One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada

In 2018, 31 years after the equality rights guarantee in the Canadian Charter of Rights and Freedoms took effect, women won their first Supreme Court of Canada (SCC) appeal based on sex discrimination under section 15 of the Charter. This historical “first” was delivered in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux. The Court vindicated women’s long-standing entitlement to non-discriminatory pay at work by striking down provisions of Quebec’s Pay Equity Act (PEA) which allowed identified sex discrimination in pay to go unrectified. The SCC had ruled previously on five section 15 appeals alleging sex discrimination against women. All five claims failed. In only one did the Court even find a section 15 violation before dismissing it as justifiable under section 1 of the Charter. Until 2018, the only successful section 15 sex discrimination cases at the SCC had been brought by men. Alliance thus marks a watershed. An unsuccessful companion pay equity appeal, Centrale des syndicats du Quebec v. Quebec (Attorney General), was released the same day. Together the rulings plant seeds from which a more rigorous substantive equality analysis could grow to confront systemic discrimination. But celebration should remain tempered because the two cases simultaneously blaze as warning signs of the unrelentingly unresolved fractures that lie at the foundation of section 15 jurisprudence