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Summary

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Canadian Charter of Rights and Freedoms ? Right to equality ? Pay equity ? Time limit for compensation adjustments different for enterprises with no predominantly male job class ? Whether s. 38 of Pay Equity Act (P.E.A.), through its combined effect with s. 71, infringes right to equality protected by s. 15 of Canadian Charter for women holding predominantly female job in enterprise with no male comparator ? Whether distinction created by combined effect of ss. 38 and 71 P.E.A. is distinction based on sex or analogous ground ? Pay Equity Act, CQLR, c. E 12.001, ss. 1, 37, 38, 71 and 114.

The applicants, the Centrale des syndicats du Québec et al., primarily represent employees working in childcare centres, most of whom are employed as day care educators and sign language interpreters. Under the Pay Equity Act, CQLR, c. E 12.001 (P.E.A.), those enterprises have no predominantly male job class (PMJC), or in other words, no male comparator, for the purposes of women’s right to pay equity. Under s. 37 P.E.A., enterprises with a PMJC had until December 21, 2001, or four years after the coming into force of the Act, to complete their pay equity plan and start paying the resulting compensation adjustments. However, s. 38 of the P.E.A. required enterprises with no male comparator to complete the exercise within a maximum of two years after the coming into force of a regulation on the subject, with no effect retroactive to December 21, 2001. The applicants argued that s. 38 of the P.E.A. and that time gap created discrimination contrary to s. 15(1) of the Canadian Charter.

Lower Court Rulings