solution.

Unions challenged this six-year delay on the basis that it was discriminatory to women.

The Supreme Court agreed with the Quebec Court of Appeal that the delay was discriminatory, but ultimately did not strike down the law on the basis that the delay was justified because the aim of the delay was to properly apply the law.

What employers should be aware of

The Canadian government is considering bringing forth proactive pay equity legislation this fall, including introducing new pay transparency requirements and federal labour standards.

Ceridian will continue to monitor developments in this area.

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