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Intervener Equal-Pay-Coalition-Et-Al.Pdf Court File No. 37002 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC) BETWEEN: CENTRALE DES SYNDICATS DU QUÉBEC, FÉDÉRATION DES INTERVENANTES EN PETITE ENFANCE DU QUÉBEC (FIPEQ-CSQ), LE SYNDICAT DES INTERVENANTES EN PETITE ENFANCE DE MONTRÉAL (SIPEM-CSQ), LE SYNDICAT DES INTERVENANTES EN PETITE ENFANCE DE QUÉBEC (SIPEQ-CSQ), LE SYNDICAT DES INTERVENANTES EN PETITE ENFANCE DE L'ESTRIE (SIPEE-CSQ), MADAME FRANCINE JOLY, MADAME NATHALIE FILLION, MADAME LOUISE FRÉCHETTE, FÉDÉRATION DU PERSONNEL DE SOUTIEN DE L'ENSEIGNEMENT SUPÉRIEUR (FPSES) (CSQ), SYNDICAT DES INTERPRÈTES PROFESSIONNELS DU SIVET (CSQ), MADAME CHANTAL BOUSQUET, MONSIEUR YANNICK FRANÇOIS APPELLANTS - and - LA PROCUREURE GÉNÉRALE DU QUÉBEC RESPONDENT - and - LE PROCUREUR GÉNÉRAL DE L'ONTARIO INTERVENER - and - EQUAL PAY COALITION, NEW BRUNSWICK COALITION FOR PAY EQUITY and WOMEN’S LEGAL EDUCATION AND ACTION FUND INTERVENERS FACTUM OF THE INTERVENERS EQUAL PAY COALITION, NEW BRUNSWICK COALITION FOR PAY EQUITY and WOMEN’S LEGAL EDUCATION AND ACTION FUND (Pursuant to Rules 47, 55, 56 and 57 of the Rules of the Supreme Court of Canada) (CONT’D) BETWEEN: CONFÉDÉRATION DES SYNDICATS NATIONAUX, FÉDÉRATION DE LA SANTÉ ET DES SERVICES SOCIAUX, SYNDICAT DES TRAVAILLEUSES ET TRAVAILLEURS DES CPE DE LA MONTÉRÉGIE, SYNDICAT DES TRAVAILLEUSES DES CPE DE MONTRÉAL ET DE LAVAL, MADAME FRANCE LANIEL, MADAME GINETTE LAVOIE, MADAME DANIELLE PARÉ APPELLANTS - and - LA PROCUREURE GÉNÉRALE DU QUÉBEC RESPONDENT - and - LE PROCUREUR GÉNÉRAL DE L'ONTARIO INTERVENER - and - EQUAL PAY COALITION, NEW BRUNSWICK COALITION FOR PAY EQUITY and WOMEN’S LEGAL EDUCATION AND ACTION FUND INTERVENERS FACTUM OF THE INTERVENERS EQUAL PAY COALITION, NEW BRUNSWICK COALITION FOR PAY EQUITY and WOMEN’S LEGAL EDUCATION AND ACTION FUND (Pursuant to Rules 47, 55, 56 and 57 of the Rules of the Supreme Court of Canada) FARADAY LAW CAVALLUZZO SHILTON RAVEN CAMERON 860 Manning Ave. McINTYRE CORNISH LLP BALLANTYNE & YAZBEK LLP Toronto, Ontario 474 Bathurst St., Suite 300 220 Laurier Ave. W, Suite 1600 M6G 2W8 Toronto, Ontario M5R 2S6 Ottawa, Ontario K1P 5Z9 Fay Faraday Janet E. Borowy Andrew Astritis Tel: 416-389-4399 Tel: 416-964-5518 Tel: 613-567-2901 Fax: 647-776-3147 Fax: 416-964-5895 Fax: 613-567-2921 E:[email protected] E: [email protected] E: [email protected] Counsel for Intervener Counsel for Intervener Agent for the Intervener Equality Coalition Equality Coalition Equality Coalition COPIES TO: POUDRIER BRADET, S.E.N.C. NOËL & ASSOCIÉS Bureau 100 111 rue Champlain 70, rue Dalhousie Gatineau, Quebec J8X 3R1 Québec, Quebec G1K 4B2 Sylvie Labbé Denis Bradet Geneniève Baillargeon Bouchard Tel: (819) 771-7393 Jean Mailloux Fax: (819) 771-5397 Marilyne Duquette E-mail: [email protected] Tel: (418) 780-3333 Agent for the Appellants Centrale des Fax: (418) 780-3334 Syndicats du Québec et al and for the E-mail: [email protected] Appellants Confédération des Syndicats Nationaux et al Counsel for the Appellants Centrale des Syndicats du Québec et al LAROCHE MARTIN 1601, Avenue De Lorimier Bureau 3900 Montréal, Quebec H2K 4M5 Marilyne Duquette Jean Mailloux Tel: (514) 529-4918 Fax: (514) 529-4932 E-mail: [email protected] [email protected] Counsel for the Appellants Confédération des Syndicats Nationaux et al BERNARD, ROY & ASSOCIÉS NOËL & ASSOCIÉS Bureau 8.00 111, rue Champlain 1, rue Notre-Dame est Gatineau, Quebec J8X 3R1 Montréal, Quebec H2Y 1B6 Pierre Landry Patrice Claude Caroline Renaud Tel: (819) 771-7393 Fax: (819) 771-5397 Tel: (514) 393-2336 E-mail: [email protected] Fax: (514) 873-7074 Email: [email protected] Agent for the Respondent La Procureure [email protected] Générale du Québec Counsel for the Respondent La Procureure Générale du Québec MINISTRY OF THE ATTORNEY BURKE-ROBERTSON GENERAL OF ONTARIO 441 MacLaren Street, Suite 200 Constitutional Law Branch Ottawa, Ontario K2P 2H3 720 Bay Street, 4th Floor Toronto, Ontario M7A 2S9 Robert E. Houston, Q.C Courtney Harris Tel: (613) 236-9665 S. Zachary Green Fax: (613) 235-4430 Tel: (416) 326-4460 Agent for the Intervener Attorney General of Fax: (416) 326-4015 Ontario Email: [email protected] [email protected] Counsel for the Intervener Attorney General of Ontario FACTUM OF THE INTERVENERS EQUAL PAY COALITION, NEW BRUNSWICK COALITION FOR PAY EQUITY and WOMEN’S LEGAL EDUCATION AND ACTION FUND TABLE OF CONTENTS PART I: OVERVIEW 1 PART II: STATEMENT OF POSITION 1 PART III: STATEMENT OF ARGUMENT 2 A. Contextual Analysis Under Section 15 2 B. Comparison Under Section 15 of the Charter 5 C. Section 15(2) Must Be Restricted to Cases Alleging “Reverse Discrimination” 8 PARTS IV AND V: COSTS AND ORDER REQUESTED 10 PART IV: LIST OF AUTHORITIES 11 PART I: OVERVIEW 1. This intervention is brought by the Ontario Equal Pay Coalition, the New Brunswick Coalition for Pay Equity and the Women’s Legal Education and Action Fund (collectively, the “Equality Coalition”). The Coalition partners are Ontario and New Brunswick pay equity organizations representing English- and French-language constituencies in provincial and federal jurisdictions, and LEAF which has a national mandate to advance Charter equality rights. 2. The Equality Coalition’s submissions address three themes connected to Constitutional Question #1 regarding the interpretation of s. 15 of the Charter: a. Contextual analysis under s. 15: To properly focus analysis on the impugned law’s effect, contextual analysis under s. 15 must address the structural nature of systemic sex discrimination, occupational sex segregation and undervaluing of women’s work; Canadian governments’ legal obligations to redress systemic sex discrimination in pay; and the broader legal context in which Québec’s Pay Equity Act and regulations arose. Consideration of Québec’s intent, rationale or justification of the impugned law1 must be reserved to s. 1. b. Comparison under s. 15: After Kapp, Withler, and Québec v. A,2 s. 15 comparison must account for discrimination’s systemic nature and must do so in a substantive way. The differential impact of the impugned law is based on sex. The law allocates women’s rights based on women’s close proximity to male work and their degree of integration into male work environments. The more deeply women bear the burden of systemic sex discrimination that produces sex-segregated occupations and sex-segregated workplaces, and that devalues women’s work, the shallower is the remedy that the law grants them. c. Section 15(2): Section 15(2) does not apply as “reverse discrimination” is not at issue. PART II: STATEMENT OF POSITION 3. The Equal Pay Coalition accepts the record as it is. The Coalition takes a position that supports the Appellants’ analysis under s. 15 of the Charter, but the Coalition takes no position on s. 1 or on the outcome of the appeal. 1 Pay Equity Act, CQLR, c. E-12.001, s. 38 2 R. v. Kapp, 2008 SCC 41; Withler v. Canada (Attorney General), 2011 SCC 12; Québec (Attorney General) v. A, 2013 SCC 5 2 PART III: STATEMENT OF ARGUMENT A. Contextual analysis under section 15 4. Systemic sex discrimination that suppresses women’s pay has long been documented and condemned. It is “one of the few facts not in dispute in the ‘equality’ debate”.3 It continues to shape women’s social, economic, and political reality. Yet, the lower court errs by failing to assess s. 38’s effect in this broader context, and so fails to see its constitutional significance. 5. The lower court’s contextual analysis4 focussed narrowly on government’s intent and the chronology of Québec’s legislative process. That approach contradicts this Court’s direction that context under s. 15 extends beyond the impugned law and must “tak[e] full account of the social, political, economic and historical factors” that shape the claimants’ situation and the effect of the impugned law.5 The lower court overlooks the systemic discrimination that pay equity aims to redress and so misses s. 38’s effect on the Appellants. 6. Further, by embedding government intention and justification in the s. 15 “context”, the lower court renders these critical issues immune to scrutiny for Charter compliance. That contradicts the repeated admonition that analysis of substantive rights and s. 1 justification must be kept distinct to avoid eroding the scope of substantive rights and to avoid claimants having “to justify what should analytically have been part of the government’s burden.”6 Québec v. A states: An emphasis at this stage on whether the claimant group’s exclusion was well motivated or reasonable is inconsistent with this substantive equality approach to s. 15(1) since it redirects the analysis from the impact of the distinction on the affected individual or group to the legislature’s intent or purpose. As McIntyre J. warned in Andrews, an approach to s. 15(1) based on assessing the “reasonableness” of the legislative distinction would be a “radical departure from the analytical approach to the Charter” under which “virtually no role would be left for s. 1.” (pp. 181-182) It would also effectively turn the s. 15(1) analysis into a review of whether the legislature had a “rational basis” for excluding a group from a statutory benefit. … Assessment of legislative purpose is an important part 3 Justice Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Canada: 1984) (“Abella Report”) at 232 4 Judgment de la Court supérieure, Appeal Book, Vol 1 at para. 33-140. A certified English translation of the decision is at Equality Coalition Authorities (“EC Auth”), Tab 1 5 Withler, supra at para. 2, 39; Québec v. A, supra at para. 324; Ermineskin Indian Band and Nation v.
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