APPEAL DISMISSED

Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 – Constitutional law — Charter of Rights — Right to equality

On appeal from a judgment of the Quebec Court of Appeal (2016 QCCA 424) affirming a decision of Yergeau J. (2014 QCCS 4197).

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 to 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. The 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. The Court of Appeal of Quebec dismissed the appeal.

Held (8-1): 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 a remedy — for the period of the delay. The fact that the legislation did not create pay discrimination is irrelevant. The law has a discriminatory impact because it perpetuates the disadvantage of a protected group through a legislated “denial of access to remedial procedures for discrimination”. Nor does the fact that the Act was intended to help women, attenuate the fact of the breach. Purpose and intention are part of the s. 1 justification analysis. Determining whether there is a breach focuses on the impact of, not motive for, the law. And the impact is clear. Occupational segregation and low wages usually go hand in hand. There is no doubt that the claimants will experience a considerable economic impact as a result of the delay. And the very women singled out for differential and delayed access to 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 under s. 15(1). The purpose of s. 15(2) is to save ameliorative programs from the charge of “reverse discrimination”. Reverse discrimination involves a claim from someone outside the scope of intended beneficiaries who alleges that ameliorating those beneficiaries discriminates 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 intended beneficiaries of the right to challenge the program’s compliance with s. 15(1). For the government to invoke a s. 15(2) defence, there must first be a claim by a person or group excluded from the program alleging that the exclusion is discriminatory. In this case, the complainants have been expressly included but in a manner they claim has a discriminatory impact. This is not a claim of “reverse discrimination”, 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 of the delay caused by s. 38 was to enact a scheme that created an effective remedy for systemic pay discrimination for women working in places where there are no male comparators. The issue was complex and required considerable research and analysis and there was scant policy experience elsewhere to draw on for inspiration. Therefore, the delay in developing and implementing a credible methodology is rationally connected to the objective of creating the possibility of an effective remedy. As to minimal impairment, where, as here, the government introduced, and gave effect to, an entirely new regime, a degree of delay is to be expected. But the government must demonstrate that, in the circumstances, it acted with reasonable diligence. The time frame must be calibrated to the nature and complexity of the issue, but it cannot be indefinite. While close to the line, the record supports the conclusion that Quebec was not unreasonable in the steps it took to keep the delay within reasonable bounds. The Pay Equity Commission in charge of administering the Act, was only created in 1996 and had to develop new strategies for implementation on multiple fronts. Althought the delay was serious and regrettable, women in workplaces with no male comparators saw the creation of an effective, coherent remedy for systemic economic discrimination where none had previously existed. The ultimate advantages of Quebec’s expanded approach outweigh the harm. 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 of Rights and Freedoms. The distinction made in s. 38 is not based on sex, because the difference in compensation does not result from the fact that the affected employees are women. Certain of those who are meant to benefit from the Act — employees of enterprises that have no predominantly male job classes — wish to be paid in accordance with the same timetable that applies to others who are also meant to benefit from the Act — employees of enterprises that do have predominantly male job classes. An analysis of the evidence as a whole leads to the conclusion that the basis for the differential treatment affecting the employees in question lies instead in the lack of male comparators in their employers’ enterprises. It cannot be concluded that every distinction drawn by a pay equity statute is necessarily based on sex. Such a conclusion would deprive trial judges of any discretion in their assessment of the evidence and would make the first step 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 factors identified in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 — (1) the nature of the affected interest, (2) a pre‑existing disadvantage, (3) a correspondence with actual characteristics and (4) the impact on other groups — 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 paid an amount that reflects the fair value of their work and receiving compensation based on a prejudice‑free evaluation that focuses on the objective value of their work. This right is all the more important because women working in enterprises with no male comparators have a significant pre‑existing disadvantage, one that is documented, is not in dispute and is in fact recognized from the outset in s. 1 of the Act. 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 discrimination already existed in the labour market and that these differences were maintained in the private sector. The Act and the time limits it establishes 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 employees working in enterprises with no male comparators. However, it was recognized from the outset that more time would be needed to develop an adequate method for calculating compensation adjustments. Although the Act may not be perfect, it has had an undeniably ameliorative effect on the employees in question. The decision to enact the Act quickly and to guarantee pay equity for a large number of employees working in more than 225,000 enterprises in Quebec obviously had a significant positive effect on those employees. It goes without saying that when a government develops a complex scheme such as that of pay equity legislation, it will not always be able to ameliorate the conditions of every member of a disadvantaged group at the same time and in the same way. An obligation of result cannot be imposed on the legislature in this regard, as that could cause the enactment of legislation to be postponed, to everyone’s detriment. Furthermore, the legislature was entitled to proceed by way of regulation to develop an innovative, simple and practical method for valuating differences in compensation for employers that have no predominantly male job classes. The different time limits provided for do not perpetuate prejudice or a stereotype. The impugned provision does not have a discriminatory impact, as it instead narrows 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 is questionable whether the government’s objective of ensuring employer compliance is pressing and substantial and therefore capable of justifying 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 lengthy period in order to ensure that the scheme was one that employers would accept and with which they would comply. The government has not demonstrated that other less impairing options were not available. It has also not established that the denial of benefits to the affected and already marginalized women is proportionate to the public interest in denying them a remedy.

Reasons for judgment: Abella J. (Moldaver, Karakatsanis and Gascon JJ. concurring), Côté J. (Wagner, Brown and Rowe JJ. concurring)

Dissenting Reasons: McLachlin C.J.

Neutral Citation: 2018 SCC 18

Docket Number: 37002

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17078/index.do

APPLICATIONS FOR LEAVE TO APPEAL GRANTED

 

37748

Minister of Citizenship and Immigration v. Alexander Vavilov (F.C.)

 

 

Administrative law – Judicial review – Standard of review

 

 

The applicant, Mr. Vavilov, was born in Canada in 1994. His parents, who were then Canadian citizens, were undercover spies from Russia. In 2010, they were arrested in the U.S. and returned to Russia in a spy swap. On August 15, 2014, the Registrar of citizenship informed Mr. Vavilov that a certificate of Canadian citizenship issued to him in 2013 was cancelled and that the Canadian government no longer recognized him as a Canadian citizen. The decision was based on a report of a citizenship analyst, which concluded that his parents were not lawfully Canadian citizens or permanent residents at the time of his birth, and they were, at that time, “employees or representatives of a foreign government” for the purposes of s. 3(2)(a) of the Citizenship Act.

The Federal Court dismissed Mr. Vavilov’s application for judicial review. It ruled that s. 3(2)(a) targets representatives and employees in Canada of foreign governments, regardless of diplomatic or consular status. A majority of the Federal Court of Appeal allowed the appeal and quashed the decision of the Registrar as unreasonable. It concluded that given the text, context and purpose of the provision, s. 3(2)(a) targets only foreign government employees who benefit from diplomatic immunities or privileges.

 

 

37896

Bell Canada, Bell Media Inc. v. Attorney General of Canada - and - Canadian Radio-Television and Telecommunications Commission (F.C.)

 

 

Administrative law – Broadcasting – Simultaneous Substitution

 

 

The CRTC issued an Order excluding the Super Bowl from the simultaneous substitution regime to which it has been subject for many years under the Simultaneous Programming Service Deletion and Substitution Regulations, S.O.R/2015-240. Under that regulatory regime, the Canadian broadcaster of the Super Bowl made requests to ensure that the Super Bowl was broadcast in Canada with Canadian commercials on both Canadian and American channels. The CRTC’s determination that simultaneous substitution for the Super Bowl is not in the public interest means that, as of January 1, 2017, Canadians watching the Super Bowl on Canadian stations see Canadian commercials, while those watching it on American stations see American commercials. The applicant had entered into an agreement with the National Football League (“NFL”), granting the applicant an exclusive license to broadcast the Super Bowl in Canada through to February 2020. The applicant recovers the costs of the license by selling to Canadian businesses advertisements can be inserted into the Super Bowl broadcast on both Canadian and American stations. The applicant and the NFL challenged the jurisdiction of the CRTC to issue the Order on the basis that it conflicts with Canadian broadcasting policy and regulations; targets a specific program, applies changes to the regulatory regime retrospectively to the detriment of vested rights, and is contrary to the Copyright Act,R.S.C. 1985, c. C-42 and Canada’s international trade obligations. The Federal Court of Appeal dismissed those appeals.

 

 

37897

National Football League, NFL International LLC and NFL Productions LLC v. Attorney General of Canada - and - Canadian Radio-Television and Telecommunications Commission (F.C.)

 

 

Administrative law – Broadcasting – Simultaneous Substitution

 

 

The CRTC issued an Order excluding the Super Bowl from the simultaneous substitution regime to which it has been subject for many years under the Simultaneous Programming Service Deletion and Substitution Regulations. Under that regulatory regime, the Canadian broadcaster of the Super Bowl made requests to ensure that the Super Bowl was broadcast in Canada with Canadian commercials on both Canadian and American channels. The CRTC’s determination that simultaneous substitution for the Super Bowl is not in the public interest means that, as of January 1, 2017, Canadians watching the Super Bowl on Canadian stations see Canadian commercials, while those watching it on American stations see American commercials. The applicant, as copyright holder, had entered into an agreement with Bell Canada and Bell Media Inc. (“Bell”), granting Bell an exclusive license to broadcast the Super Bowl in Canada through to February 2020. Bell recovers the costs of the license by selling to Canadian businesses advertisements can be inserted into the Super Bowl broadcast on both Canadian and American stations. The applicant and Bell challenged the jurisdiction of the CRTC to issue the Order on the basis that it conflicts with Canadian broadcasting policy and regulations; targets a specific program, applies changes to the regulatory regime retrospectively to the detriment of vested rights, and is contrary to the Copyright Act,and Canada’s international trade obligations. The Federal Court of Appeal dismissed those appeals.

 

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

 

37883

Raymond John Untinen v. Her Majesty the Queen (B.C.)

 

 

Criminal law – Evidence

 

 

The complainant described a sudden unprovoked beating by Mr. Untinen while restrained by him on the floor of his apartment, followed by a sexual assault, confinement on his bed, followed by another sexual assault and further confinement on his bed until morning. Mr. Untinen testified that the two had consensual sexual intercourse on his bed. The complainant suffered from a degenerative cognitive syndrome, diagnosed a few months after the date of the alleged offences, which impaired her memory at trial. The complainant gave the police a video-recorded statement, which was eventually admitted at trial pursuant to s. 715.2 of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge rejected Mr. Untinen’s exculpatory version of events and accepted the complainant’s evidence, which was confirmed by independent evidence. Mr. Untinen was convicted of two counts of sexual assault causing bodily harm and one count of unlawful confinement. The conviction appeal was dismissed.

 

 

37778

Ian Angus v. Municipality of Port Hope (Ont.)

 

 

Contracts – Privity of contract – Third-party beneficiaries

 

 

In 2000, the Government of Canada and the former municipalities of the Town of Port Hope, the Township of Hope and the Municipality of Clarington struck a deal: Canada would make a payment of $10 million to each of the municipalities in exchange for each of the municipalities storing low-level radioactive waste at safe sites within their respective communities. The necessary regulatory approvals for the new waste management facilities had not been obtained at the time the parties struck the deal. The Agreements were executed by the municipalities in December 2000 and by Canada in March 2001. In January 2001, Hope Township and the Town of Port Hope were amalgamated into a new entity called the Corporation of the Town of Port Hope and Hope (the “Municipality of Port Hope” or “Municipality”). In 2014, the Applicant, Ian Angus, a resident of the former Hope Township brought an application in which he alleged that the Respondent, Municipality of Port Hope had misused income earned on the $10 million payment because it had failed to apply the income exclusively to defray the lower tier municipal taxes or levies of ratepayers of the former Hope Township.

The application was granted as the application judge interpreted the Agreement as having created a non-charitable purpose trust. It was also found that the Municipality had breached its duties as trustee. Both the Mr. Angus and the Municipality appealed. The Court of Appeal allowed the Municipality’s appeal and dismissed Mr. Angus’ cross-appeal finding that the Agreement did not create a trust and that the Municipality did not breach its duties in respect of the payment and income earned on it.

 

 

37812

Zdenek "Dennis" Zvolensky, Nashat Qahwash, Ronald Cyr v. Her Majesty the Queen (Ont.)

 

 

Charter of Rights and Freedoms – Right to independent and impartial tribunal

 

 

Nadia Gehl was shot and killed in 2009. The police believed that Mr. Cyr, Mr. Zvolensky and Mr. Qahwash conspired to kill her. In an undercover operation, Mr. Cyr and Mr. Zvolensky uttered incriminating admissions. Some admissions were uttered in Mr. Qahwash’s presence. Walters J. admitted the admissions and other discredible conduct evidence obtained in the undercover operation, with some edification. She denied motions for severance by Mr. Zvolensky and Mr. Qahwash. Each accused testified and offered exculpatory explanations for evidence against him. Each offered a cutthroat defence incriminating a co-accused. Crown counsel also relied on circumstantial evidence, evidence of text messages, the gun used for the killing found in Mr. Qahwash’s basement, Mr. Zvolensky’s DNA found on the gun, and Mr. Qahwash’s fingerprints found on a bag of ammunition. A jury convicted all three co-accused of first degree murder. After a verdict was rendered, counsel discovered that one juror had been a former auxiliary police officer and that the jurors had engaged in questionable conduct while sequestered. The appeal from conviction was dismissed.