FRASER v. CANADA (ATTORNEY GENERAL), 2020 SCC 28

Full-time pension payments (under Royal Canadian Mounted Police (RCMP) pension plan) for those involved in the employment-share scheme have an unfair effect on women, according to s. 15(1) of the Canadian Charter.

Three former female members of the RCMP (respondent) were the plaintiffs, who had taken maternity leave in the year 1990s. After that as they came back to work, they found it almost impossible and difficult to balance their childcare duties with employment. The respondent was not allowing them to work part-time. In the year 1997, the respondent implemented a work-sharing scheme allowing two or three employees of the RESPONDENT to share the role and obligations of one full-time job for a short or defined amount of time at a reduced salary. For respondent workers, the job-sharing scheme introduced more versatility as it provided an option of taking leave without pay. Mostly Women with kids were the ones who entered the plan.

Employees of the respondent use to pay into pension plan and they use to get pension when they retired. Full time employees were allowed to buy back pension credit if they were suspended from duty or if they took unpaid leaves. But the employees who were taking the benefit of the job sharing scheme were not allowed to buy back pension credit. The plaintiffs were of the view that their full-time position-sharing services should be provided under the buy-back terms of the respondent’s pension scheme, allowing full-time workers absent from jobs or with unpaid leaves to buy back any or a part of those spans.

The plaintiffs brought an appeal in the Federal Court alleging that, according to the pension effects on the sharing of employment have a negative effect on women and violates section15(1) of the Charter. The Federal Court and federal court of appeal both dismissed the Charter appeal of the plaintiffs. It clearly stated that the sharing of jobs was a form of part-time employment for which full-time equivalent pension credits could not be received by participants.

Matter came under the purview of Supreme Court Canada, where the Court held that the handling of the job-sharing scheme by the respondent’s pension plan coincided with the double test for prima facie violations of s. 15(1) of the Charter. The pension scheme violated the right of work-sharers for its freedom and equality. It was only because women were much more who had opted for the job sharing scheme as they had to juggle work with their childcare responsibilities. It did not matter that the buyback pension credit scheme was not specially made to discriminate against women. Its influence was what mattered. The deficiency created by the long-standing presumption that women should be responsible for childcare has been maintained.

Discrimination with adverse effects under sec 15(1) of the charter can happen where a fair statute has a considerable bad influence on a protected community. In order to obtain what the SCC calls true “substantive” equality, inequality based on adverse impacts must be covered by the Charter. There was no immediate and substantive policy issue, intent or theory established by the federal government that articulated why job-share workers could not be eligible to buy-back full-time pension services and that discrimination could therefore not be justified. The Court left the government to create a strategy to encourage buy-backs on the question of the remedy, adding that such remedial actions could have retroactive scope, both for the plaintiffs and for those who are equivalent. SCC allowed the said appealed by the plaintiffs.