Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: RCMP’s pension violated job-sharing officers charter rights

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

In Fraser v. Canada (Attorney General), the Supreme Court of Canada recently held that the RCMP violated the Canadian Charter of Rights and Freedoms (the Charter) for women who job shared.

This case involved indirect, or adverse effect, discrimination. This occurs when, instead of explicitly singling out and treating differently those who are members of a protected group or analogous groups, the law or state action indirectly places them at a disadvantage.

The three claimants were regular members of the Royal Canadian Mounted Police (RCMP). They took maternity leave the in the early-to-mid 1990s.

Upon returning to work, they experienced difficulties combining full time work with childcare responsibilities.

At the time, the RCMP did not permit them to work part-time.

In December 1997, the RCMP introduced a job-sharing program. It allowed members to split the duties of one full-time position.

As they had childcare responsibilities, the claimants participated in the job-sharing program to temporarily reduce their hours of work.

RCMP members pay into a retirement pension plan. The amount of the pension increases as service and earnings grow.

Legislation governing the RCMP allowed members to treat certain gaps in full-time service as fully pensionable.

However, regulations classified job sharers as part time workers. This denied them the option of buying back their pension for the time over which they did not work.

Other members, such as those who were suspended or took unpaid leave, were allowed to “buy back” their reduced pension contributions, thus increasing the pension they would ultimately receive.

The claimants alleged that the regulations, which denied them the opportunity to buy back their pension, discriminated against job-sharers — who were mostly women with children at home. They had a discriminatory impact on women, and this infringed their rights under section 15(1) the Charter.

Section 15(1) requires the state to treat everyone equally, without discrimination based on certain protected or enumerated characteristics.

At the Federal Court, they were unsuccessful. That judge did not find a violation of s. 15(1), stating that if the claimants were disadvantaged, it was not because they were women or parents. It was because of their own choices.

The Federal Court of Appeal dismissed their appeal.

A 6:3 majority of the Supreme Court of Canada agreed with the claimants, finding that the RCMP’s policy created a distinction based on a protected ground (gender/sex), and that:

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.

Section 15 cases involve a two-step analysis:

  1. On its face or in its impact, does the law or state action create a distinction based on enumerated or analogous grounds?
  2. Does the law or state action impose burdens or deny a benefit in a manner that hast he effect of reinforcing, perpetuating, or exacerbating disadvantage?

Those claiming an infringement of s. 15(1) need not prove that the protected characteristic “caused” the disproportionate impact. They need not prove that the law itself was responsible for creating the background social or physical barriers which made a particular rule disadvantageous.

They are not required to show that the problematic law or state action affects all members of a protected group in the same way.

In dismissing the claim because the claimants “chose” to job-share, the majority of the Supreme Court of Canada said that the lower courts misapprehended its s. 15 jurisprudence. It has consistently held that differential treatment can be discriminatory even if it is based on choices made by the affected individual or group.

In the majority’s view, the association between gender and fewer or less stable working hours was clear. The RCMP’s use of a temporary reduction in working hours to impose less favourable pension consequences plainly had a disproportionate and 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.”

The RCMP’s pension design is based on assumptions applicable primarily to men. It perpetuates a long-standing source of economic disadvantage for women.

There was a prima facie breach of s. 15 based on the enumerated ground of gender.

Section 1 of the Charter allows the state to justify a limit on a Charter right as “demonstrably justified in a free and democratic society.”

To start with, the state must identify a pressing and substantial objective for limiting the Charter right.

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.

The majority saw no reason for treating the two forms of work reduction differently when extending pension buy-back rights. It held that the government failed to identify a compelling objective for this differential treatment.

Pension plans are only one example of workplace situations which perpetuate disadvantages women face. It is encouraging that Canadian courts are recognizing this and gradually upholding women’s rights to substantive equality. Decisions such as this are an important step, though much remains.

In case you missed it?

Changes for B.C.’s worker’s compensation system

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

To report a typo, email:
newstips@kelownacapnews.com
.


@KelownaCapNews
newstips@kelownacapnews.com

Like us on Facebook and follow us on Twitter.

ColumnistCoronavirus

Just Posted

Fruit farmers in the Okanagan and Creston valleys are in desperate need of cherry harvesters amid COVID-19 work shortages. (Photo: Unsplash/Abigail Miller)
‘Desperate’ need for workers at Okanagan cherry farms

Fruit farmers are worried they’ll have to abandon crops due to COVID-19 work shortages

A tent housing a mobile vaccination clinic. (Interior Health/Contributed)
Over 5K jabbed at Interior Health mobile COVID-19 vaccine clinics

The clinics have made stops in more than 40 communities since launching last week

Provincial Health Officer Dr. Bonnie Henry talks about B.C.’s plan to restart the province during a press conference at Legislature in Victoria, Tuesday, May 25, 2021. THE CANADIAN PRESS/Chad Hipolito
Interior Health COVID-19 cases falling slower than the rest of B.C.

More than a third of provincial cases announced Thursday came from the Interior

The Greater Vernon Chamber of Commerce will host the Valley Wide Business Expo May 4 at Predator Ridge Resort. (photo submitted)
Golf raffle helps Okanagan families score homes

Habitat for Humanity Okanagan swinging into action this summer with a new raffle

The weekly COVID-19 map for June 6 to 12. (BC CDC)
South Okanagan sees only 5 new cases in last week

The Similkameen Valley went a second week without any new cases

Marco Mendicino, Minister of Immigration, Refugees and Citizenship during a press conference in Ottawa on Thursday, May 13, 2021. THE CANADIAN PRESS/Sean Kilpatrick
Canada to welcome 45,000 refugees this year, says immigration minister

Canada plans to increase persons admitted from 23,500 to 45,000 and expedite permanent residency applications

Emily Steele holds up a collage of her son, 16-year-old Elijah-Iain Beauregard who was stabbed and killed in June 2019, outside of Kelowna Law Courts on June 18. (Aaron Hemens/Capital News)
Kelowna woman who fatally stabbed Eli Beauregard facing up to 1.5 years of jail time

Her jail sentence would be followed by an additional one to 1.5 years of supervision

Cpl. Scott MacLeod and Police Service Dog Jago. Jago was killed in the line of duty on Thursday, June 17. (RCMP)
Abbotsford police, RCMP grieve 4-year-old service dog killed in line of duty

Jago killed by armed suspect during ‘high-risk’ incident in Alberta

The George Road wildfire near Lytton, B.C., has grown to 250 hectares. (BC Wildfire Service)
B.C. drone sighting halts helicopters fighting 250 hectares of wildfire

‘If a drone collides with firefighting aircraft the consequences could be deadly,’ says BC Wildfire Service

A dose of the Pfizer-BioNTech COVID-19 vaccine is pictured at a vaccination site in Vancouver Thursday, March 11, 2021. THE CANADIAN PRESS/Jonathan Hayward
NACI advice to mix vaccines gets varied reaction from AstraZeneca double-dosers

NACI recommends an mRNA vaccine for all Canadians receiving a second dose of a COVID-19 vaccine

A aerial view shows the debris going into Quesnel Lake caused by a tailings pond breach near the town of Likely, B.C., Tuesday, Aug. 5, 2014. THE CANADIAN PRESS/Jonathan Hayward
Updated tailings code after Mount Polley an improvement: B.C. mines auditor

British Columbia’s chief auditor of mines has found changes to the province’s requirements for tailings storage facilities

Starting in 2022, the Columbia Shuswap Regional District is extending dog control to the entire Electoral Area D. (Stock photo)
Dog control bylaw passes in Shuswap area despite ‘threatening’ emails

CSRD board extending full dog control in Electoral Area D starting next year

A North Vancouver man was arrested Friday and three police officers were injured after a 10-person broke out at English Bay on June 19, 2021. (Youtube/Screen grab)
Man arrested, 3 police injured during 10-person brawl at Vancouver beach

The arrest was captured on video by bystanders, many of whom heckled the officers as they struggled with the handcuffed man

Most Read