On October 12, 2016, the Court of Appeal rendered a highly-awaited decision on the constitutionality of the legislative scheme relating to the maintenance of pay equity implemented by the Act to Amend the Pay Equity Act (2009).
In its decision, the Court of Appeal upheld the decision of the Superior Court which ruled that sections 76.3 and 76.5 of the Pay Equity Act (la « PEA ») are «“invalid, unenforceable, null and void”.
The Court of Appeal analyzed whether Sections 76.3 and 76.5 PEA violate section 15(1) of the Canadian Charter, which prohibits inter alia, sexual discrimination. The Court concluded that the PEA establishes a distinction based upon sex and “that it contains terms that have the impact of delaying financial adjustments accruing to victims of discrimination, depriving them not only of that to which they are legally entitled, but also perpetuating their victim status due to inequality.” (Our underlining)
The Court added that the posting provided for at Section 76.3 does not allow for “disclosure of available information in a manner that allows the reader to properly assess good or poor performance for the period under review”, in particular since it fails to provide sufficient information concerning dates of changes to employees so as to allow for a proper determination as to whether the assessment has been properly conducted.
This situation violates section 15(1) de la Canadian Charter : “[by acting in this manner, the legislature has created an arbitrary disadvantage and perpetuates discrimination, as seen from the viewpoint of the reasonable person. The discriminatory impact that should have been removed by the legislation remains.” (Our emphasis.)
The Court also noted that “ the absence of retroactivity coupled with an adjustment every five years and an inadequate posting process does not meet the threshold test.” This violation of section 15 (1) of the Canadian Charter cannot be justified under section 1 of the Charter. The Court came to the same conclusions in its analysis in the light of the Quebec Charter.
The Court of Appeal also ruled unconstitutional the second paragraph of Section 103.1 pursuant to which the Commission may not determine pay equity adjustments prior to the date of posting set forth at Section 76.5, based on its earlier reasoning.
See: Québec (Attorney-General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2016 QCCA 1659