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Oct 20, 2020
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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:

  • The Charter protects substantive equality; substantive equality must be looked at in its context to see how there is a disproportion 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 clearly affirmed that substantive equality is the “animating norm” of the s. 15 framework. Attention to the “full context of the claimant group’s situation”, to the “actual impact of the law on that situation”, and to the “persistent systemic disadvantages [that] have operated to limit the opportunities available” to that group’s members constitute that framework.

  • The Court upheld the two-part test for s. 15 as set out in Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, and confirmed that the amorphous notions of dignity or stereotyping is not a requirement of the test. At the first step, in order for a law to create a distinction based on prohibited grounds through its effects, the applicant must only prove that it has a disproportionate impact on members of a protected group. The second step is whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. This requires an examination of the impact of the harm caused to the affected group. Such harm must be viewed in light of any systemic or historical disadvantages faced by the claimant group. The same two-step approach to s. 15 applies regardless of whether the discrimination alleged is direct or indirect.

  • 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.

  • The Court clarified that adverse impact discrimination violates the norm of substantive equality. Adverse impact discrimination occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground. The Court noted that seemingly neutral rules may operate in practice as “built-in headwinds” for members of protected groups.

  • The Court further clarified that if claimants successfully demonstrate that a law has a disproportionate impact on members of a protected group, they need not also prove that the protected characteristic “caused” the disproportionate impact. It is also unnecessary for them to prove that the law itself was responsible for creating the background social or physical barriers which made a particular rule, requirement, or criterion disadvantage.

  • 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.

     

  • Finally, the Court clearly stated that the unified approach for both direct and indirect discrimination created in Meiorin in the human rights context should equally apply under the Charter.

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.   

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