Supreme Court strikes down some provisions of Quebec’s pay equity law
Several provisions of a Quebec law created to ensure equal pay for men and women are unconstitutional because they are discriminatory, codifies the denial to women of benefits routinely enjoyed by men and effectively gives employers a periodic “pay equity amnesty,” confirmed a divided Supreme Court of Canada in a pair of companion decisions.
In a 6-3 ruling that marks the first time the nation’s highest court found a pay equity law unconstitutional, the Supreme Court judges in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 upheld a Quebec Court of Appeal decision that struck down provisions of the Quebec Pay Equity Act that restricted unionized women working in female-dominated occupations to obtain pay equity adjustments to their wages only once every five years when mandatory pay equity audits are conducted.
“Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men — namely, compensation tied to the value of their work,” wrote Justice Rosalie Silberman Abella for the majority.
Initially passed in 1997 to address systemic wage discrimination against women, the Quebec government amended the Pay Equity Act in 2009 to replace an ongoing obligation to maintain pay equity with a system of mandatory audits every five years in which the employer is only required to rectify the wages going forward.
Labour organizations challenged the new provisions, arguing that the amendments substantially reduced the rights and benefits of employees.
The Supreme Court found:
- Assessed on their own, and regardless of the prior legislative scheme, ss. 76.3, 76.5 and 103.1 para. 2 have a discriminatory impact. Any pay inequities emerging during the five year period between audits go uncorrected until the next audit.
- Even when an audit reveals the emergence of pay inequity during the previous five years, only adjustment payments going forward are payable. This effectively gives an amnesty to the employer for discrimination between audits. Employers are required to post the results of the audit, but not the date on which pay inequity emerged, thus obscuring when adjustment payments ought to have been made.
- Women, under this scheme, are expected to endure five year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non‑discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women.
But in a separate case, the Supreme Court ruled in Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 that the six-year wait for unionized daycare workers to have their pay catch up is discriminatory but justified because the aim of the delay was to properly apply the law.
Quebec government releases criteria for reasonable accommodation
Months before the Quebec provincial election, the Quebec government could not resist taking a stab at identity politics.
Nearly seven months after the Quebec government adopted the controversial Bill 62, legislation that compels Quebecers to leave their faces uncovered in order to provide or receive public services, it released guidelines on how it will assess requests for reasonable accommodation.
Public organizations will have to designate accommodations officers to handle request for religious accommodations. The private sector is not bound by the guidelines.
The government guideline include six criteria:
- The request must result from the application of section 10 of the Charter of human rights and freedoms;
- The request must be serious, in other words based on a sincere belief in the need to comply with a practice that is part of the applicant’s faith or with a religious belief;
- The accommodation requested must be consistent with the right to equality of women and men and the right of every person to be treated without discrimination based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap;
- The accommodation requested must be consistent with the principle of State religious neutrality;
- The accommodation must be reasonable, in that it does not impose undue hardship with regard to, among other considerations, the rights of others, public health and safety, the proper operation of the body, and the costs involved;
- The person making the request must have cooperated in seeking a solution that meets the criterion of reasonableness.
Catherine McKenzie, a Montreal lawyer with IMK, told the CBC that she cannot see it work in practice. “We’re talking about something that is really burdensome on the people that it affects,” she added.
Others, such as Robert Dutrisac in an editorial in Le Devoir, points out that the new guidelines will leave public bodies in a bind. He points out that public organizations prefer to follow rules that apply the same to everyone in all circumstances. Or as Allison Hanes puts it: It’s a nightmare for common sense.
The section of the law governing face coverings is expected to come into effect July 1.
Criminal ordered to pay police officer $438,000
A criminal who punched a police officer during an interrogation was ordered to pay more than $438,000 in damages to the officer.
The decision by Quebec Superior Court Justice Suzanne Mireault that ordered Frédérick Martel, a chronic offender, to pay $75,000 in punitive damages will likely create a precedent, predicts Sherbrooke lawyer Justin Gravel of Lavery.
“It is extremely rare for an individual to be ordered to pay such a high amount in punitive damages,” Gravel told Sherbrooke-based newspaper La Tribune. “There were a few decisions in small claims court but punitive damages of this scale granted to a police officer assaulted in the course of his duties is a first in Quebec, if not in Quebec.”
Justice Mireault noted in Lefebvre c. Martel 2018 QCCS 1953 that the perpetration of violent acts against members of the Quebec justice system is alarming and deeply troubling.
Éric Lefebvre is still living with the repercussions of the assault. He suffers from dizziness, extreme fatigue, migraines, speech impediment, diminished intellectual capabilities, and neuropsychological ailments.
Seven new Court of Quebec judges appointed
The Quebec government is continuing to bolster the ranks of provincial judges.
Quebec Minister of Justice Stephanie Vallée announced the appointment of seven judges at the Court of Québec and one judge at the municipal court of Ville de Montréal.
The new appointments are widely expected to make a dent in the backlog of cases that have plagued the Quebec criminal justice system.