Air Canada Pilots Association v. Air Canada

Air Canada Pilots Association v. Air Canada
Court (s) Database
Federal Court Decisions
Date
2023-01-30
Neutral citation
2023 FC 138
File numbers
T-1588-19
Decision Content
Date: 20230130
Docket: T-1588-19
Citation: 2023 FC 138
Toronto, Ontario, January 30, 2023
PRESENT: The Honourable Madam Justice Furlanetto
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Applicant
and
AIR CANADA AND ROY BENTLEY
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of an August 28, 2019 decision [Decision] of the Canadian Human Rights Tribunal [CHRT] that, inter alia, dismissed a request to declare subsections 3(b) and 5(b) of the Canadian Human Rights Benefit Regulations SOR/80-68 [Regulations] unconstitutional for violating subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. The CHRT found that subsections 3(b) and 5(b) of the Regulations were a complete defence to complaints filed by the Respondent, Roy Bentley, against Air Canada [AC] and Air Canada Pilots Association [ACPA] that a provision of the collective agreement between AC and ACPA allowing for termination of long-term disability benefits for pilots who became eligible to receive unreduced pension benefits was age discrimination within the meaning of the Canadian Human Rights Act, RSC 1985, c H-6 [Act].
[2] Mr. Bentley is now retired from AC and has elected not to participate in the current proceedings. He did not file any materials or participate in the hearing of this matter. Instead, ACPA has brought this application to challenge the CHRT’s finding based on subsection 15(1) of the Charter.
[3] For the reasons set out below, it is my view that the application should be dismissed as ACPA has failed to demonstrate that the phrase “normal pensionable age under the pension plan of which the employee is a member” from subsections 3(b) and 5(b) of the Regulations violates the substantive equality norm enshrined in subsection 15(1) of the Charter.
I. Background
[4] In 2011, ACPA and AC entered into a collective agreement [Agreement] that was in force from 2011 to 2016. In 2012, amendments were made to the Agreement in response to legislative amendments repealing a provision that permitted mandatory retirement at the age of 60. The amendments provided that pilots were eligible to retire with an unreduced pension at age 60 with 25 years of service, or at age 65 if they did not have 25 years of qualifying service.
[5] The Agreement also included a Group Disability Income Plan [GDIP] for pilots on long‑term disability. Provision L75.07 of the GDIP provided that pilots who were eligible for an unreduced pension did not qualify for disability benefits should they become unable to work due to illness or disability.
[6] Mr. Bentley turned 60 on May 30, 2014. He became eligible to retire with an unreduced pension as he had completed more than 25 years of service with AC. When he learned that he would not receive GDIP benefits if he became disabled, he filed a human rights complaint.
A. Proceeding before the CHRT
[7] Before the CHRT, Mr. Bentley argued that subsections 3(b) and 5(b) of the Regulations violated subsection 15(1) of the Charter and were not saved by section 1, and that L75.07 of the GDIP was discriminatory on the basis of age.
[8] Both AC and ACPA initially opposed Mr. Bentley’s arguments. However, in May 2018, the Ontario Human Rights Tribunal [OHRT] released its decision in Talos v Grand Erie District School Board, 2018 HRTO 680 [Talos], wherein the OHRT found that a provision under Ontario human rights legislation violated subsection 15(1) of the Charter and were not to be saved by section 1. After the release of Talos, ACPA changed its position to support Mr. Bentley’s arguments.
B. Evidence before the CHRT
[9] Before the CHRT, ACPA provided evidence from three former pilots: Mr. Bentley, Robert Lyon and Sandra Anderson. Mr. Bentley was not disabled and was therefore not financially harmed by the provisions. Robert Lyon required six months to recover from a heart attack after his 60th birthday. He took leave without pay after exhausting his vacation and sick days before returning to work. Sandra Anderson required a major surgery four months after her 60th birthday. She retired seven months later after using her accrued sick days and vacation days so she did not have to go without income.
[10] AC also provided an expert report from Peter Gorham [Gorham Report] who was qualified as an expert “with actuarial expertise in the design, implementation, governance, costing and funding of pension plans and employee benefit programs”. Mr. Gorham reached two key conclusions in his report:
It is appropriate from an actuarial and insurance perspective (i.e., cost effectiveness) to replace loss of income benefits with retirement benefits for workers at some point between age 61 and 65; and
Reference to pensionable age is a reasonable proxy to recognize the specific retirement experience at various employers.
[11] In arriving at these conclusions, Mr. Gorham opined that “it [was] not actuarially sound to continue to pay disability income protection after a point at which the majority of workers are likely to have retired. To do so [would] over compensate more than half of the disabled workers.”
[12] He noted that to be actuarially sound there needed to be a point where income benefits ceased. However, there was no single correct age at which benefits should stop. Rather, there was a range of ages that could vary based on retirement patterns of Canadians, in general, and of the employer in particular. In his opinion, the use of pensionable age was an appropriate method of setting a point at which disability benefits could cease as it recognized differing employment situations such as those resulting from employees with unreduced early retirement benefits, who tended to retire at younger ages than those without unreduced early retirement pensions.
C. Decision under review
[13] The CHRT found that when the effects of L75.07 are taken into account, subsections 3(b) and 5(b) of the Regulations create a distinction based on an analogous ground, meeting the first part of the subsection 15(1) test.
[14] However, the CHRT concluded that subsections 3(b) and 5(b) of the Regulations did not disadvantage, prejudice, or stereotype the claimant group. The termination of disability benefits upon reaching pensionable age was set off with generous retirement benefits, and an unreduced pension. Given the high costs of maintaining disability insurance for older individuals, this compromise was reasonable. The CHRT did not accept ACPA’s reliance on Talos. It distinguished Talos, which dealt with health, dental, and life insurance benefits rather than disability benefits and explicitly excluded long-term disability insurance and pension plans.
[15] As the CHRT concluded there was no violation of subsection 15(1) of the Charter, there was no section 1 analysis.
II. Issues and Standard of Review
[16] Pursuant to section 22 of the Act, the terms of an insurance plan do not violate the Act if the discriminatory basis of that insurance plan is permitted by the Regulations. Subsections 3(b) and 5(b) of the Regulations contain two distinct exemptions: if the employee is at an age that is not less than 65; or if the employee is the “normal pensionable age under the pension plan”. These provisions read as follows:
3 The following provisions of a benefit plan do not constitute the basis for a complaint under Part III of the Act that an employer is engaging or has engaged in a discriminatory practice:
3 Les dispositions suivantes d’un régime de prestations ne constituent pas des motifs raisonnables pour formuler, en vertu de la Partie III de la Loi, une plainte pour acte discriminatoire de la part de l’employeur :
. . .
. . .
(b) in the case of any disability income insurance plan, provisions that result in an employee being excluded from participation in the plan because the employee has attained the age at which a member of the plan would not be eligible to receive benefits under the plan or has attained that age less the length of the waiting period following the commencement of a disability that must pass before benefits may become payable thereunder, if that age is not less than 65 or the normal pensionable age under the pension plan of which the employee is a member, whichever occurs first;
b) dans le cas d’un régime d’assurance-revenu en cas d’invalidité, les dispositions qui en excluent un employé parce qu’il a atteint l’âge auquel les prestations cessent d’être payables aux membres du régime, ou a atteint cet âge même en tenant compte de la période d’attente entre le début de l’invalidité et la date où les prestations deviennent payables, lequel âge correspond à soixante-cinq ans ou à l’âge normal ouvrant droit à la pension en vertu du régime de retraite auquel participe l’employé, selon ce qui se présente le premier;
. . .
. . .
5 The following provisions of an insurance plan do not constitute the basis for a complaint under Part III of the Act that an employer is engaging or has engaged in a discriminatory practice:
5 Les dispositions suivantes d’un régime d’assurance ne constituent pas des motifs raisonnables pour formuler, en vertu de la Partie III de la Loi, une plainte pour acte discriminatoire de la part de l’employeur :
. . .
. . .
(b) in the case of any disability income insurance plan, provisions that result in differentiation being made between employees because the benefits payable under the plan to an employee cease when the employee has attained the age of not less than 65, or the normal pensionable age under the pension plan of which the employee is a member, whichever occurs first;
b) dans le cas d’un régime d’assurance-revenu en cas d’invalidité, les dispositions qui établissent une distinction entre les employés parce qu’elles prévoient la cessation des prestations à l’âge de soixante-cinq ans ou à l’âge normal ouvrant droit à la pension en vertu du régime de retraite auquel participe l’employé, selon ce qui se présente le premier;
[Emphasis Added]
[Je souligne]
[17] The Applicant on this judicial review does not challenge the constitutional validity of the exemption from disability insurance plans for employees not less than 65. Nor is it challenging the appropriateness of the GDIP benefits. The sole substantive issue on this application is whether the exemption that employees at “normal pensionable age under the pension plan of which the employee is a member” [Impugned Provision] are cut-off from disability benefits is a violation of subsection 15(1) of the Charter and if so, whether it is saved by section 1 of the Charter.
[18] In addition, AC raises as a preliminary issue whether ACPA should be permitted to advance new arguments and evidence on judicial review that were not before the CHRT, namely with respect to the latter, the introduction of various social science papers in its Book of Authorities [BOA].
[19] There is no standard of review for the preliminary issue.
[20] The standard of review for the substantive issue is correctness. The compatibility of subsections 3(b) and 5(b) of the Regulations with the Charter is a constitutional question that falls within an exception to the presumption of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 55-57.
[21] As noted by AC, when applying the correctness standard, the Court must remain alert to the structural limitations of a judicial review, which is concerned with the legality of the underlying decision (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 at para 13) and determining whether reviewable errors were committed. As explained by the Federal Court of Appeal in Bekker v Canada, 2004 FCA 186 [Bekker] at paragraph 11, the judicial review is not a de novo hearing:
Judicial review proceedings are limited in scope. They are not trial de novo proceedings whereby determination of new issues can be made on the basis of freshly adduced evidence. As Rothstein J.A. said in Gitxsan Treaty Society v. Hospital Employees Union...”the essential purpose of judicial review is the review of decisions” and, I would add, to merely ascertain their legality...This is the reason why, barring exceptional circumstances such as bias or jurisdictional questions, which may not appear on the record, the reviewing Court is bound by and limited to the record that was before the judge or the Board. Fairness to the parties and the court or tribunal under review dictates such a limitation.
[Footnotes and emphasis deleted]
III. Analysis
A. Should ACPA’s new evidence and arguments be permitted?
[22] AC asserts that arguments and evidence advanced by ACPA before this Court were not made before the CHRT and as such are improperly raised.
[23] As noted by AC and referenced earlier, in its initial submissions to the CHRT, ACPA supported AC’s position that the amendment to the Agreement was shielded by subsections 3(b) and 5(b) of the Regulations and that these subsections did not violate the Charter. In doing so, they relied fully on the Gorham Report. However, after a request for further submissions from the CHRT Hearings Officer because of the OHRT’s decision in Talos, ACPA changed its position, asserting that subsections 3(b) and 5(b) were contrary to subsection 15(1) of the Charter. In these further submissions, ACPA made little independent argument, essentially adopting the OHRT’s analysis and asserting it applied equally to the matter before the CHRT.
[24] Before the Court now, ACPA seeks to critique aspects of the Gorham Report in support of its argument that subsections 3(b) and 5(b) are unconstitutional.
[25] Further, AC asserts that ACPA raises a new argument at paragraph 33 of the Applicant’s memorandum of fact and law that is broader than the issues before the CHRT. In this paragraph, ACPA characterizes the issue as “whether the mere existence of a pension plan excuses the complete denial of disability benefits – no matter what benefits the pension plan’s terms provide.”
[26] AC argues that this paragraph is a recharacterization of the issues before the CHRT that widens the scope of the analysis beyond the GDIP and has denied the Respondent the opportunity to file relevant evidence on different pension plans and how they interact with subsections 3(b) and 5(b) of the Regulations. AC similarly asserts that it has been denied the opportunity to address the difference between defined benefit plans and defined contribution plans, which would be relevant to this broader issue.
[27] ACPA argues that this is not a situation where a new issue is being raised before the Court that was not before the CHRT. Rather, in this case, the subsection 15(1) issue was clearly before the CHRT, and a decision on the issue was rendered by the CHRT. Thus, the decision-maker was provided with an opportunity to express an opinion on the Charter issue.
[28] I agree with AC that the issues as framed cannot be broader than the matters that were before the CHRT: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 26. However, I do not agree that ACPA is foreclosed from challenging the CHRT’s findings on subsection 15(1) or from advancing arguments that relate to those made by Mr. Bentley before the CHRT or that encompass what the CHRT would have considered as a result of the post-hearing submissions and its consideration of Talos.
[29] With respect to evidence, AC impugns ACPA’s criticisms of the Gorham Report, the reliance on expert evidence from decisions such as Talos, and the introduction of social science articles in its BOA that were not introduced via expert testimony before the CHRT.
[30] I agree with ACPA that the reliance and criticisms of the Gorham evidence is not new evidence. ACPA is not seeking to introduce competing evidence to the opinions given by Mr. Gorham. Rather, they are seeking to point to certain aspects of Mr. Gorham’s evidence and are asking this Court to draw a different legal conclusion on that evidence than the one drawn by the CHRT.
[31] Regarding the reliance on expert evidence from other decisions, such evidence cannot be taken as evidence of first instance and can only be viewed in context. This will be dealt with further, where necessary, when addressing the parties’ specific arguments under the subsection 15(1) analysis.
[32] With respect to ACPA’s reference to secondary source social science articles, ACPA asserts that it is not relying on these articles as evidence, but rather to put the existing evidence in context. ACPA argues that this is consistent with the approach taken in other cases; such as, Stadler v Director, St Bonifact/St Vital, 2020 MBCA 46 [Stadler] and Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser].
[33] AC asserts that ACPA is trying to introduce evidence that was not before the CHRT because ACPA did not dispute the Gorham Report before the CHRT. AC takes issue with the secondary references found at items 35 to 45 of ACPA’s BOA, with the exception of items 38 and 44, which it asserts relate to a government report and government newsletter, respectively.
[34] It is well established that Charter cases cannot be determined in a factual vacuum: MacKay v Manitoba, [1989] 2 SCR 357 at p 361. As stated in Danson v Ontario (Attorney General), [1990] 2 SCR 1086 at pp 1101:
In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects. In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases as in nature, has always been abhorred...
[35] As noted in Bekker at paragraphs 12-14, the concerns that are relevant to a challenge under section 15 require a complex, multi-factored contextual inquiry by the reviewing court as to whether the impugned legislation not only creates differential treatment, but also if it is discriminatory in the constitutional sense. This may include social science and statistical data of which cross-examination may be necessary as well as the filing of evidence in rebuttal.
[36] Such analysis is shown in Fraser starting at paragraph 98, where the Court reviewed commission reports, judicial decisions and academic work in order to assess the assertions of the applicant that women had historically borne the overwhelming share of childcare responsibilities, that part-time workers in Canada were disproportionately women, and that they were far more likely than men to work part-time due to childcare responsibilities resulting in less stable employment and periods of “scaling back at work”. However, Fraser does not speak to the introduction of such evidence.
[37] While in Stadler, the Court referred to four articles, which it permitted an intervener, the Social Planning Council, to file when it was granted leave to intervene; in my view, this cannot be taken as authority for the proposition that parties are routinely permitted to file new evidence in the form of secondary articles at the Court level.
[38] It is trite law that absent a recognized exception, new evidence, even on constitutional issues, is not admissible on judicial review: Landau v Canada (Attorney General), 2022 FCA 12 [Landau] at para 11; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 20; Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics] at paras 40-46.
[39] There is no dispute that the secondary articles sought to be introduced were not before the CHRT and none of this evidence falls within the exceptions enumerated in Access Copyright at paragraph 20. It does not constitute general background information, address procedural defects before the CHRT, nor demonstrate that there was an absence of evidence underlying a finding of the CHRT.
[40] The academic articles relied on by ACPA speak to negative stereotypes about older workers, ageism, and the security of employment in old age. This evidence goes to the merits of ACPA’s subsection 15(1) argument. They relate to contested facts and are not articles to which judicial notice can be taken: Khodeir v Canada (Attorney General), 2022 FC 44 at paras 21, 26 and 27.
[41] Further, rather than submit this evidence through an expert affidavit, ACPA has filed this evidence as part of its BOA. In National R&D Inc v Canada, 2022 FCA 72 at paragraph 14, the Federal Court of Appeal commented on the impermissibility of this type of practice (see also Landau at para 12 and Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88 at paras 12-14):
... In support, the appellant relies on an article contained in the book of authorities. This, in my view, is an impermissible attempt to establish, through the back door, a fact that should be a matter of evidence at trial. If there is a critical distinction in the methodology used in the applied as opposed to natural sciences, then the appellant is required to establish that fact in evidence (Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [1999] 3 S.C.R. 845, 180 D.L.R. (4th) 670). What is written in an academic journal cannot be taken on faith. Matters of social, applied and natural sciences must be adduced through experts, and who must be made available for cross-examination, as it is through cross-examination that the credibility of the expert and the reliability of the evidence is tested (Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, [2016] 1 F.C.R. 686 at para. 21).
[42] By proceeding in this manner, ACPA has effectively insulated the evidence from cross‑examination and rendered it impossible for this Court to determine its reliability: Forest Ethics at para 42. Additionally, in some instances the reference is only to an excerpt of the article such that the full context of the article is not even present. I agree with AC, these secondary articles cannot be admitted.
B. Is the Impugned Provision contrary to subsection 15(1) of the Charter
[43] Subsection 15(1) of the Charter provides that:
Equality before and under law and equal protection and benefit of law
Égalité devant la loi, égalité de bénéfice et protection égale de la loi
15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15 (1) La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques.
[44] As set out in Fraser at paragraph 42, “substantive equality is the “animating norm” of the s. 15 framework ... substantive equality requires attention to the “full context of the claimant group’s situation”, to the “actual impact of the law on that situation”, and to the “persistent systemic disadvantages [that] have operated to limit the opportunities available” to that group’s members”.
[45] When assessing a claim under subsection 15(1) of the Charter, the Court asks two questions (Centrale des syndicats du Quebec v Quebec (Attorney General), 2018 SCC 18 at para 22; Fraser at para 27): 1) Does the impugned provision, on its face or in its impact, create a distinction based on an enumerated or analogous ground; and, if so, 2) Does it impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage, including a “historical” disadvantage?
(1) Does the Impugned Provision draw a distinction based on age?
[46] As summarized in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 at paragraph 26, the purpose of the first part of the subsection 15(1) analysis is to ensure that subsection 15(1) is accessible to those whom it was designed to protect, and exclude claims that have nothing to do with substantive equality because they are not based on enumerated or analogous grounds that are constant markers of potential discrimination. It does not require consideration of discriminatory impact, but focusses on the grounds of distinction.
[47] In order for a provision to create a distinction based on a prohibited ground through its effects, it must have a disproportionate impact on members of a protected group: Fraser at para 52.
[48] ACPA asserts that the first stage of the subsection 15(1) test is easily met in this case. It argues that, on its face, the Impugned Provision creates a distinction based on age – i.e., whether an employee has met the “normal pensionable age under the pension plan”. It argues that this distinction is based on membership in an enumerated group – in this case, older workers.
[49] AC emphasizes the contextual nature of the subsection 15(1) analysis and its focus on substantive rather than formal equality. It asserts that the distinction created by the Impugned Provision is not based on an enumerated or analogous ground. The Impugned Provision refers to the “normal pensionable age”, which may be determined by a given period of service, rather than age. It argues that an employee’s period of service is not an immutable characteristic that has the character of an enumerated or analogous ground.
[50] An analogous ground is one based on a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity: Withler v Canada (Attorney General), [2011] 1 SCR 12 [Withler] at para 33. AC asserts that an employee’s period of employment or years of service is not a personal characteristic that falls under this definition.
[51] AC argues that in order to satisfy the first part of the subsection 15(1) test, the Applicant was required to adduce evidence to establish that there is a disproportionate impact on the members of the asserted group that includes evidence about the situation of the claimant group and evidence about the results of the law. It refers to the comments of the Federal Court of Appeal in Weatherley v Canada (Attorney General), 2021 FCA 158 [Weatherley] at paragraph 39, which refers to the Court in Fraser:
[39] In Fraser, as a general matter, the majority of the Supreme Court instructs us that “[t]wo types of evidence” are “especially helpful in proving that a law has a disproportionate impact on members of a protected group”: first, “evidence about the situation of the claimant group” and, second, “evidence about the results of the law” (at para. 56) or the “results of a system” (at para. 58). On the second type of evidence, what must be shown is “a disparate pattern of exclusion or harm” from the law “that is statistically significant and not simply the result of chance” (at para. 59). Inherent in this is a requirement to lead some evidence that the law being challenged causes or at least contributes to the impact. In other words, there should be “evidence…about the results produced by the challenged law” (at para. 60). Both types of evidence are not always required and evidentiary standards should not be applied too rigorously: Fraser at paras. 61 and 67. But claimants still have to lead some evidence to support their claim.
[52] AC asserts that ACPA cannot succeed on the first part of the test because it has led no evidence and has not demonstrated that the Impugned Provision creates a disproportionate impact on members of a protected group.
[53] Section 2 of the Regulations defines “normal pensionable age” as:
normal pensionable age under a pension plan, means the earliest date specified in the plan on which an employee can retire from his employment and receive all the benefits provided by the plan to which he would otherwise be entitled under the terms of the plan, without adjustment by reason of early retirement, whether such date is the day on which the employee has attained a given age or on which the employee has completed a given period of employment
âge normal ouvrant droit à la pension, dans le cadre d’un régime de retraite, désigne la première date spécifiée à laquelle un employé peut prendre sa retraite et toucher les prestations auxquelles il aurait normalement droit en vertu du régime, sans rajustement à cause d’une retraite anticipée, que cette date soit celle d’un anniversaire de naissance ou le dernier jour d’une période d’emploi;
[54] I agree with AC that the length of an employee’s service on its own is not an immutable personal characteristic as it does not describe what a person is, but rather, what a person is doing or has done: Charles v Canada (Attorney General) (1996), 134 DLR (4th) 742 (ONSC) [Charles] at para 45.
[55] However, unlike in Charles where the alleged disparate impact was solely based on years of service (Charles at paras 42-46), in this case, the definition of “normal pensionable age” includes pensions that start paying benefits at a specific age, creating a distinction on age, although the age is not specifically identified, as well as those where the employee has completed a given period of employment.
[56] As a matter of common sense, employees who are most likely to be impacted by pension eligibility determined by a set period of service are older employees given the length of service required to obtain that eligibility.
[57] While limited evidence was advanced regarding the length of service generally required by these plans or the age at which employees in those positions begin working to determine their age of pension eligibility, given the logical connection between length of service and age, in my view it can be concluded that the Impugned Provision both directly and indirectly creates a distinction on the basis of age. Further, for this part of the test and without opining on merits, I accept ACPA’s reliance on the facts relating to Sandra Anderson and Robert Lyon as proposed evidence as to the results of the law.
(2) Does the Impugned Provision violate the substantial guarantee of equality?
[58] The parties acknowledge that there has been a development in the law since their memoranda were filed. Specifically, they note that the Supreme Court’s decision in Fraser
altered the second stage of the section 15 analysis in subtle ways. As set out at paragraphs 76-81 of Fraser:
[76] This brings us to the second step of the s. 15 test: whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage (Alliance, at para. 25). This inquiry will usually proceed similarly in cases of disparate impact and explicit discrimination. There is no “rigid template” of factors relevant to this inquiry (Quebec v. A, at para. 331, quoting Withler, at para. 66). The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion . . . [p]sychological harms . . . [p]hysical harms . . . [or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (Sheppard (2010), at pp. 62‑63 (emphasis deleted)).
[77] The purpose of the inquiry is to keep s. 15(1) focussed on the protection of groups that have experienced exclusionary disadvantage based on group characteristics, as well as the protection of those “who are members of more than one socially disadvantaged group in society” (Colleen Sheppard, “Grounds of Discrimination: Towards an Inclusive and Contextual Approach” (2001), 80 Can. Bar Rev. 893, at p. 896; see also Withler, at para. 58). As the Court noted in Quebec v. A when discussing the second stage of the s. 15 test:
The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed. [para. 332]
(See also Taypotat, at para. 20.)
[78] Notably, the presence of social prejudices or stereotyping are not necessary factors in the s. 15(1) inquiry. They may assist in showing that a law has negative effects on a particular group, but they “are neither separate elements of the Andrews test, nor categories into which a claim of discrimination must fit” (Quebec v. A, at para. 329), since [w]e must be careful not to treat Kapp and Withler as establishing an additional requirement on s. 15 claimants to prove that a distinction will perpetuate prejudicial or stereotypical attitudes towards them. Such an approach improperly focuses attention on whether a discriminatory attitude exists, not a discriminatory impact, contrary to Andrews, Kapp and Withler. [Emphasis in original; para. 327.]
(See also paras. 329-31.)
[79] The perpetuation of disadvantage, moreover, does not become less serious under s. 15(1) simply because it was relevant to a legitimate state objective. I agree with Dean Mayo Moran that adding relevance to the s. 15(1) test — even as one contextual factor among others — risks reducing the inquiry to a search for a “rational basis” for the impugned law [...] The test for a prima facie breach of s. 15(1) is concerned with the discriminatory impact of legislation on disadvantaged groups, not with whether the distinction is justified, an inquiry properly left to s. 1 [...]
[80] Similarly, there is no burden on a claimant to prove that the distinction is arbitrary to prove a prima facie breach of s. 15(1). It is for the government to demonstrate that the law is not arbitrary in its justificatory submissions under s. 1 [...]
[81] In sum, then, the first stage of the s. 15 test is about establishing that the law imposes differential treatment based on protected grounds, either explicitly or through adverse impact. At the second stage, the Court asks whether it has the effect of reinforcing, perpetuating, or exacerbating disadvantage (Alliance, at para. 25).
[59] ACPA contends that Fraser emphasizes the heavy importance on the discriminatory impact of the provision in question, by asking whether the impugned provision “has the effect of reinforcing, perpetuating, or exacerbating disadvantage” (at para 81). ACPA asserts that the allocation of resources and goal of the legislation discussed at paragraph 68 of the Decision and paragraph 71 of Withler are accordingly no longer relevant. It argues that arbitrariness is no longer necessary to the section 15 analysis, but is instead relevant to section 1.
[60] AC concedes that Fraser refined aspects of the analysis under this part of the test; however, it refers to R v CP, 2021 SCC 19 [CP], decided after Fraser, at paragraph 145, which continues to refer to the contextual approach mandated in Withler as establishing the framework for the analysis:
[145] In other words, it is the actual impact of the provision in its full context that should govern the analysis, and s. 37(10) should not be divorced from its entire legislative context. An approach requiring line-by-line parity with the Criminal Code without reference to the distinct nature of the underlying scheme of the YCJA would indeed be contrary to the contextual approach mandated in Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at paras. 73, 76 and 79. The analysis instead requires a “contextual understanding of a claimant’s place within a legislative scheme and society at large”; the court must ask “whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme” (paras. 65 and 67). Understanding the distinct legislative scheme underlying s. 37(10) is crucial to the assessment of the actual impact of the law on young persons (see P. J. Monahan, B. Shaw and P. Ryan, Constitutional Law (5th ed. 2017), at p. 469).
[61] AC asserts, and I agree, a contextual analysis remains part of the Court’s approach to substantive equality, requiring a balancing of the interests at play. As stated by the Supreme Court at paragraph 153 of CP:
[153] ... The inquiry under s. 15(1) of the Charter into the perpetuation of a disadvantage requires attention to “the full context of the claimant group’s situation” and to “the actual impact of the law on that situation” (Withler, at para. 43; see also Taypotat, at para. 17). The result of this contextual inquiry may in turn be to reveal that differential treatment is discriminatory because it perpetuates disadvantage, that it is neutral, or “that differential treatment is required in order to ameliorate the actual situation of the claimant group” (Withler, at para. 39). This Court must, therefore, in assessing the actual impact of a leave requirement, have regard to the full context of the situation of young persons, which, I find, includes the fact that a structurally prolonged appellate review can be more prejudicial to them.
[62] In my view, the purpose of the impugned provision in the context of the broader scheme is still a meaningful consideration, along with whether lines drawn are generally appropriate having regard to the circumstances of the groups impacted and the objects of the scheme: Withler at para 71. Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required. Allocation of resources and particular policy goals may also be considered: Withler at para 67. Contrary to the assertions of ACPA, I do read Fraser as changing this aspect of the law, particularly in view of the statements made in CP.
[63] In this case, subsections 3(b) and 5(b) of the Regulations create a distinction when a claimant reaches “normal pensionable age”. The issue is whether this draws a discriminatory distinction by denying a benefit in a manner that reinforces, perpetuates or exacerbates disadvantage as an employee gets older and reaches pensionable age.
[64] As acknowledged in CP at para 142, “[i]n this respect, it should also be borne in mind that age-based distinctions are generally a ‘common and necessary way of ordering our society’ and are ‘not strongly associated with discrimination and arbitrary denial of privilege’ (Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 31)”.
[65] AC asserts that when one does a contextual analysis it arrives at the same analysis set out in Weatherley; that disability plans act as a form of insurance for workers where termination of compensation is necessary at some point.
[66] As noted in Weatherley at paragraphs 24-29, an infringement of section 15(1) of the Charter cannot be deduced simply from the fact that legislation leaves a group, even a vulnerable group, outside a benefits scheme:
[24] In Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 at para. 55, the Supreme Court held that courts cannot insist on “[p]erfect correspondence between a benefit program and the actual needs and circumstances of [an] applicant group.” While exclusion from participation in benefits programs “attracts sympathy”, the “inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group” (at para. 55).
[25] This led the Supreme Court in Gosselin to hold that an infringement of section 15(1) of the Charter cannot be deduced simply from the fact that benefits legislation leaves a group, even a vulnerable group, outside a benefits scheme (at para. 55):
The fact that some people may fall through the program’s cracks d