Fraser v Canada: Clarifying the Section 15(1) Framework
Saambavi Mano, 3L, Volume 79 Senior Editor
On October 16, 2020, the Supreme Court of Canada rendered judgement in Fraser v Canada, 2020 SCC 28 (CanLII) (Fraser), a long-anticipated decision about adverse effects sex discrimination under s. 15 of the Canadian Charter of Rights and Freedoms. The question was whether certain Royal Canadian Mounted Police (RCMP) pension plan provisions, which prohibited job-sharing RCMP members (mostly women caring for small children) from buying back full-time pension credits, infringed s. 15(1) of the Charter in a manner that could not be justified under s. 1.
The Court issued three judgments: the majority opinion, supported by six justices and written by Justice Abella, found an unjustifiable infringement of s. 15(1); Justices Brown and Rowe, dissenting, found that the claim should fail at the second stage of the s. 15(1) framework; and Justice Côté, dissenting, found that the claim should fail at the first stage.
Fraser provides much needed clarification about the requisite elements of proving a s. 15(1) infringement. However, the decision and the dissenting judgments leave open questions about the development of the s. 15(1) framework.
Background
The appellants in Fraser were three retired female RCMP members who had enrolled in a temporary job-sharing program designed to allow employees to split full-time positions among themselves. The appellants began job-sharing in order to continue working while caring for their children. The evidence showed that predominantly women with children job-shared (Fraser at paras 7-10).
Under the RCMP pension plan, members with longer records of uninterrupted full-time service received more valuable pensions (Fraser at paras 3, 12-13). The plan had a “buy back” process, whereby certain gaps in a full-time member’s service record could be filled in, leaving their pension benefits unaffected. When the appellants enrolled in the job-sharing program, they expected that they would be able to buy back pension benefits for the job-sharing period, since even members on leave without pay or suspension without pay were entitled to do so (Fraser at paras 3, 14-15). However, the appellants were later informed that they would not be able to buy back pension benefits because job-sharing was part-time work for which participants could not receive full-time pension credit (Fraser at para 20).
The appellants brought an application claiming that the job-sharing pension provisions had a discriminatory impact on women contrary to s. 15(1) of the Charter. They also brought a claim under the analogous ground of parental/family status, which has yet to be recognized at the Court.
The lower courts found that the pension plan provisions did not violate s. 15(1) because there was insufficient evidence that job-sharing was disadvantageous compared to unpaid leave, and any adverse impact on job-sharing members resulted not from sex or parental status, but from the choice to job-share and work part-time (Fraser at paras 22-23).
The Supreme Court of Canada Decision
Majority Judgement
Justice Abella set out the s. 15(1) framework as articulated in the 2018 pay equity cases (see Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) at para 25; Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 (CanLII) at para 22). To prove a prima facie violation of s. 15(1), claimants must demonstrate that:
The impugned law or state action, on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
The impugned law or state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage (Fraser at para 27).
Justice Abella clarified that the appellants’ claim was one of adverse effects discrimination, which occurs when a seemingly neutral law has a disproportionate impact on a protected group (Fraser at para 30). Appealing to the norms of substantive equality underpinning the Court’s s. 15 jurisprudence, Justice Abella found that courts must pay special attention to the full context of the claimants’ situation, the law’s actual impact on that situation, and the persistent systemic disadvantages that operate to limit the opportunities available to the claimants (Fraser at para 42).
Looking to evidentiary requirements, Justice Abella found that while adverse effects discrimination claimants would ideally bring evidence about the situation of the claimants and the law’s actual effects, courts would not always require both types of evidence to satisfy the first stage of the s. 15(1) framework (Fraser at paras 60-62). She noted that issues which predominantly affect certain populations may be under-documented, forcing claimants to rely more heavily on their own evidence rather than on expert testimony or statistical research (Fraser at para 57).
Justice Abella also set out a series of factors that would not need to be proven by a s. 15 claimant, including:
If there are clear and consistent statistical disparities in the law’s effects, why the law has a disproportionate impact;
Discriminatory intent;
That the protected characteristic “caused” the disproportionate impact;
That the law itself was responsible for creating the background physical or social barriers which made a particular rule disadvantageous; or
That the impugned law affects all members of a protected group in the same way (Fraser at paras 63-72).
Applied to the facts, Justice Abella found that the RCMP’s use of the temporary reduction in working hours as a basis for disadvantageous pension provisions had a disproportionate impact on women. The statistics showing that predominantly women with young children job-shared were bolstered by compelling evidence about the disadvantages faced by women balancing professional and domestic work. This showed a clear association between gender and fewer or less stable working hours (Fraser at paras 97-98, 106).
At the second stage of the s. 15(1) framework, Justice Abella noted that proof of social prejudice, stereotyping, or arbitrariness was not necessary to show that the law reinforced, perpetuated, or exacerbated disadvantage. At this stage, courts simply examine the harmful impact in light of any systemic or historical disadvantages faced by the claimants (Fraser at paras 76-80). In Fraser, the negative pension consequences of job-sharing perpetuated long-standing gender biases within pension plans, which were historically designed for middle- and upper-income, full-time, typically male employees (Fraser at para 108). As a result, the claimants established a s. 15(1) infringement based on the enumerated ground of sex. In light of this finding, and considering the inadequacy of the appellants’ submissions on recognizing parental/family status as an analogous ground, Justice Abella declined to recognize a new analogous ground (Fraser at paras 114, 117-21).
At the s. 1 stage, Justice Abella found that the s. 15(1) infringement could not be justified because the Attorney General failed to identify a pressing and substantial objective (Fraser at para 126).
Dissenting Judgement: Justices Brown and Rowe
Justices Brown and Rowe, dissenting, found that the pension plan did not violate s. 15 of the Charter. Unlike the majority, the dissenting justices cited the s. 15(1) framework as formulated in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII) at paras 19-20 (Taypotat):
Whether the law, on its face or in its impact, creates a distinction on the basis of an enumerated or analogous ground; and
Whether the law fails to respond to the actual capacities and needs of the group and instead imposes burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating their disadvantage (Fraser at para 169).
The dissenting judgment emphasized that job-sharing was an incremental attempt to remedy social inequalities. When considering such laws, Justices Brown and Rowe called for increased scrutiny of the claimant’s proof that the impugned law caused the disadvantage. They noted that laws enacted to incrementally narrow a pre-existing systemic disadvantage will inevitably leave behind some element of disparity. In such cases, the dissenting justices maintained that it is not sufficient to refer to a statistical disparity and a broader group disadvantage to establish a s. 15(1) infringement (Fraser at paras 145, 181).
At the first stage of the s. 15(1) framework, the dissenting justices found that the plan created a sex-based distinction given that job-sharers were disproportionately women (Fraser at paras 185, 188). However, the majority judgment and Justices Brown and Rowe’s dissent diverged at the second stage of the s. 15(1) framework. The dissenting justices focused heavily on whether the unequal impact responded to the “actual capacities […] of the group” or whether it was “in any other sense substantively discriminatory” (Fraser at paras 189-90). The dissenting justices maintained that arbitrariness or unfairness must be proven to establish substantive discrimination and found that historical disadvantage alone is insufficient to satisfy the second stage (Fraser at paras 190-95).
Applied to the facts, the dissenting justices found that the pension plan provisions did not reinforce, perpetuate, or exacerbate the disadvantages faced by women in the workplace. They maintained that the allocation of part-time pension benefits to job-sharers responded to their actual capacities because the job-sharers were doing part-time work (Fraser at paras 198, 200). It was neither arbitrary nor unfair – and therefore not discriminatory – for the RCMP to prorate benefits according to the hours worked by employees (Fraser at para 205).
Finally, the dissenting justices emphasized the importance of affording governments the latitude to incrementally address social inequalities, warning that the legislature may become disinclined to act if expected to remove all inequalities on every occasion it acts (Fraser at para 207). They also stated that judicial determinations of whether legislation is “sufficiently remedial” pulls courts outside their institutional competence, since the judiciary is ill-equipped to deal with the public policy and budgetary considerations that go into legislating benefit plans (Fraser at para 213).
Dissenting Judgment: Justice Côté
Justice Côté, dissenting, found that the appellants’ claim failed at the first stage of the s. 15(1) analysis because the impugned provisions did not create a sex-based distinction. Rather, the provisions created a distinction based on caregiving responsibilities or a combination of sex with caregiver status. Justice Côté maintained that caregiving, unlike pregnancy, is not by definition associated with sex, noting that same-sex couples with children and other individuals with caregiving responsibilities may be equally affected by the impugned provisions. Thus, the distinction was “not on the basis of being a woman, but being a woman with children” (Fraser at paras 234-36). Given the other justices’ concerns about recognizing a new analogous ground on sparse submissions, Justice Côté declined to find a distinction based on parental/family status (Fraser at para 238).
Analysis
Fraser provides much needed clarification regarding the elements of proving a s. 15 infringement. The majority judgment reinforces the norms of substantive equality underpinning s. 15 by allowing for meaningful consideration of intersecting grounds and differences within protected groups. For example, Justice Abella found that claimants who demonstrate the disproportionate impacts of a law on a protected group are not subject to an additional requirement to prove that the impact was caused by the protected characteristic, and not some other characteristic. Similarly, Justice Abella recognized that a law need not affect all members of a group equally in order to be discriminatory. These findings reinforce a broad and generous approach to s. 15(1) that focuses on the actual impact of laws on claimants.
Despite the important clarification offered in the majority judgment, the Court in Fraser missed a key opportunity to acknowledge that the s. 15(1) framework has changed since Taypotat. Professor Kerri Froc of the University of New Brunswick observes two camps arising at the Court: those adhering to formalistic notions of equality, and those attempting to advance an innovative s. 15(1) framework grounded in substantive equality (see Dale Smith, “An Equitable Outcome” in National Magazine). The emergence of these two camps can be explained in part by the Court’s unacknowledged modifications of the s. 15(1) framework over the last three years. Indeed, in Fraser, both the majority judgment and Justices Brown and Rowe’s dissent claim to be citing the s. 15(1) test employed by the Court, but the judgments cite different versions of the test from different cases. Notably, Justice Abella found that claimants do not have to prove that the disadvantage was arbitrary, apparently removing this requirement from the s. 15(1) framework.
Justices Brown and Rowe’s dissent evidences the importance of acknowledging when the requirements of the s. 15(1) framework have changed. The dissenting justices leaned heavily on the arbitrariness requirement to argue that the pension plan provisions were not discriminatory because they responded to the “actual capacities” of the appellants as part-time workers. Justice Abella rightly noted that the rule of law requires that Charter claimants not be required “with each new case, [to] stand ready to defend the exact gains that have been won multiple times in the past” (Fraser at para 135). However, to the extent that Justices Brown and Rowe’s dissenting judgment runs the risk of reviving discarded arguments, it seems to do so primarily because of a lack of clarity with respect to the s. 15(1) framework.
Furthermore, the Court’s clarifications regarding evidentiary requirements are unlikely to yield practical benefits for s. 15 claimants because the Court does not give clear advice as to when both evidence about the claimants’ situation and evidence about the actual impact of the law is required. The unfortunate result may be that, despite Justice Abella’s efforts, under-documented s. 15(1) claimants may have no choice but to try to lead both types of evidence in order to cover their bases in the aftermath of Fraser.
In light of these concerns, it remains to be seen whether this framework truly marks “a shift […] towards an effects‑based model which critically examines systems, structures, and their impact on disadvantaged groups” (Fraser at para 31, citing Denise G. Réaume, “Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination” (2001) 2 Theor Inq L 349, at 350‑51). Justice Abella’s decision leaves open the possibility of an expansion of the s. 15(1) framework in future cases. However, Fraser also highlights a clear split regarding the desirability of broadening s. 15(1): while Justice Abella referenced anti-discrimination and feminist literature advocating for an expansion of Charter equality, Justices Brown and Rowe cited scholarly work arguing in favour of imposing internal limits on the scope of s. 15. We are thus seeing a clear and potentially growing tension between opposing considerations. Hopefully with time, and further clarity, we will have a better picture of where the s. 15 test lands.