Judgement published October 16, 2020
Background
Three retired members of the RCMP participated in a job-sharing program that allowed members to split the duties and responsibilities of one full-time position. Almost everyone who enrolled in the job-sharing program were women with children, as was the case with these three. They expected that job-sharing would enable them to claim full pension benefits. However, they were told they would not be able to do so.
The application argued that by denying the full-time pension benefits to those participating in the job-share program, it had a discriminatory impact on women contrary to s. 15(1) of the Charter. This claim failed at the Federal Court, and the appeal at the Federal Court of Appeal was also dismissed.
Verdict: Appeal allowed.
Sidebar: Section 15(1) and Adverse Impact Discrimination
Adverse impact discrimination occurs when a seemingly neutral law (one not plainly discriminatory on its face) has a disproportionate impact on a protected group. In order to achieve what the Supreme Court calls true “substantive” equality, adverse impact discrimination must be protected against by the Charter.
Analysis
Majority Judgement: Chief Justice Wagner, Abella, Moldaver, Karakatsanis, Martin and Kasirer
Judgement written by Justice Abella.
Full-time RCMP members who job-share must sacrifice some pension benefits because of a temporary reduction in working hours. This arrangement has a disproportionate impact on women. It is a clear violation of their equality rights under s. 15(1) of the Charter.
The distinction made is between RCMP members who work regular hours that go on unpaid leave. These members can obtain full pension credit for those periods of service under the pension plan. However, full-time members who temporarily reduce their hours under a job-sharing agreement are classified as part-time workers and unable to acquire full-time pension credit.
The evidence showed that this had a negative impact on women specifically. The RCMP members who worked reduced hours in the job-sharing program were predominantly women with young children. These statistics were bolstered by evidence about the disadvantages women face as a group in balancing professional and domestic work. There was a clear association between gender and fewer or less stable working hours.
Pension plans have been a long-standing source of disadvantage to women. Historically, these plans have been designed for middle and upper-income full-time employees with long service, who were typically male. Because the RCMP’s pension design further perpetuates this source of economic disadvantage for women, there is a breach of s. 15(1) on the basis of sex.
The government had not offered a compelling objective for this differential treatment, and so the s. 1 justification failed. The Court commented that the limitation was in fact entirely detached from the purpose of the job-sharing scheme. It was clearly intended as a substitute for leave without pay for members who could not take a leave due to personal or family circumstances.
The violation of s. 15(1) therefore could not be justified under s. 1. The Court’s remedy was to declare there has been a breach of the s. 15(1) rights of full-time RCMP members who temporarily reduced their working hours under a job-sharing agreement, because of the inability of those members to buy back full pension credit for that service.
Dissent 1: Justices Brown and Rowe
The dissenting judges disagreed with the majority, stating that the RCMP pension plan did not violate s. 15 of the Charter. While it did create a distinction that is based on sex in its impact, it is the result of the government’s efforts to address pre-existing inequality. The job-sharing program was made as an alternative to unpaid leave for service members that needed time for other responsibilities but could not take unpaid leave. The disadvantage faced by the claimants was caused not by government action, but by the unequal division of household and family responsibilities and social circumstances such as the availability of quality childcare.
Brown and Rowe emphasized that to establish substantive discrimination, there always must be an element of arbitrariness or unfairness in the s. 15(1) analysis. Discriminatory purpose is not required to establish substantive discrimination. However, they stated that substantive discrimination cannot be reduced to historical disadvantage.
The dissenting judges found that the evidence did not suggest that the lines drawn were inappropriate, in context. The pension plan did not contribute to women’s systemic disadvantage. The provisions of the pension plan represent an example of a government acting incrementally to address inequities in society using provisions that do not have a discriminatory impact.
Dissent 2: Justice Cote
Justice Cote would have found that the claim fails because the pension plan did not create a distinction on the basis of sex. The effect of the provisions of the pension plan was to create a distinction not on the basis of being a women, but on the basis of caregiving responsibilities, or as a result of a combination of sex with caregiver status.
Disproportionate impact alone, she says, is not sufficient to meet step one of s. 15(1) analysis. There must be some causation between the provisions and their effect. In this case, the claim is on behalf of women with children, and not simply women. The statistical disparity shows that women were disproportionately affected, but this is insufficient to prove disparity on the basis of sex. Job-sharing, she says, is not a sex-based issue but rather a caregiving status issue.
In light of this conclusion, because the distinction is made on the basis of caregiving responsibility and because the Court has not recognized caregiving, parental, or family status as a ground for discrimination under s. 15(1), the claim, in her reasons, must fail at the first stage. The provisions may not be rational, but it is not the Court’s role to correct this. Rather, it is the legislature’s responsibility.
Weinstein Law Blog 