Centrale des syndicats du Québec et al. Appellants v. Attorney General of Quebec, 2018 SCC 18

SUPREME COURT OF CANADA Citation: Centrale des syndicats du Québec v. Quebec ( Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522 Appeal Heard: October 31, 2017 Judgment Rendered: May 10, 2018 Docket: 37002 Between: Centrale des syndicats du Québec et al. Appellants and Attorney General of Quebec Respondent And Between: Confederation of National Trade Unions (CNTU) et al. Appellants and Attorney General of Quebec Respondent - and - Attorney General of Ontario et al. Interveners Official English Translation: Reasons of Côté J.

Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. Reasons: (paras. 1 to 56) Abella J. (Moldaver, Karakatsanis and Gascon JJ. concurring) Reasons: (paras. 57 to 153) Côté J. (Wagner, Brown and Rowe JJ. concurring) Reasons Dissenting in the Result: (paras. 154 to 159) McLachlin C.J. Centrale des syndicats du Québec v.

Quebec ( Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522 Centrale des syndicats du Québec, Fédération des intervenantes en petite enfance du Québec (FIPEQ-CSQ), Le syndicat des intervenantes en petite enfance de Montréal (SIPEM-CSQ), Le syndicat des intervenantes en petite enfance de Québec (SIPEQ-CSQ), Le syndicat des intervenantes en petite enfance de l’Estrie (SIPEE-CSQ), Francine Joly, Nathalie Fillion, Louise Fréchette, Fédération du personnel de soutien de l’enseignement supérieur (FPSES) (CSQ), Syndicat des interprètes professionnels du Sivet (CSQ), Chantal Bousquet and Yannick François Appellants v.

Attorney General of Quebec Respondent - and - Confederation of National Trade Unions (CNTU), Fédération de la santé et des services sociaux, Syndicat des travailleuses et travailleurs des CPE de la Montérégie, Syndicat des travailleuses des CPE de Montréal et de Laval, France Laniel, Ginette Lavoie and Danielle Paré Appellants v. Attorney General of Quebec Respondent and

Attorney General of Ontario, Equal Pay Coalition, Women’s Legal Education and Action Fund and New Brunswick Coalition for Pay Equity Interveners Indexed as: Centrale des syndicats du Québec v. Quebec ( Attorney General) 2018 SCC 18 File No.: 37002. 2017: October 31; 2018: May 10.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal of quebec Constitutional law — Charter of Rights — Right to equality — Discrimination based on sex — Pay equity — Legislative scheme enacted to address systemic wage discrimination suffered by employees, essentially women, occupying positions in predominantly female job classes — Lack of methodology for assessing pay equity adjustment for employees in workplaces without predominantly male job class comparators resulting in delayed access to pay equity without retroactive payment as opposed to employees in workplace with predominantly male job classes comparators — Whether six-year delay in access to pay equity resulting from s. 38 of Pay Equity Act for women employed in workplaces without male comparators violates s. 15 of Charter — If so, whether infringement justifiable — Pay Equity Act, CQLR, c.

E-12.001, s. 38 — Canadian Charter of Rights and Freedoms, ss. 1 , 15. In Quebec, the right to equal pay for work of equal value was adopted in 1975 through s. 19 of the Charter of Human Rights and Freedoms . The complaints-based regime by which female workers had access to s. 19 proved ill-suited to address systemic discrimination and female workers were excluded from access to pay equity where there were no male comparators. The Pay Equity Act was adopted in 1996 t o provide a remedy.

It recognized that systemic wage discrimination exists in the workforce whether or not there are male comparators in a particular workplace. As a result, all employers with 10 or more employees were to conduct a pay equity exercise to identify and redress pay inequity through adjustments in compensation or the creation of a pay equity plan, depending on the size of the enterprise. At the time the Act came into force in 1997, there was, however, no methodology for assessing pay equity adjustments where there was no male comparator.

Regulatory authority was therefore given to the Pay Equity Commission under s. 114 to conduct the necessary research and to establish a methodology for identifying the appropriate male comparators. Under s. 114, a regulation could not be passed until workplaces with male comparators had completed their first pay equity exercise on or before November 21, 2001. T he Pay Equity Commission did not settle on a methodology until 2003 and the Regulation was not promulgated until May 5, 2005.

The two-year grace period provided by s. 38 further postponed pay equity for workplaces without male comparators until May 5, 2007. This six-year legislatively delayed access to pay equity resulting from s. 38 of the Act was challenged by several unions as a breach of s. 15(1) of the Canadian Charter of Rights and Freedoms for women in workplaces without male comparators . The trial judge found that the delay did not violate s. 15(1) because the delayed access was not based on sex, but rather on the absence of a male comparator . T he Court of Appeal of Quebec dismissed the appeal.

Held (McLachlin C.J. dissenting in the result) : The appeal should be dismissed.

Section 38 of the Pay Equity Act is constitutional. 1. Per Abella J. (with McLachlin C.J. and Moldaver, Karakatsanis and Gascon JJ.):

Section 38 of the Act infringes s. 15(1) of the Charter . Per Côté J. (with Wagner, Brown and Rowe JJ.):

Section 38 of the Act does not infringe s. 15(1) of the Charter . The appeal should fail at this stage of the analysis. 2. Per Abella J. (with Moldaver, Karakatsanis and Gascon JJ.): The infringement of s. 15(1) is justifiable under s. 1 of the Charter . Per McLachlin C.J.: The infringement of s. 15(1) is not justifiable under s. 1 of the Charter . ____________________________ Per Abella, Moldaver, Karakatsanis and Gascon JJ.:

Section 38 of the Pay Equity Act violates s. 15(1) of the Charter . The limitation draws a distinction on the basis of sex. All pay equity legislation demonstrably and unarguably creates distinctions based on sex because its goal is to recognize and remedy the discrimination that women have suffered in the way they are compensated in the workforce. This is systemic discrimination premised on the historic economic and social devaluation of women’s work compared to men’s work.

The contrary view that the distinction created by the Act was not based on sex, but rather on the absence of male comparator groups in the enterprise, is formal equality, an approach expressly rejected by this Court in Andrews . It erases the sex-based character of the legislative provisions and obscures the fact that the claimants disproportionately suffer an adverse impact because they are women . And the sex-based character of the distinction drawn by s. 38 is inescapable.

The two categories into which the Act sorts women — women in workplaces with male comparators and those without such comparators — expressly defined by the presence or absence of men in the workplace, are set up to address disparities in pay between men and women. Moreover, these categories single out for inferior treatment the group of women whose pay has, arguably, been most markedly impacted by their gender. So the categories set up by ss. 37 and 38 of the Act draw distinctions based on sex both on their face — that is, by their express terms — and in their impact.

The distinction is discriminatory. The women targeted for the delay suffer the effects of pay discrimination — without aremedy — for the period of the delay. The fact that the legislation did not create pay discrimination is irrelevant. The law has adiscriminatory impact because it perpetuates the disadvantage of a protected group through a legislated “denial of access to remedialprocedures for discrimination”. Nor does the fact that the Act was intended to help women, attenuate the fact of the breach. Purpose andintention are part of the s. 1 justification analysis.

Determining whether there is a breach focuses on the impact of, not motive for, thelaw. And the impact is clear. Occupational segregation and low wages usually go hand in hand. There is no doubt that the claimants willexperience a considerable economic impact as a result of the delay. And the very women singled out for differential and delayed accessto pay equity under this scheme may be the very ones most likely to experience its effects disproportionately. Section 15(2) has no application to this case. Section 15(2) is not a stand-alone defence to any and all claims brought unders. 15(1).

The purpose of s. 15(2) is to save ameliorative programs from the charge of “reverse discrimination”. Reverse discriminationinvolves a claim from someone outside the scope of intended beneficiaries who alleges that ameliorating those beneficiariesdiscriminates against him or her. It stands the purpose on its head to suggest that s. 15(2) can be used to deprive the program’s intendedbeneficiaries of the right to challenge the program’s compliance with s. 15(1).

For the government to invoke a s. 15(2) defence, theremust first be a claim by a person or group excluded from the program alleging that the exclusion is discriminatory. In this case, thecomplainants have been expressly included but in a manner they claim has a discriminatory impact. This is not a claim of “reversediscrimination”, it is a claim of discrimination. The prima facie breach of s. 15(1) is however justified under s. 1 of the Charter.

The pressing and substantial objective ofthe delay caused by s. 38 was to enact a scheme that created an effective remedy for systemic pay discrimination for women working inplaces where there are no male comparators. The issue was complex and required considerable research and analysis and there was scantpolicy experience elsewhere to draw on for inspiration. Therefore, the delay in developing and implementing a credible methodology isrationally connected to the objective of creating the possibility of an effective remedy.

As to minimal impairment, where, as here, thegovernment introduced, and gave effect to, an entirely new regime, a degree of delay is to be expected. But the government mustdemonstrate that, in the circumstances, it acted with reasonable diligence. The time frame must be calibrated to the nature andcomplexity of the issue, but it cannot be indefinite. While close to the line, the record supports the conclusion that Quebec was notunreasonable in the steps it took to keep the delay within reasonable bounds.

The Pay Equity Commission in charge of administering theAct, was only created in 1996 and had to develop new strategies for implementation on multiple fronts. Although the delay was seriousand regrettable, women in workplaces with no male comparators saw the creation of an effective, coherent remedy for systemiceconomic discrimination where none had previously existed. The ultimate advantages of Quebec’s expanded approach outweigh theharm. The proportionality test is met. Per Wagner, Côté, Brown and Rowe JJ.:

Section 38 of the Pay Equity Act is valid under s. 15(1) of the Canadian Charter ofRights and Freedoms. The distinction made in s. 38 is not based on sex, because the difference in compensation does not result from thefact that the affected employees are women. Certain of those who are meant to benefit from the Act — employees of enterprises that haveno predominantly male job classes — wish to be paid in accordance with the same timetable that applies to others who are also meant tobenefit from the Act — employees of enterprises that do have predominantly male job classes.

An analysis of the evidence as a wholeleads to the conclusion that the basis for the differential treatment affecting the employees in question lies instead in the lack of malecomparators in their employers’ enterprises. It cannot be concluded that every distinction drawn by a pay equity statute is necessarilybased on sex. Such a conclusion would deprive trial judges of any discretion in their assessment of the evidence and would make the firststep in the s. 15(1) analysis irrelevant. Moreover, the distinction made in s. 38 of the Act does not have a discriminatory impact.

The four contextual factorsidentified in Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497 — (1) the natureof the affected interest, (2) a pre-existing disadvantage, (3) a correspondence with actual characteristics and (4) the impact on othergroups — are relevant to the determination of whether s. 38 is discriminatory. The importance of the right at issue in this case is not in doubt.

For the employees concerned, it is a question of being paidan amount that reflects the fair value of their work and receiving compensation based on a prejudice-free evaluation that focuses on theobjective value of their work. This right is all the more important because women working in enterprises with no male comparators havea significant pre-existing disadvantage, one that is documented, is not in dispute and is in fact recognized from the outset in s. 1 of theAct. But this factor does not give rise to a presumption that a distinction is discriminatory.

Regarding the third factor, it can be seen that significant differences in compensation due to systemic gender discriminationalready existed in the labour market and that these differences were maintained in the private sector. The Act and the time limits itestablishes reflect the actual capacities and needs of the members of the affected group. The legislature set up a proactive scheme that,once completed, made it possible to redress differences in compensation due to systemic gender discrimination, including for employeesworking in enterprises with no male comparators.

However, it was recognized from the outset that more time would be needed to developan adequate method for calculating compensation adjustments. Although the Act may not be perfect, it has had an undeniablyameliorative effect on the employees in question. The decision to enact the Act quickly and to guarantee pay equity for a large number ofemployees working in more than 225,000 enterprises in Quebec obviously had a significant positive effect on those employees.

It goeswithout saying that when a government develops a complex scheme such as that of pay equity legislation, it will not always be able toameliorate the conditions of every member of a disadvantaged group at the same time and in the same way. An obligation of resultcannot be imposed on the legislature in this regard, as that could cause the enactment of legislation to be postponed, to everyone’sdetriment.

Furthermore, the legislature was entitled to proceed by way of regulation to develop an innovative, simple and practicalmethod for valuating differences in compensation for employers that have no predominantly male job classes. The different time limitsprovided for do not perpetuate prejudice or a stereotype. The impugned provision does not have a discriminatory impact, as it insteadnarrows the gap between these historically disadvantaged groups and the rest of society. Given that s. 38 of the Act is valid, it is not necessary to go on to determine whether that

section can be saved under s. 15(2).This silence should not be interpreted as an endorsement of Abella J.’s comments on that subject, however. Per McLachlin C.J. (dissenting in the result): There is agreement with the majority that s. 38 of the Pay Equity Act violates

s. 15(1) of the Canadian Charter of Rights and Freedoms. However, the breach cannot be justified under s. 1 of the Charter. It isquestionable whether the government’s objective of ensuring employer compliance is pressing and substantial and therefore capable ofjustifying the breach of women’s right to equality.

In any event, the infringement fails at the minimal impairment and balancing stages.The six-year period was dictated not by the exigencies of working out what constituted equal pay in female-dominated work-places,where no male comparator groups were available, but in part by the government’s decision to negotiate with employers over a lengthyperiod in order to ensure that the scheme was one that employers would accept and with which they would comply. The government hasnot demonstrated that other less impairing options were not available.

It has also not established that the denial of benefits to the affectedand already marginalized women is proportionate to the public interest in denying them a remedy. Cases Cited By Abella J. Applied: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; referred to: Syndicat de la fonction publique du Québec inc. v. Québec (Procureur général), [2004] R.J.Q.524; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; Bliss v.

Attorney General of Canada, (SCC), [1979] 1 S.C.R. 183; Withler v. Canada(Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325;Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497; Alberta (Aboriginal Affairsand Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483;RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Irwin Toy Ltd. v. Quebec (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 927; Eldridge v.

British Columbia (Attorney General), (SCC),[1997] 3 S.C.R. 624. By Côté J. Applied: Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; Law v. Canada(Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497; distinguished: Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; referred to: Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381;R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Quebec(Attorney General) v.

A, 2013 SCC 5, [2013] 1 S.C.R. 61; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011SCC 37, [2011] 2 S.C.R. 670; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Bliss v. Attorney General ofCanada, (SCC), [1979] 1 S.C.R. 183. By McLachlin C.J. (dissenting in the result) R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. Statutes and Regulations Cited Act respecting discrimination in employment, S.Q. 1964, c. 46. Canadian Charter of Rights and Freedoms, ss. 1, 15. Charter of human rights and freedoms, CQLR, c. C-12, s. 19.

Charter of human rights and freedoms, S.Q. 1975, c. 6, s. 19. Equal Pay Act, R.S.B.C. 1960, c. 131. Equal Pay Act, R.S.S. 1953, c. 265. Female Employees Equal Pay Act, S.C. 1956, c. 38. Female Employees Fair Remuneration Act, 1951, S.O. 1951, c. 26. Individual’s Rights Protection Act, R.S.A. 1980, c. I-2. Pay Equity Act, CQLR, c. E-12.001, ss. 1, 10, 13, 31, 34, 37, 38, 50, 71, 114. Pay Equity Act, R.S.O. 1990, c. P.7. Pay Equity Act, S.Q. 1996, c. 43, ss. 1, 13, 37 [am. 2009, c. 9, s. 12], 38, 71, 114.

Regulation respecting pay equity in enterprises where there are no predominantly male job classes, (2005) 137 G.O. II, 976. Regulation respecting pay equity in enterprises where there are no predominantly male job classes, CQLR, c. E-12.001, r. 2. Treaties and Other International Instruments Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (No. 100), Can. T.S. 1973 No. 37,arts. 2, 3.

Convention on the Elimination of All Forms of Discrimination against Women , Can. T.S. 1982 No. 31. International Covenant on Economic, Social and Cultural Rights , Can. T.S. 1976 No. 46. Authors Cited Canada. Pay Equity Task Force. Pay Equity: A New Approach to a Fundamental Right , Final Report. Ottawa, 2004. Canada. Royal Commission on Equality in Employment. Report of the Commission on Equality in Employment . Ottawa: Supply and Services Canada, 1984. Chicha, Marie-Thérèse. L’équité salariale: Mise en œuvre et enjeux , 3 e éd. Cowansville, Que: Yvon Blais, 2011.

Cornish, Mary. “Closing the Global Gender Pay Gap: Securing Justice for Women’s Work” (2007), 28 Comp. Lab. L. & Pol’y J. 219. International Labour Office. Report of the Committee of Experts on the Application of Conventions and Recommendations , Report III (Part 1A), General Report and observations concerning particular countries. Geneva, 2007. Martin, Sheilah L. “Persisting Equality Implications of the ‘Bliss’ Case”, in Sheilah L. Martin and Kathleen E. Mahoney, eds., Equality and Judicial Neutrality . Toronto: Carswell, 1987. Oelz, Martin, Shauna Olney and Manuela Tomei.

Equal Pay: An introductory guide , Geneva: International Labour Organization, 2013. Pothier, Dianne. “Equality as a Comparative Concept: Mirror, Mirror, on the Wall, What’s the Fairest of Them All?” (2006), 33 S.C.L.R. (2d) 135 . Quebec. Assemblée nationale. Commission de l’économie et du travail. “Étude du projet de règlement sur l’équité salariale dans les entreprises où il n’existe pas de catégories d’emplois à prédominance masculine”, Journal des débats de la Commission de l’économie et du travail , vol. 38, n o 35, 1 re sess., 37 e lég., 24 novembre 2004. Quebec. Assemblée nationale.

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Section 15 at Twenty” (2006), 33 S.C.L.R. (2d) 45 . APPEAL from a judgment of the Quebec Court of Appeal (Vézina, St-Pierre and Émond JJ.A.), 2016 QCCA 424 , [2016] AZ-51262412, [2016] J.Q. n o 1991 (QL), 2016 CarswellQue 1852 (WL Can.), affirming a decision of Yergeau J., 2014 QCCS 4197 ,

[2014] AZ-51105800, [2014] J.Q. n o 9467 (QL), 2014 CarswellQue 9184 (WL Can.). Appeal dismissed, McLachlin C.J. dissenting in the result.

Geneviève Bailargeon Bouchard and Denis Bradet , for the appellants Centrale des syndicats du Québec, Fédération des intervenantes en petite enfance du Québec (FIPEQ-CSQ), Le syndicat des intervenantes en petite enfance de Montréal (SIPEM-CSQ), Le syndicat des intervenantes en petite enfance de Québec (SIPEQ-CSQ), Le syndicat des intervenantes en petite enfance de l’Estrie (SIPEE-CSQ), Francine Joly, Nathalie Fillion, Louise Fréchette, Fédération du personnel de soutien de l’enseignement supérieur (FPSES) (CSQ), Syndicat des interprètes professionnels du Sivet (CSQ), Chantal Bousquet and Yannick François.

Jean Mailloux and Marilyne Duquette , for the appellants the Confederation of National Trade Unions (CNTU), Fédération de la santé et des services sociaux, Syndicat des travailleuses et travailleurs des CPE de la Montérégie, Syndicat des travailleuses des CPE de Montréal et de Laval, France Laniel, Ginette Lavoie and Danielle Paré. Patrice Claude and Caroline Renaud , for the respondent. Courtney Harris and S. Zachary Green , for the intervener the Attorney General of Ontario. Fay Faraday and Janet E.

Borowy , for the interveners the Equal Pay Coalition, the Women’s Legal Education and Action Fund and the New Brunswick Coalition for Pay Equity. The reasons of Abella, Moldaver, Karakatsanis and Gascon JJ. were delivered by [ 1 ] Abella J. — The issue in this appeal is whether Quebec’s approach to implementing pay equity in workplaces without male comparator job classifications violates the equality rights protected by s. 15 of the Canadian Charter of Rights and Freedoms . The complaint is not with Quebec’s proposed methodology, but with the six-year legislated delay in implementation.

Background [ 2 ] The first efforts to address the deep and persistent gap between women’s pay and men’s pay, referred to as “equal pay for equal work”, required employers to pay men and women the same wage for doing the same job, at the same workplace (see, e.g., Female Employees Equal Pay Act , S.C. 1956, c. 38; Equal Pay Act , R.S.B.C. 1960, c. 131; The Equal Pay Act , R.S.S. 1953, c. 265 ) . Although this was an important first step, it failed to grapple with the systemic nature of pay discrimination.

It became clear that “historical attitudes towards the role of women in society, along with stereotypical assumptions regarding women’s aspirations, preferences, capabilities, and ‘suitability’ for certain jobs, [had] contributed to occupational sex segregation in the labour market” (International Labour Office, Report of the Committee of Experts on the Application of Conventions and Recommendations (2007), at p. 271). [ 3 ] The result was that women doing work of equal value did not receive fair pay: Female-dominated jobs . . . are generally less paid and less valued than male-dominated jobs.

The lower rates of pay discourage men from entering these jobs. As a result women are concentrated in different jobs than men. This reinforces the view that low pay results from market factors and skill requirements rather than the under-valuation of women’s jobs. Women’s skills are often overlooked, as they are regarded as “natural” female characteristics rather than acquired through experience or training. (Martin Oelz, Shauna Olney and Manuela Tomei, Equal Pay: An introductory guide (2013), at pp. 17-18) [ 4 ] The next responsive legislative step was a right to equal pay for work of equal value .

Under this approach, methods were developed for measuring and remedying pay disparities between male-dominated jobs and female-dominated jobs within the same workplace or “establishment”.

These methods were based on identifying job classes in an enterprise with similar characteristics and value, and then classifying them as male or female dominated ( Final Report of the Pay Equity Task Force, Pay Equity: A New Approach to a Fundamental Right (2004), at p. 247). [ 5 ] In Quebec, this right to equal pay for work of equal value was adopted in 1975 through s. 19 of the Charter of Human Rights and Freedoms , S.Q. 1975, c. 6 (now CQLR, c. C-12). This provision states: 19.

Every employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place. A difference in salary or wages based on experience, seniority, years of service, merit, productivity or overtime is not considered discriminatory if such criteria are common to all members of the personnel. . . . It allowed for comparisons in the same workplace between predominantly male job categories and predominantly female categories even though the nature of the work performed was not the same.

But the complaints-based regime by which female workers had access to s. 19 proved ill-suited to address systemic discrimination. [1] Since s. 19 required male comparator groups “at the same place”, female workers were excluded from access to pay equity where there were no male comparators.

[ 6 ] Fixing this gap required a determination of how to measure pay discrimination against women who were not only in female dominated jobs, but whose workplaces contained no male dominated job with which to do a comparison. This appeal arises out of Quebec’s efforts to find — and adopt — a solution to that problem. [ 7 ] Those efforts included two reports prepared in 1995, one by the Comité d’élaboration du projet de loi and the other by the Comité de consultation en regard à la loi proactive sur l’équité salariale. [2] The result was the Pay Equity Act , S.Q. 1996, c. 43 (now CQLR, c.

E-12.001 ), in 1996, designed to set out a proactive pay equity scheme for all predominately female job classes. This includes addressing pay inequities for women in workplaces without male comparators. [ 8 ] The Act recognized that systemic wage discrimination exists in the workforce whether or not there are male comparators in a particular workplace. Its purpose was to provide a remedy for this reality: 1. The purpose of this Act is to redress differences in compensation due to the systemic gender discrimination suffered by persons who occupy positions in predominantly female job classes.

Differences in compensation are assessed within the enterprise, except if there are no predominantly male job classes in the enterprise. [ 9 ] All employers with 10 or more employees were to conduct a pay equity exercise to identify and redress pay inequity through adjustments in compensation or the creation of a pay equity plan, depending on the size of the enterprise. [ 10 ] At the time the Act came into force, there was, however, no methodology for assessing pay equity adjustments where there was no male comparator.

The 1995 reports on which the Act was based acknowledged the unique enforcement issues for such workplaces, but offered no precise methodology. Nor did any concrete proposals emerge as a result of the consultations leading to the implementation of the Act . The only clear consensus was the acknowledgment that the necessary male comparators would have to be found outside the particular workplace. [ 11 ] Regulatory authority was therefore given to the Pay Equity Commission under s. 114 to conduct the necessary research and to establish a methodology for identifying the appropriate male comparators.

Section 114 states: 114.

The Commission may make regulations (1) for the purposes of the determination of adjustments in compensation in an enterprise employing fewer than 50 employees where there are no predominantly male job classes, determining typical job classes on the basis of job classes identified in enterprises in which adjustments in compensation have already been determined and prescribing standards or weighting factors to be applied to the valuation of differences in compensation between such job classes, with due regard, in particular, for the characteristics of enterprises whose job classes are to be so compared; (2) for the purposes of the establishment of a pay equity plan in an enterprise where there are no predominantly male job classes, determining typical job classes on the basis of job classes identified in enterprises, in which a pay equity plan has already been completed, prescribing methods to be used to determine the value of those job classes and to valuate the differences in compensation between the typical job classes and the job classes in an enterprise and prescribing standards or weighting factors to be applied to such differences, with due regard, in particular, for the characteristics of enterprises whose job classes are to be so compared; . . .

Regulations of the Commission are subject to the approval of the Government and may be amended by the Government upon approval. No regulation of the Commission may be approved by the Government until it is examined by the appropriate committee of the National Assembly. [ 12 ] This

section directed the Commission to develop a proposed methodology based on two criteria to bring it into line with s. 19 of the Quebec Charter : it was to draw comparisons with male job classifications found in enterprises where a pay equity exercise had already been completed; and it was to factor in the characteristics of the enterprises whose job classes were to be compared. [ 13 ] Once a regulation was developed, s. 13 directed that workplaces with no predominantly male job classes were to establish a pay equity plan in accordance with the Regulation. [3] Under s. 71, the first pay equity adjustments became payable on the date by which the pay equity exercise was required to be completed: 71.

The employer shall make the first adjustments in compensation under a pay equity plan on the date by which the plan must be completed or, in the case of an enterprise employing fewer than 50 employees, on the date by which adjustments in compensation must

be determined. If the employer fails to make adjustments in compensation within the applicable time limits, the unpaid adjustments shall bearinterest at the legal rate from the time as of which they were payable. [14]

Section 38 of the Act sets out two possible deadlines by which those employers in workplaces with no malecomparators were to determine adjustments or complete a pay equity plan: 38. In an enterprise where there are no predominantly male job classes, the adjustments in compensation must be determined or the payequity plan must be completed either within the time limit set out in

section 37 or within two years of the coming into force of theregulation made by the Commission under subparagraph 1 or 2 of the first paragraph of

section 114, whichever time limit expires last. [15] The first deadline, based on s. 37, was the same one as for workplaces where male job classes did exist.

Section 37gave employers in those workplaces that had male comparators four years to implement pay equity from the time they became subject to the Act.[4] They became subject to the Act on November 21, 1997. Four years from this date was November 21, 2001. [16] But this first deadline for workplaces with no male comparators was illusory, since there could be no pay equity forthose workplaces until a Regulation was passed.

And, under s. 114, a regulation could not be passed until workplaces with malecomparators had completed their first pay equity exercise on or before November 21, 2001. [17] The only realistically possible deadline under the legislation was the second one, namely within two years of thecoming into force of the Regulation. The Pay Equity Commission did not settle on a methodology until 2003 and the Regulationrespecting pay equity in enterprises where there are no predominantly male job classes, (2005) 137 G.O. II, 976 (now CQLR, c. E-12.001, r. 2), was not promulgated until May 5, 2005.

The two-year grace period provided by s. 38 further postponed pay equity forworkplaces without male comparators until May 5, 2007. [18] As a result, access to pay equity under the Act for women in workplaces without male comparators was delayed, inaccordance with s. 38, by two years beyond the length of time it took to enact the Regulation under s. 114.

By this time, almost six yearshad passed since women in workplaces that had male comparators first gained access to pay equity. [19] This six-year legislatively delayed access to pay equity resulting from s. 38 of the Act was challenged by severalunions, who argued that it amounted to a breach of s. 15(1) of the Charter for women in workplaces without male comparators. [20] The trial judge found that the delay did not violate s. 15 (2014 QCCS 4197). In his view, a separate timeline did notengage s. 15 because the delayed access was not based on sex, but rather on the absence of a male comparator.

And if there was adistinction based on sex, it was not discriminatory because it was not based on the premise that employees in female-dominatedworkplaces were [translation] “less capable or . . . worthy of recognition or value as human beings” (para. 244 ). The Court ofAppeal of Quebec dismissed the appeal (2016 QCCA 424).

Analysis [21] Section 15(1) of the Charter states: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. [22] When assessing a claim under s. 15(1), this Court’s jurisprudence establishes a two-step approach: Does thechallenged law, on its face or in its impact, draw a distinction based on an enumerated or analogous ground, and, if so, does it impose“burdens or [deny] a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating . . . disadvantage”, including“historical” disadvantage? (Quebec (Attorney General) v.

A, 2013 SCC 5 , [2013] 1 S.C.R. 61, at paras. 323-24 and 327;Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 , [2015] 2 S.C.R. 548, at paras. 19-20.) [23] The first question is therefore whether the limitation challenged by the unions — a six-year pay equity delaymandated by s. 38, for women employed in workplaces without male comparators — draws a distinction on the basis of sex. [24] In my view, it does. The goal of pay equity legislation is to recognize and remedy the discrimination that womenhave suffered in the way they are compensated in the workforce.

This is systemic discrimination premised on the historic economic andsocial devaluation of “women’s work” compared to “men’s work” (Report of the Commission on Equality in Employment (1984), at p.232; Final Report of the Pay Equity Task Force (2004), at pp. 25-27). Accordingly, pay equity legislation, including the Act at issue here,draws a distinction based on sex in targeting systemic pay discrimination against women.

And, as explained later in these reasons, thespecific provisions of the Act that target particular groups of women based on where they work — such as s. 38 — also necessarily drawa distinction based on sex. [25] The contrary view adopted by the trial judge, the Court of Appeal, and my colleague, is that the distinction createdby the Act was based not on sex, but on the absence of male comparator groups in the enterprise. This is “formal equality”, an approachexpressly rejected by this Court in Andrews v.

Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, where theCourt refused to apply a rigid Diceyan analysis and declared, instead, that substantive equality is the premise underlying s. 15. [26] The trial judge’s approach is difficult to distinguish from the paradigmatic example of formalism in Bliss v. AttorneyGeneral of Canada, (SCC), [1979] 1 S.C.R. 183, which was specifically rejected in Andrews. There, the Court hadconcluded that legislation excluding pregnant women from unemployment benefits did not discriminate on the basis of sex, but on the

basis of pregnancy.[5] [27] Bliss was decided under s. 1(

b) of the Canadian Bill of Rights, S.C. 1960, c. 44. Its “similarly situated” “treatinglikes alike” approach — resulting in the conclusion that pregnancy-related discrimination is not based on sex because not all women arepregnant — was also rejected in Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1 S.C.R. 396: . . . a formal analysis based on comparison between the claimant group and a “similarly situated” group, does not assure a result thatcaptures the wrong to which s. 15(1) is directed . . . .

What is required is not formal comparison with a selected mirror comparator group,but an approach that looks at the full context, including the situation of the claimant group and . . . the impact of the impugned law . . . .[para. 40] (See also, Quebec v. A, at para. 346, rejecting the analysis in Nova Scotia (Attorney General) v.

Walsh, 2002 SCC 83 , [2002] 4S.C.R. 325.) [28] In this case, the trial judge’s analysis falls into precisely the same error as Bliss by holding, in effect, that thedistinction created by s. 38 is not based on sex because not all women are denied timely access to the scheme, only those in certainworkplaces. The relevant distinction created by s. 38 of the Act is between male employees and underpaid female employees, whether ornot those male employees are in the same workplace.

The trial judge’s approach erases the sex-based character of the legislativeprovisions and obscures the fact that the claimants disproportionately suffer an adverse impact because they are women (Taypotat, atpara. 21). [29] And the sex-based character of the distinction drawn by s. 38 is inescapable. That is because the two categories intowhich the Act sorts women — women in workplaces with male comparators, under s. 37, and those without such comparators, under s.38 — are themselves inextricably related to sex.

Only if we ignore the gender-driven bases for the two categories can it be said that thedistinction is based only on workplace and not on sex. Not only are both categories expressly defined by the presence or absence of menin the workplace, but, more fundamentally, both categories are set up to address disparities in pay between men and women.

Moreover,since women in workplaces without male comparators may suffer more acutely from the effects of pay inequity precisely because of theabsence of men in their workplaces, these categories single out for inferior treatment the group of women whose pay has, arguably, beenmost markedly impacted by their gender.

So the categories set up by ss. 37 and 38 of the Act draw distinctions based on sex both on theirface — that is, by their express terms — and in their impact. [30] The second question is whether that distinction is a discriminatory one, that is, whether it imposes burdens or deniesbenefits in a way that reinforces, perpetuates, or exacerbates disadvantage. [31] The discriminatory impact of the delay is clear.

The women targeted for the delay created by s. 38 (those inworkplaces with no male comparators), suffer the effects of pay discrimination — without a remedy — for the period of the delay, in thiscase six years. [32] The fact that the legislation did not create pay discrimination is irrelevant. In Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493, this Court held that “[i]t is not necessary to find that the legislation creates the discrimination existing insociety” to find a s. 15 breach (para. 84 (emphasis in original)).

There, as here, the law perpetuated the disadvantage of a protected groupthrough a legislated “denial of access to remedial procedures for discrimination”, remedial procedures that “they so urgently needbecause of the existence of discrimination against them in society” (Vriend, at paras. 97 and 84). [33] The legislature chose to act to address pay discrimination against women, but denied access by delaying it for agroup of women, leaving them, in comparison to male workers, paid less for longer.

Whatever the motives behind the decision, this is“discrimination reinforced by law”, which this Court has denounced since Andrews (p. 172). The fact, then, that women in one type ofworkplace — with male comparators — received a remedy promptly is not an answer to the question of whether women in another typeof workplace were also disadvantaged. It is no defence to a claim of discrimination by one group of women to suggest that another grouphas had its particular discrimination addressed. [34] There is no doubt that the claimants in this case will experience a considerable economic impact as a result of thedelay.

Occupational segregation and low wages “usually go hand in hand” (Final Report of the Pay Equity Task Force (2004), at p. 15).“[H]istorical attitudes towards the role of women” tend to “result in the undervaluation of ‘female jobs’ in comparison with those of men. . . when determining wage rates” (Report of the Committee of Experts on the Application of Conventions and Recommendations (2007),at p. 271). Put simply, “the more women are concentrated in a field of work, the less it pays” (Mary Cornish, “Closing the GlobalGender Pay Gap: Securing Justice for Women’s Work” (2007), 28 Comp. Lab.

L. & Pol’y J. 219, at pp. 224-25). And enterprises thatemploy mainly women tend to have lower pay rates (Oelz et al., at p. 18). So, as previously noted, the very women singled out fordifferential and delayed access to pay equity under this scheme may be the very ones most likely to experience its effects in a morepronounced way. [35] The fact that the Act was intended to help these women does not attenuate the fact of the breach. Purpose andintention are part of the s. 1 justification analysis.

Determining whether there is a breach focuses on the impact of, not motive for, thelaw (Andrews, at pp. 181-82; Quebec v. A, at para. 333). As a result, the trial judge’s finding that the delay was not based on theassumption that employees in female segregated workplaces were “less capable or . . . worthy of recognition or value as human beings oras members of Canadian society” (Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R.497, at para. 99) cannot sanitize the discriminatory impact (Quebec v.

A, at paras. 244, 327 and 330). [36] The impact of the delay created by s. 38, therefore, reinforced and perpetuated the historic economic disadvantageexperienced by women in workplaces without male comparators, amounting to a prima facie breach of s. 15(1) of the Charter.

[37] Quebec suggests that s. 15(2) could apply in this case to immunize s. 38 from the unions’ challenge under s. 15(1).In my respectful view, s. 15(2) has no application whatever to this case.

It states: Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantagedindividuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age ormental or physical disability. [38] The purpose of s. 15(2) is to “save ameliorative programs from the charge of ‘reverse discrimination’” (Alberta(Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37 , [2011] 2 S.C.R. 670, at para. 41; R. v. Kapp,2008 SCC 41 , [2008] 2 S.C.R. 483).

Reverse discrimination involves a claim from someone outside the scope of intendedbeneficiaries who alleges that ameliorating those beneficiaries discriminates against him.

It stands the purpose on its head to suggest thats. 15(2) can be used to deprive the program’s intended beneficiaries of the right to challenge the program’s compliance with s. 15(1).And it would be equally inconsistent with the purpose to suggest that legislation that has a discriminatory impact on a scheme’s intendedbeneficiaries, can “serve” or be “necessary to” any ameliorative purpose in the sense intended by this Court in Cunningham. [39] Section 15(2) is not a stand-alone defence to any and all claims brought under s. 15(1).

The purpose of s. 15(2) andthe reasoning underlying this Court’s decision in Kapp dictate that, for the government to invoke a s. 15(2) defence, there must first be aclaim by a person or group excluded from the program alleging that the exclusion is discriminatory. In this case, there is no such claim.The complainants in this case are women in workplaces without male comparators. They have not been excluded from the scheme. Onthe contrary, they have been expressly included but in a manner they claim has a discriminatory impact.

Indeed, Quebec’s argumentagainst a finding of discriminatory impact in this case is predicated on the fact that the scheme is intended to benefit women inworkplaces without male comparators.

And s. 1 of the Act leaves no doubt that the scheme aims to benefit “persons who occupypositions in predominantly female job classes”, without any qualifiers, and its second paragraph makes it clear that the claimants werealways part of that target group. [40] Even if a pay equity statute could be characterized as an “affirmative action” or “employment equity” programanticipated by s. 15(2), a highly debatable proposition, the women who have brought the s. 15(1) claim in this case are the verybeneficiaries of this scheme.

They are not arguing that they have been excluded from the scheme, they are arguing that the timeline inthe scheme applicable to them has a discriminatory impact. This is not a claim of “reverse discrimination”, it is a claim of discrimination,period. [41] The Act as a whole is, by its express terms, intended to apply to and benefit women in two kinds of workplaces —where male comparators exist, and where they do not. Different timelines have been set out for each.

The claim of discrimination arisesnot from the difference in the timelines, which is not the focus of the complaint, but from the extent of the delay resulting from thetimeline applicable to the claimants. To suggest that having different timelines means that one of those groups is not within the class of“intended beneficiaries” is, with respect, a misreading of the legislative scheme and of the concept of “reverse discrimination”. [42] This brings us to s. 1 of the Charter.

Quebec bears the burden of justifying the prima facie infringement of s. 15(1)by identifying a pressing and substantial objective and showing that, in furtherance of that objective, it did not disproportionality interferewith the Charter right. The first step is to identify the objective of the infringing measure, namely the legislatively mandated delay inpay equity in workplaces where there are no male comparators.

This delay occurred because of the combined effect of ss. 38 and 114 ofthe Act. [43] The essence of Quebec’s argument is that the pressing and substantial objective was to enact a scheme that createdan effective remedy for systemic pay discrimination for women who were outside the existing pay equity scheme. The delay was, itargued, necessary to finding the right approach. I see no reason for refusing to accept this as the objective of the delay caused by s. 38. [44] The next question is whether the delay is rationally connected to the purpose.

The Pay Equity Commission neededtime to develop a methodology, and the resulting regulation had to move through the necessary stages of executive and legislativeapproval. The issue was complex and required considerable research and analysis. The 1995 reports commissioned by the governmentgave no guidance to Quebec on how to measure gender-based inequity in private enterprises lacking male comparators. Nor did anysolution emerge as a result of the public consultations held during the legislative process. Moreover, there was scant policy experienceelsewhere to draw on for inspiration.

When the Act was adopted, there was little guidance from other Canadian jurisdictions forextending the benefits of pay equity legislation to female employees in workplaces without male comparators in the private sector. Theclosest equivalent in terms of coverage was Ontario’s Pay Equity Act, R.S.O. 1990, c. P.7, but it applied only to workplaces in the“public” sector.

I therefore accept that the delay in developing and implementing a credible methodology is rationally connected to theobjective of creating the possibility of an effective remedy. [45] As to minimal impairment, the question is whether the delay that resulted from the legislation impaired equalityrights as little as reasonably necessary to create the possibility of an effective remedy. [46] Quebec was seeking a wide-ranging and pioneering approach to pay equity for women in workplaces without malecomparators.

Where, as here, the government introduced, and gave effect to, an entirely new regime, a degree of delay is to be expected.Minimal impairment requires the government to narrowly tailor limitations to its pressing and substantial objective, but, as McLachlin J.held in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199: The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.

If the law falls within arange of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which mightbetter tailor objective to infringement . . . . [para. 160] In other words, governments enacting multi-faceted remedial regimes to protect constitutional rights should be given some degree oflatitude to accomplish the objectives sought through these initiatives (RJR-MacDonald, at para. 135; Irwin Toy Ltd. v. Quebec (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 927, at pp. 993-94; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624).

[47] But the government must demonstrate that, in the circumstances, it acted with reasonable diligence. The time framemust be calibrated to the nature and complexity of the issue, but it cannot be indefinite. [48] The fact that so many years elapsed between the adoption of the Act and the promulgation of the Regulation is, on itsface, troubling. The trial judge reviewed in considerable detail the reasons for the delay and found that it was not caused by a lack ofdiligence on Quebec’s part. There was ample evidence to support that factual finding.

In this case, a significant cause of the delay wasthat the Pay Equity Commission, the agency in charge of administering the Act, was itself only created in 1996 and was tasked withnumerous new duties. The move in 1996 from a complaints-based regime under s. 19 of the Quebec Charter to a proactive pay equityscheme meant that the Commission had to develop new strategies for implementation on multiple fronts. [49] As the trial judge found, the first proposal for a methodology to the Minister of Labour came in 2002 and was theresult of considerable effort from the Pay Equity Commission.

In the end, it was rejected because it did not conform to the conditions ins. 114. The Commission’s second proposal in 2004 to the Minister of Labour ultimately proved successful, and was followed closely bythe promulgation of the Regulation in 2005. While close to the line, in my view the record supports the conclusion that Quebec was notunreasonable in the steps it took to keep the delay within reasonable bounds. [50] And I would make the same observation regarding the unions’ complaints about the two-year grace period given toemployers under s. 38.

Just as the scheme contemplated a regrettable but necessary period of delay while a viable methodology wasdeveloped and approved, it also contemplated a two-year period for employers to determine how to implement the new regime in theirenterprises. Quebec struck an acceptable balance between the scheme’s objective in ensuring compensation, and the logisticalcomplexity of implementing a new system.

Again, although close to the line, in my respectful view the two-year grace period did notbring the length of the delay outside reasonable bounds. [51] The final step is proportionality, balancing the harm of the delay created by s. 38 against the benefit of waiting forthe implementation of the regime. [52] The negative consequences of the delay are clear: access to pay equity was postponed until May 5, 2007.

In the timethat elapsed between the adoption of the Act and the end of the two-year grace period, women in workplaces without male comparatorscontinued to experience pay inequity. [53] In my respectful view, however, the ultimate advantages of Quebec’s expanded approach outweigh the harm.Women in workplaces with no male comparators saw the creation of an effective, coherent remedy for systemic economic discriminationwhere none had previously existed.

The delay was serious and regrettable, but had the long-term benefit of resulting in the Act’smeaningful ability to address pay discrimination for a previously excluded group of female employees. [54] Nonetheless, the unions argue that Quebec cannot satisfy the proportionality test because of the absence ofretroactive payments covering the period of the delay. Quebec chose to make compensation available from the point in time at which aviable methodology had been developed. This represented a proper balancing of interests.

On the one hand, the scheme was designed tomake employers responsible for paying compensation once they had the tools to identify and measure pay inequity. On the other,employers would not be responsible for compensation before those tools were developed. As this Court held in RJR-MacDonald,proportionality does not require perfection, nor does legislation fail the proportionality test just because the claimants can “conceive of analternative which might better tailor objective to infringement” (para. 160).

The test is whether the balance Quebec struck falls within therange of “reasonable alternatives” (para. 160) and results in greater benefit than harm. In my view, it does. [55] The prima facie breach is therefore justified under s. 1. [56] I would dismiss the appeal with costs. English version of the reasons of Wagner, Côté, Brown and Rowe JJ. delivered by Côté J. — I. Overview [57] As Binnie J. noted in Newfoundland (Treasury Board) v.

N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at para. 30,and as the trial judge reiterated in the case at bar (2014 QCCS 4197, at para. 17 ), “[p]ay equity has been one of the mostdifficult and controversial workplace issues of our times.” This appeal provides a good illustration of how difficult it is to achieve suchan objective. [58] For many years, the situation of women in the workplace was characterized by significant inequality resulting fromprejudice, stereotyping and discrimination.

Such discrimination was described as systemic, because it [translation] “is cloaked innormality, so deeply imprinted on our attitudes and thinking is the gender-based division of social roles” (Journal des débats de laCommission des affaires sociales, vol. 34, No. 35, 1st Sess., 35th Leg., February 6, 1996, at p. 1). [59] This problem was magnified by occupational segregation. Women were often concentrated in a narrow range ofoccupations with characteristics commonly associated with female job classes.

The result was that these job classes were devalued andthat such employees were often underpaid. [60] Conscious of this problem, the Quebec legislature enacted the Pay Equity Act, S.Q. 1996, c. 43 (now CQLR,c. E-12.001) (“Act”), on November 21, 1996. The purpose of the Act, which is applicable to both the public sector and the private sector,is to “redress differences in compensation due to the systemic gender discrimination suffered by persons who occupy positions inpredominantly female job classes” (s. 1).

[ 61 ] The Act requires every public or private employer whose enterprise has between 10 and 49 employees to determine the adjustments in compensation required to afford the same remuneration, for work of equal value, to employees [6] holding positions in predominantly female job classes as to employees holding positions in predominantly male job classes (s. 34). [ 62 ] An employer whose enterprise has 50 or more employees must establish, in accordance with the Act , a pay equity plan to redress differences in compensation due to discrimination (ss. 10, 31 and 50). [ 63 ] As a general rule, employers that were subject to the Act when it came into force on November 21, 1997 had to determine the required compensation adjustments and make the necessary payments within four years, that is, by November 21, 2001 (ss. 37 and 71).

If an employer failed to do so within this time limit, the unpaid adjustments bore interest at the legal rate from that date (s. 71 para. 2). [ 64 ] At the time the Act was enacted, the Minister responsible for the Status of Women described it as an implementation statute ( Journal des débats de l’Assemblée nationale , vol. 35, No. 56, 2nd Sess., 35th Leg., November 21, 1996, at p. 3306), because its purpose was to uphold the right to pay equity already provided for in the Charter of human rights and freedoms , S.Q. 1975, c. 6 (now CQLR, c. C-12) (“Quebec Charter ”): 19.

Every employer must, without discrimination, grant equal salary or wages to the members of his personnel who perform equivalent work at the same place . . . . [ 65 ] In enacting the Act , the legislature chose to go further than the Quebec Charter and to extend the application of the Act to employees working in enterprises in which it was impossible to make comparisons with predominantly male job classes. Indeed, such employees could not benefit from s. 19 of the Quebec Charter , since comparisons under that

section were limited to employees “who perform equivalent work at the same place ”. Although there were of course male employees in the enterprises in question, their compensation was also affected by systemic gender discrimination, because they worked in predominantly female occupations.

A comparison with the compensation of male co-workers would therefore be of no assistance in ensuring that the enterprise’s female employees were paid compensation that was free of discrimination. [ 66 ] Furthermore, under s. 19 of the Quebec Charter , an employee had to file a complaint and prove that his or her remuneration was discriminatory. This individual complaint scheme proved inadequate to address a systemic issue like that of pay equity.

In the Act, a proactive scheme was therefore established under which the employer was required to review its own situation and ensure that the compensation it paid was free of prejudice and discrimination. [ 67 ] Quebec broke new ground when it enacted the Act , becoming the first province to include private sector enterprises without predominantly male job classes in the scope of pay equity legislation. However, a method for determining the adjustments required in such enterprises remained to be developed.

One thing is clear from the reports of expert panels and numerous consultations: no concrete solution had been proposed for determining the compensation adjustments required in these enterprises. [ 68 ] The legislature thus opted to proceed by way of regulation, as had been recommended by most of the experts and stakeholders who were consulted. This meant that the Act could be passed quickly so as to guarantee pay equity for most employees.

The Commission de l’équité salariale (“Commission”) (now the Commission des normes, de l’équité, de la santé et de la sécurité du travail) could then establish a solution by way of a regulation that would be submitted to the government to be examined and then made ( s. 114 of the Act). The employers concerned would then have to determine and pay the required compensation adjustments within two years of the coming into force of the regulation ( s. 38 of the Act). [ 69 ] It took just over five years for the solution in question to be developed and adopted.

There were several reasons for this delay, as I will explain below. For one thing, the Act required the Commission to base its solution on job classes in enterprises in which a pay equity plan had already been completed. The Commission therefore had to wait for the completion of an initial pay equity exercise before it could start developing the regulation. Moreover, because of the complexity of the problem, the Commission had to appoint a consulting firm, produce documents and reports, and hold various consultations.

The Regulation respecting pay equity in enterprises where there are no predominantly male job classes , (2005) 137 G.O. II, 977 (now CQLR, c. E-12.001, r. 2), finally came into force on May 5, 2005, and the employees to whom it applied were entitled to compensation adjustments as of May 5, 2007. II. Arguments of the Parties [ 70 ] The appellants represent employees working for enterprises in which there are no predominantly male job classes, childcare centres in particular.

Under ss. 13, 38 and 114 of the Act , such employees had to wait until May 5, 2007 to obtain compensation adjustments, whereas employees of enterprises that had male comparators were entitled to adjustments as of November 21, 2001. [ 71 ] The appellants argue that, because the compensation adjustments were not retroactive to November 21, 2001, this delay was discriminatory, and contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms (“ Charter ”).

They add that it cannot be justified under s. 1, because it did not have a pressing and substantial objective and was not proportional having regard to its effects. [ 72 ] The legislative provision the appellants are challenging is s. 38 of the Act , which provides that the payment of adjustments to employees working in enterprises with no predominantly male job classes would depend on the date when the regulation was made.

The appellants submit that s. 38 is unconstitutional because the legislature did not provide that the compensation adjustments would be retroactive should the regulation’s coming into force date cause a delay in relation to the adjustments granted to employees working in enterprises with predominantly male job classes. Thus, what is in issue is the absence of retroactivity, not a failure on the government’s part to act promptly to make its regulation under s. 114. [ 73 ] The appellants ask this Court to declare s. 38 of the Act to be invalid and of no force or effect.

The time limit provided for in s. 37 would therefore apply to the employees they represent, who could then obtain compensation adjustments retroactive

to November 21, 2001. [74] The respondent submits that s. 38 of the Act does not create a discriminatory distinction based on an enumerated oranalogous ground under s. 15(1) of the Charter. Even if it did, which the respondent denies, the distinction would be saved by s. 15(2) ofthe Charter. The respondent also argues that s. 38 is a reasonable limit prescribed by law that can be demonstrably justified under s. 1 ofthe Charter. III.

Judicial History [75] Following an exhaustive review of the evidence, Yergeau J. of the Quebec Superior Court, in a very well-reasonedjudgment, concluded that s. 38 of the Act should not be declared to be invalid, and dismissed the appellants’ application. He found on abalance of probabilities that the distinction created by that

section was based not on sex, but on the fact that the enterprises in questionhad no predominantly male job classes that would allow for comparison. The delay had been caused by difficulties flowing from thisreality, not by any negligence or failure to act on the government’s part (paras. 137-38, 198 and 242). [76] Yergeau J. identified a number of factors that accounted for the delay in developing a method for calculating thenecessary compensation adjustments for employees holding positions in enterprises with no male comparators: [translation] A variety of factors, including (

a) the delay in implementing equity in [enterprises with male comparators] asin the government itself, (

b) the novel character of the application of equity to [enterprises with no male comparators], (

c) a lack ofCanadian legislative precedents, (

d) the very structure of

section 114 of the Act, (

e) the scheme of the [Act], under which pay equity isnot meant to become an exercise in levelling compensation by importing salary structures from one enterprise to another, (

f) a lack ofconcrete suggestions from labour organizations and certified associations, and (

g) the 2003 decision not to amend

section 114 of the Actfor strategic reasons, caused the Regulation respecting pay equity to be delayed. [para. 137] [77] Yergeau J. also found that s. 38 of the Act did not have a discriminatory impact, as it did not perpetuate prejudice ora stereotype. On the contrary, the legislature had recognized from the outset the systemic discrimination that affected employees holdingpositions in enterprises with no male comparators, and had chosen to confer the protection of the Act on this group that previously had noremedy under s. 19 of the Quebec Charter. He argued that this was the opposite of prejudice. [78]

Section 38 of the Act was therefore valid and consistent with s. 15(1) of the Charter. [79] The Quebec Court of Appeal, per Vézina, St-Pierre and Émond JJ.A., upheld the trial judge’s decision and expressedcomplete agreement with his reasons (2016 QCCA 424). IV. Issue [80] The main issue is whether, because the compensation adjustments were not to be paid retroactively, the additionaltime that was needed to establish a method of calculation to be applied by enterprises with no male comparators in order to implementpay equity violated the right to substantive equality guaranteed by s. 15(1) of the Charter. V.

Background and Legislative History [81] As McIntyre J. noted in Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143: . . . the greatly expanded role of women in all forms of industrial, commercial and professional activity led to muchinequality and many forms of discrimination. [p. 172] [82] Women historically faced disadvantages in the labour market, both in hiring and in the performance of their duties.These disadvantages were reflected in

part in their conditions of employment and in their remuneration, which was often less than that oftheir male co-workers: this constituted systemic discrimination. Thus, less value was attached to work associated with women than towork associated with men even where, objectively, the work was of equal value. A. Origins of the Pay Equity Act [83] In 1951, in an effort to remedy this problem, the International Labour Organization adopted the Conventionconcerning Equal Remuneration for Men and Women Workers for Work of Equal Value (No. 100), Can.

T.S. 1973 No. 37, which laiddown the fundamental principle of equal pay for work of equal value (art. 2). In this convention, each member state undertook to takemeasures to ensure the objective appraisal of all jobs on the basis of the work to be performed (art. 3) rather than of prejudice. Canadaratified the convention in 1972, and it is also a party to several other international instruments that reaffirm this principle, including theInternational Covenant on Economic, Social and Cultural Rights, Can.

T.S. 1976 No. 46, adopted by the United Nations GeneralAssembly (accession in 1976) and the Convention on the Elimination of All Forms of Discrimination against Women, Can. T.S. 1982No. 31 (ratification in 1981). [84] In Canada, Ontario was the first province to enact pay equity legislation, which it did in 1951 with The FemaleEmployees Fair Remuneration Act, 1951, S.O. 1951, c. 26.

Quebec followed suit in 1964 in enacting the Act respecting discrimination inemployment, S.Q. 1964, c. 46, which provided for an individual remedy in cases involving discrimination in hiring or in conditions ofemployment. [85] Those statutes addressed the most obvious cases of discrimination, but they did not create a right to equal pay forwork of equal value. Quebec would be the first province to act in this regard when it enacted the Quebec Charter on June 27, 1975: 19.

Every employer must, without discrimination, grant equal salary or wages to the members of his personnel who performequivalent work at the same place.

A difference in salary or wages based on experience, seniority, years of service, merit, productivity or overtime is not considered discriminatory if such criteria are common to all members of the personnel. . . . [ 86 ] However, it quickly became clear that wage discrimination was a systemic problem that could not be resolved by means of the individual remedy provided for in the Quebec Charter : [ translation ] Although the Charter can be used to rectify certain situations, its overall impact on the achievement of pay equity is thus limited. (Comité d’élaboration du projet de loi, Document d’orientation: Une loi proactive sur l’équité salariale (1995) (“Policy Paper”), reproduced in A.R., vol.

III, at p. 11.) [ translation ] . . . this path is inappropriate in the face of a problem that is systemic, that is, that reflects widespread and enduring practices and behaviours in the labour market. (Comité de consultation en regard à la loi proactive sur l’équité salariale, Rapport final: Une loi proactive sur l’équité salariale (1995) (“Final Report”), reproduced in A.R., vol.

III, at p. 84.) [ 87 ] In addition, although s. 19 of the Quebec Charter made it possible for an employee to file an individual complaint, such a complaint involved a process that was slow, costly and largely inaccessible to women who were not represented by a union ( Journal des débats de la Commission des affaires sociales (February 6, 1996), at pp. 1-2). This process had the perverse effect of entailing individual confrontations between the employer and the employee concerned.

Pay equity legislation would shift the burden and would place the employer under an obligation to pay non-discriminatory compensation to everyone without a complaint or a remedy being needed. [ 88 ] In 1992, following a public consultation, the Commission des droits de la personne acknowledged the limitations of the complaint scheme under the Quebec Charter and recommended the enactment of proactive pay equity legislation ( Journal des débats de la Commission des affaires sociales (February 6, 1996), at p. 2).

The Secrétariat à la condition féminine then set up a committee of experts for the preparation of a bill. In June 1995, this committee submitted the Policy Paper to the responsible minister; it, too, recommended the enactment of proactive pay equity legislation and identified the major elements such legislation should include.

The Policy Paper’s content formed the basis for the current Act . [ 89 ] At the time, similar proactive legislation was already in force in several Canadian provinces, including Manitoba (1985), Ontario (1987), Nova Scotia (1988), Prince Edward Island (1988), Newfoundland (1988), New Brunswick (1989) and British Columbia (1995). Ontario’s pay equity statute was the only one of these that applied to the private sector as the committee proposed in the Policy Paper.

However, the committee noted that Ontario, on whose experience it was drawing because of that province’s pioneering role in pay equity, had preferred to exclude private businesses with no male job classes from the scope of its legislation. [ 90 ] The authors of the Policy Paper asserted that the Act should have the broadest possible scope. They therefore recommended going further than the Ontario legislation and the Quebec Charter and targeting enterprises with no male comparators.

The committee of experts acknowledged that this objective would be difficult to achieve, though: [ translation ] On this subject, it is important to note from the outset that in an economy like ours, the general determination of compensation is a decentralized process. Each enterprise is free to fix the compensation that will be paid to its employees, and even when enterprises are unionized, conditions of employment are negotiated with each employer separately. This is in fact why the first legislative provisions on pay equity confined this exercise to the enterprise itself.

But it goes without saying that in the context of female job ghettos, pay equity cannot be achieved within the enterprise. Therefore, unless a completely different solution is applied, for example raising the minimum wage, it must be acknowledged that achieving pay equity in such enterprises requires going outside the enterprise. (Policy Paper, at p. 33) [ 91 ] While some possible solutions were touched on, they were not examined in detail, and the committee of experts proposed no concrete solution in this regard in its recommendations.

The committee therefore arrived at the following final recommendation, which it is important to reproduce in full: [ translation ] 5- that, in the case of private sector enterprises in which there are no, or not enough, male jobs to serve as comparators for all the female jobs, the responsible authority recommend formulas for compensation adjustments for those jobs in a report to be submitted to the responsible minister, which must be the subject of consultations with the enterprises concerned, and that the appropriate formulas then be prescribed by a government regulation, which may also set the time limit for the enterprises in question to make the first compensation adjustments on this basis; (Policy Paper, at p. 64) [ 92 ] In short, if the goal was for the Act to apply to enterprises in which there were no predominantly male job classes, additional time would be needed in order to consider and develop a method of comparison for such enterprises. [ 93 ] A second committee held a public consultation in which about 30 women’s organizations, unions, employer organizations, representatives of cultural communities, and compensation experts participated.

The Final Report was submitted to the responsible minister on December 1, 1995. In it, the provisions the committee believed should be included in the legislation were set out and explained. The recommendation concerning enterprises without internal male comparators remained essentially unchanged:

[ translation ] [Recommendation No. 23] In the case of private sector enterprises in which there are no, or not enough, predominantly male job titles to serve as comparators for all the predominantly female jobs, the Commission de l’équité salariale will recommend formulas for compensation adjustments for those jobs in a report to be submitted to the responsible minister. That report must be the subject of consultations with enterprises, employees or their representatives, and women’s groups. The appropriate formulas will then be prescribed by a government regulation, which may also set the time limit for the enterprises in question to make the

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