October 16, 2020
Today, the Supreme Court of Canada released a significant judgment advancing women’s equality and recognizing the impact of the double burden for women as employees and caregivers. In Fraser v. Canada (Attorney General), the Court not only affirmed women’s right to equal pension benefits, but also provided a much-needed roadmap for future cases involving systemic discrimination and substantive equality.
“Justice Abella’s thoughtful judgment affirming substantive equality as the ‘animating norm’ of s. 15 of the Charter should be required reading for all Canadians given the persistence of systemic discrimination 35 years after the equality guarantee came into effect,” says Megan Stephens, Executive Director and General Counsel of LEAF. “The Court’s frequent referencing of the works of feminist scholars and lawyers, many of whom have served on LEAF’s case committees, our board, or as our counsel in past cases, is a wonderful testament to the amazing advocates in LEAF’s network.”
The Court’s clarification about what is needed to establish adverse impact discrimination is particularly welcome, given the barriers to such claims in the past. It has been over two decades since a s. 15 adverse effects discrimination claim has been successful at the Supreme Court of Canada.
The decision comes in response to the application brought by three female Royal Canadian Mounted Police (RCMP) officers, who participated in the RCMP’s job-sharing program in an attempt to find a balance between their work and childcare obligations.
The RCMP pension plan did not allow those who job-share to “buy back” pension contributions. The claimants argued that the pension consequences of job‑sharing have a discriminatory impact on women, contrary to s. 15(1) of the Charter.
LEAF’s intervention highlighted the need to give full consideration to the context of the claim, including the systemic devaluation of women’s work and caregiving responsibilities, in order to engage in a proper substantive equality analysis.
The Supreme Court’s Decision
In considering the adverse impact of the RCMP’s pension plan on women with childcare responsibilities, the Court unequivocally rejects the relevance of “choice” in those assessments. Justice Abella powerfully underscores that choices themselves are often rooted in systemic inequality. As she explains: “[f]or many women, the decision to work on a part-time basis, far from being an unencumbered choice, ‘often lies beyond the individual’s effective control’” (para 91).
LEAF welcomes the Court’s call to critically examine existing structures and policies, which, even when they appear “neutral”, can still set “powerful limits” or act as “built-in headwinds” for those who do not share the characteristics of the people who were originally intended to benefit from them (para 31). Neither intent nor the purported ameliorative purposes of laws and policies can serve as a shield against scrutiny (para 69). Section 15 requires courts to consider how the law or policy impacts the group in question to determine the existence of systemic discrimination.
This decision will serve as a cogent guide for all future systemic discrimination cases. Justice Abella brings an intersectional equality lens to her judgment, drawing on feminist scholarship, Canadian human rights jurisprudence, and international decisions involving racial discrimination to emphasize how an individual’s position in society can bring a “unique constellation of physical, economic and social barriers” (para 34). Justice Abella provides a rich and robust analysis of the existing case law, underscoring the need for a purposive and intersectional approach to s. 15 to address longstanding structural inequality.
“The majority decision powerfully affirms the right to substantive equality and provides legislatures, policy makers and advocates with a clear imperative to build inclusive systems to combat structural discrimination,” says Danielle Bisnar, partner with Cavalluzzo LLP and one of LEAF’s counsel at the Supreme Court of Canada.
Counsel and Case Committee Members
LEAF’s interventions are all guided, informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The case committee members for this intervention were Clio Godkewitsch, Jennifer Koshan, Kathleen Lahey, Nathalie Léger, Elizabeth Shilton, Susan Ursel, Jonnette Watson Hamilton, and Claire Young. LEAF gratefully acknowledges their contributions to the arguments in our intervention.
LEAF is also grateful to the pro bono counsel of Kate Hughes, Jan Borowy and Danielle Bisnar of Cavalluzzo LLP, who represented LEAF at the Supreme Court of Canada.
About Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.
The LEAF staff members who contributed to this case were Megan Stephens, Rosel Kim, Nicole Biros-Bolton and Paniz Khosroshahy (LEAF Summer Intern 2019).
To support our work to protect the equality rights of women and girls, please consider donating today.
For media inquiries, contact:
Danielle Bisnar, Partner
E: [email protected]
Rosel Kim, Staff Lawyer
Women’s Legal Education and Action Fund (LEAF)
E: [email protected]