The Supreme Court Rules Pay Equity Legislation Must Allow For Retroactive, Non-Onerous Remedial Avenues For Women

The Supreme Court of Canada has released its much-anticipated decision in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux1. The majority clearly stated that while a freestanding positive obligation to implement pay equity legislation is not required by subsection 15(1) of the Canadian Charter of Rights and Freedoms, if Parliament or the provincial/territorial legislatures decide to enact such legislation, they cannot deny women access to retroactive compensation for wage-based discrimination. This decision comes at an important time, as the Trudeau government moves forward with its promise to re-vamp and transition the current complaint-based federal pay equity regime into a proactive approach, similar to those enacted in Ontario and Quebec.

Context

The case involved an appeal to the Supreme Court of Canada (SCC or the Court) of a Quebec Court of Appeal decision that held certain Quebec Pay Equity Act (PEA) amendments were unconstitutional.2 As mentioned in a previous publication, the Quebec Court of Appeal found the PEA amendments created a system that was contrary to the purpose of pay equity. The amendments replaced the employer's ongoing obligation to maintain pay equity with a requirement to conduct a pay equity audit every five years.

However, the amendments only required retroactive payments to be made from the date the employer posted the audit results, as opposed to the date the inequities arose. Employees would only be entitled to retroactive payments from the time the pay inequity arose if they could prove bad-faith conduct by the employer, which was seen to be an onerous evidentiary burden. The Quebec Court of Appeal found that the impugned...