In Fraser v. Canada (Attorney General), the Supreme Court of Canada recently held that the RCMP violated the Canadian Charter of Rights and Freedoms (the Charter) for women who job shared.
This case involved indirect, or adverse effect, discrimination. This occurs when, instead of explicitly singling out and treating differently those who are members of a protected group or analogous groups, the law or state action indirectly places them at a disadvantage.
The three claimants were regular members of the Royal Canadian Mounted Police (RCMP). They took maternity leave the in the early-to-mid 1990s.
Upon returning to work, they experienced difficulties combining full time work with childcare responsibilities.
At the time, the RCMP did not permit them to work part-time.
In December 1997, the RCMP introduced a job-sharing program. It allowed members to split the duties of one full-time position.
As they had childcare responsibilities, the claimants participated in the job-sharing program to temporarily reduce their hours of work.
RCMP members pay into a retirement pension plan. The amount of the pension increases as service and earnings grow.
Legislation governing the RCMP allowed members to treat certain gaps in full-time service as fully pensionable.
However, regulations classified job sharers as part time workers. This denied them the option of buying back their pension for the time over which they did not work.
Other members, such as those who were suspended or took unpaid leave, were allowed to “buy back” their reduced pension contributions, thus increasing the pension they would ultimately receive.
The claimants alleged that the regulations, which denied them the opportunity to buy back their pension, discriminated against job-sharers — who were mostly women with children at home. They had a discriminatory impact on women, and this infringed their rights under section 15(1) the Charter.
Section 15(1) requires the state to treat everyone equally, without discrimination based on certain protected or enumerated characteristics.
At the Federal Court, they were unsuccessful. That judge did not find a violation of s. 15(1), stating that if the claimants were disadvantaged, it was not because they were women or parents. It was because of their own choices.
The Federal Court of Appeal dismissed their appeal.
A 6:3 majority of the Supreme Court of Canada agreed with the claimants, finding that the RCMP’s policy created a distinction based on a protected ground (gender/sex), and that:
Full-time RCMP members who job-share must sacrifice pension benefits because of a temporary reduction in working hours. This arrangement has a disproportionate impact on women and perpetuates their historical disadvantage. It is a clear violation of their right to equality under s. 15(1) of the Charter.
Section 15 cases involve a two-step analysis:
- On its face or in its impact, does the law or state action create a distinction based on enumerated or analogous grounds?
- Does the law or state action impose burdens or deny a benefit in a manner that hast he effect of reinforcing, perpetuating, or exacerbating disadvantage?
Those claiming an infringement of s. 15(1) need not prove that the protected characteristic “caused” the disproportionate impact. They need not prove that the law itself was responsible for creating the background social or physical barriers which made a particular rule disadvantageous.
They are not required to show that the problematic law or state action affects all members of a protected group in the same way.
In dismissing the claim because the claimants “chose” to job-share, the majority of the Supreme Court of Canada said that the lower courts misapprehended its s. 15 jurisprudence. It has consistently held that differential treatment can be discriminatory even if it is based on choices made by the affected individual or group.
In the majority’s view, the association between gender and fewer or less stable working hours was clear. The RCMP’s use of a temporary reduction in working hours to impose less favourable pension consequences plainly had a disproportionate and adverse impact on women.
This adverse impact “perpetuates a long-standing source of disadvantage to women: gender biases within pension plans, which have historically been designed for middle and upper-income full-time employees with long service, typically male.”
The RCMP’s pension design is based on assumptions applicable primarily to men. It perpetuates a long-standing source of economic disadvantage for women.
There was a prima facie breach of s. 15 based on the enumerated ground of gender.
Section 1 of the Charter allows the state to justify a limit on a Charter right as “demonstrably justified in a free and democratic society.”
To start with, the state must identify a pressing and substantial objective for limiting the Charter right.
Job-sharing was clearly intended as a substitute for leave without pay for those members who could not take such leave due to personal or family circumstances.
The majority saw no reason for treating the two forms of work reduction differently when extending pension buy-back rights. It held that the government failed to identify a compelling objective for this differential treatment.
Pension plans are only one example of workplace situations which perpetuate disadvantages women face. It is encouraging that Canadian courts are recognizing this and gradually upholding women’s rights to substantive equality. Decisions such as this are an important step, though much remains.
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About Susan Kootnekoff:
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.
Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.
She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.
Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,
Susan moved to the Okanagan with her family, where she currently resides.
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