Week 10 - Equality Rights (Women)

Egan v. Canada (1995) (SCC)

• 1st way of positive obligation

• Amending s 15 to include s*xual orientation, where claimants can bring up situations that are covered under this section

• Right: Case of court exceeding authority - creating a new right is antidemocratic because it is not representative of the public, the courts made this decision

  • Violates democracy and interpretivism

• S15 of charter has list of prohibited lines of discrimination, but doesn’t have sexual orientation

• To remedy exclusion, SCC read sexual orientation into S15

• Created a new right, a form of positive activism (changing texts created by officials)

Corbiere v. Canada (Minister of Indian and Northern Affairs (1999) (SCC)

• Last time SCC recognized a new analogous ground, indigenous person living off reserve

Immutability/Immutable Characteristics

• Personal characteristic either very difficult to change, cannot be changed, or a character trait that it would be unreasonable to ask a person to change to avoid discrimination (ex. religion)

• Only immutable characteristics apply to s15(1)

Phillips (1986) (Nova Scotia Appeal Division)

• Challenge to NS Family Benefits Act - provided benefits to single moms but not single dads, unless single father was disabled

• Male applicant in this case was an able bodied male, he said that he wanted this benefits extended to him or for the act to be struck down

• NS Court of Appeal struck down act to remedy Phillips inequality

Andrews v. Law Society of British Columbia (1989) (SCC)

• Substantive equality approach under s15: first stated that in first seminal s15 cases 1989 SCC

• Rejection of idea that treating everyone equally = treating everyone identically

• We must treat people based on historical and social context of group, not every distinction in law results in inequality for the purposes of s15

  • Doesn’t necessarily make law discriminatory, depends on the consequences that the distinction of law generates

  • Whether that amounts to discrimination - does it cause disadvantage, stereotyping, prejudice? If yes, then we have discrimination for the purposes of s15

• SCC said they were going back to Andrews Test, after trying other formulations and it not going well

R v. Kapp (2008) (SCC) and Andrews-Kapp Test

• SCC said they were going back to Andrews Test, after trying other formulations and it not going well

Andrews-Kapp Test - Direct Discrimination

1. Does the law on its face create a distinction based on an enumerated or analogous ground?

   1. Court will ask: In the text of the law, is a distinction created and is it an enumerated or analogous ground

   2. Claimant must fit claimant under a ground of discrimination, or convince court to create a new ground (difficult to do)

2. Does the distinction in the law impose a burden or deny a benefit in a way that reinforces, perpetuates or exacerbates the claimant’s disadvantage?

   1. Does it create stereotyping, prejudice, disadvantage?

   2. Court contextualizes claim by considering who is being discriminated against, and is this claim being brought by a historically disadvantaged group

   3. Purpose for s15 is to prevent further prejudice for historically disadvantaged groups - avoid outcome like in Phillips (winning a claim at the expense of a historically disadvantaged group - single mothers)

Andrews-Kapp Test - Adverse-Impact Discrimination

1. Does the law in its effect create a distinction based on an enumerated or analogous ground?

2. Does the distinction in the law impose a burden or deny a benefit in a way that reinforces, perpetuates or exacerbates the claimant’s disadvantage?

• Even laws of general application can be deemed unconstitutional under s15(1)

Direct Discrimination v. Adverse Effects/Impact Discrimination

• Direct vs Indirect

• Eldridge (1997) (SCC), Vriend (1989) (SCC) - example of one of the successful adverse impact cases to come out of SCC

Fraser v. Canada (Attorney General) (2020) (SCC)

• Example of one of three successful Adverse impact cases to come out of SCC

• Sex discrimination case, first successful case where female claimants won

  • Took 35 years

  • Fraser v Canada came out one month after 2020 report

• Context: female claimants employed by RCMP, dispute over pension sharing credits for job sharing (overly female)

  • While this happened, 2016 class action lawsuit where female claimants argued gender discrimination (violence, sexual assault and harassemnt) within RCMP workplace, huge settlement

  • 2304 claimants (-2017) were eligible for compensation, $100 million fund to pay claimants

  • Report came out in 2020: workplace showed issue of gender and racial violence in workplace

• Fraser v Canada came out, court influenced by this context (even though they were split)

R v. Sharma (2022) (SCC)

• As of 2022, even harder for success in adverse impact cases

• ‘Clarifying’ 

• Majority made two important statements: 

  • 1) if you're bringing an adverse impact discrimination claim, claimant must bring evidence to prove causation (proof that it creates a negative impact) to pass part 1 of test

  • 2) if law leaves a disadvantaged group in the same state they were before the law, they will not strike law down in s15, claim won’t succeed if it doesn’t make it worse

DeFraffenreid v. General Motors (Intersectionality)

• American case

• Brought in pursuit of title 7 of Civil Rights Act, employers cannot discriminate based on race, sex, etc. (grounds based approach)

• Took a seniority based layoff, all employees hired after 1970 got fired - result was every black female employee was laid off

  • CRA was passed in 1964, prior to that GM had not hired any black women, by 1970 there was only one black woman working as a janitor

• 5 black women laid off claimants, argued this layoff perpetuated past discrimination that CRA tried to remedy, layoff discriminated them based on the fact that they were black women experiencing sex and racial discrimination (intersectional discrimination claim)

  • Did not win, district court said that they didn't see any discrimination, since not all black people were not discriminated then it didn’t count (you can only bring a claim based on entire group)

    • Sex: GM hired white women prior to 1964

    • Race: GM hired black men prior to 1964

  • Court refused to accept that you can have a form of discrimination based on intersectional grounds - they would have won if all the white women and all the black men also experienced that form of discrimination

• Denies reality that groups are divided on these other identity markers

Law v. Canada (1999) (SCC)

• SCC said claimant can bring forth an intersectional claim under s15 using more than one ground, or a combination of grounds

• Claims coming forward can be treated as a new analogous ground, or a synthesis of grounds already recognized under s15

• However, SCC has never seen a case based on an intersectional claim, has not embraced intersectional argumentation

  • In theory you can win, but they have not seen a case as such

Newfoundland Treasury Board v. N.A.P.E. (2004) (SCC)

• Called one of the most striking equality cases ever rendered by SCC

• Collective agreements between NF public sector unions and hospital workers, agreement included provisions stating province couldn’t discriminate employees based on sex

  • However female nurses were severely underpaid, violating agreement

• Acknowledged systemic discrimination, to remedy it NF entered a pay equity agreement with public sector union (1988)

  • Determined how much nurse salaries ought to be, undertook process, once completed nurses would get retroactive pay back to 1988

• 1991 review process complete and it was time to raise nurses salaries, but province said they could not afford to do every they said they would (NF in midst of financial crisis)

  • Province argued their credit rating was at stake, they could not afford to pay female workers

  • They passed PSRA 1991 (see below)

Newfoundland Treasury Board v. N.A.P.E. (2004) (SCC) - Public Sector Restraint ACT (NL) (1991)

• Deferred start date of salary increase to 1991 - on

• Act extinguished retroactive pay, province saved $24 million 

• Nurses filed s15 claim under sex discrimination, litigation presented a problem for the province because their claim was that they were struggling financially

  • Previous SCC rulings saying you could never establish a reasonable limit under the issue of cost - you cannot say “we cannot afford to respect rights”

  • However, NF won the case. SCC established a cost plus principle

Newfoundland Treasury Board v. N.A.P.E. (2004) (SCC) - Cost Plus Principle

• SCC said not only financial considerations that were motivating province, other policy and public services considerations were at hand, which led to NF decision

• NF let off the hook for its own rights violations

  • SCC came to decision based on neo-liberal ideals important to SCC, government and economic imperatives plays a big role in charter cases

  • Case calls into question SCC commitment to substantive equality and its commitment to protect of historically disadvantaged groups

  • Court not living up to promise of substantive equality

Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux (2018) (SCC)

• First ever win for a female claimant bringing a sex discrimination case to SCC

  • Took 33 years to get one direct discrimination claimant (men had one before women did)