On May 24, the Quebec Court of Appeal ruled in favour of SSQ Vie in a dispute with the province's pay equity commission, the Commission de l'équité salariale (Commission).1
The dispute stemmed from a complaint by SSQ Vie's actuarial technicians that their job class had not been properly evaluated. The Commission dispatched an investigator who determined that the job class had, in fact, been evaluated correctly.
Despite the investigator's findings, the Commission decided to conduct a comprehensive review of SSQ Vie's pay equity plan. It found that the pay equity committee had grouped its job classes in ten salary classes with unequal point intervals: the point intervals ranged from 43 points to 199 points, depending on the salary class.
Before the Commission's decision, the committee had used "natural groupings" whereby job classes of equivalent value are grouped in a given salary class. This approach can result, as it did for SSQ Vie, in salary classes with unequal point intervals.
Prior to settling on the ten salary classes with uneven point intervals, the committee had hired an outside consultant to apply gender neutrality tests in order to ensure that none of the classes introduced gender bias. The consultant determined that the pay equity plan did not discriminate on the basis of gender within the meaning of section 51 of the Pay Equity Act (Act).2
In its analysis, the Commission challenged SSQ Vie's choice of salary classes with unequal point intervals. It felt that, in making its decision, the committee had acted in an unreasonable and arbitrary manner and had exhibited gross negligence. It requested that the committee do the valuation of differences in compensation over again, arguing that the way that the committee had proceeded had completely distorted the evaluation performed for each job class. SSQ Vie contested this decision by applying to the province's labour relations board, the Commission des relations du travail (CRT), pursuant to section 104 of the Act. Even though it had found that the Act was not being complied with, the Commission did not avail itself of its right to refer the matter to the CRT under section 106 of the Act.
CRT decision and Superior Court ruling
The Commission argued before the CRT that since SSQ Vie had exercised the remedy under section 104 of the Act and the Act includes a presumption of systemic discrimination against persons who occupy positions in predominantly female job classes, the onus was on SSQ Vie to prove that the pay equity plan complied with the Act. The Commission also argued that because of the unequal salary classes, which completely distorted the evaluation for each job class, the pay equity plan introduced gender bias.
The CRT rejected the Commission's argument, stating that the onus of proof was on the Commission. It decided that (i) the presumption of systemic discrimination anchored in the Act does not imply that those who establish a pay equity plan are in and of themselves acting in bad faith, and (ii) as outlined in Article 2805 of the Civil Code of Québec, good faith is always presumed.3 On the merits, the CRT determined that the Commission had not succeeded in establishing that the method for valuating differences in compensation using salary classes with unequal point intervals introduced gender bias. It also pointed out that the Committee had performed the necessary checks (by applying gender neutrality tests) to ensure that the method chosen did not discriminate on the basis of gender. It wrote that the theoretical, if not dogmatic, propositions of the Commission were the cause of the problem.
The Superior Court supported the CRT's decision and refused to intervene on the ground that the decision was reasonable.4
Court of Appeal ruling
In its decision, the Court of Appeal disallows the Commission's appeal. It sides completely with SSQ Vie on the issue of onus of proof. It establishes that the CRT is not bound by the rules of evidence and civil procedure. It writes that the Commission could have referred the matter in dispute to the CRT under section 106, but did not do so; SSQ Vie referred the dispute to the CRT, and the Commission argues that the onus of proof consequently lies with SSQ Vie. In these circumstances, the Court of Appeal agrees with the CRT's opinion that it would be abnormal for a discretionary choice by the Commission (not to refer the matter to the CRT) to shift to the other party the onus of proof that the Commission would have otherwise had to bear. The Court of Appeal also agrees with the idea that the presumption of systemic discrimination anchored in the Act does not mean that those who establish or participate in pay equity plans are presumed to do so in bad faith or in a manner contrary to section 15 of the Act.
As for the merits of the case, the Court of Appeal finds that the CRT studied the evidence over several days. It analyzes the fact the Act does not contain a method for valuating differences in compensation that provides ironclad guarantees. It determined that the Committee exhibited caution, carried out external verifications (use of a consultant) and validated the natural groupings method (by applying gender neutrality tests before choosing the salary classes with unequal point intervals). The Court refers to the Committee's consensus regarding the method chosen. It concludes that the Commission did not show that gender bias was introduced into the Committee's approach to pay equity.
The following conclusions may be drawn from the Court of Appeal's ruling.
On the issue of onus of proof, the Court established that the presumption of systemic discrimination based on gender anchored in the Act does not mean those who establish or participate in pay equity plans are presumed to do so in bad faith or in a manner contrary to section 15 of the Act. The Commission highlighted the prominence of this presumption to show that the onus was on SSQ Vie to prove the legality of its pay equity plan. The Court refuted this argument.
As to the merits, the Court of Appeal reinforced the idea that the pay equity committee is sovereign in the choices the Act authorizes it to make. The court recognized that as of the moment when a pay equity committee ensures that the elements of the pay equity plan do not discriminate on the basis of gender and that all elements of the plan are applied on a gender neutral basis, the choice of methods for valuating differences in compensation belongs entirely to the committee. In the case at issue, although the committee chose an individual method for valuating differences in compensation based on salary classes with uneven point intervals, the Court found that SSQ Vie ensured, in all circumstances, that the method chosen did not discriminate on the basis of gender, and it further concluded that the Commission had not proven the contrary.
1 Commission de l'équité salariale c. SSQ, société d'assurance-vie inc., 2011 QCCA 948.
2 RSQ, c E-12.001.
3 RSQ, c C-1991.
4 Commission de l'équité salariale c. Commission des relations du travail, 2009 QCCS 4230.
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