Superannuation policy created a distinction based on protected ground of sex, majority finds
Three former regular members of the Royal Canadian Mounted Police who job-shared while raising young children were discriminated against in not being able to “buy back” full pension credit for the periods their working hours through job-sharing agreements, the Supreme Court of Canada ruled today in a 6/3 decision.
In Fraser v. Canada (Attorney General), the majority of the Supreme Court found that the three women’s s. 15 Charter rights had been breached.
“Full-time RCMP members who job‑share must sacrifice pension benefits because of a temporary reduction in working hours,” Justice Rosalie Abella wrote for the majority in describing the national police force’s superannuation regulations.
“This arrangement has a disproportionate impact on women and perpetuates their historical disadvantage. It is a clear violation of their right to equality under s. 15(1) of the Charter.”
“This is a huge win for equality and women in the workplace, and in the home,” Paul Champ, who acted for the appellants in the case, told Canadian Lawyer.
“The federal government has tinkered with the RCMP pension plan over the years to make it fairer for women who have interruptions in their service for childbirth and care for small children,” says the Ottawa-based litigator. “But it continued to penalize women who wanted to balance their job duties and childcare responsibilities for young children.”
The appellants in the case are women and mothers who were regular (and now retired) members of the RCMP. In the 1990s, in order to care for their young children, they temporarily reduced their hours of work through a job-sharing program that had been offered by the RCMP since 1997. The women’s pension benefits were adjusted accordingly and calculated as those calculated for members who worked part-time hours. The women were not given the option of treating the period for which they did not work as pensionable time, even though members who had been suspended and who took unpaid care and nurturing leave were allowed to buy back their pension, i.e., to double up their pension contributions later to make up the reduced contributions .
The appellants argued that the Royal Canadian Mounted Police Superannuation Act was discriminatory on the grounds of sex and parental status because RCMP members who chose not to work or who took unpaid leave were given the option of buying back their pension. The Federal Court of Canada previously dismissed their application, and the Federal Court of Appeal dismissed the appeal.
In today’s decision the majority of the Supreme Court found that the RCMP’s superannuation policy created a distinction based on a protected ground – sex, since the policy disproportionately affected women – and that it had the effect of perpetuating, reinforcing or exacerbating the disadvantage.
This was a clear violation of the right to equality, the majority found, and was an example of adverse-impact discrimination, since its impact had a disproportionate effect on a protected group: women.
“Section 15(1) reflects a profound commitment to promote equality and prevent discrimination against disadvantaged groups,” Justice Abella wrote. “To prove a prima facie violation of s. 15(1) , a claimant must demonstrate that the impugned law or state action:
• on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
• imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.”
The appellants had argued that the negative pension consequences of job‑sharing were not explicitly based on sex, but rather that they had an adverse impact on women with children.
“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,” wrote Justice Abella, and it “violate[s] the norm of substantive equality.”
She noted that RCMP members who worked reduced hours in the job‑sharing program were predominantly women with young children, and that from 2010 to 2014, 100 per cent of members working reduced hours through job‑sharing were women and most of them cited childcare as their reason for doing so.
‘All of these sources — and more — show the clear association between gender and fewer or less stable working hours. They provide powerful support for Ms. Fraser’s core argument: 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.”
“As the Supreme Court says in its judgment, pension plan design has been identified for decades as a source of discrimination for women,” Champ said. “Pension plans were created for ‘male pattern employment,’ and plan rules often excluded women who would often have interruptions in service or reduced or part-time hours, all because of their childcare responsibilities.
“This judgment is an important affirmation of the concept of substantive equality, which has really been at the heart of section 15 Charter jurisprudence. This case focuses on ‘adverse effect’ discrimination, that is, the inequality that can be caused by facially neutral laws. … The judgment is part of the important line of cases for equality of women like Brooks, Janzen, and Action Travail.”
In dissent, Justice Russell Brown, also writing for Justice Malcolm Rowe, found that the RCMP’s pension plan did not violate s. 15 of the Charter. While they agreed that the plan creates a distinction that, in its impact, is based on sex, its effect cannot hinder government efforts against pre-existing inequality.
The job-sharing program was designed to provide benefits to RCMP members, particularly women, to help them balance caring for children at home with their professional duties. Any disadvantage was caused not by the law itself, i.e., the superannuation act, but by the unequal sharing of family duties generally, Justices Brown and Rowe found.
The state does not have a “freestanding positive obligation” to remedy social inequalities and it can act incrementally, by putting in place policies that narrow a gap without closing it. “That the Plan does not eradicate disadvantage should not mean that it should attract censure as ‘discriminatory,’ Justice Brown wrote.
Justice Suzanne Côté, in separate dissenting reasons, found that the RCMP’s pension plan did not create a sex-based distinction. For her, the distinction was based on caregiving responsibilities alone, or, a combination of sex or caregiver status; so, the appellants were not discriminated against specifically as women. Not only women are caregivers, she noted, pointing to same-sex couples who care for their children, and those who care for aging parents or a spouse. Caregiver status is not recognized as a ground of discrimination in Canadian law.
“We are currently in the process of reviewing the decision and its implications to determine what steps must be taken,” Cpl. Caroline Duval of the RCMP wrote in a statement to Canadian Lawyer. “This being said, we are committed to reviewing the job-sharing arrangement.
“The RCMP remains committed to building an inclusive and barrier-free workplace for all of its employees.”
As an intervenor in this matter, “Ontario took the position that to establish a distinction based on a protected ground, a claimant must show more than just that there are underlying social circumstances of disadvantage or statistical evidence of impact on a group protected by Section 15,” said Brian Gray, spokesman for Ontario’s Ministry of the Attorney General, in a statement.
“Ontario also argued that a claimant must demonstrate that a protected ground was ‘a cause’ of the distinction.
“The majority did not accept Ontario’s position. Ontario did not take a position on whether, if a distinction were found, the distinction was discriminatory or justified under Section 1” of the Charter.
