The RCMP illegally discriminated against female employees when it created a job-sharing program but didn’t allow the job-sharers to participate fully in the pension plan, the Supreme Court of Canada ruled on Friday.
The 6-3 ruling reaffirmed the long-standing principle in Canadian constitutional law that an adverse impact on a group that has faced historical disadvantages, such as women, is enough to prove discrimination; it is not necessary to show intent to discriminate.
The case began as an internal grievance, and took 20 years to resolve. Two lower courts – four female judges of the Federal Court and Federal Court of Appeal – had rejected the claims of three female Mounties, saying in essence they had to accept the consequences of choosing to job-share.
“I’m ecstatic,” Joanne Fraser of Leduc, Alta., who served 26 years as a Mountie, until her retirement five years ago, said in an interview. “It paves the way for women of the future, for anyone in any position where they have to look after their children and . . . their profession at the same time.”
Paul Champ, who represented the three Mounties, added: “Pension plan design has been identified for decades as a source of discrimination for women.”
The case exposed deep divisions within the Supreme Court on the meaning of equality under Section 15 of the 1982 Charter of Rights and Freedoms. The majority, led by Justice Rosalie Abella, accused the minority of trying to thrust Canada back to the pre-Charter past. (In a 1978 case, the court ruled there was no sex discrimination when the federal government denied unemployment benefits to a pregnant woman.) The dissenting judges accused the majority of being overly activist by trying to force governments to fix systemic inequality.
Nearly all participants in the RCMP job-sharing program, created in 1997, are women. Ms. Fraser and fellow Mounties Allison Pilgrim and Colleen Fox, who returned from maternity leaves in the 1990s, had found jugging parental responsibilities and work onerous, calling it “overwhelming,” like being “on a treadmill,” and “hell on earth.”
Most members of the RCMP who miss time at work are permitted to contribute to the pension plan for the period they were away. This applies to those on parental leave and even those suspended for disciplinary reasons without pay, but not to job-sharers. They, like part-time workers at the RCMP, got pension credits pro-rated to the hours worked.
Justice Abella cited the work of feminist lawyer Elizabeth Shilton, who has written that women derive fewer pension benefits than men because pensions were designed for “male pattern employment,” which generally means unbroken full-time service.
Discrimination is “'frequently a product of continuing to do things ‘the way they have always been done,’” Justice Abella wrote, quoting legal scholar Fay Faraday.
An RCMP spokeswoman, Corporal Caroline Duval, said the Mounties are reviewing the decision to determine how to respond.
“The intent of offering job sharing was principally to facilitate work-life balance for members of the force who, due to personal or family circumstances, would benefit from being able to work reduced hours,” Corporal Duval said in a statement. "The RCMP remains committed to building an inclusive and barrier-free workplace for all of its employees.”
On the Supreme Court, Justice Russell Brown and Justice Malcolm Rowe wrote one dissent, and Justice Suzanne Côté wrote a separate one. The first two wrote that the problem is the unequal division of labour in the home, and social circumstances such as a lack of affordable child care, not the RCMP pension.
And they said the Supreme Court’s case law on equality has become confused, with the judges imposing “policy preferences and personal ideologies.” They said the RCMP’s program was designed to help women and families, but the majority struck it down because "it is not ameliorative enough, or more precisely, not ameliorative in ways our colleague would prefer.”
Justice Abella replied that the mandate of Section 15, as set out in 30 years of Supreme Court rulings, is “ambitious, but not utopian:" to address disadvantage where it is identified so that "inequality can be reduced one case at a time.”
Justice Côté said in her dissent that it may have been illogical to deny full pension benefits to job sharers that are guaranteed to workers on leave, but that it is up to legislatures, not courts, to correct.
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Sean Fine