At issue in the case is whether the British Columbia government’s Health Services Delivery Improvement Act (Bill 29), which voids equality related provisions of existing collective agreements of the female dominated health care sector, violates section 15 of the Charter. Bill 29 applies only to the health and social services sectors, the most heavily female dominated sectors of the public service; 98% of nurses in British Columbia are women; 27% of the health care sector’s members are immigrants; 57% are over age forty-five.
The health care and social service work done by the equality claimants in this case has been traditionally constructed as women’s work (it is socially constructed as women’s work because it is work that was traditionally done in the home and seen as having little or no economic value).
Central to the employment agreements which had been voided in the Bill were prohibitions against contracting out, and commitments to pay equity and job security. LEAF argued that the contracting out of government work to private sector, non-unionized employees (likely non-unionized women), disadvantages women in several different ways. It allowed employers to avoid honouring agreements made with employees, for example, pay equity agreements. It left women recruited from the private sector to fill the positions vulnerable to exploitation and disadvantage in employment. The practice also made members of the plaintiff unions vulnerable to termination and likely forced to find re-employment within non-standard employment contexts. And finally, the practice made all affected women vulnerable to reduced wages.
Although LEAF was denied leave to intervene in this case, LEAF’s Supreme Court of Canada factum was published in the Canadian Journal of Women and the Law (CJWL). LEAF argued in its factum that: when enacting legislation governments must ensure that such legislation does not violate equality rights guarantees; when making cutbacks, the government cannot further disadvantage an already disadvantaged group; and the Court should not employ a formalistic or mechanical approach to section 15, as such an approach would not remedy systemic discrimination.
The Supreme Court of Canada ruled that Bill 29 was in violation of freedom of association protected under the Charter meaning that the rights of workers to bargain collectively was confirmed. The Court failed to find a violation of section 15.
