Court File No. 37347

IN THE (ON APPEAL FROM THE COURT OF APPEAL OF QUÉBEC)

BETWEEN:

ATTORNEY GENERAL OF QUÉBEC APPELLANT/ RESPONDENT ON CROSS APPEAL

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ALLIANCE DU PERSONNEL PROFESSIONNEL ET TECHNIQUE DE LA SANTÉ ET DES SERVICES SOCIAUX, CATHERINE LÉVESQUE, SYNDICAT DE LA FONCTION PUBLIQUE ET PARAPUBLIQUE DU QUÉBEC INC., FÉDÉRATION INTERPROFESSIONNELLE DE LA SANTÉ DU QUÉBEC, GUY-PHILIPPE BRIDEAU, NANCY BÉDARD, SYNDICAT DES EMPLOYÉ(E)S DE L'UNIVERSITÉ DE MONTRÉAL, SYLVIE GOYER, CONSEIL PROVINCIAL DES AFFAIRES SOCIALES, JOHANNE HARRELL, JOSÉE SAINT-PIERRE, GHYSLAINE DORÉ, CONSEIL PROVINCIAL DU SOUTIEN SCOLAIRE, LOUISE PAQUIN, LUCIE FORTIN, SYNDICAT DES PROFESSIONNELLES ET PROFESSIONNELS DE LAVAL-RIVE-NORD, SCFP 5222 SYNDICAT DES FONCTIONNAIRES MUNICIPAUX DE MONTRÉAL (SCFP), SECTION LOCALE 429, SECTION LOCALE 3134 DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE, EMPLOYÉ-ES DE BUREAU DE LA VILLE DE LORRAINE, HENRIETTE DEMERS,

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FACTUM OF THE INTERVENER, PUBLIC SERVICE ALLIANCE OF CANADA (pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

SECTION LOCALE 930 DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE (FTQ), FERNANDE TREMBLAY SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE, SECTION LOCALE 4503, JOSÉE MERCILLE, SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE, SECTION LOCALE 3642, CHANTAL BOURDON, CONSEIL D'INTERVENTION POUR L'ACCÈS DES FEMMES AU TRAVAIL (CIAFT) DU QUÉBEC INC., ASSOCIATION DES PSYCHOLOGUES DU QUÉBEC, SYNDICAT DES EMPLOYÉES ET EMPLOYÉS PROFESSIONNELS-LES ET DE BUREAU (CTC-FTQ), SECTION LOCALE 578, LISE AUDET, SYNDICAT QUÉBÉCOIS DES EMPLOYÉES ET EMPLOYÉS DE SERVICE SECTION LOCALE 298 (FTQ) RESPONDENTS/ APPELLANTS ON CROSS APPEAL - and -

CONSEIL DU TRÉSOR COMMISSION DES NORMES, DE L’ÉQUITÉ, DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL, ANCIENNEMENT COMMISSION DE L’ÉQUITÉ SALARIALE INTERVENERS - and -

ATTORNEY GENERAL OF , EQUAL PAY COALITION, NEW BRUNSWICK COALITION FOR PAY EQUITY, WOMEN’S LEGAL EDUCATION AND ACTION FUND, PUBLIC SERVICE ALLIANCE OF CANADA, CENTRALE DES SYNDICATS DU QUÉBEC, PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA, CANADIAN ASSOCIATION OF PROFESSIONAL EMPLOYEES, ASSOCIATION OF CANADIAN FINANCIAL OFFICERS, PROFESSIONAL ASSOCIATION OF FOREIGN SERVICE OFFICERS INTERVENERS

FACTUM OF THE INTERVENER, PUBLIC SERVICE ALLIANCE OF CANADA (pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

RAVEN, CAMERON, BALLANTYNE & YAZBECK LLP/s.r.l. Barristers & Solicitors 1600-220 Laurier Avenue West Ottawa, ON K1P 5Z9 Per: Andrew Raven/Andrew Astritis/Morgan Rowe Tel: (613) 567-2901 Fax: (613) 567-2921 Email: [email protected] Counsel for the Intervener, Public Service Alliance of Canada ORIGINAL TO: THE REGISTRAR

COPIES TO: FASKEN, MARTINEAU DUMOULIN NOËL & ASSOCIÉS LLP 11 rue Champlain Bureau 3700, 800 Place Victoria Gatineau, J8X 3R1 Montréal, Quebec H4Z 1E9 Per: Pierre Landry Per: Louis P. Bernier, Ad. E. Tel: (819) 771-7393 Per: Marc-André Boucher Fax: (819) 771-5397 Tel: (514) 397-7463 Email: [email protected] Fax: (514) 397-7600 Agent for the Appellant, Counsel for the Appellant, Attorney General of Québec Attorney General of Québec

POUDRIER BRADET, S.E.N.C. CANADIAN UNION OF PUBLIC Bureau 100, 70 rue Dalhousie EMPLOYEES Québec, Quebec G1K 4B2 1375 St. Laurent Blvd Per: Denis Bradet Ottawa, ON K1G 0Z7 Tel: (418) 780-3333 Per: Gavin Leeb Fax: (418) 780-3334 Tel: (613) 237-1590 ext. 271 Email: [email protected] Fax: (613) 237-4213 Counsel for the Respondent, Email: [email protected] Alliance du personnel professionnel et Agent for the Respondent, technique de la santé et des services Alliance du personnel professionnel et sociaux technique de la santé et des services sociaux

POUDRIER BRADET, S.E.N.C. CANADIAN UNION OF PUBLIC Bureau 100, 70 rue Dalhousie EMPLOYEES Québec, Quebec G1K 4B2 1375 St. Laurent Blvd Per: Denis Bradet Ottawa, ON K1G 0Z7 Tel: (418) 780-3333 Per: Gavin Leeb Fax: (418) 780-3334 Tel: (613) 237-1590 ext. 271 Email: [email protected] Fax: (613) 237-4213 Counsel for the Respondent, Email: [email protected] Catherine Lévesque, Syndicat de la Agent for the Respondent, fonction publique et parapublique du Catherine Lévesque, Syndicat de la Québec inc. fonction publique et parapublique du Québec inc.

MELANÇON, MARCEAU, GRENIER CANADIAN UNION OF PUBLIC & SCIORTINO EMPLOYEES Bureau 200, Grande Allée Ouest 1375 St. Laurent Blvd Québec, QC G1S 1C1 Ottawa, ON K1G 0Z7 Per: Johanne Drolet Per: Gavin Leeb Per: Pierre Brun Tel: (613) 237-1590 ext. 271 Tel: (418) 640-1773 Fax: (613) 237-4213 Fax: (418) 640-0474 Email: [email protected] Email: [email protected] Agent for the Respondent, Counsel for the Respondent, Fédération interprofessionnelle de la Fédération interprofessionnelle de la santé du Québec, Guy-Philippe Brideau, santé du Québec, Guy-Philippe Brideau, Nancy Bédard Nancy Bédard

SYNDICAT CANADIEN DE LA CANADIAN UNION OF PUBLIC FONCTION PUBLIQUE EMPLOYEES 1375 boul, Saint-Laurent Est 1375 St. Laurent Blvd Ottawa, ON K1G 0Z7 Ottawa, ON K1G 0Z7 Per: Annick Desjardins Per: Gavin Leeb Tel: (613) 237-1590 ext 220 Tel: (613) 237-1590 ext. 271 Fax: (613) 237-5508 Fax: (613) 237-4213 Email: [email protected] Email: [email protected] Counsel for the Respondent, Agent for the Respondent, Syndicat des employé(e)s de l'Université Syndicat des employé(e)s de l'Université de Montréal, Sylvie Goyer, Conseil de Montréal, Sylvie Goyer, Conseil provincial des affaires sociales, Johanne provincial des affaires sociales, Johanne Harrell, Josée Saint-Pierre, Ghyslaine Harrell, Josée Saint-Pierre, Ghyslaine Doré, Conseil provincial du soutien Doré, Conseil provincial du soutien scolaire, Louise Paquin, Lucie Fortin scolaire, Louise Paquin, Lucie Fortin

SYNDICAT CANADIEN DE LA CANADIAN UNION OF PUBLIC FONCTION PUBLIQUE EMPLOYEES 1375 boul, Saint-Laurent Est 1375 St. Laurent Blvd Ottawa, ON K1G 0Z7 Ottawa, ON K1G 0Z7 Per: Annick Desjardins Per: Gavin Leeb Tel: (613) 237-1590 ext 220 Tel: (613) 237-1590 ext. 271 Fax: (613) 237-5508 Fax: (613) 237-4213 Email: [email protected] Email: [email protected] Counsel for the Respondent, Agent for the Respondent, Syndicat des professionnelles et Syndicat des professionnelles et professionnels de Laval-Rive-Nord, professionnels de Laval-Rive-Nord, SCFP 5222, Syndicat des fonctionnaires SCFP 5222, Syndicat des fonctionnaires municipaux de Montréal (SCFP), municipaux de Montréal (SCFP), section locale 429, Section locale 3134 du section locale 429, Section locale 3134 du Syndicat canadien de la fonction Syndicat canadien de la fonction publique publique

SYNDICAT CANADIEN DE LA CANADIAN UNION OF PUBLIC FONCTION PUBLIQUE EMPLOYEES 1375 boul, Saint-Laurent Est 1375 St. Laurent Blvd Ottawa, ON K1G 0Z7 Ottawa, ON K1G 0Z7 Per: Annick Desjardins Per: Gavin Leeb Tel: (613) 237-1590 ext 220 Tel: (613) 237-1590 ext. 271 Fax: (613) 237-5508 Fax: (613) 237-4213 Email: [email protected] Email: [email protected] Counsel for the Respondent, Agent for the Respondent, employé-es de bureau de la Ville de employé-es de bureau de la Ville de Lorraine, Henriette Demers, Section Lorraine, Henriette Demers, Section locale 930 du Syndicat canadien de la locale 930 du Syndicat canadien de la fonction publique (FTQ), Fernande fonction publique (FTQ), Fernande Tremblay, Syndicat canadien de la Tremblay, Syndicat canadien de la fonction publique, section locale 4503, fonction publique, section locale 4503, Josée Mercille Josée Mercille

SYNDICAT CANADIEN DE LA CANADIAN UNION OF PUBLIC FONCTION PUBLIQUE EMPLOYEES 1375 boul, Saint-Laurent Est 1375 St. Laurent Blvd Ottawa, ON K1G 0Z7 Ottawa, ON K1G 0Z7 Per: Annick Desjardins Per: Gavin Leeb Tel: (613) 237-1590 ext 220 Tel: (613) 237-1590 ext. 271 Fax: (613) 237-5508 Fax: (613) 237-4213 Email: [email protected] Email: [email protected] Counsel for the Respondent, Agent for the Respondent, Syndicat canadien de la fonction Syndicat canadien de la fonction publique, section locale 3642, Chantal publique, section locale 3642, Chantal Bourdon, Conseil d'intervention pour Bourdon, Conseil d'intervention pour l'accès des femmes au travail (CIAFT) l'accès des femmes au travail (CIAFT) du Québec inc., Association des du Québec inc., Association des psychologues du Québec psychologues du Québec

SYNDICAT CANADIEN DE LA CANADIAN UNION OF PUBLIC FONCTION PUBLIQUE EMPLOYEES 1375 boul, Saint-Laurent Est 1375 St. Laurent Blvd Ottawa, ON K1G 0Z7 Ottawa, ON K1G 0Z7 Per: Annick Desjardins Per: Gavin Leeb Tel: (613) 237-1590 ext 220 Tel: (613) 237-1590 ext. 271 Fax: (613) 237-5508 Fax: (613) 237-4213 Email: [email protected] Email: [email protected] Counsel for the Respondent, Agent for the Respondent, Syndicat des employées et employés Syndicat des employées et employés professionnels-les et de bureau (CTC- professionnels-les et de bureau (CTC- FTQ), section locale 578, Lise Audet, FTQ), section locale 578, Lise Audet, Syndicat québécois des employées et Syndicat québécois des employées et employés de service, section locale 298 employés de service, section locale 298 (FTQ) (FTQ)

DIRECTION GÉNÉRAL DES AFFAIRES JURIDIQUE ET LÉGISLATIVE 3e étage, secteur 100 875 Grande Allée Est Québec, QC G1R 5R8 Per: Josée De Bellefeuille Tel: (418) 643-0875 ext 4266 Email: [email protected] Counsel for the Intervener, Conseil du Trésor

COMMISSION DES NORMES, DE L’ÉQUITÉ, DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL 524 rue Bourdages Local 304 Québec, QC G1M 1A1 Per: Jean-François Paquet Tel: (418) 266-4900 ext 5330 Fax: (418) 266-4922 Email: jean- [email protected] Counsel for the Intervener, Commission des normes, de l'équité, de la santé et de la sécurité du travail, anciennement Commission de l'équité salariale

ATTORNEY GENERAL OF BURKE-ROBERTSON ONTARIO 441 McLaren Street, Suite 200 720 Bay Street, 4th Floor Ottawa, ON K2P 2H3 Toronto, ON M7A 2S9 Per: Robert E. Houston, QC Per: Zachary Green Tel: (613) 236-9665 Per: Courtney Harris Fax: (613) 235-4430 Tel: (416) 326-8517 Email: [email protected] Fax: (416) 326-4015 Agent for the Intervener, Email: [email protected] Attorney General of Ontario Counsel for the Intervener, Attorney General of Ontario

FARADAY LAW/ CAVALUZZO LLP RAVEN, CAMERON, BALLANTYNE 860 Manning Avenue & YAZBECK LLP/s.r.l. Toronto, ON M6G 2W8 Barristers & Solicitors Per: Fay Faraday 1600-220 Laurier Avenue West Per: Janet Borowy Ottawa, ON K1P 5Z9 Tel: (416) 389-4399 Per: Andrew Astritis Fax: (647) 776-3147 Tel: (613) 567-2901 Email: [email protected] Fax: (613) 567-2921 Counsel for the Interveners, Email: [email protected] Equal Pay Coalition, New Brunswick Agent for the Interveners, Coalition for Pay Equity, Women’s Equal Pay Coalition, New Brunswick Legal Education and Action Fund Coalition for Pay Equity, Women’s Legal Education and Action Fund

BARABÉ CASAVANT SUPREME ADVOCACY 9405 rue Sherbrooke Est 100-340 Gilmour Street Montréal, QC H1L 6P3 Ottawa, ON K2P 0R3 Per: Nathalie Léger Per: Marie-France Major Per: Matthew Gapmann Tel: (613) 695-8855 ext. 102 Tel: (514) 356-8888 ext. 2124 Fax: (613) 695-8580 Fax: (514) 356-0990 Email: [email protected] Email: [email protected] Agent for the Intervener, Counsel for the Intervener, Centrale des syndicats du Québec Centrale des syndicats du Québec

GOLDBLATT PARTNERS LLP GOLDBLATT PARTNERS LLP 500-30 Metcalfe Street 500-30 Metcalfe Street Ottawa, ON K1P 5L4 Ottawa, ON K1P 5L4 Per: Peter C. Engelmann Per: Colleen Bauman Tel: (613) 482-2452 Tel: (613) 482-2463 Fax: (613) 235-3041 Fax: (613) 235-3041 Email: [email protected] Email: [email protected] Counsel for the Interveners, Agent for the Interveners, Professional Institute of the Public Professional Institute of the Public Service of Canada, Canadian Service of Canada, Canadian Association of Professional Employees, Association of Professional Employees, Association of Canadian Financial Association of Canadian Financial Officers, Professional Association of Officers, Professional Association of Foreign Service Officers Foreign Service Officers i INDEX

PAGE NO.:

PARTS I & II – OVERVIEW AND POSITION ON THE ISSUES ...... 1

PART III – STATEMENT OF ARGUMENT ...... 1

A. No deference is owed to government at section1 simply because the litigation in question seeks to address private law relationships ...... 1

B. The government must tender compelling evidence that the discriminatory element of its legislation serves a pressing and substantial objective ...... 3

C. The rational connection step of the section 1 test cannot defer to the legislator’s reasonable or good faith belief at the time of enactment ...... 5

D. Exceptions to the retroactivity of remedies for constitutional violations must be narrowly construed ...... 7

PARTS IV and V – SUBMISSIONS ON COSTS AND ORDER REQUESTED ...... 10

PART VI – TABLE OF AUTHORITIES ...... 11

PART VII – LEGISLATION...... 13

PARTS I and II – OVERVIEW AND POSITION ON THE ISSUES

1. The present appeal involves a constitutional challenge to amendments made in 2009 to the Québec Pay Equity Act (“PEA”). The amendments at issue prevent employees from making retroactive claims to address pay inequity arising between the five-year legislated periodic reviews for wage discrimination, and do not require the employer to identify the triggers that led to the emergence of any wage discrimination. Both the Québec Superior Court and Court of Appeal concluded that these components of the PEA amendments contravened section 15 of the Charter and were not saved under section 1.

2. The intervener, Public Service Alliance of Canada [“PSAC”], makes the following submissions in response to the Appellant’s argument that the Québec courts erred in their approach to section 1 and that any remedy for the Charter violations at issue should be limited. To start, PSAC maintains that the fact the PEA regulates private law relationships does not require deference from courts. Moreover, PSAC submits that the first two elements of the section 1 inquiry must be applied in a manner that ensures that rights guaranteed by the Charter are not violated without compelling evidence establishing both that there is a pressing and substantial objective, and that the rights-infringing measures will address that objective. Finally, PSAC reiterates the presumption that Charter remedies apply retroactively and that any exceptions to this rule must be narrowly interpreted.

PART III – STATEMENT OF ARGUMENT

A. No deference is owed to government at section 1 simply because the legislation in question seeks to address private law relationships

3. As a preliminary issue at the section 1 stage, the Appellant submits that it should be accorded heightened deference in light of the fact that the PEA, in part, regulates private law relationships between employees and employers.1 This argument fails to recognize that Courts apply section 15 of the Charter to legislation regulating private law relationships, including human rights and pay equity legislation such as the PEA, without according special deference at section 1. Indeed, this Court and others have repeatedly held that, where human rights legislation is itself discriminatory, the Court may scrutinize the state’s denial of human rights protections to

1 Appellant Factum at para 92 - 2 - individuals, regardless of the impact on private actors regulated by the legislation.2 In doing so, the Courts have not given any special deference to government where human rights legislation perpetuates, rather than eliminates, discrimination in the private sector.

4. In Vriend, for instance, the Court found that ’s human rights legislation, the Individual’s Rights Protection Act (“IRPA”), breached section 15 of the Charter by failing to extend human rights protection on the basis of sexual orientation. At section 1, the Court gave no deference to the government, finding that the omission did not disclose a pressing and substantial objective and failed at all stages of the proportionality analysis.3 Similarly, in Blainey, the Ontario Court of Appeal found that a provision of the Human Rights Code, which permitted same-sex sports teams, contravened section 15 and could not be justified at section 1. The Court questioned whether the provision’s objective was pressing and substantial and ultimately concluded that “the means chosen are grossly disproportionate to the end sought to be served.”4

5. In a rare circumstance where this Court considered the impact a Charter ruling on private actors, it indicated that less deference is owed where the financial burden of the constitutional remedy is borne privately. In M v H, this Court addressed the discriminatory definition of “spouse” in Ontario’s Family Law Act in the context of M’s claim for spousal support from H. The majority held that the fact that correcting the discriminatory provision might shift costs from public benefits systems to a private actor favoured a less deferential approach at section 1.5

6. The Appellant’s reliance on McKinney6 does not assist its argument for deference. In Tétrault-Gadoury, the Court clarified that McKinney reflected the special nature of the university environment, not a general position of deference where legislation affects private actors. Indeed, Justice LaForest confirmed that deference to the balancing of competing social interests could not “give [government] an unrestricted license to disregard an individual’s Charter rights.”7

2 Vriend v Alberta, [1998] 1 SCR 493 at para 103; Blainey v O.H.A. (1986), 54 OR (2d) 513 at 8, 11 3 Vriend, supra at paras 116, 119, 122, 127, 128 4 Blainey, supra at 14 5 M v H, [1999] SCR 3 at paras 2, 14, 128-130; Miron v Trudel, [1995] 2 SCR 418 at para 118 (per L’Heureux-Dubé J., concurring); Respondent Factum at para 132, where the Respondent notes evidence of a similar shifting of the financial burden from public benefit systems to private employers as an effect of redressing wage discrimination 6 [1990] 3 SCR 255 7 Tétrault-Gadoury v Canada (Employment and Immigration Commission), [1991] 2 SCR 22 at 43-44; see also Wilson J., dissenting in McKinney, supra at 403

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B. The government must tender compelling evidence that the discriminatory element of its legislation serves a pressing and substantial objective

7. PSAC makes the following submissions with respect to the government’s onus under the first stage of section 1. First, under the Oakes test, the government must show that the violation of the Charter right in question serves an objective that is both pressing and substantial. Section 1 states that the Charter guarantees the rights therein, subject only to reasonable limits that can be demonstrably justified in a free and democratic society. The unequivocal language in section 1 was deliberate. As commentators have noted, severe criticism from human rights activists and scholars regarding the excessively deferential first version of section 1 resulted in much stronger language ultimately being incorporated into the final text of the Charter.8 This language requires that governments be held to a high standard when seeking to abrogate Charter rights.9

8. Second, the Appellant’s reliance on the objective of the PEA as a whole to justify the violation of section 15, rather than focusing on the objective of the bar on retroactive compensation for periods of pay inequity, departs from this Court’s established approach to this issue. This Court’s jurisprudence leaves no doubt that attention at the first stage of the section 1 test must be on the objective of the infringing measure. The majority in Vriend emphasized:

Section 1 of the Charter states that it is the limits on Charter rights and freedoms that must be demonstrably justified in a free and democratic society. It follows that under the first part of the Oakes test, the analysis must focus on the objective of the impugned limitation, or in this case the omission. Indeed, in Oakes, supra, at p. 138, Dickson C.J. noted that it was the objective “which the measures responsible for a limit on a Charter right or freedom are designed to serve” […] that must be pressing and substantial.10 [emphasis in original]

9. This point was confirmed in RJR MacDonald, where the Court explained that “[t]he objective relevant to the s. 1 analysis is the objective of the infringing measure, since it is the infringing measure and nothing else which is sought to be justified”.11 Sauvé reiterated this point, highlighting the problem with attempts to justify legislation with overly broad objectives, and explaining that, without knowing the problem the government is targeting and why it is so

8 E. P. Mendes, “Section 1 of the Charter after 30 years: The Soul or the Dagger at its Heart” (2013) 61 SCLR (2d) 293-336 at paras 3-4; S. McIntyre, “The Equality Jurisprudence of the McLachlin Court: Back to the 70s” (2010) 50 SCLR (2d) 120-181 at para 13 9 R v Oakes, [1986] 1 SCR 103 10 Vriend at para 110; R v Zundel, [1992] 2 SCR 731 at para 49 11 RJR MacDonald , [1995] 3 SCR 199 at para 144; see also Hislop, supra at paras 45-46

- 4 - pressing and important to warrant limiting a Charter right, it would be “difficult if not impossible to weigh whether the infringement of the right is justifiable or proportionate”.12

10. The purpose of the legislation as a whole will also play a role at times, although it “is limited to providing a context rather than a focus for the Oakes analysis”.13 This broader purpose is particularly relevant in the context of human rights legislation. The Court in Vriend stated:

[t]he overall goal of the IRPA is the protection of the dignity and rights of all persons living in Alberta. The exclusion of sexual orientation effectively denies gay men and lesbians such protection. In my view, where, as here, a legislative omission is on its face the very antithesis of the principles embodied in the legislation as a whole, the Act itself cannot be said to indicate any discernable objective for the omission that might be described as pressing and substantial so as to justify overriding constitutionally protected rights.14

11. Similarly, the bar to compensation for retroactive periods in the present case directly undermines the objectives of the PEA, which seeks to “redress differences in compensation due to the systemic gender discrimination suffered by persons who occupy positions in predominantly female job classes”.15

12. Third, in setting out its argument on rational connection, the Appellant shifts its objective from the ameliorative purpose of the statute as a whole, which has nothing to do with the bar on retroactive compensation, to the claim that this restriction made it financially and logistically possible for employers to maintain pay equity.16 In doing so, it violates the requirement in Sauvé that the “objective remain constant throughout the justification process”.17 The Appellant’s need to shift its objective also exposes the fact that it would be impossible to demonstrate that the bar to retroactive compensation for wage discrimination advances the overall purpose of the statute.

13. Fourth, it is insufficient for the government to simply assert that an objective is pressing and substantial. In Hislop this Court explained that, in most instances, the impugned provisions’ pressing and substantial objective would need to be supported by evidence:

12 Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68 at para 24; 13 Rosenberg v Canada (1998), 38 OR (3d) 577 (ONCA) at 6-7 (per Abella J.); Vriend, supra at para 111 14 Vriend, supra at para 116; see also McKinney, supra at 413 (per Wilson J., dissenting): “I would have thought that, if anything, human rights legislation which is intended to preserve, protect and promote human dignity and individual self-worth and self-esteem should be subjected to more rigorous scrutiny than other types of legislation.” 15 PEA, CQLR, c E-12.001, s 1; see also Blainey, supra at 14: “[In] my opinion the means chosen are grossly disproportionate to the end sought to be served.... Indeed, it is somewhat of an anomaly to find in a statute designed to prohibit discrimination a provision which specifically permits it.” 16 Appellant Factum at paras 99-100, 102, 122, 123 17 Sauvé, supra at para 23

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We acknowledge that there may be cases in which the pressing and substantial objective of legislation and the impugned provisions are obvious and may be deduced from the legislation itself. However, in the majority of cases, in order to satisfy the pressing and substantial objective test, the government must adduce some evidence to support its argument.18 [emphasis added]

14. To the extent that the government’s true underlying objective in barring retroactive pay equity adjustments between periodic reviews is to maintain the feasibility of the pay equity system, or to preserve the solvency of employers in Quebec, clear evidence would be needed to support its claim that there was a pressing and substantial need for such protection.

15. This is particularly the case where the proposed objective for an impugned provision involves saving private actors money at the expense of individuals whose right to equality under section 15 has been violated.19 Accepting this as a pressing and substantial objective would ignore the direction in Oakes and subsequent cases that the objectives advanced under section 1 must align with Charter values and advance its underlying purpose, something that cannot be said for a pay equity regime that allows employers to retain the benefits of wage discrimination on an ongoing basis.20

C. The rational connection step of the section 1 test cannot defer to the legislator’s reasonable or good faith belief at the time of enactment

16. The Appellant’s argument that the rational connection step requires only that the government reasonably believe at the time the legislation is enacted that the law would advance its objectives misstates this Court’s jurisprudence and would dramatically undermine this step in the section 1 analysis.21 This Court has clearly established the need for evidence to demonstrate a rational connection between a rights violation and its underlying purpose. In Chaoulli, Chief Justice McLachlin and Justice Major, writing on behalf of three of the four judges in the majority,

18 Hislop, supra at para 49 19 Rosenberg, supra at 8 (per Abella J): “Cost/benefit analyses are not readily applicable to equality violations because of the inherent incomparability of the monetary impacts involved. Remedying discrimination will always appear to be more fiscally burdensome than beneficial on a balance sheet.” 20 Oakes, supra at 135-136 (per Dickson CJ): “[In] any s. 1 inquiry … [t]he Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society”; see C. Mathen, “Rational Connection: Oakes, Section 1 and the Charter’s Legal Rights” (2016) Ottawa Faculty of Law Working Paper Series No. 2016-17 at 495-496; Vriend, supra at para 140; M v H, supra at para 77; R v Kapp, 2008 SCC 41 at para 21 21 Appellant Factum at para 112

- 6 - dismissed the government’s section 1 justification abruptly at the rational connection stage for lack of evidence. They explained:

The government undeniably has an interest in protecting the public health regime. However, given the absence of evidence that the prohibition on the purchase and sale of private protects the health care system, the rational connection between the prohibition and the objective is not made out.22

17. Similar considerations were relied on by this Court in Hislop where it stated that “[t]he absence of evidence justifying the matching argument also precludes a finding of rational connection between s. 44(1.1) and its objective”. These cases demonstrate that it is incumbent on government to put forward evidence that establishes the connection between its pressing and substantial objective and the rights restriction. As this Court noted in Oakes, the law must be “carefully designed to achieve the objective in question”.23

18. The failure to require governments to satisfy this threshold would undermine the robust process needed to scrutinize whether a rights violation is necessary. This Court has granted deference to legislatures in instances where the violation of Charter rights results in the protection of vulnerable groups, or where an issue is not amenable to empirical evidence.24 It would offend the very purpose of the Charter, however, if governments could support an ongoing violation of a right guaranteed under the Charter on the basis of evidence relied on at the time of enactment that has since been discredited. Allowing the government to rely on such evidence would also discourage governments from carefully seeking out and assessing any relevant evidence before enacting legislation that violates Charter rights. 25

19. In contrast, requiring evidence that the government measure would achieve the intended result fits with the underlying aim of the Charter, which seeks to guarantee fundamental rights and freedoms, save for in exceptional circumstances. This Court has repeatedly emphasized in the statutory human rights context that human rights law does not seek to ascribe blame but to eradicate discrimination.26 The principles of substantive equality require the same under the

22 Chaoulli v Quebec, 2005 SCC 35 at para 155 23 Hislop, supra at para 54; Oakes, supra at para 70 [emphasis added] 24 McKinney, supra at 402-403 (per Wilson J.); Thomson Newspapers Ltd, [1998] 1 SCR 877 at paras 112-115, 117 25As this Court has noted repeatedly in recent years, new research or a more fulsome evidentiary record may justify striking down legislation that has been previously found to be constitutional. This is plainly inconsistent with the test espoused by the Appellant in this case: Canada v Bedford, 2013 SCC 72 at paras 41-42; Mounted Police Association of Canada, 2015 SCC 1 at paras 127, 145-147; Carter v Canada, 2015 SCC 5 at para 47 26 Action Travail des Femmes, [1987] 1 SCR 1114 at 1133

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Charter.27 Ultimately, a Charter right can only be violated in the rare instance where the ends actually justify the means. Stated in these blunt terms, the importance of this stage of section 1 becomes clear; absent evidence that a rights violation advances the government’s objective, there is no basis on which to conclude there is a rational connection between the two.

20. Finally, it is not enough for the government to say that the legislation as a whole, or the addition of a particular provision, incrementally improves the entitlements of affected individuals. This Court dealt squarely with this issue in Vriend. To start, it distinguished the incrementalism in Egan, given the fact that the government in that case had indicated that “more acceptable arrangements could be worked out over time”.28 The same cannot be said where legislation creates a perpetual situation in which future discrimination will go uncompensated.

21. More importantly, however, the Court in Vriend went on to flatly reject the notion of incrementalism in the Charter context. Justice Iacobucci explained:

...in Egan, writing on behalf of myself and Cory J., I took the position that the need for government incrementalism was an inappropriate justification for Charter violations. I remain convinced that this approach is generally not suitable for that purpose, especially where, as here, the statute in issue is a comprehensive code of human rights provisions. In my opinion, groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time. If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.29

D. Exceptions to the retroactivity of remedies for constitutional violations must be narrowly construed

22. Assuming that the Court finds no section 1 justification, the Appellant nonetheless relies on Hislop to request that any remedy granted in this matter only apply prospectively. The Appellant explicitly requests a suspended declaration of invalidity and suggests that this would necessarily limit the retroactivity of the Charter remedy. While the Respondent has addressed the lack of evidence to support the rationales for this request,30 the Appellant’s submissions also fundamentally distort the framework for addressing remedies for constitutional violations, as well as this Court’s decision in Hislop.

27 Eaton v Brant County Board of Education, [1997] 1 SCR 241 at para 66; Vriend, supra at para 83 28 Vriend, supra at para 121 29 Vriend, supra, at para 122; Rosenberg, supra at 7-8 (per Abella J); Hislop v Canada (Attorney General), [2003] OJ 5212 (ONCA) at para 89 30 Respondent Factum at paras 139-141, 143

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23. The general and well-established rule is that remedies for constitutional violations will apply retroactively.31 This rule flows from the very nature of a determination that a law is unconstitutional, as the invalidity of the law “does not arise from the fact of it having been declared unconstitutional by a court, but from the operation” of the Constitution Act, 1982 itself. Contrary to the Appellant’s submissions, the Court in Hislop did not vary this principle; rather, it was confirmed in both the majority and concurring reasons.32 As a result, the starting place for Charter remedies must be the recognition that a law which contravenes the Charter was invalid from the moment it was enacted. This is not only consistent with the operation of section 52 of the Constitution Act, 1982 but necessary to ensure that the rights and freedoms enshrined within the Charter are meaningfully realized.33

24. When viewed in this context, the errors in the Appellant’s analysis become clear. First, the Appellant confuses the suspension of a declaration of invalidity with prospective-only remedial relief. While Hislop indicated that these remedial orders may at times be at cross-purposes, this Court nonetheless recognized that they are distinct remedial tools.34 Suspending a declaration of invalidity provides the legislature with a limited opportunity to craft remedial legislation that resolves the constitutional breach without simply nullifying the offensive provision. While this remedial legislation may limit the retroactivity of the remedy, the legislation, and any limitations it imposes on retroactivity, remain subject to Charter scrutiny; indeed, this was the very circumstance in which Hislop arose.35 Moreover, if a government fails to pass remedial legislation within the directed period, there is no question that the declaration of invalidity is fully retroactive when it takes effect.36 Accordingly, whether a declaration of invalidity is suspended and whether a prospective-only remedy can be justified are two separate inquiries.

25. This leads to the Appellant’s second error: it fails to recognize that Hislop involved a challenge to remedial legislation. The question in Hislop was whether remedial legislation, which was passed to address the discriminatory definition of “spouse” in the Canada Pension Plan and

31 S. Choudhry and K. Roach, “Putting the Past Behind Us?” (2003) 21 Supreme Court L.R. (2d) 205 at 211-213; P. Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf updated 2016, release 1) at 58-3 32 Nova Scotia v Martin, [2003] 2 SCR 504 at para 28; Hislop, supra at paras 138-141 (per Bastarache J., concurring), 86 (per Lebel and Rothstein JJ. for the majority) 33 Hislop, supra at paras 142-143 (per Bastarache J.); Choudhry and Roach, supra at 247, 251 34 Hislop, supra at paras 91-92 35 Hogg, supra at 58-4 36 Hogg, supra at 58-4.1- 58-4.2; Hislop, supra at para 92

- 9 - other statutes, was in breach of the Charter because it did not provide for full retroactivity when correcting the prior discrimination in the Plan. Thus, the Court was able to consider the precise remedy proposed by the government, using a full section 15 and section 1 analysis, and to give consideration to whether any exceptional circumstances existed to justify a limit on retroactivity.37 This is in stark contrast to the present case where the Appellant effectively asks this Court to endorse a blanket limitation on retroactivity in a vacuum, without any indication as to the nature or form of the remedial steps it will take if its appeal is dismissed.

26. Third, the Appellant fails to appreciate that Hislop permits an exception to the general rule of retroactivity only where the state of the law has changed and it would be inequitable to require a fully retroactive remedy. The Court in Hislop first confirmed that the prospective-only approach to the “eligibility provisions” of the amended Plan was unconstitutional, as it perpetuated the discrimination that the remedial legislation was intended to address and could not be justified under section 1.38 In addressing the “payment provisions” of the Plan, however, the Court recognized a narrow and limited exception to the requirement that prospective-only remedies be justified under section 1. This applied where a substantial change in the law had occurred, either by the Court overruling a prior decision or identifying a previously unrecognized right. While the government’s good faith reliance on the prior state of the law could impact whether a prospective- only remedy was equitable, a substantial change in the law was a necessary precondition.39

27. Hislop’s status as a narrow exception is confirmed by the Court’s endorsement of the majority decision in Miron, where the Court read up provisions of the Insurance Act to include unmarried partners with full retroactivity. As the Court in Hislop noted, the government would not have met the criteria for a limitation on retroactivity in Miron because the conclusion that the exclusion of unmarried partners violated section 15 was not a substantial change in the law. Furthermore, as Justice McLachlin, as she then was, stated in Miron, the equities favoured a fully retroactive remedy “to cure an injustice which might otherwise go unremedied.”40

28. In the present case, this is a complete answer to the Appellant’s reliance on Hislop. The Appellant has not argued that the Court’s decision here would amount to a substantial change in

37 Hislop, supra at paras 33-34, 53-54, 60, 65, 69 38 Hislop, supra at paras 34, 41, 49-55 39 Hislop, supra at paras 95-100 40 Miron, supra at paras 173, 176-180; Hislop, supra at paras 104-106

- 10 - the law. Indeed, given the history of similar, successful constitutional challenges to PEA amendments and the concerns raised before government committees with respect to the precise amendments under consideration in this case, it cannot be credibly maintained that the government was unaware of the Charter issues identified by the Court of Appeal or that the Court's decision represented a substantial change in the law.41

29. Finally, commentary since Hislop has suggested that the application of this exception should be approached with caution. As Peter Hogg and others have noted, except in the clearest of circumstances where this Court overrules its own prior jurisprudence, it is more consistent with the framework of the Charter and the nature of Charter rights to require prospective-only remedies to be justified under the section 1 test. 42 As Hogg observed:

What was puzzling in Hislop was that the opinions engaged in s. 1 analysis only with respect to the eligibility provisions, which they found unconstitutional on the basis of their prospectivity. With respect to the payment provisions, all of the judges readily accepted their prospectivity .... If the Court continues to take this approach to corrective legislation, then Charter claimants who succeed in persuading the Court to recognize their rights have much to fear from suspended declarations of invalidity: the competent legislative body may choose to make remedial legislation prospective only, thus denying the claimants all or part of the remedy for which they fought.

30. Such a solution would plainly be at odds with the underlying purpose ofthe Charter, which in the context of section 15 guarantees equal treatment under the law except where the test under section 1 is met.

PARTS IV and V - SUBMISSIONS ON COSTS AND ORDER REQUESTED

31. PSAC requests that no order of costs be made for or against it.

Dated at Ottawa, this 17th day of October, 2017.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

RAVEN, CAMERON, BALLANTYNE & YAZBECK LLP/s.r.l. per: ~ Andrew Raven!And ;ew Astritls7Morgan Rowe

41 Respondent Factum at paras 140, 142; Syndical de lalonclion pub/ique c Procureur general du Quebec, [2004] JQ 21 ; Hislop, supra at paras 105-106; Miron, supra at paras 169, 173 42 Hogg, supra at 58-4.1- 58-4.2; R. Anand, "Damages for Unconstitutional Actions: A Rule in Search of a Rationale" (2009) 27 NJCL 159 at 163-164, 174-175; D. Guttman, "Hislop v Canada: A Retroactive Look" (2008) 42 SCLR (2d) 547 at 562-565 - 11 -

PART VI – TABLE OF AUTHORITIES Para where cited Cases Blainey v Ontario Hockey Association (1986), 54 OR (2d) 513 ...... 3, 4, 11 Canada v Bedford, 2013 SCC 72 ...... 18 Carter v Canada, 2015 SCC 5 ...... 18 Chaoulli v Quebec, 2005 SCC 35 ...... 16 CN v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114 ...... 19 Eaton v Brant County Board of Education, [1997] 1 SCR 241 ...... 19 Gould v Yukon Order of Pioneers, [1996] 1 SCR 571 ...... 19 Hislop v Canada (Attorney General), [2003] OJ 5212 (ONCA); 2003 CanLII 37481 ...... 21-28 Mckinney v. University of Guelph, ([1990] 3 SCR 229) ...... 6, 10, 18 Miron v Trudel, [1995] 2 SCR 418 ...... 5, 27 Mounted Police Association of Canada, 2015 SCC 1 ...... 18 M v H, [1999] 2 SCR 3 ...... 5, 15 Nova Scotia v Martin, [2003] 2 SCR 504 ...... 23 RJR MacDonald, [1995] 3 SCR 199...... 9 Rosenberg v Canada (1998), 38 OR (3d) 577 (ONCA) ...... 10, 15, 21 R v Kapp, 2008 SCC 41 ...... 15 R v Oakes, [1986] 1 SCR 103 ...... 7, 15, 17 R v Zundel [1992] 2 SCR 731 ...... 8 Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68 ...... 9, 12 Syndicat de la fonction publique c Procureur général du Québec, 2004 CanLII 656 ...... 28 Tétrault-Gadoury v Canada (Employment and Immigration Commission), [1991] 2 SCR 22 ...... 6 Thomson Newspapers Ltd, [1998] 1 SCR 877 ...... 18 Vriend v Alberta, [1998] 1 SCR 493 ...... 4, 8, 10, 20, 21

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Secondary Sources Anand, R. “Damages for Unconstitutional Actions: A Rule in Search of a Rationale” (2009) 27 NJCL 159 ...... 28 Choudhry, S. and K. Roach, “Putting the Past Behind Us?” (2003) 21 Supreme Court L.R. (2d) 205 at 211-213...... 23 Guttman, D, “Hislop v Canada: A Retroactive Look” (2008) 42 SCLR (2d) 547 ...... 29 Hogg, P. Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf updated 2016, release 1) ...... 23, 24, 29 Mathen, C., “Rational Connection: Oakes, Section 1 and the Charter’s Legal Rights” (2016) Ottawa Faculty of Law Working Paper Series No. 2016-17...... 15 McIntyre, S. “The Equality Jurisprudence of the McLachlin Court: Back to the 70s”, (2010), 50 SCLR (2d) 120-181...... 7 Mendes, E. P. “Section 1 of the Charter after 30 years: The Soul or the Dagger at its Heart”, (2013) 61 SCLR (2d) 293-336 ...... 7

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PART VII – LEGISLATION

Pay Equity Act, CQLR, c E-12.001, s 1 ...... 11

1. The purpose of this Act is to redress differences in compensation due to the systemic gender discrimination suffered by persons who occupy positions in predominantly female job classes. Differences in compensation are assessed within the enterprise, except if there are no predominantly male job classes in the enterprise.

1. La présente loi a pour objet de corriger les écarts salariaux dus à la discrimination systémique fondée sur le sexe à l’égard des personnes qui occupent des emplois dans des catégories d’emplois à prédominance féminine. Ces écarts s’apprécient au sein d’une même entreprise, sauf s’il n’y existe aucune catégorie d’emplois à prédominance masculine.