November 9, 2020 Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser By: Jennifer Koshan and Jonnette Watson Hamilton Case Commented On: Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII) On October 16, 2020, the Supreme Court of Canada released its long-awaited decision in Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII). Fraser involved a claim of adverse effects discrimination by female RCMP members who lost their entitlement to full pension benefits when they entered temporary job-sharing arrangements. We blogged on the Federal Court of Appeal decision in Fraser here, and – in the interests of disclosure – also participated in the Supreme Court intervention in Fraser by the Women’s Legal Education and Action Fund (LEAF) (for LEAF’s news release following the Fraser decision, see here). Fraser is the first successful adverse effects claim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years and it is the first ever successful adverse effects claim under section 15 in a sex discrimination context. This post will focus on the typical challenges that have been faced in adverse effects claims and review how Justice Rosalie Abella’s majority decision in Fraser responded to these problem areas, which were also apparent in the lower court decisions in Fraser. Although Justice Abella wrote for the majority of the Court (Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, as well as herself), we will refer to the judgment as hers because it appears to be the culmination of her life-long work on equality rights and may be her last judgment on this subject before her retirement in 2021. We also review the two dissenting judgments in Fraser, written by Justices Russell Brown / Malcolm Rowe and Justice Suzanne Côté. Our title is inspired by Justice Abella’s allegation that the dissent “tug[s] at the strands of a prior decision they disagree with … [to] unravel the precedent” (at para 133, referring to Alliance, one of the Court’s two 2018 pay equity decisions that we cite below). Interestingly, the same could be said of the majority judgement, which unravels the knots of a large body of section 15 jurisprudence that has made it difficult to prove adverse effects discrimination claims. It is these problem areas that we turn to next. Adverse Effects Discrimination Challenges Unlike direct discrimination, in which a law on its face expressly draws lines based on grounds prohibited under section 15, adverse effects discrimination arises when a law that appears to be neutral on its face has a disproportionate and negative impact on members of a group identified by a prohibited ground. Prior to Fraser, only two adverse effects discrimination claims have been successful at the Supreme Court of Canada – Eldridge v British Columbia (Attorney THE UNIVERSITY OF CALGARY FACULTY OF LAW BLOG ablawg.ca | 1 General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624 and Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493. This is so even though adverse effects discrimination was recognized as necessary to achieving substantive equality in 1989, in the Court’s first section 15 decision. In Andrews v Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143, Justice William McIntyre wrote that identical treatment may produce serious inequality and that equality analysis must focus on the effects of a law as well as its purpose (at 164, 173–175). Adverse effects discrimination is also incorporated into the most recent version of the test for a violation of section 15, as articulated in the two pay equity cases decided by the Supreme Court in May 2018 (see Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (Alliance); and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)). The current test has two steps: [1] Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds? [2] If so, does the law impose “burdens or den[y] a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating . disadvantage.” (Alliance at para 25, emphasis added) In her reasons in Fraser, Justice Abella noted that although it is preferable to keep these two steps distinct, they may overlap in adverse effects cases and should not be treated as “two impermeable silos” (at para 82). The challenges with proving adverse effects claims have also overlapped, so we do not break them down into the two steps of the test. And, since every adverse effects discrimination claim has failed at the Supreme Court since 1998, there have been many challenges, including: • Causation • Evidence • Choice • Comparators • Link to a prohibited ground • Positive rights / Obligations • Arbitrariness • Amelioration The Challenges Confronted in Fraser This section will review how the Federal Court of Appeal decision in Fraser reinforced these problem areas in finding that there was no discrimination, and how these issues were addressed by Justice Abella. We analyze the dissenting judgments in a separate section. It is important to recognize at the outset that Fraser is a typical adverse effects discrimination case. The RCMP Pension Plan provided that full-time members who temporarily job-shared THE UNIVERSITY OF CALGARY FACULTY OF LAW BLOG ablawg.ca | 2 were not eligible for full pension benefits because they were classified as part-time members, while other members – such as those working full-time or on temporary leave without pay – could receive full pensions (see Royal Canadian Mounted Police Superannuation Act, RSC 1985, c R-11 (RCMPSA); Royal Canadian Mounted Police Superannuation Regulations, CRC, c 1393; RCMP Bulletin regarding job-sharing dated 5 December 1997; and the RCMP Administration Manual, II.10, 2003, s. F.1 (collectively “the Plan”)). Those on temporary leave without pay can elect to contribute to the pension fund on their return to full-time service and, if they do so, they “buy back” pension benefits by paying both employee and employer contributions for the leave period into the pension fund. However, those classified as part-time workers (including job-sharers) were not entitled to buy back pension benefits to a full-time level when they returned to full-time service (RCMPSA, sections 6(a), 6.1). The Plan appears neutral on its face with respect to prohibited grounds, but when we consider evidence related to its impact, discussed below, it has a disproportionate impact on women with caregiving responsibilities. However, the Federal Court of Appeal denied the claim at the first step of the test for discrimination, finding the claimants had not shown that the Plan created an adverse distinction based on an enumerated or analogous ground (see Fraser v Canada (Attorney General), 2018 FCA 223 (CanLII) (Fraser FCA)). The claimants’ expert gave evidence that working women in Canada bear a disproportionate burden of child-rearing, and that these issues may be particularly acute for women in policing, especially those with limited access to child care (Appellants’ Factum on Appeal at paras 16, 63, 84). There was also evidence that in the early years of the job-sharing program, which began in 1997, 30 out of 34 RCMP members who job-shared were women, and nearly all, 32 out of 34, had small children. In snapshots in 2010 and 2014, all RCMP members who job-shared were women (appellants’ Factum at para 20). Despite this evidence, the Court of Appeal found that for many RCMP members the reasons for job-sharing were unrelated to caregiving (Fraser FCA at para 18). The Court of Appeal also found there was no evidence that the option of leave without pay – which did include full pension entitlement – was unavailable to female RCMP members with young children, nor was there evidence to suggest that more men than women, or more childless individuals than those with children, had taken leaves without pay (Fraser FCA at para 52). This led to the Court’s conclusion that the claimants “were not denied [pension] 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 FCA at para 53, emphasis added). The Court of Appeal therefore found an insufficient link on the evidence between any adverse consequences of being unable to buy-back pension rights and the sex or family/parental status of job-sharing employees. Given its finding on step one, the Court of Appeal did not deal with step 2 of the test for discrimination. Nevertheless, it did find that there was no adverse or negative treatment of job- sharing employees when considering their overall employment context, including the fact that they continued to earn an income while employees on leave without pay did not (Fraser FCA at para 50). In addition to raising comparator challenges, this finding also brings into play the THE UNIVERSITY OF CALGARY FACULTY OF LAW BLOG ablawg.ca | 3 problematic idea from Withler v Canada (Attorney General), 2011 SCC 12 (CanLII) that courts should look at the larger benefit scheme and whether it is ameliorative as a factor relevant to determining whether there is discrimination. On the issue of positive rights / obligations, the Court of Appeal stated that it was up to Parliament to decide whether to provide the claimants with pension buy-back rights, not the courts (Fraser FCA at para 61). Justice Abella refuted all of the underlying bases of these problematic conclusions, holding that there was an adverse distinction, that it was based on sex, and that it was discriminatory.