Fraser v. Canada (Attorney General)

Fraser v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-06-08
Neutral citation
2017 FC 557
File numbers
T-2365-14
Decision Content
Date: 20170608
Docket: T-2365-14
Citation: 2017 FC 557
Ottawa, Ontario, June 8, 2017
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
JOANNE FRASER, ALLISON PILGRIM AND COLLEEN FOX
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] The Applicants, who are now all retired members of the Royal Canadian Mounted Police [RCMP], bring this application pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC, 1985, c. F-7, seeking declaratory and other relief. The Applicants allege that the Royal Canadian Mounted Police Superannuation Act, RSC 1985, c R-11, [RCMPSA], and the Royal Canadian Mounted Police Superannuation Regulations, CRC, c 1393, [the Regulations] discriminate against them on the enumerated ground of sex and the analogous ground of parental status (as agreed for the purpose of this application), contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms [the Charter]. The Applicants submit that the provisions of the RCMPSA and the Regulations fail to provide the equal benefit of the law to women with child‑care responsibilities because they do not permit the members, who participated in job‑sharing arrangements and who are predominantly women with parental status, to contribute to their pension in the same way as members who worked full-time or who took Leave Without Pay (LWOP). The Applicants argue that this violation cannot be justified in a free and democratic society.
[2] The Applicants seek a range of specific orders, some of which were revised in their oral submissions, including a declaration that the impugned provisions of the RCMPSA violate subsection 15(1) of the Charter and an order to read in particular language to the impugned provisions of the RCMPSA to permit the Applicants and those in the same situation to make retroactive contributions to their pension at the full-time rate (i.e., to “buy-back”) in order to receive pension benefits as if they had worked full-time during the time they were job-sharing.
I. Overview [3] The Applicants submit that the RCMPSA discriminates on the basis of sex and parental status, by denying them the option of contributing to their pension at the full-time rate for the period of service that they were job-sharing in order to meet their child-care responsibilities. The Applicants state that they will all receive a reduced retirement income compared to their colleagues with the same years of service as a result of being denied this benefit.
[4] The Applicants note that RCMP members who work part-time and/or who job-share are overwhelmingly women and that this reflects work force patterns for women more generally. The Applicants submit that the RCMPSA makes a distinction that perpetuates a pre-existing disadvantage with respect to the barriers women face to ensure a sufficient retirement income and perpetuates a stereotype that women can only fill one of two roles-either to work full time or to stay home and care for children and family-but that they cannot do both.
[5] The Respondent submits that the RCMPSA and the Regulations do not create any direct or indirect distinction on the enumerated ground of sex or on the analogous ground of parental status. The provisions at issue do not cause or contribute to the disadvantage of a reduced pension. The impact on the Applicants’ pension benefits is due to their decision to job-share, and their resulting part-time employment status, and is not due to the provisions of the RCMPSA which apply to all members equally.
[6] The Respondent notes that all RCMP members accrue pensionable service and make contributions at the same rate, and all are entitled to pension benefits that reflect their years of service and assigned hours of work. No pension plan contributor can augment their pension by “buying-back” pension benefits for periods of time not worked. The Respondent submits that the Applicants are, in effect, seeking an additional benefit to which no other member of the RCMP and no other public servants are entitled.
[7] For the reasons elaborated upon below, and taking into consideration the principles of the jurisprudence, the social science literature provided by the Applicants regarding the evolution of the status of women in the workforce, the other limited evidence, and the oral and written submissions of the Applicants and Respondent, the application is dismissed.
[8] Although the available evidence shows that the vast majority of the few members of the RCMP who job-share and work part-time are women and that at least 60% of these members do so for the purpose of meeting their child-care responsibilities, the impact on their pension benefits is not because they are women or because of their parental status. The impact on their pension benefits is because they worked part-time. Their pension reflects their part-time status just as it would for anyone who worked part-time at some point in their career.
[9] The Applicants chose to job-share to meet the challenges of balancing their family responsibilities and the demands of policing duties. While they note that this is an “economic hit” and an adverse impact on their pension, this is so only if the pension benefit is viewed in isolation from other economic and other factors and without regard to other possible advantages of job-sharing. There is no evidence on the record about the many other considerations that were part of the Applicants’ decision to job-share and work part-time and there is little evidence about the other pros and cons of working part-time while meeting child-care responsibilities and remaining actively engaged with their children.
[10] However, accepting that there is an adverse impact for these Applicants, not all adverse impacts are discriminatory. The jurisprudence has established a two-part analysis to determine whether a law or policy infringes the guarantee of equality: first, does the law create a distinction based on an enumerated or analogous ground and second, does the distinction create a disadvantage by perpetuating prejudice or stereotyping.
[11] A discriminatory distinction is one that has the effect of perpetuating an arbitrary disadvantage because of membership in an enumerated or analogous group. The RCMPSA does not create a distinction based on the enumerated ground of sex or the analogous ground of parental status. The fact that the majority of part-time members and members in a job-sharing arrangement are women and that these job-sharers are denied the option of contributing to their pension at the full-time rate is not because of the RCMPSA. Rather, it is because of their personal circumstances and the decisions they made.
[12] In the event that I am wrong in my finding and that there is a distinction in the RCMPSA based on sex or parental status, any such distinction would not create a disadvantage by perpetuating prejudice or stereotyping.
[13] The reality is that women continue to face barriers in the work place, many of which are due to the daunting challenges of balancing family and career. That the Applicants found a way to meet the challenges and later returned to full-time duties and had long careers in the RCMP is an example of more flexible arrangements that now exist to respond, to some extent, to these challenges.
[14] The Applicants efforts in pursuing this litigation to raise awareness about the need for employment policies and legislation to continue to evolve to better meet the needs of women and parents in the work force are commendable. Although the RCMPSA does not fully meet the Applicant’s needs and expectations or those of other members who job-shared and worked part-time, and may initially appear to be out of step with options for members who took LWOP, this does not mean that the RCMPSA is discriminatory.
II. Background [15] The Applicants, Joanne Fraser, Allison Pilgrim and Colleen Fox, were police officers and members of the RCMP, and are now retired. They all gave birth to their first children in the early to mid-1990s, and all returned to full-time duties after taking a six-month maternity leave. The Applicants all describe the challenges they encountered in returning to patrol duties, arranging for child care, and juggling their many responsibilities.
[16] After giving birth to their second children, the challenges were exacerbated. Ms. Fox found that working full-time while caring for two children, including one with a disability, was not feasible. She inquired about part-time work or other options, but none were available in the RCMP at the time. Faced with no other options, she retired from the RCMP in June, 1994.
[17] Ms. Fraser also inquired about options to address the competing demands of her career and her family after her second maternity leave in March, 1997. The RCMP granted her a five year LWOP.
[18] In December 1997, the RCMP adopted a job-sharing policy; RCMP members could share a single full-time position with another member or members for a limited or fixed period of time.
[19] Ms. Pilgrim took advantage of the job sharing policy and returned to duty in a job-sharing arrangement in 1999 after her second maternity leave.
[20] Ms. Fox re-enrolled in the RCMP in 2000 and returned to duty in a job-sharing position.
[21] Ms. Fraser was approached by the RCMP to return from her LWOP in order to job-share with another member. She agreed and returned to duty in 2000.
[22] The Applicants all explain that they participated in job-sharing arrangements for family reasons, primarily to balance child care obligations with their work. They describe that job‑sharing permitted them to remain active in their children’s lives and meet their day to day needs as well as to maintain their expertise as police officers.
[23] The Applicants do not dispute that they each signed a Memorandum of Agreement [MOA] which set out the terms and conditions of the arrangement. They do not allege any misrepresentation by the RCMP with respect to the terms and conditions of job-sharing. However, Ms. Fraser and Ms. Pilgrim note that they were given varying advice from pay and benefits advisors about their status while job-sharing and their ability to buy-back their pension benefits.
[24] The Applicants describe that only after they had commenced job-sharing and / or when they returned to full-time duties did they become fully aware that, despite their expectation that they could “buy-back” full-time pension benefits for the period of time that they were job‑sharing in the same way as if they had been on LWOP, they could not do so. The Applicants state that they will receive lower pension benefits on retirement than if they worked full-time because they chose to participate in job-sharing arrangements for a fixed period of time to meet their child care and family responsibilities. They note that if they had opted to take LWOP they could have made contributions to “buy-back” full-time pension benefits for the time not worked and would have ultimately received pension benefits as if they had worked full-time for that period.
III. Other initiatives, grievances and complaints [25] The Applicants and other RCMP Members who participated in job-sharing arrangements raised their concerns with senior management when they learned they would not be able to buy‑back full-time pension benefits for the period of time they were job-sharing. Fourteen members wrote to RCMP Commissioner J.P.R. Murray on May 31, 2000, outlining the situation, expressing the view that the denial of this benefit was unfair and illogical, and seeking support for changes to be made.
[26] The RCMP Pension Advisory Committee [PAC], established pursuant to the RCMP Act, RSC 1985, c R-10 [RCMP Act] to provide advice on pension policy and related issues, also considered the issue and retained an Actuary to provide advice on the options available under the RCMPSA for part-time service. The Actuary acknowledged the flexibility provided through the Income Tax Act, RSC, 1985, c. 1 (5th Supp.) [ITA] and the ITA Regulations, CRC, c. 945 [ITA Regulations], which include provisions with respect to pension contributions for those on temporarily reduced hours, and noted that the RCMPSA could be amended to address periods of reduced work-hours by RCMP members at various stages of their family life or career.
[27] The Actuary pointed out, in his November 1, 2000 letter summarising his opinion, that there were several restrictions in the ITA Regulations. He noted that “if a member has always rendered services on a part-time basis, it would not be possible to provide pension benefits as if the employee rendered services on a full-time basis”.
[28] Ms. Pilgrim and Nancy Noble (an affiant) filed grievances in 2000 challenging the denial of their request to buy-back full-time pension benefits for the time they were job-sharing. Both grievances were referred to the External Review Committee (ERC). In 2007, the ERC found in their favour. The ERC was of the view that there was nothing in law or policy to prohibit the RCMP from defining the job-sharing arrangement as hours worked plus a period of LWOP. The ERC relied on the Actuary’s opinion that the RCMPSA could be amended and on a Treasury Board pre-retirement leave policy that allowed public service employees nearing retirement to reduce their hours of work and treat the unworked hours as LWOP.
[29] The ERC decisions are not binding on the RCMP Commissioner. In 2010, the Acting Commissioner dismissed both grievances and found that the RCMPSA does not permit defining job-sharing as part LWOP, and that legislative amendments to the RCMPSA would be required to permit members to buy back pension benefits for the time spent job-sharing. The Commissioner acknowledged the members’ situation but found that the inability for the job‑sharing members to buy back full-time pension benefits was not discriminatory.
[30] The Applicants also note that the RCMP PAC supported a proposal to allow members who are job-sharing to buy back full-time pension credits. In addition, RCMP Inspector Carma Mackie advised the Applicants by email in 2006 that work had been completed to change the RCMPSA and the Regulations to allow job-sharers to benefit from the pension plan in the same way as full-time members.
IV. The Evidence [31] The evidence was provided by way of affidavits. The Applicants submitted their own affidavits with exhibits, along with the affidavit of Nancy Noble. They describe their careers, the challenges of returning to patrol duties full-time after their second maternity leave while meeting their responsibilities to their children, and their job-sharing arrangements.
[32] The Applicants also submitted the affidavit of Professor Christopher Higgins describing the conclusions of his research on work and family issues, and the impact of “role overload” (when work interferes with family obligations or when family obligations interfere with work to the extent that the person feels the stress of never having enough time) on individuals and organizations, including in the policing environment.
[33] The Respondent submitted the evidence of pension experts, Shelly Rossignol and Kimberley Gowing.
[34] Ms. Rossignol describes the RCMP pension plan (the RCMPSA), part-time employment generally and in the RCMP, LWOP, and job-sharing. Ms. Rossignol explains the difference between pensionable service, pension contributions, pension benefits, and how pension benefits are calculated (i.e. the amount the retired member will receive). Ms. Rossignol also clarifies some of the information included in the affidavits of the Applicants.
[35] Ms. Gowing provides an overview of public sector pension plans, including the RCMPSA, describes part-time pensionable service, describes LWOP, and explains that the ITA Regulations regarding temporarily reduced hours are optional and are not part of the RCMPSA or the Public Service Superannuation Act, RSC 1985, c P-36 (PSSA).
[36] A more detailed summary of the affiants’ evidence is attached as Annex A.
V. The Concepts and Terminology [37] The Applicants used various terms to refer to the contributions or benefits they hoped or intended to “buy-back” in order to have the same pension benefits upon retirement as if they had worked full-time throughout their years of service. The relief initially requested by the Applicants also suggests some misunderstanding of the terms and the operation of the RCMPSA. In addition, the terms the Court has used in summarizing the submissions and capturing the issues at stake may also vary. It is, therefore, helpful to clarify the concepts of pensionable service, pension contributions and pension benefits as well as part-time and full-time employment status, LWOP, and temporarily reduced hours. Regardless, there may be some inadvertent misuse of the proper terms regarding the “buy-back” concept.
[38] With respect to pensionable service, Ms. Rossignol explains the “one year equal one year” rule, which means that years of pensionable service accrue at the same rate for part-time and full-time members; a member who works for one year accrues one year of pensionable service, regardless of their status. In other words, a member who worked for 20 years full-time and 5 years part-time has 25 years of pensionable service, just as a member who worked full‑time for 25 years.
[39] With respect to pension contributions, all members contribute the same legislated rate, i.e. 7.5% of their salary, to the pension fund. This amount is pro-rated to reflect the assigned hours of work, so that contributions are made proportional to the actual salary during that period. The Applicants contributed to their pension while they were job-sharing and their contributions were proportional to their assigned hours.
[40] Pension benefits refer to the amount a member will receive from the pension plan upon retirement. The pension benefit is based on the average annual pay received during the five best consecutive years of highest paid pensionable service. Where a member has periods of part-time pensionable service, the average annual pay is determined based on the full-time equivalent of their pay so as not to disadvantage a member for working part-time during the years that their position attracts the highest salary rates. The pension is subsequently pro-rated to reflect the member’s actual assigned hours of work.
[41] The calculation provided by Ms. Rossignol as an example shows that a member who worked for 30 years comprising 25 years full-time, two years at 18.75 hours per week, and three years at 20 hours per week, with the five best years’ salary averaging $50,000, would receive a pension benefit of $27, 600 per year. This reflects the pro-rating of the 5 years on part-time status.
[42] If that member had worked full-time for 30 years, the pension benefit would be $30,000 based on the same calculations. This reflects a difference of $2,400 per year or 92% of the full pension based on five years of part-time status.
[43] Employment status also requires clarification. The Applicants characterize their status in a few different ways. The Applicants submit that they were full-time members of the RCMP who agreed to temporarily work reduced hours. They also submit that the time they were not working in the job-sharing arrangement was LWOP. The Applicants also acknowledge that they were temporarily working part-time while job-sharing. Under all scenarios the Applicants argue that they were presumptively full-time, as their reduced or part-time hours were only for a limited time, and could be changed by their commanding officer.
[44] Ms. Pilgrim states that she viewed herself as being on LWOP half the time, and working the other half, and that she submitted her time sheets accordingly, identifying the week she did not work as LWOP.
[45] The Applicants submit that the distinction between part-time and full-time need not be so rigid because the social reality is that full-time members will work reduced hours while their children are young and return later to full-time duty. The Applicants submit that this differs from the situation of a member who is hired to work part-time.
[46] The Respondent disagrees with the Applicant’s characterization of their status as presumptively full-time. The RCMPSA or the Regulations do not include a definition of “job‑sharing” and provide only that a member is either full-time or part-time. The Respondent submits that job-sharing is and has always been a form of part-time employment noting that this was acknowledged by the Applicants under cross-examination. Although the Applicants had been full-time members, their status changed to part-time while they were job-sharing.
[47] In my view, it is clear that the Applicants worked part-time while they were in a job‑sharing arrangement.
[48] The 1997 Bulletin described “job-sharing” as meaning two or three members sharing the duties and responsibilities of one full-time position. It also describes “job-sharing employment” as applying to a member whose normal hours of work are more than an average of 12, but less than 40 per week. This is consistent with the definition of part-time work found in the Public Service Superannuation Regulations, CRC, c 1358, s.3(2).
[49] The RCMP Administration Manual 11.10 (which Ms. Rossignol explains captures the contents of the 1997 previous Bulletins regarding job-sharing) includes a Chapter on “Compensation for Part-time or Job-sharing Members”. Although it uses both terms, which could suggest some difference between the two, the provisions are the same for members who work part-time or members who job-share. In addition, it clearly distinguishes those who job‑share and those who are full-time members.
[50] The provisions of the standard MOA, which each member in a job-sharing arrangement signed, also makes the distinction with full-time employment. For example, a clause provides that if the member requests “full-time employment in the future” such a request will be considered only if it is administratively or operationally feasible. If the commanding officer requests the member to increase their hours up to full-time employment, one month’s notice is required, which also signals a change in employment status.
[51] The MOA signed by Ms. Pilgrim stated, among other provisions, that the job-sharing arrangement would begin on August 6, 1999 and end on August 6, 2002, “at which time [she] would revert to full-time status or the appropriateness of continuing the job-sharing arrangement will be re-evaluated”.
[52] Ms. Noble’s MOA noted that she would work “one-half of a full-time member’s scheduled hours” and that each member in the job-sharing arrangement “will do one-half of a full time member’s work”.
[53] These provisions support the conclusion that the members who were job-sharing were neither full-time members, nor presumptively full-time, at that time. Full-time is a different employment status than their status while job-sharing. The evidence of Ms. Rossignol and Ms. Gowing explain that job sharing is part-time employment and all compensation and related matters, including pension contributions, are calculated on the basis of part-time employment status.
[54] I also note that Ms. Fox retired from the RCMP in 1994 and re-enrolled in 2000. Upon her re-enrollment she immediately began to work in a job-sharing arrangement. This is not consistent with the Applicants’ argument that they were presumptively in a full-time position; Ms. Fox did not have any position prior to her re-enrollment.
[55] I do not agree that the Applicants were partly on LWOP while job-sharing. LWOP is a different status that reflects that the member has no assigned hours and no attachment to the workplace during the time on LWOP. The Applicants had assigned hours, which were on average 18.75 hours per week, which is half-time.
[56] The Applicants’ reference to the ITA and the ITA Regulations and their alternative characterization of their status as full-time members on temporarily reduced hours does not reflect the reality or that concept. As explained by Ms. Gowing, the notion of temporarily reduced hours is distinct from part-time work or LWOP. An employee who works full-time or part-time may be permitted to work temporarily-reduced hours. The ITA Regulations do not create any right for an employee to work temporarily reduced hours. Rather, they address the tax treatment for a pension plan member who has worked temporarily reduced hours and who makes additional pension contributions. This is only possible where the applicable Registered Pension Plan permits. Ms. Gowing notes that neither the PSSA nor the RCMPSA permit this. The fact that the ITA Regulations address this possibility does not buttress the Applicant’s argument that they were on temporarily reduced hours or that the relevant contextual analysis should consider that their situation should be compared with those who do work temporarily reduced hours and can make additional contributions.
[57] Moreover, as explained by Ms. Gowing, even if the Applicants’ situation were characterized as temporarily reduced hours, they would not have had the ability to augment their pensions because the RCMPSA does not provide for this.
[58] To conclude on the issue of terms and employment status, I find that the Applicants worked part-time while job-sharing. The Applicants seek to avoid this characterization because they acknowledge that part-time members cannot “buy-back” pension benefits to augment their pension. In addition, employment status is not an enumerated or analogous ground. However, the finding that the Applicants had part-time status does not end the analysis in the present case, as that would foreclose consideration of their claim. The focus is on substantive equality. The Applicants claim is based on the impact of the RCMPSA on their situation as job-sharers who worked part-time and the reasons that led them to do so.
[59] I again note that, based on the clarification of terms and the operation of the RCMPSA, the specific relief requested by the Applicants has been modified.
VI. The Issues [60] The key issue is whether the impugned provisions of the RCMPSA and the Regulations violate the guarantee of equal protection and benefit of the law without discrimination pursuant to subsection 15(1) of the Charter, and if so, whether that violation can be saved by section one.
[61] More specifically, the issue is whether the impugned provisions of the RCMPSA that prevent the Applicants from making pension contributions equal to those of full-time members for the period of time they were working part-time while job-sharing create a distinction on the basis of the enumerated ground of sex or the analogous ground of parental status and whether that distinction is discriminatory.
[62] The Applicants and Respondent agree that the two-part test established in the jurisprudence governs the analysis. As confirmed by the Supreme Court of Canada in Withler v Canada (Attorney General), [2011] 1 SCR 396 [Withler], at para 30,
The jurisprudence establishes a two-part test for assessing a s. 15(1) claim: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (See Kapp, at para. 17.)
[63] As a preliminary issue, the Respondent submits that the affidavit of Professor Higgins should not be admitted.
VII. The Preliminary Issue; Should the Affidavit of Professor Higgins be Admitted? [64] The Respondent submits that Professor Higgins’ evidence is not admissible; it is neither relevant nor necessary to assist the Court and it does not meet the criteria established for the admission of expert evidence in R v Mohan. [1994] 2 SCR 9, [1994] SCJ No. 36 [Mohan].
[65] The Respondent submits that Professor Higgins’ evidence does not provide information which is likely to be outside the experience and knowledge of the Court. Professor Higgins is not an expert on pensions and his evidence does not address the issue the Court must decide.
[66] The Applicants respond that Professor Higgins’ evidence is not provided to address the issue of pensions per se. Rather, Professor Higgins provides relevant context; women are more likely to be responsible for child-care and this is particularly so for police officers. Professor Higgins’ study shows that the culture of policing and shift work both add to “role overload” and stress. The Applicants submit that although only 10 RCMP members participated in the 2012 study, the results from 4,500 participants would equally apply within the RCMP.
A. Professor Higgins Affidavit is Admitted [67] The Supreme Court of Canada set out the requirements or criteria for accepting expert evidence in a trial in Mohan: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. Only the requirements of relevance and necessity are in issue in this case.
[68] With respect to necessity, the Supreme Court of Canada noted, at para 22 that an expert should not be permitted to testify if their testimony is not “likely to be outside the experience and knowledge of a judge”:
[22] This precondition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village) v. Smith, [1931] S.C.R. 672, at p. 684, this court, quoting from Beven on Negligence (4th ed. 1928), p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge." […]
[69] Professor Higgins’ evidence describes the increased “role-overload” faced by women due to child-care responsibilities and how they respond to this in terms of restructuring work and family obligations.
[70] As the Respondent notes, Professor Higgins is not an expert on pensions and he does not address the central issue in this application. However, he provides context to situate the Applicants’ job-sharing status. His evidence reflects the Applicants’ position that women have sought job-sharing arrangements in order to respond to child-care responsibilities, that this is an example of women “scaling back” at work to address “role overload”, and that this has implications in the future. This notion underlies the Applicants’ submissions that the RCMPSA has an adverse effect on them on the grounds of sex and/or parental status.
[71] Much of Professor Higgins’ evidence comes as no surprise to this judge and likely to many others based on personal experience and on observations of the experiences of many parents who have juggled the demands of work outside the home along with family responsibilities and who endured the stress that results. “Role overload”, when defined by Professor Higgins as having too much to do and not enough time to do it, is indeed a commonly felt condition, not only by those with child-care responsibilities, but for anyone who fulfills multiple roles. Professor Higgins names this commonly understood concept, describes its impact and supports his opinion regarding the greater role assumed by women with the results of research.
[72] The statistics cited and the references to other published research on work, family and gender elevate Professor Higgins’ opinion beyond the knowledge and experience of the Court. Professor Higgins’ research suggests that while much has changed with respect to women in the workforce, the division of family responsibilities has not changed a great deal; women continue to assume traditional roles in the home and women are more likely than their male counterparts to scale back at work to respond to “role overload” and work-life conflict. In addition, the 2012 Report of Professor Higgins and Professor Linda Duxbury, Caring for and about those who serve: Work-life conflict and employee well being within Canada’s Police Departments, [the Police Study] notes some of the factors that may be unique for women in policing. Although few RCMP members participated in the study, the study addresses the policing environment in general.
[73] Professor Higgins affidavit provides information that is more current and specific than earlier literature also cited by the Applicant. The affidavit is admitted only for its relevance to the contextual analysis.
VIII. Step One – Does the law create a distinction based on an enumerated or analogous ground? A. The Applicants’ Submissions [74] With respect to step one of the Withler test, the Applicants submit that the RCMPSA creates a distinction on the enumerated ground of sex and the analogous ground of parental status. They submit that they are treated differently under the RCMPSA because they are denied the benefit that is extended to members who did not need to job-share or work part-time and either worked full-time or took the option of LWOP.
[75] The Applicants submit that they are penalized for their part-time employment unlike those on LWOP. Members who took LWOP and did not work at all were able to “buy-back” pension benefits upon their return to full-time employment. The Applicants acknowledge that a mirror comparator group is not essential for the analysis, but submit that comparison with those on LWOP provides necessary context. As a result of being denied the same benefit available to those on LWOP, the Applicants will “take an economic hit” in their retirement.
[76] The Applicants submit that the denial of this benefit exacerbates long-standing disadvantages for women in the workforce, perpetuates a stereotype that women can assume only one role as either caregiver or full-time worker, and sends a message that they are not valued for their dual role while in a job-sharing arrangement.
[77] Although the Applicants and Ms. Noble are the only members who job-shared that provided evidence in this application, they estimate that up to 150 members who job-shared to meet child-care responsibilities have been affected by the RCMPSA and will benefit from the relief the Applicants request if the Court finds that the RCMPSA violates section 15.
[78] The Applicants note the goal of substantive equality. Conduct that widens the equality gap is discrimination, as recently articulated by Justice Abella in Kahkewistahaw First Nation v Taypotat, [2015] 2 SCR 548 [Taypotat]at para 17 and Quebec (Attorney General) v A, [2013] 1 SCR 61 at para 332:
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. If the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory.
[79] The Applicants submit that once an employer extends a benefit, such as job-sharing, which was introduced to promote work-life balance, it must do so in a non-discriminatory way. Although the RCMP PAC recommended changes, and the ERC and the Commissioner were aware of the distinction and the impact on members who job-shared, the RCMP failed to make the necessary changes to extend the benefit to job-sharers to “buy-back” full-time pension benefits. The Applicants submit that this widens the equality gap.
[80] The Applicants acknowledge that the RCMPSA is facially neutral, but argue that it has a discriminatory effect on women with parental status because they are disproportionately impacted. The Applicants submit that the overrepresentation of women in part-time work in the RCMP is sufficient to prove that the distinction in the RCMPSA has an adverse effect on women and is, therefore, based on sex.
[81] The Applicants point to the data provided by the RCMP for 2010 and 2014 which demonstrates that 100% of regular and civilian members in job-sharing positions were women, with a significant majority citing child care as the reason for doing so. Professor Higgins’ 2012 Police Study demonstrates that 61% of female police constables also have primary responsibility for child-care in their families, compared to 9% for male constables. The Police Study also shows that only 1% of female officers have a spouse at home full-time with their children, compared to 12% for male officers.
[82] The Applicants submit that this data is consistent with the reality that the majority of part-time workers in Canada are women, and that this status is due to their child care obligations. The Applicants note the similar findings of Justice Abella in the 1984 Report of the Commission on Equality in Employment.
[83] The Applicants accept the Respondent’s proposal to characterize the analogous ground they claim as parental status rather than as family status, but submit that the obligation to provide for child-care is an integral part of parental status.
B. The Respondent’s Submissions [84] The Respondent notes that the analysis of whether the impugned provisions of the RCMPSA violate substantive equality calls for a contextual inquiry. The question is whether there is a distinction in the RCMPSA that has the effect of perpetuating an arbitrary disadvantage on the Applicants because of their membership in an enumerated or analogous group (Taypotat, at para 16). The Respondent submits that the RCMPSA does not perpetuate any such disadvantage.
[85] The Respondent notes that the Applicants have not been denied pension benefits. Their part-time service is fully pensionable; “one year equals one year”. A member cannot make pension contributions at a greater rate than their assigned hours of work permits. This policy choice is applied consistently in all federal pension plans to all contributors. The Respondent reiterates that the Applicants are seeking an additional benefit to which no other member is entitled. If the Applicants receive a reduced pension, it is not because they are women or because of their parental status, but because they worked part-time.
[86] The Respondent adds that the RCMPSA is designed to provide retirement income to contributors who meet the eligibility criteria. It is not intended to meet all needs of all members or to provide universal benefits to all, such as to balance child-care obligations or to off-set the costs of child-care, nor does it interfere with the choices parents make.
[87] The Respondent submits that the differential treatment alleged by the Applicants does not stem from the RCMPSA, but from their decision to job-share, which means part-time status. The Applicants’ personal circumstances, not their membership in a protected group, resulted in their change of employment status.
[88] The Respondent adds that the Applicants moved from full-time to part-time and back to full-time in their career, which further reflects that their experience resulted from their personal circumstances and employment status and not from their membership in a protected group.
[89] As noted above, the Respondent proposes for the purpose of this application only, that the family status of being in a parent-child relationship, in other words, parental status as a subset of family status, is more reflective of the Applicants’ circumstances and is the appropriate analogous