December 20, 2018
The Federal Court of Appeal is upholding a ruling denying female Royal Canadian Mounted Police employees the opportunity to buy back into their pension plan after they moved to part-time roles to raise their families.
The case arose when three former RCMP officers opted to job share and work reduced hours to spend more time with their children. The Royal Canadian Mounted Police Superannuation Act calculates job-share hours as part-time hours. The act doesn’t allow part-timers to buy back into the pension plan, an opportunity afforded to other full-time officers who are absent without pay and return to their jobs.
The officers, Joanne Fraser, Allison Pilgrim and Colleen Fox, claimed this policy offended their equality rights under the Canadian Charter of Rights and Freedoms. They argued that women dominated the group who had chosen the job-share option and urged that the hours they were away from work should be treated as leave without pay, giving them the opportunity to buy back into their pensions.
In 2017, Justice Catherine Kane of the Federal Court ruled the women had failed to prove they’d been adversely impacted by the policy. Even if they had been impacted, she said they hadn’t demonstrated that the unequal treatment was due to their sex, family or parental status, but because they had worked part time.
Earlier this month, a unanimous Federal Court of Appeal agreed with Kane, concluding the women had failed to prove both that they had been adversely treated compared to others and that this treatment resulted from the particular characteristics of their group.
“The appellants were not denied buyback rights based on their personal characteristics of being female RCMP members with young children, but rather because they elected to job share as opposed to taking care and nurturing leave,” wrote the court. “The requisite nexus to establish a breach of section 15 of the Charter is therefore absent in this case as the appellants cannot show that the impugned provisions in the RCMPSA . . . impact them more negatively than others because of their sex and family or parental status.”
But the court did extend what one veteran pension lawyer calls a “see you again” invitation.
“[This decision] should in no way be read as minimizing the very real and significant challenges working mothers face, especially in male-dominated workplaces,” wrote the court. “However, this social reality does not give rise to a constitutional right to increased pension benefits in the absence of discrimination.”
Still, the decision creates “a precedent that is not helpful,” says Mitch Frazer, a pension lawyer at Torys LLP in Toronto. “The ruling minimizes the parenting role and clearly makes it more challenging for women to work part time and create a work-life balance. Although it’s hard to argue with the legal rationale behind it, the ruling is a stricter interpretation of equality rights than other appellate courts might impose.”
More particularly, had this decision come from the Ontario Court of Appeal (one generally seen as decidedly liberal on women’s rights) or the Supreme Court of Canada, it would have been “far more discouraging,” says Frazer.
Andrea Boctor, a partner and head of the pensions and benefits group at Stikeman Elliott LLP, notes both Justice Kane and the Court of Appeal had problems with several important parts of the evidence presented by the women, including the actuarial and demographic evidence.
“All the court is really saying is that the evidence necessary to show an infringement of equality rights was just not there in this case,” she says. “Going forward, there’s no doubt that there will be more equality challenges to pension plan design.”