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On May 10, 2018, the Supreme Court of Canada [“SCC” or the “Court”] rendered its judgment for Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18?[Centrale], an appeal of a provision in Quebec’s Pay Equity Act?SQ 1996 [the “Act”]. Section 38 legislatively created a delay in the relief afforded to some groups of women under the Act. The appellants, several Quebec unions, asserted that the trial judge and Quebec Court of Appeal were incorrect in dismissing their claim that the delayed implementation of the Act?in workplaces where female-dominated job classes have no male comparator group was an unjustified violation of section 15(1) of the Canadian Charter of Rights and Freedoms?[Charter]. On the same day, the Court also released its judgment for another appeal relating to the Act. In Quebec (AG) v Alliance du personnel professionnel et technique de la sante et des services sociaux et al?2018 SCC 17?[Alliance], the majority held that several of the 2009 amendments to the Actwere themselves in violation of section 15(1) (see my previous post on Alliance here).
Together, the two judgements reveal how the SCC, in grappling with the complex issue of pay equity implementation, continues to wrestle with the parameters of the current section 15(1) test. The result is not clear-cut. While Alliance?produced a clear majority in a 6-3 breakdown of the SCC’s reasons, in Centrale?we see a far more divided court.
What do you do when there are no men around?
Although the overarching goal of Quebec’s pay equity legislation – namely, to address and redress the systemic pay discrimination faced by women in the workforce – may have been simple in principle, it has proven to be much more challenging to implement. Depending on the presence or absence of male comparator groups, the task of identifying pay gaps, creating pay equity plans, and implementing adjustments can falter in the face of insufficient data. As a result of this variation, the Act?creates two categories of female workers: those in workplaces with male comparator groups and those in workplaces without these groups. The focus of Centrale?is on the latter: female-dominated work classes without male comparators in the same workplace.
When the Act was enacted in 1996, there was no methodology in place to address how to rectify underpayment for female job classes with no male comparator group in the same workplace. Section 114 of the Act?delegated the research for determining the appropriate methodology to the Pay Equity Commission. Once the Commission had concluded its research and passed a regulation, workplaces with no male comparator groups would be required under section 13 to create a pay equity plan. Instead of being liable for adjustments back to 1996, however, section 71 stipulated that adjustments were only effective from the date that the pay equity exercise was supposed to be completed. Section 38 further required that that adjustments be made within two years of the regulation coming into force.
This cascading procedure created additional delay since the start dates for many of the deadlines articulated in the Actonly began once a regulation had been passed. The Pay Equity Commission established a methodology in 2003, but this was not circulated until 2005. This was followed by a two-year implementation period, which meant that women who worked in female-dominated workplaces with no male comparator groups did not have access to relief under the Act?until May 5, 2007. It was this extended delay that the appellants challenged as a violation of section 15(1).
On what grounds?
In Centrale, the majority (Justices Abella, Moldaver, Karakatsanis, and Gascon, plus Chief Justice McLachlin dissenting in the result) and dissent (Justices C?té, Wagner, Brown, and Rowe) disagree over whether the first stage of the section 15(1) analysis is satisfied. This step seeks to establish whether the impugned provision creates a distinction based on an enumerated or analogous ground. (For a more fulsome discussion of Justice Abella’s affirmation of the two-step section 15(1) test she had previously adopted in Kahkewistahaw First Nation v Taypotat 2015 SCC 30, see my previous post on Alliance.) If no distinction is found, or if there is a distinction but it is based on something other than an enumerated or analogous grounds, then the section 15(1) analysis ends at this step.
A slim majority in Centrale?finds that the impugned provision does indeed create a distinction based on sex rather than workplace, as the government of Quebec argued. In her reasons (dissenting in the result), Chief Justice McLachlin best articulates the argument for a distinction based on sex (rather than one based on workplace): “the legislated delay imposed by the provision creates a distinction based on sex because it distinguishes between women in female-dominated workplaces — the focus of s. 38 — and male employees in general, whose presence is the lynchpin for higher wages in mixed workplaces” (Centrale, para 155). Where such an underlying distinction is overlooked, Chief Justice McLachlin notes that “the promise of substantive equality that animates s. 15(1) is betrayed” (Centrale, para 155). In other words, the whole work of section 15(1) would be rendered ineffective if analysis was limited to distinctions that could very superficially be identified as based on enumerated or analogous grounds.
On the other hand, the dissent fears that Justice Abella’s reasons create too low of a bar for the first step of the section 15(1) analysis. If the work of the section shifts to the justification stage under section 1, they argue, then this effectively removes the substantive function of section 15(1) altogether. The dissent states that Justice Abella’s section 15(1) analysis creates the possibility that every provision in a piece of pay equity legislation could be found to be discriminatory and therefore in need of justification by the government. To be sure, there is indeed a fine balance to be struck between respecting parliamentary supremacy and the role of the in assuring that statutes do not violate the Charter –?but a finding of the latter certainly does not mean a transgression of the former.
Justice Abella finds that the trial judge fell into the same trap as the SCC itself did in the pre-Charter?case of Bliss v Canada (AG)? 1 SCR 183, [Bliss]. To a contemporary reader, the case is a baffling one and epitomizes, as Justice Abella notes in Centrale, the kind of rigid formality than runs contrary to section 15’s goal ofsubstantive equality(Centrale, para 27). In Bliss, the claimant was denied full employment benefits under section 30 of the Unemployment Insurance Actbecause her pregnancy caused her to leave the workforce. The SCC held that the legislation did not violate her equality rights under section 1(b) of the?Canadian Bill of Rights?because the distinction was made not on the grounds of sex, but rather on the grounds of pregnancy. What the SCC failed to do in that earlier case was to push further to acknowledge the fact that only women can become pregnant; a distinction made on the ground of pregnancy is thus also a distinction made on the grounds of sex.
The dissent defends itself against Justice Abella’s accusation that they adhere to the misguided formalism of Blissby stating that the narrow approach of the trial judge focused on the distinction created by section 38 of the Act– and this distinction was based on workplace, not sex. But is difficult to see how this argument differs from Bliss, and both the reasons of Justice Abella and Chief Justice McLachlin are far more compelling. The latter writes that the delay “bolstered the very power imbalance between employers and female employees that lies at the heart of gender-based pay disparities, thereby perpetuating systemic inequality” (Centrale, para 156).
I find that the dissent falls victim to taking the provision at face value only, without delving deeper to consider how denying women access to remedies for pay inequity perpetuates the systemic discrimination they have faced for too long. Perhaps it is the language of the Act, and specifically the use of the term “male comparator” that sets the dissent on an exercise of comparison (which, it should be noted, is not required under the current section 15(1) test). It is not exculpatory to state that since the Act?did not create the discrimination in the first place, its provisions cannot violate section 15(1). As Justice Abella notes, perpetuation of a historic disadvantage through denial of remedial procedures is sufficient to satisfy the second step of the section 15(1) analysis (Centrale, paras 35-6).
Bliss?was overturned in 1989, and yet it remains a perplexing decision within broader equality rights jurisprudence. The modern reader may explain the SCC’s ruling in Bliss?as a product of its time. But the dissent in Centrale?suggests that the task of determining whether the impugned provision creates a distinction and on what grounds remains an area where erring too much on the side of deference to the legislature may impede a rigorous substantive assessment which lies at the heart of section 15(1).
The (now former) Chief Justice Doth Protest
In her reasons, Justice Abella finds that while the impugned provision causing a six-year delay for women in workplaces without male comparator violates section 15(1), the government of Quebec has justified the delay under section 1. Because of the novelty and complexity of the issue – no methodology had been previously established in other jurisdictions, public consultations had not provided useful guidance, and there was little pre-existing research – the government needed time to create an appropriate methodology. Ultimately, Justice Abella finds that while the delay was “serious and regrettable” (Centrale, para 53), it was not owing to Quebec’s lack of diligence, but rather to the difficulty of the task.
While agreeing with Justice Abella that section 38 and the resultant delay does constitute a violation of section 15(1), Chief Justice McLachlin departs from her colleagues by finding that the impugned provision cannot be upheld under section 1. For this reason, she finds that the appeal should be allowed. Her reasons are brief but compelling, though perhaps do not afford the deference to a legislature tackling what is a notoriously complex question.
Chief Justice McLachlin echoes the concern of Abella and the majority in Alliance: the Quebec government’s delay was in part due to consultations with employers that were meant to bolster compliance with the Pay Equity Commission’s regulations. For the government to pursue compliance at the expense of a protected group, however, requires justification that Chief Justice McLachlin does not believe the government has provided. She goes further, stating that to accept compliance as such a pressing and substantial concern that it justified a section 15(1) breach would be “to accept that obeying pay equity laws is an option that can be negotiated and that the very segment that perpetuates systemic pay inequities — the employers — should be able to perpetuate them as the price of accepting the law” (Centrale, para 157). Again, in Alliancethe majority found that it was unacceptable for the government to put the concern with employer compliance before the enforcement of equality rights. Chief Justice McLachlin finds that the delay was at least in part a result of the government’s negotiation with employers, and this part of the delay does not pass the minimal impairment stage of the Oakes?test.
Chief Justice McLachlin’s concern that employers may direct consultations and delay the implementation of pay equity legislation while female workers continue to be underpaid for their work is a valid one. With different facts, she may have been able to articulate her concerns more persuasively. But while the dissent errs too much on the side of deference to the legislature, Chief Justice McLachlin may be demanding too high degree of perfection in implementation that is not required in the proportionality stage of the Oakes test. In an ideal world, there would have been no delay. (In an ideal world, of course, there would have been no systemic pay discrimination in the first place.) But the complexity of implementing pay equity for female-dominated work classes without male comparator groups necessitated an approach that was not haphazard, and such a considered approach, unfortunately, required time.
Dismantling systemic pay discrimination is no small task. Centrale?and Alliance?together remind us of how complex the section 15(1) analysis can be, and how this analysis must be grounded in the specific context of the impugned provisions being challenged. With?Centrale, we also see how the implementation of pay equity legislation is a divisive topic. On the whole, no real clarification or significant change comes out of these decisions vis-à-vis the section 15(1) analysis. For female workers facing systemic pay discrimination in workplaces without male comparators, the SCC has ruled that relief is on its way – it just took longer than they would have liked.