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Oct 28, 2020
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On October 16, 2020, the Supreme Court of Canada issued an important case that clarifies the law under section 15 of the Charter of Rights and Freedoms. The decision significantly advances equality law for women in Canada and for anyone developing a systemic discrimination argument.  Three lawyers from Cavalluzzo LLP, Kate Hughes, Jan Borowy and Danielle Bisnar represented the Women's Legal Education and Action Fund ("LEAF") before the Court.

The focus of this blog is on the implications the decision has in the context of pensions. A summary of the case and its summary of the Court's Charter analysis can be found here: https://www.cavalluzzo.com/resources/blog/post/item/supreme-court-of-canada-issues-judgement-in-fraser-v-attorney-general-of-canada.

Facts

For twenty-five years, three women RCMP officers argued that inequities in their workplace had not been addressed and they faced discrimination in their pension plan because they were women.  The RCMP pension plan is a creature of federal statute and regulations.

The women sought to have the ability to “buy-back” pension credits for the period in which they were in temporary “job-share” positions due to family caregiving responsibilities.  The pension plan allowed others to buy-back pension credits for various unpaid leaves, including suspensions for disciplinary action without pay. At the RCMP, women overwhelmingly relied on the job-share program in order to respond to the double burden of their career obligations and childcare. The inability to buy-back their pension, the women argued, violated their Charter right to gender equality. The lower courts found that this was not discrimination as in their view it was a matter of “choice” and that the women did not meet the onus to prove discrimination.

The Court's analysis

The Court relied upon extensive analysis of feminist legal scholars, particularly the work of firm's founding partner, Elizabeth Shilton, which demonstrated how pension plans replicate the male norm employment pattern.

Some of the key elements of the Court's analysis, from a pension perspective, were:

  • The Charter protects substantive equality; in turn, substantive equality must be looked at in its context to see if there is a disproportionate impact on women, or members of a protected group. Full-time RCMP members who job-share were predominantly women and sacrificed pension benefits because of a temporary reduction in working hours. This arrangement had a disproportionate impact on women and perpetuated their historical disadvantage and as such it was a clear violation of their right to equality under s. 15 of the Charter.
  • The Court assessed that the adverse impact perpetuated 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' width long service, typically male. Because the RCMP’s pension design perpetuated a long-standing source of economic disadvantage for women, there was a prima facie breach of s. 15 based on the enumerated ground of sex.
  • Importantly, the Court firmly rejected the notion of a respondent’s defence of “choice”, relied on by the lower courts to deny the discrimination claims. A woman’s “choice” to job-share was no basis for rejecting a s. 15 equality claim in this context as the decision to work on a part-time basis, far from being an unencumbered choice, “often lies beyond the individual’s effective control”. Deciding to work part-time, for many women, is a “choice” between either staying above or below the poverty line.

Potential implications on pension plan structures

While the RCMP’s distinction between options for those on various kinds of leave and those who job-share may not be common, the findings of the Court will provide fertile ground for questioning current pension plan structures and options.  Pension plans often provide options with specific, limiting criteria, and their terms often affect cohorts of members in the plan differently.  Further, pension plans are inevitably linked to employment arrangements and can exacerbate structural inequities that result from those employment arrangements regardless of whether terms appear to be neutral on their face.

Many pension plans are going through a process of reviewing the structure of benefits given changing demographics, evolving regulation and an increasingly unpredictable investment environment.  This Court decision suggests that the impact of the design of the pension benefits on substantive equality should also be a key factor in that consideration.  Pension plan sponsors, administrators, employers, unions and members should consider traditional and accepted pension designs through a new lens. For example, this case may bring new perspectives to the subsidies that often operate in pension plans for:

  • joint and survivor benefits (for those with spouses),
  • enhanced early retirement benefits (for those who have worked for longer periods of time without breaks in service), and
  • of course, any options for buy-backs.

This decision will not only influence statutory pension plans, but all pension plans as these principles will affect thinking about Human Rights Codes across the country. Questions surrounding pension plan design should be directed to Cynthia Crysler.  

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