Joanne Fraser, Allison Pilgrim v. Colleen Fox, 2020 SCC 28

SUPREME COURT OF CANADA Citation: Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113 Appeal Heard: December 12, 2019 Judgment Rendered: October 16, 2020 Docket: 38505 Between: Joanne Fraser, Allison Pilgrim and Colleen Fox Appellants and 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 Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 139) Joint Dissenting Reasons: (paras. 140 to 230) Dissenting Reasons: (paras. 231 to 256) Abella J. (Wagner C.J. and Moldaver, Karakatsanis, Martin and Kasirer JJ. concurring) Brown and Rowe JJ. Côté J.

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 d iscriminatory 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. Per Brown and Rowe JJ. (dissenting): The RCMP pension plan does not violate s. 15 of the Charter in its application to members who job-share by denying them the right to accrue full-time pension credit for periods when they job-shared for childcare reasons.

While the pension plan does create a distinction that, in its impact, is based on sex, its effect cannot be to hinder government efforts to address pre-existing inequality. Any disadvantage the claimants face is caused not by the impugned provisions or any government action, but by the unequal division of household and family responsibilities and social circumstances such as the availability of quality childcare. Substantive equality has become almost infinitely malleable, allowing judges to invoke it as rhetorical cover for their own policy preferences in deciding a given case.

This discretion does not accord with, but rather departs from, the rule of law. Understanding the pension plan and the underlying legislative scheme in its entirety is key to adjudicating the s. 15 claim. It is incumbent on the Court to understand and account for how the scheme operates as a whole. The only employment statuses provided for under the pension plan are full-time, part-time, and leave without pay. There are no specific provisions relating to job-sharing but the relevant policies define job-sharing as a form of part-time work.

Job-sharers are treated as working part-time during the period in which they job-share. As they work part-time hours, they receive part-time pension benefits for the period they job-share. The s. 15 test, as it is currently framed, can address claims of adverse-impact discrimination by its inquiry into whether a law creates a distinction in its impact. At step one of the s. 15 test, it is not necessary to demonstrate that the impugned law or state action has the effect of contributing to an existing disadvantage. As a search for impact is a search for causation, establishing causation is critical.

This is particularly so in instances where the state acts in order to address systemic discrimination given that the inquiry at step one is into whether the gap in outcomes is fully explained by pre-existing disadvantage or whether state conduct has contributed to it.

Section 15 is concerned with state conduct that contributes to pre-existing disadvantage. The state does not have a freestanding positive obligation to remedy social inequalities and it can act incrementally, by putting in place policies that narrow a gap without closing it. Ultimately, the onus is on the claimant to establish causation between the impugned law and the disadvantage. The analysis should not assume that correlation is the function of causation, where it might be the function of independent factors — correlation itself is not proof of causation.

Where a law is enacted to incrementally narrow a pre-existing systemic disadvantage without eradicating it, an element of disparity will necessarily remain. In such cases, it is not enough to refer to a statistical disparity and a broader group disadvantage. The focus at step one on identifying a distinction is consistent with the comparative nature of equality. The two ways in which a distinction can be framed on the enumerated ground of sex in this case are by comparison to full-time members and by comparison to members who take leave without pay.

The comparison to members who take leave without pay is a distinction that is not based on sex because there is no evidence that members taking leave without pay are less likely to be women than members participating in the job-sharing program. However, the distinction by comparison to full-time members is a distinction based on sex because members of the job-sharing program are disproportionately women, whereas uninterrupted full-time employment is a male pattern of employment. Therefore, the pension plan creates a distinction that, in its impact, is based on sex.

Step two of the s. 15 analysis asks whether that distinction is discriminatory in that it fails to respond to the actual capacities and needs of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of women. The analysis at this step must consider whether the unequal impact corresponds with a group’s actual circumstances or needs or whether it is in any other sense substantively discriminatory.

To establish substantive discrimination, an element of arbitrariness or unfairness has always been required in the s. 15 analysis. Factors relating to arbitrariness or unfairness must not be confined to the s. 1 analysis. The element of arbitrariness or unfairness has been most often expressed as a failure to respond to individuals’ capacities, needs and circumstances but it does not need to take the form of promoting negative attitudes. It has never been confused with a discriminatory purpose, which is not required to establish substantive discrimination.

Substantive discrimination cannot be reduced to historical disadvantage. In some circumstances, laws can maintain significant disadvantage while treating individuals equally and without discrimination. Substantive equality has become so vague that it is impossible for claimants or legislatures to anticipate its demands in advance. Legislatures are instead effectively expected to hit a moving target. It is not arbitrary or unfair and therefore not discriminatory for an employer to prorate compensation, including benefits,

according to hours worked when this responds to employees’ actual capacities and circumstances. Employers must be able to compensateemployees based on hours worked and offering pension benefits that are prorated to hours worked is not substantive discrimination. Inaccordance with the contextual analysis of the broader scheme, the provisions on leave without pay remain an important consideration atstep two even though the distinction based on members who job-share compared to those who take leave without pay is not based onsex.

Offering pension benefits that are prorated to hours worked does not become substantive discrimination where members who takeleave without pay have the right to buy back hours of pension benefits, because the focus of the contextual analysis must be on the actualimpact of the law in its full context and must consider each benefit program in full.

In the case at bar, the record does not suggest that the lines drawn are inappropriate, having regard to all the circumstances.The pension plan does not represent a source of ongoing systemic disadvantage as it does not contribute to women’s systemicdisadvantage; nor does it reinforce, perpetuate, or exacerbate the pre-existing disadvantage of women in the workplace which arises inpart from unequal distribution of parental responsibilities.

The impugned provisions of the pension plan represent an example of agovernment acting incrementally to address inequities that exist in society, using provisions that do not have a discriminatory impact.The legislation is ameliorative in both intent and effect. Given that s. 15(1) of the Charter is not infringed, there is no need to consider s. 1 Per Côté J. (dissenting): The claim fails at step one of the s. 15(1) analysis because the impugned provisions of the pensionplan do not create a distinction on the basis of the enumerated ground of sex.

The effect of the impugned provisions of the pension planis to create a distinction not on the basis of being a woman, that is, sex simpliciter, but on the basis of caregiving responsibilities alone oras a result of a combination of sex with caregiver status. The impugned provisions of the pension plan that discriminate against those with caregiving responsibilities do notnecessarily discriminate against women.

There is disagreement that, in effect, discrimination on the basis of childcare is tantamount todiscrimination on the basis of sex due to their historical association with one another because caregiving status can be separated from sex;rather, same-sex couples with children, as well as those individuals with elderly caregiving responsibilities will all be disproportionatelyaffected. Disproportionate impact alone is not sufficient to meet step one of the s. 15(1) analysis.

Ultimately, in cases of adverse effectdiscrimination, the question under step one is whether the law, while facially neutral, creates an adverse distinction based on anenumerated or analogous ground. Step one includes a requirement of causation, nexus or tether between the impugned provisions andtheir effect. It cannot be satisfied in the absence of such a nexus between the impugned law and the disproportionate impact. In cases ofadverse effect discrimination, step one is a step at which claimants have more work to do, unlike at s. 1, where the burden is placed onthe government.

If disproportionate impact alone were sufficient, this would invite statistics-based litigation which would not bedesirable, in part because statistics are constantly shifting. In the present case, the claim is on behalf of women with children, and not simply women. It is critical that the claimantshad caregiving responsibilities that made them decide to job-share. The statistical disparity in results showing that women aredisproportionately affected — given that the majority of job-sharers are women with children — is insufficient to say that step one hasbeen met.

There is no reason why job-sharing is a singularly sex-based issue: rather, it is a caregiving status issue because job-sharing isa solution for all members with caregiving responsibilities, not just a solution for those of a certain sex who have children. In light of the conclusion that any distinction depends not on sex but on caregiving responsibility and that the Court has notrecognized caregiving, parental, or family status as an analogous ground, in this case, the claimants’ contention must fail at step one ofthe s. 15(1) analysis.

To be sure, the impugned provisions may very well not be rational — there may indeed be no logical reason todeprive job-sharers of full pension benefits that are guaranteed to full-time members and members on leave without pay. But it is not theCourt’s role to constitutionalize normative judgments to this effect; that is the role of the electorate, and in turn, the legislature. Ittherefore falls to the legislature, not the courts, to remedy any under-inclusiveness in this legislation, which purportedly was meant toassist with caregiving responsibilities in the first place.

As no distinction can be made out on the basis of sex, there is no need to proceed to the second step of the analysis. Cases Cited By Abella J. Referred to: Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Kahkewistahaw First Nation v. Taypotat,2015 SCC 30, [2015] 2 S.C.R. 548; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et desservices sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18,[2018] 1 S.C.R. 522; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Griggs v.

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Section 15 at Twenty”, in Sheila McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms . Markham, Ont.: LexisNexis, 2006, 45. Young, Margot. “Unequal to the Task: ‘Kapp’ing the Substantive Potential of

Section 15” (2010), 50 S.C.L.R. (2d) 183 . Yowell, Paul. Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review . Portland, Or.: Hart Publishing, 2018. APPEAL from a judgment of the Federal Court of Appeal (Gauthier, Gleason and Woods JJ.A.), 2018 FCA 223 , [2019] 2 F.C.R. 541, 426 C.R.R. (2d) 190, 44 C.C.P.B. (2nd) 167, 2019 CLLC ¶230-018, [2018] F.C.J. No. 1228 (QL), 2018 CarswellNat 7614 (WL Can.) , affirming a decision of Kane J., 2017 FC 557 , [2017] F.C.J. No. 609 (QL), 2017 CarswellNat 2726 (WL Can.). Appeal allowed, Côté, Brown and Rowe JJ. dissenting.

Paul Champ and Bijon Roy , for the appellants. Christopher M. Rupar , Zoe Oxaal and Gregory Tzemenakis , for the respondent. Rochelle S. Fox and Yashoda Ranganathan , for the intervener the Attorney General of Ontario. Amélie Pelletier Desrosiers and Catheryne Bélanger , for the intervener the Attorney General of Quebec. Danielle Bisnar , Kate Hughes and Janet Borowy , for the intervener the Women’s Legal Education and Action Fund Inc. Andrew Astritis and Morgan Rowe , for the intervener the Public Service Alliance of Canada.

Christopher Rootham and Andrew Montague-Reinholdt , for the intervener the National Police Federation. The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ. was delivered by [ 1 ] Abella J . — In 1970, the Royal Commission on the Status of Women in Canada set out a galvanic blueprint for redressing the legal, economic, social and political barriers to full and fair participation faced by Canadian women for generations. Many of the inequities it identified have been spectacularly reversed, and the result has been enormous progressive change for women in this country.

But despite the sweep of legislative initiatives and the positive realignment of many social expectations, the long reach of

entrenched assumptions about the role of women in a family continues to leave its mark on what happens in the workplace. [2] One of the ways it does so is in how women are remunerated generally; the corollary is how they are remuneratedwhen they seek to combine work with family responsibilities by working part-time. As the Royal Commission noted, “ways must befound to provide [part-time] employees with pay and working conditions no less equitable than those provided for the full-time worker”(Report of the Royal Commission on the Status of Women in Canada, at p. 105).

Fifty years later, this appeal raises that very issue. [3] Members of the Royal Canadian Mounted Police (“RCMP”) receive benefits upon retirement from a pension plan.Greater benefits are provided to members with a record of high pay and long, uninterrupted full-time service. Certain gaps in a member’srecord of service — such as being suspended or time spent on unpaid leave — can be filled in through a “buy back” process, leaving themember’s pension benefits unaffected. No such choice is available to full-time members who temporarily reduced their working hoursunder a job-sharing agreement.

Nearly all of the participants in the job-sharing program are women and most of them reduced their hoursof work because of child care. [4] Three retired members of the RCMP claim that the pension consequences of job-sharing have a discriminatoryimpact on women and violate s. 15(1) of the Canadian Charter of Rights and Freedoms. Their claim failed at the Federal Court (2017FC 557).

The application judge concluded that job-sharing is not disadvantageous when compared to unpaid leave and, even if it is, thatany such disadvantage is the result of an individual employee’s choice to job-share, not her gender or family status. The Federal Court ofAppeal upheld the application judge’s decision (2018 FCA 223 , [2019] 2 F.C.R. 541). [5] I would allow the appeal. Full-time RCMP members who job-share must sacrifice pension benefits because of atemporary reduction in working hours. This arrangement has a disproportionate impact on women and perpetuates their historicaldisadvantage.

It is a clear violation of their right to equality under s. 15(1) of the Charter. Background [6] Ms. Fraser, Ms. Pilgrim and Ms. Fox served as police officers in the RCMP for over 25 years. Ms. Fraser wasposted to Fort Saskatchewan, Alberta, where she worked rotating 10-hour shifts, 7 days a week. Ms. Pilgrim worked in the CommercialCrime Unit in Quebec City. Ms. Fox began her policing work in Toronto before being transferred to a small community in centralNewfoundland. [7] Ms. Fraser, Ms. Pilgrim and Ms. Fox took maternity leaves in the early-to-mid 1990s.

Upon returning to full-timeservice, they experienced difficulties combining their work obligations with caring for their children. Ms. Fraser described feeling“overwhelmed” as she tried to balance work and family; Ms. Pilgrim felt like she was “on a treadmill”; and Ms. Fox described theexperience as “hell on earth”. These difficulties caused Ms. Fox to retire from the RCMP in 1994 and resulted in Ms. Fraser takingunpaid leave in 1997.

At the time, the RCMP did not permit regular members to work part-time. [8] In December 1997, the RCMP introduced a job-sharing program to provide members with an alternative to takingleave without pay. Under the job-sharing program, two or three RCMP members could split the duties and responsibilities of one full-time position, which allowed each participant to work fewer hours than a full-time employee.

Parties to a job-sharing agreement could beasked, on one month’s notice, to resume full-time work based on administrative or operational needs. [9] Job-sharing was meant to be “mutually beneficial” for the RCMP and participating members. Participants were ableto “remain operationally connected to the Force while having a work

schedule that better accommodated their individual circumstances”(A.R., vol. V, at p. 810). The RCMP benefitted from the participants’ services, which helped, among other things, in addressing staffshortages in smaller communities and in emergency situations. [10] Ms. Fraser, Ms. Fox and Ms. Pilgrim enrolled in the job-sharing program along with 137 other RCMP membersbetween 1997 and 2011. Most participants were women with children.

From 2010 to 2014, all RCMP members who job-shared werewomen, and most of them cited childcare as their reason for joining the program. [11] After enrolling in the job-sharing program, Ms. Fraser, Ms. Fox and Ms. Pilgrim became aware that their participationwould have consequences for their pensions.

Understanding those consequences requires a brief review of the RCMP’s pension plan. [12] All RCMP members engaged to work at least 12 hours a week must enrol in and contribute to a statutory pensionplan.[1] Upon retirement, members receive benefits based on, among other things, their years of service.[2] One year of work counts asone year of pensionable service. More years of pensionable service lead to higher pension benefits. [13] Years of full-time work and part-time work are treated differently when pension benefits are calculated. Part-timework is pro-rated to reflect the lower number of hours worked.

It is therefore less valuable than full-time work in the formula used tocalculate pension benefits. [14] RCMP members acquire full-time pension credit for periods of service in which they were engaged to work 40 hoursa week. Members can also treat certain gaps in full-time service, such as leave without pay, as fully pensionable. Upon returning fromunpaid leave, a member can “buy back” the service they missed by making the contributions that both she and the RCMP would havemade had she been actively employed.

This increases the member’s years of full-time pensionable service, which results in a morevaluable pension. [15] Ms. Fraser, Ms. Fox and Ms. Pilgrim expected that job-sharing, like leave without pay, would be eligible for fullpension credit. Both situations, they noted, involve a temporary interruption in regular service for full-time members — a decrease tobetween 12 and less than 40 hours of work a week when job-sharing, and to 0 hours a week when on unpaid leave.

It was logical, in theirview, that members in both situations would be allowed to “buy back” their lost service and associated pension benefits. [16] The RCMP initially accepted this position in communications with Ms. Pilgrim. Subsequently, however, the RCMP

took the position that job-sharing was part-time work for which participants could not receive full-time pension credit. [ 17 ] When informed that they would not be able to purchase full-time pension credit for their job-sharing service, participants in the program raised concerns with senior management.

In a memo to the RCMP’s commissioner, 14 female members from across Canada explained why they considered the pension consequences of job-sharing to be illogical and unfair: Members returning to full-time work from maternity leave, LWOP [Leave without Pay], SFLWOP [Self-funded Leave without Pay], and Disciplinary Actions (Suspended without Pay) are given the opportunity to buy back their pension benefits. Members returning to work from extended periods of ODS [Off Duty Sick] and Disciplinary Actions (Suspended with Pay) maintain their pension benefits, despite not working.

Members who have departed the Force and are subsequently re-engaged are able to buy back their pension. . . . Thus, it would seem logical that members returning to full-time work from job-share arrangements would be entitled to the same opportunity to purchase pension benefits. . . . Job-sharing is a progressive, proactive and innovative step for the RCMP. It is time to support members who choose to job-share, rather than penalizing them for choosing an option the Force has made available. It is important for management to remember that it is not only the member who benefits from job-sharing, but also the RCMP.

Job-sharing allows the Force to retain its investment in human resources; members with training, skills and seniority. It provides a pool of trained people who can be called on in emergency situations. Members who job-share stay current with changing technology, legislation and training, among other things, because they are still working. Why is the RCMP penalizing those who choose to job-share when it stands to benefit from the arrangement? [ 18 ] The RCMP’s then-assistant commissioner, G. J. Loeppky, responded to the memo and acknowledged that there “may be an element of unfairness” to the RCMP’s approach.

He presented the matter to the RCMP Pension Advisory Committee, which retained an actuary to provide advice on available options. The actuary acknowledged that the RCMP’s pension plan could be amended under the Income Tax Act and Income Tax Regulations [3] to extend pension buy-back rights to participants in the job-sharing program.

The actuary noted that the flexibility under the Income Tax Regulations “is particularly useful in responding to employee requests for reduced work-hours at various stages of their family life or career” (p. 459). [ 19 ] While this process was ongoing, three female RCMP members filed internal grievances challenging the denial of their requests to buy back full-time pension credit for their job-sharing service. The RCMP External Review Committee found in their favour. The Committee saw no legal barriers to the RCMP’s defining job-sharing as a combination of hours worked and a period of leave without pay.

The Committee cited a similar Treasury Board policy about the working hours of certain public service employees on the verge of retirement: . . . there was a precedent for such a categorization. In 1999, the Treasury Board instituted a program of pre-retirement transition leave by introducing the Pre-retirement Transition Leave Policy . This policy allowed certain Public Service employees close to retirement to reduce their hours of work by up to 40%.

Their pay was reduced accordingly, but the hours not worked were treated as LWOP with respect to pay, deductions, allowances, other leave, benefits, and pensions. [ 20 ] The RCMP’s Acting Commissioner, William Sweeney, did not follow the External Review Committee’s recommendations and dismissed the grievances. In his view, it was not legally possible for job-sharing to be defined as a combination of full-time work and leave without pay.

Although “immensely sympathetic” to the grievances, he concluded that the classification of job-sharing as part-time work was not discriminatory. [ 21 ] After the Commissioner’s decision, Ms. Fraser, Ms. Fox and Ms. Pilgrim started this Charter application. They advanced two submissions. First, they argued that the pension plan, properly interpreted, allows participants in the job-sharing program to acquire full pension credit.

Second, if this was not possible, they argued that the pension plan violates s. 15(1) of the Charter because it prevents women with children — the majority of participants in the job-sharing program — from contributing to their pensions in the same way as members who work full-time or take leave without pay. In support of their application, Ms. Fraser, Ms. Fox and Ms.

Pilgrim filed expert evidence and other material addressing the disadvantages women with children face in the labour force. [ 22 ] The application judge found that job-sharing is part-time work for which participants cannot obtain full-time pension credit. This outcome, in her view, did not violate s. 15(1) because there was insufficient evidence that job-sharing was disadvantageous compared to unpaid leave. Even assuming that there were negative consequences to job-sharing, these outcomes were the result of a participant’s choice to job-share.

The Charter application was therefore dismissed. [ 23 ] An appeal to the Federal Court of Appeal was unsuccessful. The court held that job-sharing RCMP members did not receive inferior compensation to members on leave without pay, and that any adverse impact on job-sharing participants flowed from their choice to work part-time, not from the pension plan. [ 24 ] For the reasons that follow, I would allow the appeal.

Analysis [ 25 ] Unlike full-time members who work regular hours, [4] who are suspended or who take unpaid leave, full-time RCMP members who job-share are classified as part-time workers under the Regulations and cannot, under the terms of the pension plan, obtain full-time pension credit for their service. Ms. Fraser and her colleagues submit that this limitation violates s. 15(1) of the Charter on the basis of sex and, alternatively, on the basis of family/parental status.

[26] Section 15(1) of the Charter states: 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. [27] Section 15(1) reflects a profound commitment to promote equality and prevent discrimination against disadvantagedgroups (Quebec (Attorney General) v. A, 2013 SCC 5 , [2013] 1 S.C.R. 61, at para. 332; Kahkewistahaw First Nation v.Taypotat, 2015 SCC 30 , [2015] 2 S.C.R. 548, at paras. 19-20).

To prove a prima facie violation of s. 15(1), a claimant mustdemonstrate 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. (Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 25; Centrale des syndicats du Québec v.

Quebec (Attorney General), 2018 SCC 18 ,[2018] 1 S.C.R. 522, at para. 22.) [28] Ms. Fraser does not suggest that the negative pension consequences of job-sharing are explicitly based on sex. Rather,she claims that they have an adverse impact on women with children. [29] How adverse impact or systemic discrimination is applied has received extensive academic consideration (see, forexample, Colleen Sheppard, Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada (2010), at pp. 19-21;Evelyn Braun, “Adverse Effect Discrimination: Proving the Prima Facie Case” (2005), 11 Rev. Const.

Stud. 119; Jonnette WatsonHamilton and Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under

Section 15 ofthe Charter” (2015), 19 Rev. Const. Stud. 191; Michèle Rivet and Anne-Marie Santorineos, “Juger à l’ère des droits fondamentaux”(2012), 42 R.D.U.S. 363, at p. 374; Diane L. Demers, “La discrimination systémique: variation sur un concept unique” (1993), 8 C.J.L.S.83; Lisa Philipps and Margot Young, “Sex, Tax and the Charter: A Review of Thibaudeau v. Canada” (1995), 2 Rev. Const. Stud. 221).As Prof. Colleen Sheppard notes: Why is it so critical to expand on our understanding of adverse effect discrimination?

If we do not, there is a significant risk thatdiscrimination embedded in apparently neutral institutional policies, rules, or procedures will not be recognized as discriminatory. Thisrisk is accentuated by the necessity in anti-discrimination law to connect the experience of exclusion, harm, prejudice, or disadvantage toa recognized ground of discrimination. . . .

We need a sophisticated and coherent theory of adverse effect discrimination to assistclaimants, lawyers, and adjudicators with the complexities of the manifestations of systemic discrimination. (“Of Forest Fires and Systemic Discrimination: A Review of British Columbia (Public Service Employee Relations Commission) v.B.C.G.S.E.U.” (2001), 46 McGill L.J. 533, at p. 542; see also Braun, at p. 122) [30] It is helpful to start by defining the concept.

Adverse impact discrimination occurs when a seemingly neutral law hasa disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground (see Watson Hamilton andKoshan (2015), at p. 196; Sheppard (2001), at p. 549; see also Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1S.C.R. 396, at para. 64; Taypotat, at para. 22).

Instead of explicitly singling out those who are in the protected groups for differentialtreatment, the law indirectly places them at a disadvantage (Sophia Moreau, “What Is Discrimination?” (2010), 38 Philosophy & PublicAffairs 143, at p. 155). [31] Increased awareness of adverse impact discrimination has been a “central trend in the development of discriminationlaw”, marking a shift away from a fault-based conception of discrimination towards an effects-based model which critically examinessystems, structures, and their impact on disadvantaged groups (Denise G.

Réaume, “Harm and Fault in Discrimination Law: TheTransition from Intentional to Adverse Effect Discrimination” (2001), 2 Theor. Inq. L. 349, at pp. 350-51; see also Béatrice Vizkelety,Proving Discrimination in Canada (1987), at p. 18; Sheppard (2010), at pp. 19-20). Accompanying this shift was the recognition thatdiscrimination is “frequently a product of continuing to do things ‘the way they have always been done’”, and that governments must be“particularly vigilant about the effects of their own policies” on members of disadvantaged groups (Fay Faraday, “One Step Forward,Two Steps Back?

Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020), 94 S.C.L.R.(2d) 301, at p. 310; Sophia Moreau, “The Moral Seriousness of Indirect Discrimination”, in Hugh Collins and Tarunabh Khaitan, eds.,Foundations of Indirect Discrimination Law (2018), 123, at p. 145). [32] Griggs v. Duke Power Co., 401 U.S. 424 (1971) was one of the first cases to apply this concept and is a classicexample of adverse impact discrimination. An employer required employees to have a high school diploma and pass standardized tests towork in certain departments at a power plant.

Neither requirement was significantly related to successful job performance; both, however,had the effect of disqualifying African Americans at a substantially higher rate than white applicants. [33] The United States Supreme Court held that the education and testing requirements infringed Title VII of the CivilRights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (1964).

The court emphasized that the Act prohibits “practices that are fair in form, butdiscriminatory in operation”: Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in thesense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition ofthe job seeker be taken into account. It has — to resort again to the fable — provided that the vessel in which the milk is proffered beone all seekers can use.

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory inoperation. . . . Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms thatoperate as “built-in headwinds” for minority groups and are unrelated to measuring job capability. [Emphasis added; pp. 431-32.]

[34] Griggs explains that the application of “neutral” rules may not produce equality in substance for disadvantagedgroups. Membership in such groups often brings with it a unique constellation of physical, economic and social barriers. Laws whichdistribute benefits or burdens without accounting for those differences — without accounting for the “posture and condition of the jobseeker”, as in Griggs — are the prime targets of indirect discrimination claims. I agree with Profs.

Lisa Philipps and Margot Young that we are not always conscious of the ways in which the distinctions we draw . . . will implicate group identities and single out specificgroups for distinctive treatment. This is because the constellations of factors or characteristics that go into the construction of identitiesoften masquerade as unconnected, purely individual traits, behaviours, choices, or situations. Yet, in social reality they may be tightlylinked to one group or another.

So the law has had to recognize that state action may be discriminatory even though on its face and interms of the intentions informing it there is no obvious evidence that such discrimination is occurring. [p. 258] (See also Sandra Fredman, Discrimination Law (2nd ed. 2011), at pp. 38 and 108.) [35] Addressing adverse impact discrimination can be among the “most powerful legal measures available todisadvantaged groups in society to assert their claims to justice” (Hugh Collins and Tarunabh Khaitan, “Indirect Discrimination Law:Controversies and Critical Questions”, in Hugh Collins and Tarunabh Khaitan, eds., Foundations of Indirect Discrimination Law (2018),1, at p. 30).

Not only is such discrimination “much more prevalent than the cruder brand of openly direct discrimination”,[5] it oftenposes a greater threat to the equality aspirations of disadvantaged groups: . . . even more common are situations where the discrimination occurs in a context like an employment relationship, government programor statute, or educational setting, and there is no single identifiable “villain”, no single action identifiable as “discriminatory”, and theoutward appearance of a neutral set of rules or practices being applied across the board.

This invisible structure, with its accompanyingset of practices, is a powerful limit on the equality aspirations of many who must deal within that structure but have characteristics thatdo not match those of persons intended to benefit from the structure. (Mary Eberts and Kim Stanton, “The Disappearance of the Four Equality Rights and Systemic Discrimination from Canadian EqualityJurisprudence” (2018), 38 N.J.C.L. 89, at p. 92) [36] By recognizing the exclusionary impact of such discrimination, courts can better address “discrimination in its diverseforms”, including at “the systemic or institutional level” (Vizkelety, at p. viii; see also Colleen Sheppard, “Mapping anti-discriminationlaw onto inequality at work: Expanding the meaning of equality in international labour law” (2012), 151 Int’l Lab.

Rev. 1, at p. 8;Faraday, at p. 319). Remedying adverse effects discrimination allows courts [to] go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must bechanged in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society iscomposed. (Meiorin, at para. 41, quoting Shelagh Day and Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. BarRev. 433, at p. 462) [37] This Court first dealt with adverse impact discrimination in Ontario Human Rights Commission v.

Simpsons-SearsLtd., (SCC), [1985] 2 S.C.R. 536. Employees at a department store were periodically required to work on Fridayevenings and Saturdays. Theresa O’Malley, an employee of the store and a member of the Seventh-Day Adventist Church, was requiredby her faith to observe the Sabbath from sundown Friday until sundown Saturday. She brought a complaint against the store under theOntario Human Rights Code, R.S.O. 1980, c. 340, claiming that the rule requiring her to work on Saturdays discriminated against her onthe basis of religion. [38] Writing for a unanimous Court, McIntyre J. agreed.

He stressed that the Ontario Human Rights Code was meant toprovide protection against the “result or the effect” of discriminatory conduct (p. 547). Citing Griggs and several Canadian decisions,McIntyre J. concluded that the Act prohibited adverse effects discrimination, which he distinguished from direct discrimination asfollows: A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effectdiscrimination in connection with employment.

Direct discrimination occurs in this connection where an employer adopts a practice orrule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.”There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the otherhand, there is the concept of adverse effect discrimination.

It arises where an employer for genuine business reasons adopts a rule orstandard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon aprohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee orgroup, obligations, penalties, or restrictive conditions not imposed on other members of the work force. [p. 551] [39] Simpsons-Sears was the first of several human rights decisions where this Court grappled with adverse effectsdiscrimination. In Canadian National Railway Co. v.

Canada (Canadian Human Rights Commission), (SCC), [1987] 1S.C.R. 1114 (“Action Travail”), Dickson C.J. upheld a discrimination claim against an employer whose hiring and promotion practicesled to women being drastically under-represented in certain jobs. Some of these practices were neutral on their face; Dickson C.J.,however, highlighted the importance of looking “at the results of a system”: A thorough study of “systemic discrimination” in Canada is to be found in the Abella Report on equality in employment. . . .

Discrimination . . . means practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or agroup’s right to the opportunities generally available because of attributed rather than actual characteristics . . . . It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it isthe accidental by-product of innocently motivated practices or systems.

If the barrier is affecting certain groups in a disproportionatelynegative way, it is a signal that the practices that lead to this adverse impact may be discriminatory. This is why it is important to look at the results of a system . . . . [Emphasis added; pp. 1138-39.] [40] These principles were soon imported into the Court’s s. 15 jurisprudence. In Andrews v.

Law Society of BritishColumbia, (SCC), [1989] 1 S.C.R. 143, the Court rejected a “sameness” or formal theory of equality, instead identifyingsubstantive equality as the philosophical premise of s. 15 and outlining a theory of equality centred on “the impact of the law on theindividual or the group concerned” (p. 165).

In developing this theory, McIntyre J. emphatically rejected the approach to s. 15 adoptedby the British Columbia Court of Appeal, which had defined the “essential meaning” of equality as ensuring that the “similarly situatedbe similarly treated” ((1986), (BC CA), 2 B.C.L.R. (2d) 305, at p. 311, quoting Joseph Tussman and JacobustenBroek, “The Equal Protection of the Laws” (1949), 37 Cal. L. Rev. 341, at p. 344).

Justice McIntyre described this approach as“seriously deficient”, on the basis that “mere equality of application to similarly situated groups or individuals does not afford a realistictest for a violation of equality rights” (pp. 165-67). [41] Drawing on the Court’s human rights jurisprudence, while recognizing that “not all distinctions and differentiationscreated by law are discriminatory” (at p. 182), McIntyre J. endorsed an approach to equality and discrimination that was centred on theactual effects, rather than the purpose or facial neutrality of a law on a claimant group: I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating topersonal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on suchindividual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available toother members of society. [p. 174] Andrews provided a robust template for substantive equality that subsequent decisions “enriched but never abandoned” (R. v.

Kapp, 2008SCC 41 , [2008] 2 S.C.R. 483, at para. 14).

It was a remedy for exclusion and a recipe for inclusion. [42] Our subsequent decisions left no doubt that substantive equality is the “animating norm” of the s. 15 framework(Withler, at para. 2; see also Kapp, at paras. 15-16; Alliance, at para. 25); and that substantive equality requires attention to the “fullcontext of the claimant group’s situation”, to the “actual impact of the law on that situation”, and to the “persistent systemicdisadvantages [that] have operated to limit the opportunities available” to that group’s members (Withler, at para. 43; Taypotat, at para.17; see also Quebec v.

A, at paras. 327-32; Alliance, at para. 28; Centrale, at para. 35). [43] The Court, applying these principles, has acknowledged the existence of adverse impact discrimination under s. 15(1).In Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, the Court recognized that there is adisparate impact on persons with hearing loss in a health-care system in which they are unable to access interpreters. The Courtconfirmed that a s. 15(1) violation could arise through “the adverse effects of rules of general application” (para. 77). [44] Similarly, in Vriend v.

Alberta, (SCC), [1998] 1 S.C.R. 493, the Court declared unconstitutional anAlberta human rights statute which did not include sexual orientation as a prohibited ground of discrimination, because of its“disproportionate impact” on members of the LGBTQ+ community: . . . there is, on the surface, a measure of formal equality: gay or lesbian individuals have the same access as heterosexual individuals tothe protection of the [Act] in the sense that they could complain to the Commission about an incident of discrimination on the basis ofany of the grounds currently included.

However, the exclusion of the ground of sexual orientation, considered in the context of the socialreality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed toheterosexuals. Therefore the [Act] in its underinclusive state denies substantive equality to the former group. [Emphasis added; para. 82.] [45] Several other decisions of this Court have confirmed that “not only does the Charter protect from direct orintentional discrimination, it also protects from adverse impact discrimination” (McKinney v.

University of Guelph, (SCC), [1990] 3 S.C.R. 229, at p. 279; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22, at p. 41; see also Law v. Canada (Minister of Employment and Immigration), (SCC),[1999] 1 S.C.R. 497, at para. 36; Withler, at para. 64; Taypotat, at para. 23). [46] The Court most recently addressed this issue in Taypotat.

While concluding that there was no discriminationdemonstrated on the facts of the case, the Court acknowledged that “facially neutral qualifications like education requirements” can be abreach of s. 15(1) because of their “disproportionate effect” on protected groups (paras. 15 and 22). [47] There is no doubt, therefore, that adverse impact discrimination “violate[s] the norm of substantive equality” whichunderpins this Court’s equality jurisprudence (Withler, at para. 2).

At the heart of substantive equality is the recognition that identical orfacially neutral treatment may “frequently produce serious inequality” (Andrews, at p. 164).

This is precisely what happens when“neutral” laws ignore the “true characteristics of [a] group which act as headwinds to the enjoyment of society’s benefits” (Eaton v.Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241, at para. 67; Eldridge, at para. 65). [48] The “animating norm” of the current s. 15 framework guaranteeing substantive equality is also the core valueengaged in cases of adverse effects discrimination (Withler, at para. 2; Watson Hamilton and Koshan (2015), at pp. 192 and 197). This

Court has never suggested that cases of adverse impact discrimination should be resolved under a different approac

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