Canada: The Supreme Court Rules Pay Equity Legislation Must Allow For Retroactive, Non-Onerous Remedial Avenues For Women

The Supreme Court of Canada has released its much-anticipated decision in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux1. The majority clearly stated that while a freestanding positive obligation to implement pay equity legislation is not required by subsection 15(1) of the Canadian Charter of Rights and Freedoms, if Parliament or the provincial/territorial legislatures decide to enact such legislation, they cannot deny women access to retroactive compensation for wage-based discrimination. This decision comes at an important time, as the Trudeau government moves forward with its promise to re-vamp and transition the current complaint-based federal pay equity regime into a proactive approach, similar to those enacted in Ontario and Quebec.


The case involved an appeal to the Supreme Court of Canada (SCC or the Court) of a Quebec Court of Appeal decision that held certain Quebec Pay Equity Act (PEA) amendments were unconstitutional.2 As mentioned in a previous publication, the Quebec Court of Appeal found the PEA amendments created a system that was contrary to the purpose of pay equity. The amendments replaced the employer's ongoing obligation to maintain pay equity with a requirement to conduct a pay equity audit every five years.

However, the amendments only required retroactive payments to be made from the date the employer posted the audit results, as opposed to the date the inequities arose. Employees would only be entitled to retroactive payments from the time the pay inequity arose if they could prove bad-faith conduct by the employer, which was seen to be an onerous evidentiary burden. The Quebec Court of Appeal found that the impugned sections gave a "grace period" to employers of up to five years during which pay inequity could go unaddressed.

SCC decision

The main question in this appeal was whether the Quebec courts erred in finding the Pay Equity Act amendments breached subsection 15(1) of the Charter. The cross appeal by the union was whether episodic pay equity, as opposed to maintaining ongoing pay equity, infringed subsection 15(1). In the cross-appeal, the union also argued the PEA was non-compliant with the Charter because employees were not involved in the pay equity maintenance process.

The majority decision held that, while the Charter does not require positive action by legislatures to impose pay equity legislation on employers, when the legislature does take measures to redress the gender wage gap, they cannot escape Charter scrutiny.

The Supreme Court found that, collectively, sections 76.3, 76.5 and 103.1 para 2 created a discriminatory scheme, as follows:

  • Section 76.5 required employers, absent a finding of bad faith, to make retroactive payments from the date of posting. This effectively meant it was possible to escape liability for pay inequity for up to five years. Indeed, the new amendments abolished the ongoing duty of employers to maintain pay equity, and instead replaced it with a requirement to conduct pay equity audits every five years. Therefore, pay inequity could exist for five years, and the victims would be denied compensation. In addition, section 103.1 para 2 barred the Pay Equity Commission from assessing adjustment payments prior to the date of the posting.
  • Section 76.3, regarding the content of the posting requirement, further exacerbated the discriminatory scheme of s 76.5 and 103.1 para 2. Section 76.3 did not provide employees with sufficient information upon which to challenge the decisions employers made as a result of pay equity audits. Section 76.3 did not require employers to post the date on which pay inequity was observed. Therefore, section 76.3 made it especially difficult, from an evidentiary standpoint, for employees to allege bad-faith conduct by employers, which was necessary to recover lost wages for the entire period of pay inequity.
  • The Supreme Court also criticized the legislative requirement that complainants prove intentional discrimination (i.e., bad faith), which was a requirement to recover wages prior to the date of posting. The Court found this at odds with the purpose of pay equity, namely to counter systemic discrimination against women.

The Court found the amendments were not saved by section 1 of the Charter. However, the SCC recognized that in some cases, encouraging employer compliance may constitute a pressing and substantial objective. The Court also recognized there may hypothetically be a rational connection between reducing employer obligations and increased employer compliance. But, in the circumstances, no evidence was presented to support such a defence.

As for the cross appeal, the Court dismissed the argument that a periodic pay equity review, as opposed to proactive and continued pay equity, is unconstitutional. Moreover, the Court confirmed the Charter does not require that employees be involved in the pay equity maintenance process once pay equity is achieved.


This case raises important issues regarding the retroactivity of pay equity adjustments and the challenge of promoting compliance with legislative efforts to address the gender wage gap. In Ontario, employers were permitted to limit annual pay equity adjustments to 1% of the organization's previous year's payroll until they achieved pay equity, but only if they implemented pay equity by the deadlines set out in the Ontario Pay Equity Act.

Currently, in the federal jurisdiction, retroactive liability for pay inequity under the Canadian Human Rights Act has generally been interpreted by the Federal Court to be one year prior to the date on which the complaint was filed. However, it may go back further in time than that, depending upon the evidence. New federal pay equity legislation is expected in September, which may well set a different requirement for retroactive pay equity obligations for federally regulated employers. The important point to bear in mind is that retroactive pay equity obligations can be significant, and failure to attend to these obligations can result in very high costs to employers.

The case also raises interesting issues about how best to encourage employer compliance with pay equity legislation. The Court cautiously agreed that a rational link may exist between limiting employers' pay equity liability and promoting increased compliance. However, there was insufficient evidence in this case to establish the connection. As the Quebec government moves to address this decision, and the federal government presses ahead with new proactive pay equity legislation, it will be interesting to see what creative means lawmakers will take to promote compliance with this important legislation.


1  2018 SCC 17.

2  See: Québec (Procureure générale) c Alliance du personnel professionnel et technique de la santé et des services sociaux, 2016 QCCA 1659 (original decision published in French only).

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions