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PRIVATE PENSION PLANS - Constitutional issues - Canadian Charter of Rights and Freedoms

Friday, October 16, 2020 @ 3:04 PM  

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Appeal by Fraser, Pilgrim and Fox from a judgment of the Federal Court of Appeal that affirmed the dismissal of their Charter claim. The appellants were retired members of the RCMP who had enrolled in the RCMP’s job-sharing program. Members of the RCMP received benefits upon retirement from a pension plan. Gaps in a member’s record of service, such as unpaid leaves, could be filled in through a buy back process, leaving the member’s pension benefits unaffected. No buy back option was available to full-time members who temporarily reduced their working hours under a job-sharing agreement. Most participants in the job-sharing program were women with children. The application judge found job-sharing was part-time work for which participants could not obtain full-time pension credit. The Court of Appeal found any adverse impact on job-sharing participants flowed from their choice to work part-time, not from the pension plan.

HELD: Appeal allowed. The appellants did not suggest that the negative pension consequences of job sharing were explicitly based on sex, but rather that they had an adverse impact on women with children. There was no doubt that adverse impact discrimination violated the norm of substantive equality, which required recognition that identical or facially neutral treatment may frequently produce serious inequality. The Court did not used different legal tests for direct and indirect discrimination. In order for a law to create a distinction based on prohibited grounds through its effects, it had to have a disproportionate impact on members of a protected group. It was an error to over-emphasize the appellants’ choice to job-share in the s. 15 inquiry. Full-time RCMP members who job-shared had to sacrifice pension benefits because of a temporary reduction in working hours. The RCMP’s use of a temporary reduction in working hours as a basis for imposing less favourable pension consequences had an adverse impact on women that perpetuated their historical disadvantage. It was a clear violation of their right to equality under s. 15(1) of the Charter based on sex. There were no pressing and substantial policy concerns, purposes or principles that explained why job-sharers should not be granted full-time pension credit for their service. The breach could not be justified under s. 1. It was a violation of s. 15 to preclude the appellants from buying back their pension credits. The appropriate remedy was a declaration that there had 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. Dissenting reasons were provided.

Fraser v. Canada (Attorney General), [2020] S.C.J. No. 28, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., October 16, 2020. No. TLD-October122020009-SCC