LEGISLATION SWITCH IN ONTARIO
According to Jordan Kirkness of Baker McKenzie & Susan MacMillan: “On October 23, 2018, the Ontario government introduced Bill 47, Making Ontario Open for Business Act, 2018, to repeal numerous provisions of the previous government’s Fair Workplaces, Better Jobs Act, 2017 (Bill 148). The government indicated that the proposed amendments are designed to ‘remove the worst burdens that prevent Ontario businesses from creating jobs while expanding opportunities for workers.’ The firm outlines its take on key provisions of Bill 47 at https://www.labourandemploymentlaw.com/.
According to Kirkness and MacMillan, “At this time, employers should not take action to update their policies or practices to reflect Bill 47. Even if Bill 47 comes into force, employers should approach any future changes to Bill 148 entitlements with caution. The employer will be at risk of a constructive dismissal claim if it did not preserve the right to change the entitlement to correspond with its legal obligations. Legal advice should be obtained before any changes are made that would reverse or reduce Bill 148 entitlements.”
PAY EQUITY IN QUÉBEC
In October 2016, in Attorney General of Québec v. Alliance du personnel professionnel et technique de la santé et des services sociaux, et al., 2016 QCCA 1659, the Québec Court of Appeal upheld a Superior Court decision finding certain sections of Québec’s Pay Equity Act (PEA) were unconstitutional and were not “demonstrably justified” under the Section 1 of the Canadian Charter of Rights and Freedoms or the Québec Charter of Human Rights and Freedoms. The Court ordered the government to remedy this situation in no more than one year.
The Attorney General of Québec was granted leave to appeal by the Supreme Court of Canada regarding ss. 76.3, 76.5 and 103.1 of the Pay Equity Act, R.S.Q., c. 12.001. Those sections were enacted in 2009 under the Act to amend the Pay Equity Act, SQ 2009, c. 9. Summarized by the SCC, “The provisions were challenged, inter alia, by unions representing employees working in predominantly female job classes. They alleged that the sections had the effect of substantially reducing the rights and benefits conferred on them by the Pay Equity Act as enacted in 1996, which, in their view, was contrary to ss. 15 and 52 of the Canadian Charter of Rights and Freedoms and ss. 10, 16, 19, 50.1 and 52 of the Charter of Human Rights and Freedoms. “
Under the 2009 reform, among other things, the jobs concerned were reviewed every five years to determine whether there were changes to them that justified a compensation adjustment, and there were no retroactive payments during the review process.”
In 2018, the Supreme Court of Canada confirmed, in a pair of section 15 Charter decisions, the unconstitutionality of provisions of Québec’s Pay Equity Act.