The Supreme Court Rules: Certain Provisions Of The Pay Equity Act Are Unconstitutional

On May 10, 2018 Canada's highest court rendered the following two decisions: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (hereinafter, "APPTSSS") and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (hereinafter, "CSQ")1. In each of these matters, the Court had to decide on the constitutionality of certain provisions of the Pay Equity Act, CQLR, c. E 12.001 ("PEA") in light of section 15(1) of the Canadian Charter of Rights and Freedoms, (the "Charter") which provides as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(emphasis added)

PEA was adopted by the Quebec government in 1996 in response to the acknowledged prevalence in Quebec of "systemic gender discrimination suffered by persons who occupy positions in predominantly female job classes"2. PEA mandated a proactive regime under which employers with ten or more employees had to undertake, within a prescribed period, "a process of reporting, planning, comparison, evaluation and adjustment payments aimed at ensuring that employers provided equal pay for work of equal value"3.

The APPTSSS decision

The initial version of PEA imposed a continuous obligation on employers to maintain pay equity and to make necessary adjustments in compensation when creating new jobs or new job categories, modifying existing positions or negotiating or renewing a collective agreement.

Ten years after PEA came into force, the government noted that there was only limited compliance with its provisions by employers subject to it. Rather than adopting punitive measures in response, the government elected to make some of the obligations under PEA less onerous, by passing the Act to amend the Pay Equity Act, S.Q. 2009, c. 9 (the "2009 Amendment"), which effectively abolished employers' continuous obligation to maintain pay equity, substituting instead a system of mandatory audits every five years pursuant to which employers were only required to rectify wages going forward. The issue raised in APPTSSS was the lack of retroactive compensation for the period between the audits and the salary adjustments, which only applied as of the date on which the audit was...