Written by Janna Crown
The Supreme Court of Canada recently revisited the concepts of substantive equality and adverse effect discrimination in Fraser v Canada, 2020 SCC 28, where the Court considered whether the RCMP’s policy of denying members who job-share the option to buy back full-time pension credits amounted to discrimination under s.15(1) of the Charter.
Background
In 1997, the RCMP introduced a job-sharing program as an alternative to leave without pay. The program overwhelmingly attracted women with children who cited childcare as their primary reason for participating. Those who participated in the program were unable to buy back full-time pension credits because under the RCMP’s pension regulations, full-time members who temporarily reduce their hours under a job-sharing agreement were classified as part-time workers. However, full-time RCMP members who were suspended, or who took unpaid leave could obtain full pension credit for those periods of service under the pension plan.
Initially, three female RCMP officers challenged the denial of their requests to buy back full-time pension credit for their job-sharing service through an internal grievance. While the RCMP External Review Committee found in their favour, the RCMP’s Acting Commissioner did not following the Committee’s recommendations and dismissed the grievances. As a result, the three women launched a Charter application in Federal Court.
Federal Court Proceedings
The Federal Court judge found no violation of s. 15(1) of the Charter because there was insufficient evidence that job sharing was disadvantageous compared to unpaid leave, and even if there was, these outcomes were the result of the participant’s choice to job-share. As a result, the Charter application was dismissed.
The Federal Court of Appeal upheld the lower court’s decision, holding that RCMP members who participated in job sharing did not receive “inferior compensation” to members on leave without pay, and that any adverse effect that occurred was due to the choice to job-share, not due to the pension plan.
SCC Decision
Writing for the majority, Justice Abella allowed the appeal after finding that the appellants had established a breach of s. 15(1) of the Charter that could not be justified under s. 1. Before turning to the evidence before the Court, Justice Abella reiterated the well-established test for discrimination under s. 15(1):
1. claimants must show that a law or policy creates a distinction based on a protected ground, and
2. that the law perpetuates, reinforces or exacerbates disadvantage.
Justice Abella emphasized that this test does not require revision in the context of adverse effect cases but confirmed that distinctions in such cases will need to be discerned by examining the impact of the law.
On the first step of the test, Justice Abella provided helpful guidance for examining whether a law has an indirect disproportionate impact on members of a protected group, and noted that evidence may come from different sources including the claimant, expert witnesses or through judicial notice. Statistical evidence, she noted, “may provide concrete proof that members of protected groups are being disproportionately impacted”.
Under the second step of the s. 15(1) analysis, Justice Abella identified that “there is no ‘rigid template’ of factors relevant to this inquiry.” Rather, the goal is to examine the impact of the harm caused to the affected group viewed in light of systemic or historical disadvantages they have faced.
Turning to the claim on appeal, under the first part of the s. 15(1) inquiry, Justice Abella found that use of a member’s temporary reduction in working hours as a basis to impose less favourable pension consequences “plainly has a disproportionate impact on women”. She went on to find that the second part of the s. 15(1) inquiry had been met because the regulations at issue perpetuated a long-standing source of economic disadvantage for women.
Having found a breach of s. 15(1) on the basis of sex, Justice Abella determined that it was unnecessary to fully address the appellants’ alternative argument that the Court should recognize parental/family status as an analogous ground under s. 15(1). However, Justice Abella noted that in any event, the record of evidence and submissions did not sufficiently address this issue at any stage of the proceedings. For future cases, she emphasized that it would “be wiser to have the benefit of sufficient argument and submissions so that the recognition, when it comes, pays full tribute to the breadth of what is at stake”.
Justice Abella easily dispensed with s. 1 of the Charter after determining that the Attorney General had failed to identify any pressing and substantial policy concern explaining why those job-sharing should not have access to full-time pension credit for their service.
Having found that the breach of s. 15(1) was not justified, Justice Abella instructed the government to develop buy-back provisions in accordance with the decision, and ordered that the amended legislation would have retroactive effect.
There are two very spirited dissents to this decision; however, all justices were in agreement that this was not the appropriate case to expand the scope of s. 15(1) to include parental/family status as an analogous ground.
Takeaway
Fraser reaffirms the importance of analyzing an alleged breach of s. 15(1) of the Charter through the lens of substantive equality. The decision also confirms that enacting legislation with an ameliorative intent will not automatically shield governments from scrutiny under s. 15(1) of the Charter; they will still be held accountable if such legislation disproportionately impacts on a protected group. Notably, this portion of the decision was criticized by the dissent on the basis that it might have a “chilling effect” on public actors seeking to introduce remedial legislation to address systemic inequalities.
Fraser also provides a helpful analysis of the different types of evidence that may be advanced by claimants seeking to establish that a facially neutral law has an indirect disproportionate impact on members of a protected group, which, unlike in direct discrimination cases, can be a significant hurdle for claimants to overcome in order to make out a case of discrimination.
While Fraser was a missed opportunity for the Court to recognize parental/family status as an analogous ground under s.15(1), the decision highlights the importance of advancing sufficient evidence and legal arguments when seeking to add analogous grounds to s. 15’s enumerated grounds. Accordingly, we will have to wait for another case – with a more fully fleshed out record – before the SCC weighs in on this potential analogous ground.