Fraser v Canada: RCMP Employees, Mothers and the Question of Adverse Effect Discrimination
In Fraser v Canada (Attorney General), 2018 FCA 223 [Fraser], the facts of the case began when a group of women — all RCMP officers and mothers — decided to jointly reduce their hours of work through job-sharing in order to meet caregiving responsibilities for their young children. Job-sharing, however, resulted in a pro-rated calculation of their pension benefits, as would be the case for part-time employees of the RCMP. The women were told they could not “buy back” the benefits that they lost by choosing job-sharing. In response, they applied to the Federal Court for judicial review of the decision, arguing that it amounted to adverse discrimination on the grounds of sex and/or family status.
The Federal Court [FC] dismissed the claimants’ case, finding no basis for discrimination, and the Federal Court of Appeal [FCA] concluded the same, though arriving at this conclusion through different reasons. Did the FCA err in finding that these mothers were not full-time employees for the purposes of their pension benefits calculation? Moreover, did the FCA err in finding that the decision to pro-rate benefits and deny the women from buying them back infringe their rights to equality pursuant to section 15 of the Charter? The Supreme Court of Canada [SCC] heard the case in December.
Joanne Fraser, Allison Pilgrim and Colleen Fox were all female-identifying RCMP officers and mothers. All of them participated in the RCMP’s job-sharing policy, which allowed them to jointly perform the work and receive the pay typically be for a full-time employee. Since each of them had young children, job-sharing allowed them to continue working while fulfilling their caregiving responsibilities as mothers.
The Royal Canadian Mounted Police Superannuation Act, RSC 1985, c R-11 [RCMPA] and the conjoining Regulation, CRC c 1393 [the Regulation], applied differently to part-time and full-time employees of the RCMP, particularly in the case of its pension provisions. The RCMP Pension Plan and, specifically, the accrual of pensionable hours, is pro-rated for part-time employees depending on the number of hours that are worked (RCMPA, s 10(1)).
On the one hand, the RCMPA stipulated that employees who took leave without pay [unpaid leave] for three months or more were able to consider their leave as entirely pensionable. The pensionable hours were dependant on the hours they typically worked before their period of leave and they could consider the leave pensionable as long as they returned to work following the leave period and made contributions to their pension for that time. However, the claimants did not take an unpaid leave, and chose to job-share instead. Job-sharing, under the RCMPA, did not allow for the women to buy back their pension benefits to prevent their reduced, part-time hours from limiting their pensions under the RCMP Pension Plan.
The claimants sought a declaration of invalidity of the respective RCMPA provisions at the Federal Court [FC], on the basis that their inability to buy back their benefits under the legal scheme amounted to adverse discrimination, contrary to section 15 of the Charter because “they were afforded unequal benefit of the law by reason of the intersecting grounds of sex and family or parental status” (Fraser, para 3). The women argued that the hours they did not work as a result of their reduced responsibilities should be considered, for the purposes of the RCMPA pension provisions, as being unpaid leave, thereby making their unworked hours pensionable. They argued that they should have been able to buy back their unworked hours, in order for their pension benefits as job-sharing, part-time employees to be equivalent to that of a full-time employee or an employee who had taken an unpaid leave.
Federal Court & Federal Court of Appeal Decisions
At the FC level, the claimants’ evidence included individual affidavits that explained why job-sharing best suited their circumstances and the calculation of pension benefits that applied to their job-sharing periods. The women “also deposed at the affront they felt by reason of the reduction in their pensions for the period of job-sharing, asserting they believe that the reduction evinces a lack of appreciation for female RCMP officers who chose to have children” (Fraser, para 15).
The FC however, found the evidence before it to be insufficient. It found that the evidence did not demonstrate that the claimants were full-time members who worked fewer hours during the period of job-sharing. The FC instead concluded that women were part-time employees during the relevant time.
Applying the section 15 analysis for making out discrimination, the FC then found that the claimants failed to prove that the RCMPA and Regulation provisions were discriminatory. The legal test for a section 15 violation and a finding of discrimination has been established and refined through a long line of jurisprudence (Andrews v Law Society of British Columbia,  1 SCR 143; R v Kapp, 2008 SCC 41; Quebec (Attorney General) v A, 2013 SCC 5). First, the impugned law must be found to make a distinction that denies the claimant equal benefit under the law. Second, the distinction must be found to be discriminatory on the basis of an enumerated or analogous ground.
Ultimately, the FC found that the claimants did not show that any adverse impact generated by the scheme was discriminatory on the basis of sex, family or parental status (Fraser, para 24). If anything, the FC said, it was only differentiation based on number of hours worked. The FC found no evidence “of the sort of stereotype alleged by the appellants that women who seek to combine the roles of wife and mother are less worthy of respect” (para 26).
At the appeal level, the FCA reconsidered the question of whether the claimants could be considered full-time employees for the purposes of the pension benefits and whether the distinction created by the legal scheme amounted to discrimination contrary to section 15. It concluded that there was “no basis for disturbing the Federal Court’s finding that the appellants … who job-share are not full-time employees” (para 36). However, the FCA undertook a much lengthier analysis of the section 15 argument.
The FCA stated that the lower court did not appropriately consider the issue of adverse effect discrimination, which is when the impugned law is prima facie neutral but has a discriminatory impact (Eldridge v British Columbia,  3 SCR). The FCA found this issue to be particularly pertinent in the case because the relevant legislation is neutral on its face but creates distinction based on hours worked, which is clearly not an enumerated or analogous ground (Fraser, para 41). The argument regarding adverse effect discrimination in this case is that the discriminatory distinction is on the basis of sex, family or parental status.
The FCA found that two elements are needed to make out adverse effect discrimination: “demonstration of adverse treatment as compared to others and demonstration that such treatment results from the particular characteristics that the protected group possesses” (para 43). According to this test, the FCA found the claimants’ failed at the first step because, even though evidence was provided that the women cited caregiving responsibilities as their reasons for choosing job-sharing, the distinction created by the RCMPA provisions were on the basis of hours worked, not on the basis of an enumerated or analogous ground (para 52).
Forthcoming SCC Decision
With the release of the SCC decision on the horizon, the central issues underlying the analysis detailed above are fresh once again. In the context of section 15 jurisprudence, it may be that the SCC used Fraser as an opportunity to finetune the legal test for adverse effect discrimination and its application to impugned laws. It seems, given the reasoning above, that where adverse effect discrimination was created out of the SCC’s recognition of a significant grey area in the way discrimination occurs in legal schemes, the exercise of determining a distinction in the first step is often very black-and-white.
For instance, if each of these women had submitted detailed reasons as to why their respective mothering responsibilities justified each of their individual choices to job-share rather than take unpaid leave, could it be that even a distinction on the basis of hours worked, as the Court found, is gendered? If more women than men feel that they have to take options such as job-sharing to complete both their money-earning and caregiving responsibilities, is this distinction on the basis of hours worked not gendered? The analysis as it stands right now does not seem to leave room for much analysis of how the values and ideas behind the enumerated grounds play out in less formulaic ways than the steps currently allow. Perhaps the forthcoming decision will elaborate on this grey area between the lines of the current test for adverse effect discrimination.
The Women’s Legal Education and Action Fund (LEAF), an advocacy organization advancing substantive equality rights for women and girls through litigation and law reform, intervened in the case at the SCC. In a statement ahead of the hearing, statement on its website, the organization said they would centralize the heavily gendered role of caregiving, which often requires employment accommodations/arrangements such as job-sharing, part-time work and other methods of flexible working. The weight that the SCC decision grants to these underlying issues of gender — not just what the distinction is but where it comes from and who the disproportionately affects — could determine the scope of future adverse effect discrimination. Consequently, it could either ease or tighten claimants’ abilities to establish that a law that is neutral on its face is, in effect, discriminatory.