Equality Rights and Pay Equity: Deja Vu in the Supreme Court of Canada
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Equality Rights and Pay Equity: Deja Vu in the
Supreme Court of Canada
Jonnette Watson Hamilton and Jennifer Koshan*
ABSTRACT
This comment analyzes the Supreme Court of Canada's most recent
decisions under the equality guarantee in the Canadian Charter of Rights
and Freedoms. Quebec (Attorney General) v Alliance du personnel
professionnel et technique de la sant6 et des services sociaux and Centrale
des syndicats du Qudbec v Quebec (Attorney General) are companion pay
equity decisions examining claims of sex discrimination under section
15(1) of the Charter and the Quebec government's attempt to defend those
claims under section 15(2) and section 1. The Court is badly split in its
analysis, and the authors discuss the major points of disagreement as well
as the majority's clarification of the proper approach to sections 15(1)
and (2). They also explore the implications of these cases for pay equity
laws in Canada and for the future of equality rights claims.
I. INTRODUCTION
The latest Supreme Court of Canada decisions on the equality rights
guarantee in the Canadian Charter ofRights and Freedoms are companion
pay equity decisions rendered in May 2018. 1 In Quebec (Attorney
General) v Alliance du personnel professionnel et technique de la santo et
des services sociaux (APP)2 and Centrale des syndicats du Qu~bec v
Quebec (Attorney General) (CSQ),3 the Court's analysis of the section
Jonnette Watson Hamilton, Professor, Faculty of Law, University of Calgary; Jennifer Koshan,
Professor, Faculty of Law, University of Calgary. The authors would like to thank Denise
Reaume, Meena Sundamraj, Andy Yu, and the anonymous reviewers for their comments on
earlier versions of this article. This comment has its genesis in two blog posts previously
published on ABlawg.ca. See Jennifer Koshan, The Supreme Court of Canada's Pay Equity
Decisions: A Call to Action for Alberta? (22 June 2018), online (blog): ABlawg
<http://ablawg.ca/wp-conteri/uploads/2018/06/BlogJKPayEquityJune2018.pdf>; Jonnette
Watson Hamilton & Jennifer Koshan, The Supreme Court of Canada's Approach to the
Charter's Equality Guarantee in Its Pay Equity Decisions (12 July 2018), online (blog):
ABlawg <http://ablawg.ca/wp-content/uploads/2018/07/BlogJWH and JK Pay Equity_
Cases SCCJuly2018.pdf>.
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 2018 SCC 17, [2018] 1 SCR 464 (APP).
3 2018 SCC 18, [2018] 1 SCR 522 (CSQ).](ViewImageLocal?handle=hein.journals/jleq15&div=5&collection=&method=preview&ext=.png&size=3)
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Equality Rights and Pay Equity: Deja Vu in the Supreme Court of Canada
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