Women’s Court of Canada reverses Supreme Court’s 2004 decision on pay equity

“The Women’s Court finds that fiscal considerations should never suffice as a pressing and substantial basis for overriding equality rights”

Toronto (22 February 2010) – In 2004, a group of feminist/equality Charter activists, lawyers, and academics, decided to do something about what they saw as the sorry state of equality jurisprudence under section 15 of the Canadian Charter of Rights and Freedoms. Their solution was to form the Women’s Court of Canada which would rewrite the key decisions of the Supreme Court of Canada in this important area.

To date the Women’s Court of Canada has published six judgments, the most recent being a reversal of a leading 2004 Supreme Court of Canada decision involving the Newfoundland (Treasury Board) v. NAPE case. In the case, the Court held that a fiscal crisis can be the basis for justifying a violation of women’s equality rights under in Section 1, the reasonable limits clause in the Charter.

The case was first brought forward to the courts by the Newfoundland and Labrador Association of Public and Private Employees (NAPE/NUPGE) in response to the Newfoundland and Labrador government’s 1991 Public Sector Restraint Act.

In 1988, the provincial entered into a pay equity agreement with the NAPE which adjusted the wages for hospital employees in job classes that were typically staffed by women to be comparable to salaries earned by male-dominated positions. The agreement specified that the wages would be increased over a five-year period ending in 1992.

In 1991, however, the provincial government decided it was undergoing a significant financial crisis and consequently, enacted legislation that would retroactively cancel the increases already owed to the employees from the previous three years which amounted to about $24 million.

NAPE grieved pursuant to its collective agreements on the basis that the legislation discriminated against women and violated the equality provision (section 15(1)), of the Charter. An arbitration board found in favour of the union, ruling that section 15 was violated as the law discriminated against women employees by subjecting them to a larger share of the brunt of the cuts. The Board further found that the government could not justify its actions under section 1 because the government failed to consider more minimally impairing means to find the money.

The Newfoundland and Labrador Supreme Court overturned the board. A violation of section 15 was found but Both the Trial Division and the Court of Appeal held that it was a reasonable limit to the equality rights of the workers under section 1. The judge stated that when balancing the rights between different groups in society, deference should be given to the government’s role in determining a response to a fiscal crisis. Both the Newfoundland and Labrador Court of Appeal and the Supreme Court of Canada upheld the ruling of the Newfoundland Supreme Court.

 The Women’s Court did a comprehensive and contextual analysis of the arguments used to justify the infringement of these equality rights and found that “the removal of pay equity results in material and symbolic harms and is a clear violation of women’s right to substantive equality”. Its conclusions were supported by a survey of international law principles on pay equity.

In considering section 1, the Women’s Court examined the notion of substantive democracy as a counterpart to substantive equality, holding that section 1 of the Charter should be interpreted so as to avoid a conflicting relationship between rights and democracy.

“The Women’s Court finds that fiscal considerations should never suffice as a pressing and substantial basis for overriding equality rights and, in any event, that the government did not meet its evidentiary burden in proving that a fiscal crisis existed in this case. The government also failed to meet its justificatory burden at the minimal impairment and proportionality stages of the section 1 analysis, a conclusion supported by international law. The Women’s Court decides that the government must comply with its pay equity obligations to the workers represented by NAPE”.

NUPGE

The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE

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