Constitutional law — Charter of Rights — Right to equality — Discrimination based on sex — Adverse impact discrimination — Systemic discrimination —. Social Policy Discrimination is illegal as based on Gender or region or home address in Ontario when some citizens receive an income support based on home address or as based on their transgender status. Would providing an income support to all citizens based on current legal obligations be the right answer when transgender individuals are able to work just like the Male gender or Female gender? The OAP is provided to all citizens over the age of retirement. It is not a case of disparity of gender disparity or regional disparity; nor is it a case of ageism. See the attached case: Fraser v. canada (attorney general).
fraser v. canada (attorney general)
Joanne Fraser,
Allison Pilgrim and
Colleen Fox Appellants
v.
Attorney General of Canada Respondent
and
Attorney General of Ontario,
Attorney General of Quebec,
Women's Legal Education and Action Fund Inc.,
Public Service Alliance of Canada and
National Police Federation Interveners
Indexed as: Fraser v. Canada (Attorney General)
2020 SCC 28
File No.: 38505.
2019: December 12; 2020: October 16.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Right to equality — Discrimination based on sex — Adverse impact discrimination — Systemic discrimination — RCMP allowing members to job‑share — Job‑sharing members not allowed under pension plan to buy back pension credits — Job‑sharers are mostly women — Retired members claiming that pension consequences of job‑sharing have discriminatory impact on women and violate their constitutional right to equality — Whether limitation on job‑sharers' ability to buy back pension credits discriminates on basis of sex — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 15(1) — Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R‑11 — Royal Canadian Mounted Police Superannuation Regulations, C.R.C., c. 1393.
The claimants are three retired members of the RCMP who took maternity leave in the early‑to‑mid 1990s. Upon returning to full‑time service, they experienced difficulties combining their work obligations with their childcare responsibilities. At the time, the RCMP did not permit regular members to work part‑time. In December 1997, the RCMP introduced a job‑sharing program in which members could split the duties and responsibilities 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 Royal Canadian Mounted Police Superannuation Act, and the associated Royal Canadian Mounted Police Superannuation Regulations ("pension plan"), RCMP members can treat certain gaps in full‑time service, such as leave without pay, as fully pensionable. The claimants expected that job‑sharing would be eligible for full pension credits. However, they were later informed that they would not be able to purchase full‑time pension credit for their job‑sharing service.
The claimants initiated an application arguing that the pension consequences of job‑sharing have a discriminatory impact on women contrary to s. 15(1) of the Charter. Their claim failed at the Federal Court. The application judge found that job‑sharing is part‑time work for which participants cannot obtain full‑time pension credit and that this outcome did not violate s. 15(1). The application judge held that there was insufficient evidence that job‑sharing was disadvantageous compared to leave without pay. The Federal Court of Appeal dismissed the claimants' appeal.
Held (Côté, Brown and Rowe JJ. dissenting): The appeal should be allowed.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Full‑time RCMP members who job‑share must sacrifice pension benefits because of a temporary reduction in working hours. 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.
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 claimants contend that the negative pension consequences of job‑sharing infringe s. 15(1) because they have an adverse impact on women. Resolving their claim requires considering how adverse impact discrimination is applied.
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. There is no doubt that adverse impact discrimination violates the norm of substantive equality which underpins the Court's equality jurisprudence. Substantive equality 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. At the heart of substantive equality is the recognition that identical or facially neutral treatment may frequently produce serious inequality. This is precisely what happens when seemingly neutral laws ignore the true characteristics of a group which act as headwinds to the enjoyment of society's benefits.
The same two‑step approach to s. 15(1) applies regardless of whether the discrimination alleged is direct or indirect. At the first step, in order for a law to create a distinction based on prohibited grounds through its effects, it must have a disproportionate impact on members of a protected group. A law, for example, may include seemingly neutral rules, restrictions or criteria that operate in practice as "built‑in headwinds" for members of protected groups. In other cases, the problem is not "headwinds" built into a law, but the absence of accommodation for members of protected groups.
Two types of evidence will be especially helpful in proving that a law has a disproportionate impact on members of a protected group. The first is evidence about the situation of the claimant group. Courts will benefit from evidence about the physical, social, cultural or other barriers which provide the full context of the claimant group's situation. The goal of such evidence is to show that membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group. These links may reveal that seemingly neutral policies are designed well for some and not for others.
Courts will also benefit from evidence about the outcomes that the impugned law or policy has produced in practice. This evidence may provide concrete proof that members of protected groups are being disproportionately impacted. The evidence may include statistics, especially if the pool of people adversely affected by a criterion or standard includes both members of a protected group and members of more advantaged groups. The goal of statistical evidence is to establish a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance. The weight given to statistics will depend on, among other things, their quality and methodology.
Ideally, claims of adverse effects discrimination should be supported by evidence about the circumstances of the claimant group and the results produced by the challenged law. However, both kinds of evidence are not always required. In some cases, evidence about a group will show such a strong association with certain traits that the disproportionate impact on members of that group will be apparent and immediate. Similarly, clear and consistent statistical disparities can show a disproportionate impact on members of protected groups, even if the precise reason for that impact is unknown. In such cases, the statistical evidence is itself a compelling sign that the law has not been structured in a way that takes into account the group's circumstances.
In sum, both evidence of statistical disparity and of broader group disadvantage may demonstrate disproportionate impact, but neither is mandatory and their significance will vary depending on the case. Whether the legislature intended to create a disproportionate impact is irrelevant. Proof of discriminatory intent has never been required to establish a claim under s. 15(1), and an ameliorative purpose is not sufficient to shield legislation from s. 15(1) scrutiny.
If claimants successfully demonstrate that a law has a disproportionate impact on members of a protected group, they need not also prove that the protected characteristic "caused" the disproportionate impact. It is also unnecessary for them to prove that the law itself was responsible for creating the background social or physical barriers which made a particular rule, requirement or criterion disadvantageous. In addition, claimants need not show that the impugned law affects all members of a protected group in the same way. The fact that discrimination is only partial does not convert it into non‑discrimination, and differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are mistreated.
The second step of the s. 15 test — whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage — will usually proceed similarly in cases of direct and indirect discrimination. The goal is to examine the impact of the harm caused to the affected group, which must be viewed in light of any systemic or historical disadvantages faced by the claimant group. The presence of social prejudices or stereotyping are not necessary factors in the s. 15(1) inquiry, and the perpetuation of disadvantage does not become less serious under s. 15(1) simply because it was relevant to a legitimate state objective. The test for a prima facie breach of s. 15(1) is concerned with the discriminatory impact of legislation on disadvantaged groups, not with whether the distinction is justified, an inquiry properly left to s. 1. Similarly, there is no burden on a claimant to prove that the distinction is arbitrary to prove a prima facie breach of s. 15(1). It is for the government to demonstrate that the law is not arbitrary in its justificatory submissions under s. 1.
Full‑time RCMP members who work regular hours, who are suspended, or who go on unpaid leave can obtain full pension credit for those periods of service under the pension plan, but full‑time members who temporarily reduce their hours under a job‑sharing agreement are classified as part‑time workers under the Regulations and are unable to acquire full‑time pension credit for their service. The question is whether this arrangement has a disproportionate impact on women.
In relying on the claimants' "choice" to job‑share as grounds for dismissing their claim, the Federal Court and Court of Appeal misapprehended the Court's s. 15(1) jurisprudence. The Court has consistently held that differential treatment can be discriminatory even if it is based on choices made by the affected individual or group. The Federal Court and Court of Appeal also engaged in a formalistic comparison between the remuneration offered under job‑sharing and leave without pay, even though s. 15(1) guarantees the claimants and others in the job‑sharing program the right to substantive equality with respect to full‑time RCMP workers.
Under a proper assessment, the s. 15(1) claim succeeds. The use of an RCMP member's temporary reduction in working hours as a basis to impose less favourable pension consequences plainly has a disproportionate impact on women. The relevant evidence showed that RCMP members who worked reduced hours in the job‑sharing program were predominantly women with young children. These statistics were bolstered by compelling evidence about the disadvantages women face as a group in balancing professional and domestic work. This evidence shows the clear association between gender and fewer or less stable working hours, and demonstrates 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.
This adverse impact perpetuates a long‑standing source of disadvantage to women: gender biases within pension plans, which have historically been designed for middle and upper‑income full‑time employees with long service, typically male. Because the RCMP's pension design perpetuates a long‑standing source of economic disadvantage for women, there is a prima facie breach of s. 15 based on the enumerated ground of sex.
Section 1 allows the state to justify a limit on a Charter right as demonstrably justified in a free and democratic society. To start, the state must identify a pressing and substantial objective for limiting the Charter right. The Attorney General has identified no pressing and substantial policy concern, purpose or principle that explains why job‑sharers should not be granted full‑time pension credit for their service. On the contrary, this limitation is entirely detached from the purposes of both the job‑sharing scheme and the buy‑back provisions. Job‑sharing was clearly intended as a substitute for leave without pay for those members who could not take such leave due to personal or family circumstances. It is unclear, then, what purpose is served by treating the two forms of work reduction differently when extending pension buy‑back rights. The government has not offered a compelling objective for this differential treatment.
Since the prima facie breach cannot be justified under s. 1, it is a violation of s. 15(1) to preclude the claimants and their colleagues from buying back their pension credits. The appropriate remedy is a declaration that 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.
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