Women in the RCMP who chose to job-share were discriminated against when they were not allowed to buy back full-time pension benefits, the Supreme Court of Canada ruled Friday in a 6-3 decision.
Justice Rosalie Abella, writing for the majority, found, “This arrangement has a disproportionate impact on women and perpetuates their historical disadvantage. It is a clear violation of their right to equality under section 15 of the Charter.”
The three appellants — Joanne Fraser, Allison Pilgrim and Colleen Fox — are retired members who took up the option offered by the RCMP to job-share in order to have more time at home with their small children.
RCMP members work shifts over a seven-day week, at all hours, sometimes in remote, rural communities where flexible child care is hard to come by. Before she started job-sharing, Fox recalled her husband having to bring their baby to coffee shops on her breaks so she could breast-feed.
The tiny cohort of women who job-shared planned to return to full-time status when their children were older. It didn’t help that two of the appellants in this case, Fraser and Pilgrim, were erroneously advised they could buy back the full-time pension benefits they missed by job-sharing.
When the time came, they were told the RCMP did not have the legislative authority to allow it, causing Fraser to work longer than she’d originally planned in order to generate a 25-year pension, and leaving Pilgrim with five per cent less retirement income.
What irked them was that if they had chosen to take long-term leave without pay, they would have been eligible to buy back full-time pension benefits.
The women claimed the RCMP pension plan discriminated against them on the grounds of sex and parental status, contrary to the guarantee of equal treatment in the Charter of Rights and Freedoms.
They lost at both levels of lower courts. The Federal Court of Appeal found, 3-0, “insufficient evidence that any difference in pension treatment was due to sex or parental status, rather than the appellants’ choice to work part-time rather than take leave without pay.”
The Women’s Legal Education and Action Fund (LEAF), acting as an intervener, observed in its brief that the “choice” the women faced was: earning no income at all on a leave without pay but with access to better pension benefits, or working part-time but losing part of their retirement income.
“Female-pattern employment,” said LEAF, a non-profit working for substantive equality for women and girls, creates an over-representation of women in part-time work. The lower courts, it said, adopted a “long-rejected formal equality approach” by noting men also lose full-time benefits if they job-share. Hardly any do.
The majority decision at the top court noted that the women in this case were not suggesting the negative pension consequences of job-sharing are explicitly based on sex. Rather, the claim was that there’s an adverse impact on women with children.
Justice Abella faulted the lower courts for dismissing the claim on the grounds it was the women’s choice to job-share. The Supreme Court of Canada, she noted, has “consistently held that differential treatment can be discriminatory, even if it is based on choices made by an affected individual or group.”
She pointed out that, from 2010 to 2014, all the members who opted for job-sharing were women, and most cited child-rearing as the reason they chose part-time work.
The three women appellants, said Abella, introduced evidence showing that, historically, women have borne the overwhelming responsibility for childcare. “As a result, they experience less stable employment and periods of ‘scaling back at work,’ including within police services,” she wrote.
As a remedy for the discrimination, the women should be able to buy back their lost pension credits, but it is for government to develop a means to achieve this objective, bearing in mind the top court’s reasons, Abella wrote.
The three dissenting judges, Justices Russell Brown, Malcome Rowe and Suzanne Côté, found the fault was not with the pension plan rules, but with an unequal division of family responsibilities and a lack of quality daycare, both underlying problems that should be addressed, rather than insisting the plan be changed.
Côté, in a separate dissent, found that the disproportionately unfair impact of the pension scheme fell, not on women with children, but on caregivers in general, including same-sex parents and those caring for elderly or disabled spouses or parents.