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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Discrimination, what constitutes

Tuesday, January 29, 2019 @ 8:50 AM  


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Appeal by several female RCMP members from the dismissal of their application for judicial review of the dismissal of their application for declarations of invalidity of portions of the Royal Canadian Mounted Police Superannuation Act and Regulation on the basis that they breached s. 15 of the Charter. The appellants took advantage of the RCMP’s job sharing policy in order to balance the demands associated with their jobs and the need to care for their children. Under the provisions in the Royal Canadian Mounted Police Superannuation Act and the Regulations, the appellants’ pension benefits for the job-sharing periods were based on the hours the appellants regularly worked under their job-sharing arrangements, calculated in the same fashion as pension benefits were calculated for other RCMP members who worked part-time hours. The appellants could have opted to take unpaid care and nurturing leave instead, entitling them to buy back their pensions for the period of the leave and not had their pension benefits reduced. The appellants alleged that the failure to provide them with an equivalent pension buy-back option for the job-sharing period violated their equality rights under s. 15 of the Charter. None of the appellants provided evidence comparing the pecuniary value of the job-sharing arrangement with the pecuniary value of an equivalent period of leave without pay. There was also no evidence as to the financial impact of the pension treatment afforded to RCMP members who job-shared or as to the comparative value of an equivalent period of leave without pay. The Federal Court held that the appellants worked on a part-time basis when they job-shared and leave without pay was a different status. The Federal Court concluded that the appellants had failed to establish that they had been adversely impacted by the impugned provisions and that, even if such a demonstration had been made, any impact they incurred was not because of their sex or family or parental status, but rather because they had worked part-time hours.

HELD: Appeal dismissed. There was no basis for disturbing the Federal Court’s finding that the RCMP members who job-shared were not full-time employees or on leave without pay when they were working under a job-sharing arrangement. RCMP members who job-shared had regularly-scheduled hours and thus could not be said to be on leave. The appellants failed to establish the requisite adversity of treatment to give rise to an infringement of s. 15 of the Charter. Without any evidence as to relative value of the job-sharing arrangement and the leave without pay option, it was impossible to conclude that job-sharing was adverse to being on a leave without pay. Even if the overall remuneration package granted to job-sharers had been shown to be inferior to that offered to RCMP members on leave without pay, or even if it were permissible to consider only the differential pension treatment between the two groups, the Federal Court did not err in concluding that the appellants had failed to establish that the differential treatment was based on an enumerated or analogous ground. There was no evidence to establish the requisite nexus between the grounds recognized under s. 15 of the Charter and any adverse result. The mere fact that women disproportionately took advantage of the job-sharing option did not mean that the pension treatment afforded to those who job-shared under the legislation created a distinction on an enumerated or analogous ground. The appellants were not denied buy-back rights based on their personal characteristics of being female RCMP members with young children, but rather because they elected to job-share as opposed to taking care and nurturing leave.

Fraser v. Canada (Attorney General), [2018] F.C.J. No. 1228, Federal Court of Appeal, J. Gauthier, M.J.L. Gleason JJ.A. and J.M. Woods A.C.J., December 7, 2018. Digest No. TLD-January282019004