October 23, 2020
On October 16, 2020, the Supreme Court of Canada (the “Court”) ruled that the Royal Canadian Mounted Police (“RCMP”) pension plan breaches section 15 of the Canadian Charter of Rights and Freedoms (“Charter”) on the ground of sex and perpetuates discrimination against women by precluding members who participate in job-sharing arrangements from purchasing full-time pension credit. The Court left it to the Government of Canada to remedy the Charter breach by allowing job-sharing members to buy-back pension credit.
The claimants in this case were three retired RCMP members who took maternity leave in the 1990s. Upon returning to full-time service, they experienced difficulties balancing their work and childcare responsibilities. In December 1997, the RCMP introduced a job-sharing program in which multiple members could split the duties of one full-time position. The three claimants enrolled in the job-sharing program. They and most of the other RCMP members who job-shared were women with children. Pursuant to the RCMP pension plan, members can treat certain gaps in full-time service – such as suspension or leave without pay – as fully pensionable. Accordingly, the claimants expected that their job-sharing service would be eligible for full-time pension credit. However, they were later informed that they would not be able to purchase full-time pension credit for their job-sharing service because RCMP members who job-share are classified as part-time workers under the RCMP pension plan.
The claimants brought an application in the Federal Court arguing that the pension consequences of job-sharing have an adverse impact on women contrary to section 15 of the Charter. The Federal Court dismissed their application, and the Federal Court of Appeal dismissed the claimants’ appeal.
Supreme Court of Canada
Writing for the majority, Justice Abella held that in precluding RCMP members who job-share from obtaining full-time pension benefits, the RCMP pension plan has a disproportionate impact on women, and clearly violates women’s right to equality under section 15 of the Charter.
Justice Abella began her analysis by emphasizing that section 15 of the Charter guarantees not only formal equality but also substantive equality, which requires 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. Accordingly, though on its face the imposition of less favourable pension benefits for job-sharing members seems to affect all RCMP members equally, it violates the guarantee of substantive equality due to its disproportionate impact on women.
Justice Abella then applied the well-established two-step test to section 15 claims, which requires the claimant to demonstrate (1) that the impugned law or state action, on its face or in its impact, creates a distinction based on enumerated or analogous grounds, and (2) that it imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.
On the first step, Justice Abella was persuaded by statistical evidence showing a clear association between sex and fewer working hours that the RCMP’s use of a temporary reduction in working hours as a basis for imposing less favourable pension consequences has an adverse impact on women. The evidence showed that RCMP members who took part in the job-sharing program were predominantly women with young children, and that most of these women cited childcare as their reason for doing so. Moreover, the Court referred to numerous reports showing that women have historically borne the overwhelming share of childcare responsibilities in Canadian society, and that Canadian women are far more likely than men to work part-time due to childcare responsibilities.
In holding that the second step was established, Justice Abella found that the RCMP’s pension plan by design perpetuates a long-standing gender bias present across all Canadian pension plans that favours “male pattern employment” (permanent, full-time workers with long uninterrupted service records) over “female pattern employment” (temporary or part-time service), and ultimately results in economic disadvantage for women.
A key point to monitor moving forward is that in her analysis Justice Abella seems to have relaxed the traditional requirement that the claimant demonstrate causation between the impugned law and the alleged disadvantage, holding that it is sufficient for the claimant to demonstrate clear and consistent statistical disparities in how a law affects a protected group. The minority, led by Justice Rowe and Justice Brown, opposed this approach on the basis that it would lower the claimant’s evidentiary burden to the point of insignificance to accept evidence of correlation instead of causation. The minority’s argument was dismissed by Justice Abella as an “attack” on substantive equality in favour of an overly formalistic approach to section 15 of the Charter.
Impact on future section 15 cases
The Court’s decision in Fraser v. Canada (Attorney General) will be welcomed by advocates fighting against discrimination in all its forms as it signals the Court’s commitment to upholding substantive equality based on a broad and generous approach to section 15 of the Charter. At the same time, this case highlights a deep and abiding divide within the Court about the proper interpretation of section 15 of the Charter and the extent of the Court’s role in eliminating discrimination in Canada.
Authored by Elie Waitzer, Articling Student