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

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Send your letter to the editor via email to news@summerlandreview.com. Please included your first and last name, address, and phone number.
LETTER: Wear a mask for the benefit of all

If this virus latches onto one of your cells, it takes over the RNA and DNA and makes you sick

santa.
Morning Start: Santa Claus has an official pilot’s license

Your morning start for Wednesday, Dec. 2, 2020

Christmas amid a global pandemic will be a first for everyone. (Pexels)
POLL: How will you be spending the holidays this year?

The pandemic is sure to make this holiday season unlike any we’ve seen before

A woman wearing a face mask to curb the spread of COVID-19 uses walking sticks while walking up a hill, in New Westminster, B.C., on Sunday, November 29, 2020. THE CANADIAN PRESS/Darryl Dyck
Interior Health reports 83 more COVID-19 infections overnight

46 cases are now associated with a COVID-19 community cluster in Revelstoke

Mona Fortier, Minister of Middle Class Prosperity, speaks with North Okanagan-Shuswap MP Mel Arnold during a Greater Vernon Chamber of Commerce breakfast Monday, March 2 at Eatology. (Jennifer Smith - Morning Star)
Despite $381.6 B deficit, better days are coming: Minister of Middle-Class Prosperity

“We want Canadians to know that we’ve got their backs”

A tongue-in-cheek message about wearing a face mask to curb the spread of COVID-19 on a sign outside a church near Royal Columbia Hospital, in New Westminster, B.C., on Sunday, Nov. 29, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C.’s COVID-19 infection count climbs back up to 656

20 more people in hospital, active cases still rising

Twelve new curbside pickup parking spots are now in effect along 30th Avenue in downtown Vernon. (Downtown Vernon Association photo)
Okanagan city rolls out free curbside pick up parking

12 locations in Vernon intended to help retail and dining sectors amid COVID-19

Vernon North Okanagan RCMP are looking for the next of kin after a member of the public reported finding cremated human remains off the BX Falls trail on Oct. 15, 2020. (RCMP)
Cremated human remains found off Vernon hiking trail

RCMP seek to find next of kin, release photo to public to help ID

A happy, well-fed bear cub plays in the grass in northern B.C. (John Marriott photo)
Bear witness: Shuswap’s John Marriott offers intimate look at black, polar and grizzly bears

Sarah Elmeligi and Marriott’s What Bears Teach Us explores bear/human co-existence

A teacher places the finishing touches on the welcome sign at Hunter’s Glen Junior Public School which is part of the Toronto District School Board (TDSB) during the COVID-19 pandemic in Scarborough, Ont., on Sept. 14, 2020. THE CANADIAN PRESS/Nathan Denette
Hindsight 2020: How do you preserve a year many Canadians would rather forget?

Figuring out how to preserve the story of the pandemic poses a series of challenges

Haley Callison. (Facebook photo)
Former B.C. pro hockey player frustrated with COVID-deniers after horrific bout with virus

Haleigh Callison hopes people will follow precautions and tone down the rhetoric

A man stands in the window of an upper floor condo in Vancouver on March 24, 2020. THE CANADIAN PRESS/Darryl Dyck
Change made to insurance for B.C. condo owners amid rising premiums

Council CEO Janet Sinclair says the change will mean less price volatility

The Walking Curriculum gets students outside and connecting with nature. (Amanda Peterson/Special to S.F. Examiner)
‘Walking Curriculum’ crafted by SFU professor surges in popularity

The outdoor curriculum encourages students to connect with the natural world

Brent Ross poses with his dog Jack who died over the weekend after asphyxiating on a ball. Ross hopes his experience serves as a cautionary tale to other dog owners. (Contributed)
Salmon Arm man warns others after dog dies from choking on a ball

Brent Ross grieving the sudden loss of Jack, a healthy, seven-year-old chocolate lab

Most Read