The Supreme Court of Canada issues a significant judgement on substantive equality in Fraser v Attorney-General of Canada, October 16, 2020.
Important advances on three issues for gender equality: context, caregiving, and "choice".
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.
As the majority of the Court noted, fifty years ago the Royal Commission on the Status of Women set out a blueprint to address inequities in the workplace for women. However, for twenty-five years, three women RCMP officers, Joanne Fraser, Allison Pilgrim and Colleen Fox argued that inequities in their workplace had not been addressed as they were discriminated in their pension plan because they were women.
The Court agreed and said that the women were discriminatorily treated when the women’s pensions were reduced after they went on a job share arrangement due to childcare responsibilities. The Court ruled that the RCMP pension plan violated the women's equality rights under the Charter. The Court ordered the government to develop a meaningful remedy with fulsome and retroactive equal access to enable the buy-back of pension credits. Importantly, the remedy applied to all women affected by the judgement.
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, as others were able to when they went on various unpaid leaves. 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.
In one of the most significant Charter equality cases, the Court not only affirmed women’s right to equal pension benefits, but also provided a much-needed roadmap for future cases involving systemic discrimination and substantive equality. Three lawyers from Cavalluzzo LLP, Kate Hughes, Jan Borowy and Danielle Bisnar represented the Women's Legal Education and Action Fund before the Court. Danielle Bisnar presented LEAF's oral arguments.
LEAF argued that the substantive equality analysis is the “engine” of s. 15 of the Charter and must always give due consideration to the context in which the alleged s. 15 violation occurred. LEAF argued that a robust concept of substantive equality was undermined by the lower courts by improper considerations of “choice” and a formalistic use of comparators. LEAF argued that although the pension plan was facially neutral, a substantive equality would reveal the adverse impact and systemic discrimination in the design of the pension plan.
Three significant issues for gender equality were alive in this case: the need for a contextual reading of s.15 of the Charter; that caregiving responsibilities are inextricably linked to sex as a ground and the notion of a women's "choice" to have children as a rationale to deny access to a benefit. On all these issues, the Court advanced a contextual analysis of substantive equality.
The Court clarified the tests required under s.15 and set out the type of evidence required to demonstrate an adverse effect of the legislation. The Court relied upon extensive analysis of feminist legal scholars, particularly, the firm's founding partner, Elizabeth Shilton's work on pension plans which replicate the male norm employment pattern.
The key elements of the Court's analysis were:
In our view this case will have far reaching impact for cases raising issues of substantive equality and systemic discrimination on the basis of sex, race and other human rights grounds.
Any questions regarding Fraser v Attorney-General may be directed to Danielle Bisnar or Jan Borowy.