Wednesday, October 28, 2020

Canadian Supreme Court Issues Critical Disparate Impact Decision

FlagChristopher Albertyn (Albertyn Arbitration Inc.) is kind enough to write this guest post on the important new Canadian decision of Fraser v. Canada (Attorney General), 2020 SCC 28 (CanLII):

The Supreme Court of Canada has ruled that the Royal Canadian Mounted Police (RCMP) pension plan discriminated against women. The pension plan therefore breached an Equality Right at section 15(1) of the Charter of Rights and Freedoms:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The claimants were full-time RCMP members who took advantage of a job-sharing arrangement offered by the RCMP. During the period they were job-sharing their employment was characterized as part-time. Part-time employees were not entitled to purchase full-time pension credits. So, when the claimants ended the period of their job-sharing and they sought to purchase their full-time pension credits, they were advised that, as part-time employees during their job sharing, they could not buy back their full-time pension credits. They claimed this determination discriminated against them in violation of section 15(1) of the Charter.

On October 16, 2020, the Supreme Court of Canada (the SCC) ruled that the Royal Canadian Mounted Police (RCMP) pension plan breaches section 15(1) on the ground of sex. This was because a provision of the plan perpetuated discrimination against women by precluding members who participate in job-sharing arrangements from purchasing full-time pension credit. The result was that their eventual pension entitlements were less than those, predominantly male employees, who were able to purchase full-time pension credits during periods of less than full-time work, including when they were on disciplinary suspension. Only those regular, full-time employees who were on the job-sharing program were not able to purchase the credits for their periods of less than full-time work.

The S.C.C. found that the RCMP pension plan has a disproportionate impact on women and so violated women’s rights to equality under the Charter.

The finding was not because “women continue to have disproportionate responsibility for childcare and less stable working hours than men, but because the pension plan ‘institutionalizes those traits as a basis on which to unequally distribute; pension benefits to job-sharing participants” [para.136].

Justice Abella, writing for the S.C.C., made clear that the Charter guarantees substantive equality, having regard to the actual impact on the affected employees. On its face the imposition of less favourable pension benefits for job-sharing members seemed to affect all RCMP members equally, but it had a disproportionate impact on the women officers, and so was found to be discriminatory.

The S.C.C. applied the two-step test to section 15(1) claims. The claimant had to demonstrate:

    1. that the impugned action, in its impact, created a distinction based on a prohibited ground, and
    2. that the action imposed had a disproportionately adverse effect on the members of the protected group, in this case, women.

On the first step, the S.C.C. found that statistical evidence showed a clear association between sex and fewer working hours. So, the RCMP’s use of a temporary reduction in working hours as a basis for imposing less favourable pension consequences had an adverse impact on women. The RCMP members who took part in the job-sharing program were predominantly women with young children. Most of these women gave childcare as their reason for doing so.

In holding that the second step was established, the S.C.C. found that the RCMP’s pension plan perpetuated a long-standing gender bias that favoured “male pattern employment” (permanent, full-time workers with long uninterrupted service records) over “female pattern employment” (temporary or part-time service). This resulted in a disproportionate economic disadvantage for women.

This case is important in reiterating and clarifying how discrimination cases are to be decided. It gives a clear statement that substantive equality is the standard on which the protection is to be decided. Also, the question is not whether a provision explicitly targets a protected group for differential treatment, but rather, does the provision do so indirectly through its impact? The S.C.C. suggested that two types of evidence are useful to provide that a law or action has a disproportionate impact on a protected group: evidence of the full context of the protected group (i.e. their physical, social, cultural or other barriers), and evidence about the results or effects of the law or action on them. To establish the link between the impugned provision and the alleged disadvantage, the claimants need only demonstrate consistent statistical disparities in how the provision affects them, without having to explain why that was the result. Such evidence “is itself a compelling sign that the law has not been structured in a way that takes into account the protected group’s circumstances”. Through such evidence, some seemingly neutral policy can be shown to have a disproportionate impact on the protected group.

The S.C.C. also had some helpful additional observations:

    1. The intention of the legislator is irrelevant. It is not necessary to prove an intention to discriminate.
    2. If the claimants demonstrate that a law has a disproportionate impact on members of a protected group, they need not independently prove that the protected characteristic “caused” the disproportionate impact, i.e. that the basis of the exclusion was the protected characteristic. The effect is all that matters.
    3. The claimants need also not show that the impugned provision affected all members of the protected group in the same way, or even at all. Practices that amount to partial discrimination are no less discriminatory than those in which all members of a protected group are affected.


Employment Discrimination, International & Comparative L.E.L., Pension and Benefits, Public Employment Law | Permalink