Law Times

Law Times • November 12, 2018 Page 3 www.lawtimesnews.com Gender gap 'pervasive and real' Federal pay equity bill puts onus on employers BY DALE SMITH For Law Times T he federal government has tabled proactive pay equity legislation cover- ing federally regulated sectors after three years of con- sultation. The legislation, which is part of the omnibus budget imple- mentation bill, covers both pub- lic and private sector employ- ment, and calls for the creation of a new federal pay equity com- missioner to be housed within the Canadian Human Rights Commission. Lawyers say one reason pay equity cases can take decades to litigate is because of the lack of guidance in legislation or regu- lation, and they hope that the new commissioner can help to alleviate this problem. But they say they also worry that this may simply be creating a new mech- anism that will quickly become as overburdened as the CHRC has been. The bill is currently before the House of Commons' finance committee for study. Andrea York, partner with Blake Cassels & Graydon LLP in Toronto, who does employer- side work, says the legislation is much more prescriptive than the existing federally regulated system and follows the existing Ontario regime in many cases. One example is with the preparation of a pay equity plan. "To prepare a plan, you need to do a lot of analysis," says York. "Federally regulated employers should get started sooner rather than later, assuming the legisla- tion passes." She says she would not call the federal legislation an em- ployer-friendly statute given the increased onus on employers, as well as in the timelines for the ob- ligations being placed on them. "My experience is that re- sponsible employers have been undertaking their own pay eq- uity analyses periodically for de- cades now," says York. "It dem- onstrates a lack of trust toward employers in getting pay equity right on their own." In an interview with Law Times, Minister of Employ- ment, Workforce Development and Labour Patty Hajdu says the fact that the legislation is proac- tive will eventually lead to a de- crease in legal action. "It's very expensive to play catch-up when organizations are essentially being sued for their lack of attention to equity, and that's the system as it stands now — that it's complaint driven," says Hajdu. "We've seen a num- ber of high-profile cases that have been settled in a very costly way for employers and obvi- ously [were] a delay of justice, so a proactive process will compel employers to do that hard work at the front end and avoid the litigation that comes later." Alison McEwen, an associ- ate with Nelligan O'Brien Payne LLP in Ottawa, who is currently engaged in a decades-long pay equity case involving Canada Post, says the proactive nature of the bill is one of its strengths. "What lawyers have to know is that this puts proactive obli- gation on employers," says Mc- Ewen, who does labour-side rep- resentation. "It's no longer the employees' job to look around and say 'I think I'm being paid less than that group of guys over there,' make a complaint and then quite frankly spend 10 to 15 years trying to slowly drag out the information. Now, employ- ers need to look." McEwen says this could be one of the great parts about the bill, and for employment law- yers, the obligation isn't just to defend if someone makes a com- plaint — they now have to do things proactively. "I think that's one of the best parts of this bill," says McEwen. "Proving male or female pre- dominance and finding the ap- propriate comparator group can be a nightmare." Angela Chaisson of Angela Chaisson Law in Toronto, says that, even though the federally regulated sector only captures 1.2 million Canadians, pay in- equities are entrenched within both the federal government, which is heavily unionized, and employers such as banks. "We have the data now that says that, even among lawyers employed within the federal public service, there's a gender gap that's pervasive and real," says Chaisson. Fay Faraday of Faraday Law, who is also the co-chairperson of the Ontario Pay Equity Coali- tion and who spoke at the feder- al finance committee on the bill, says the coalition has identified a dozen amendments that need to be made to the bill because it contains some provisions that could be unconstitutional given recent Supreme Court of Cana- da decisions regarding Quebec's pay equity legislation, as those provisions are replicated in the federal bill. In Quebec (Attorney Gen- eral) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, the Supreme Court struck down several provisions of Que- bec's pay equity scheme as being unconstitutional because any inequalities needed to be rem- edied when they exist, not only on a go-forward basis when they are found. "The Supreme Court said that legislation can't just perpetuate problems of systemic discrimi- nation," says Faraday. "They have to actually move the bar forward to move towards equality." 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