BCLI Comment on Fraser Decision: Pleased to see our Work Referenced by Canada’s Highest Court
November 27, 2020
BY Krista James
In 2012 the BCLI published the study paper Human Rights and Family Responsibilities: Family Status Discrimination under Human Rights Law in British Columbia and Canada (BCLI study paper). The paper reviews research and jurisprudence on the family status ground, discusses concerns with the BC Court of Appeal’s approach to family status discrimination in an employment and family caregiving context, and concludes with a call for further public consultation and policy development to help clarify the scope of family status discrimination in Canada. On October 16, 2020 we were pleased to see the study paper cited in the majority decision in Fraser v. Canada (Attorney General), 2020 SCC 28 (Fraser). This blog post reviews the decision in Fraser, connects it to the BCLI study paper, and provides an update on BCLI’s research on family status discrimination.
The SCC Decision in Fraser
Background and Key Facts of the Case
Fraser v. Canada concerns three retired members of the RCMP who had participated in a job-sharing program following the birth of their children. The RCMP had introduced job sharing in 1997 to provide an alternative for members who might otherwise need to take unpaid leave to care for family or other personal matters. For RCMP members temporarily reducing their hours through job-sharing, this service counted as part-time work for pension calculations, and their pensionable service for this time was prorated. Unlike other gaps in service—such as unpaid leave and time on suspension—job-sharing time was not eligible for pension buy back, which allows workers to pay the contributions they and the RCMP would have made during periods of full or part-time employment, such that their pensions are not impacted by a leave or reduced hours. The claimants argued the policy prohibiting members from buying back credits they would have accumulated during periods of job-sharing discriminated against them under s. 15 of the Charter, based on the enumerated ground of sex and the analogous ground of parental or family status.
The Federal Court had dismissed the application, finding the job-sharing program to be part-time work and thus ineligible for buy-back. The Court found that the pension provisions did not violate section 15(1) of the Charter because there was not enough evidence that women in the job-sharing program were disadvantaged when compared to people on unpaid leave. Even if the job-sharing participants were disadvantaged, this was the result of them choosing to enter the job-sharing program, not caused by the pension plan provisions themselves. The Federal Court of Appeal dismissed the appeal, and the Supreme Court of Canada allowed the appeal.
Adverse Impact Discrimination
At the crux of the SCC decision is the meaning of adverse impact or systemic discrimination. Abella, writing for the majority, provides a rich discussion of adverse impact discrimination, clarifying both the legal test and the evidence required to establish discrimination.
She explains that “[a]dverse 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… Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage” (para 30). In reviewing the conclusions of the lower courts that the applicants had chosen the job-sharing arrangement, and that this choice negated the claim, she points out that the Court has held that discrimination can be found “…even if it is based on choices made by the affected individual or group” (para 86). Her decision notes, as we discussed in the BCLI study paper, that the notion of choice can be problematic in a discrimination case because a historically disadvantaged group’s choices are often constrained at a systemic level by inequality. Abella highlights that for many women with children, working part-time is not an “unencumbered choice”, and they must work part-time due to family responsibilities. Her decision cites significant academic literature on the meaning of adverse impact discrimination, providing an excellent lesson in equality law.
In the first stage of the section 15(1) test, the court considers whether the law at issue has an impact based on an enumerated or analogous ground. In this case, the RCMP job-sharing program was primarily used by women with young children, and from 2010-2014 all participants were women. The court heard a multitude of evidence demonstrating that in Canada (and elsewhere) women are disadvantaged in trying to balance paid work, care work, and other household work. Women historically and currently do more of the childcare and are far more likely than men to work part-time (or stop working) in order to balance childcare and paid work. Therefore, when the pension plan disadvantages part-time workers, this will disadvantage women with children. The discussion is very timely as the pandemic has seen a significant reduction in women’s participation in the paid work force. The majority finds:
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. The first part of the s. 15(1) test has therefore been met. (para 106)
In the second stage of the section 15(1) test, the court considers whether the law’s impact reinforces, perpetuates, or exacerbates a disadvantage. The court was presented with much evidence of gender bias in pension plans. Pension plans favor employment which is full-time without interruption at a high level of pay, which is a typical male pattern of work. Pension benefits are more limited for people who work part-time, have interruptions in work, or work at a lower pay rate, which is more common for women. This dynamic has a large impact on financial stability in retirement, leading to the ‘feminization of poverty’ in later life. Abella notes that “[b]ecause the RCMP’s design perpetuates a long-standing source of economic disadvantage for women, the second stage of the s. 15(1) test is satisfied and there is a prima facie breach of s. 15 based on the enumerated ground of sex. (para 113)
The majority considers whether there is a pressing and substantial objective to limit the group’s rights, and finds that there is not:
The Attorney General, in my respectful view, 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, which were intended to ameliorate the position of female RCMP members who take leave to care for their children. (para 126)
Discrimination based on Family Status
The majority decision in Fraser concluded that since the claim has been successful on the enumerated grounds of sex, there is no need to decide the case on the grounds of parental or family status. Abella states that Fraser was “not the right case to resolve whether family/parental status should be recognized as an analogous ground under s. 15(1)” (para 116). She points out that:
[A] robust intersectional analysis of gender and parenting — as this case shows — can be carried out under the enumerated ground of sex, by acknowledging that the uneven division of childcare responsibilities is one of the “persistent systemic disadvantages [that] have operated to limit the opportunities available” to women in Canadian society (Taypotat, at para. 17; see also Withler, at para. 43; Quebec v. A, at paras. 327‑32; Alliance, at para. 28; Centrale, at para. 35) (ibid)
She highlights an insufficiency of evidence presented to the court to decide whether parental or family status should be created an analogous ground as an even more compelling reason to delay this exploration.
The majority decision references the BCLI study paper in relation to family status ground being interpreted to include protection for parents and the meaning of family status discrimination having “been the source of considerable ‘uncertainty and controversy’ in the human rights arena” (118). However, she does recognize the urgency in considering issues in relation to family/parental status as an analogous ground, particularly given the “growing and urgent need related to eldercare” (122), concluding:
That is not to say that this status should not eventually be recognized as an analogous ground, or that we should shy away from recognizing analogous grounds which raise complexities — rarely do enumerated or analogous grounds come neatly packaged — but before we do so, it seems to me to 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. (123)
In contrast, the dissent of Justice Coté rejects the sex discrimination claim, reasoning that discrimination resulted not solely from being a woman but as a result of being a woman with caregiving responsibilities. Justice Coté notes that the claim was originally argued under the intersecting grounds of and parental or family status, and to her the case fails because family / parental status have not been, and should not be, recognized as analogous grounds, citing Justice Abella’s commentary noted above as her rationale. The minority judgment hinges on assertions against conflating caregiving with gender.
The BCLI study paper referenced in this ruling was funded by the Law Foundation of BC. It followed an earlier BCLI study paper on Law Reform to Support Family Caregivers to Balance Paid Work and Unpaid Caregiving—also funded by the Law Foundation of BC—which identified restrictive interpretations of family status discrimination in BC as a barrier to relying on human rights law to address the needs of working caregivers and motivated a deeper dive into this jurisprudence. In 2017 the Canadian Human Rights Commission provided funding to update the BCLI family status research. BCLI’s 2017 paper Human Rights and Accommodation in the Workplace: Obligation, Choice, and Family Caregivers summarizes much of this later research.
In recent years the Supreme Court of Canada has denied leave to cases which would consider the appropriate test for family status discrimination under human rights statutes. When the Court does decide to tackle this issue, or the analogous ground issue raised in Fraser, the BCLI work in this area can offer helpful context for future submissions and decisions.