Summaries Sunday: Supreme Advocacy

• Author: Administrator
• Date: May 13, 2018

On one Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all appeals as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (March 30 to May 11, 2018 inclusive).

Appeals

Charter: Equality; Pay Equity
Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (37347)

A Québec Act to amend the Pay Equity Act replaced the ongoing obligation to maintain pay equity with a system of mandatory audits every five years in which the employer was only required to rectify the wages going forward. Under s. 76.5, adjustments in compensation apply from the date of the posting of the results of the audit process. Section 76.3 provided no requirement that the audit posting include the date on which any pay inequity emerged. Under s. 103.1 para. 2, no compensation adjustments could be assessed by the Pay Equity Commission prior to the date of the audit posting. The trial judge held that ss. 76.3 and 76.5 breached s. 15. The declaration of invalidity was suspended for one year. The Court of Appeal upheld the trial judge’s finding that ss. 76.3 and 76.5 breached s. 15 of the Charter. In addition, it concluded that s. 103.1 para. 2 violated s. 15. The S.C.C. (6:3) dismissed the appeal and cross appeal; ss. 76.3, 76.5 and 103.1 para. 2 of the Pay Equity Act are unconstitutional.

Charter: Equality; Delay in Access
Centrale des syndicats du Québec v. Québec (Attorney General), 2018 SCC 18 (37002)

At the time a Québec Pay Equity Act came into force in 1997, there was no methodology for assessing pay equity adjustments where there was no male comparator. Regulatory authority was given to the Pay Equity Commission to conduct the necessary research and to establish a methodology for identifying the appropriate male comparators. A regulation could not be passed until workplaces with male comparators had completed their first pay equity exercise on or before November 21, 2001. The Pay Equity Commission did not settle on a methodology until 2003 and the Regulation was not promulgated until May 5, 2005. The two year grace period provided by s. 38 further postponed pay equity for workplaces without male comparators until May 5, 2007. Section 38 is constitutional.

Criminal Law: Homicide; Unlawful Confinement
R. v. Magoon, 2018 SCC 14 (37416) (37479)

Sections 691(1) and 691(2) of the Criminal Code set out the routes of appeal to the Supreme Court of Canada available to an accused. Section 691(1) applies where a conviction has been affirmed by the court of appeal; s. 691(2) applies where an acquittal has been set aside by the court of appeal. Here both sections apply. Sections 691(1)...