November COVID-19 Benefits Update

By Kai Ying Chieh and Preston I.A.D. Parsons

With a second wave of restrictions across the country, the federal and provincial governments continue to issue new directives and new supports for businesses and individuals to weather COVID-19. Recent developments include the following:

• As of November 19, 2020, the Canada Emergency Wage Subsidy (CEWS) for employers has been extended to June 2021, with the maximum subsidy rates for periods 8 to 10 remaining at 65%. Claims for Period 9 (October 25 to November 21, 2020) are now open as of November 30, 2020. More information on the most recent updates to the CEWS can be found here on the Government of Canada website.
• Employers and employees may continue to find support through a number of federal and provincial programs described in our previous newsletters. A helpful consolidated summary of both federal and provincial benefits can be found here on the Government of British Columbia website.

We will continue to monitor changes in the governments’ COVID-19 response and keep our clients updated as the situation continues to progress.

Case Comment: Fraser v. Canada (Attorney General), 2020 SCC 28

Many employers are well-versed in the kinds of workplace conduct that gives rise to claims under human rights legislation. A recent decision from the Supreme Court of Canada (SCC), however, comes as a warning that complex issues of adverse effect discrimination may still arise regardless of what may be the best intentions of employers. While brought under section 15 of the Charter in relation to a statutory pension plan for government employees, this decision remains relevant to private sector pension plans and other workplace policies.

Background

Members of the Royal Canadian Mounted Police (RCMP) receive benefits upon retirement from a statutory pension plan that provides greater benefits to those with full-time, uninterrupted service. Members were permitted to “buy back” service they may have missed after an unpaid leave, such as a suspension, maternity or parental leave, by making the contributions that the employer would have made had they been actively employed. By doing so, the members would maintain their full pension credits.

In 1997, the RCMP introduced a job-sharing program that permitted employees to split the duties and responsibilities of full time positions, allowing participants to work fewer hours. The three claimants in the proceedings-and over a hundred other RCMP members-elected to participate in the job-sharing program. Most of these participants were women with children who cited childcare as the reason for joining the program. The program introduced greater flexibility for RCMP members as it provided an alternative to taking leave without pay while helping the RCMP to retain trained members and address staffing issues.

The claimants expected that job-sharing, like unpaid leave, would be eligible for full pension credit subject to the “buy back” option. Unfortunately, despite first appearing to agree with this position, the RCMP ultimately took the position that work under the job-sharing program was equivalent to part-time work and no “buy back” was available.

After unsuccessfully attempting to resolve this by way of grievances, the claimants filed an application at the Federal Court. The claimants argued that this policy violated section 15 of the Charter because it prevents women with children-the majority of participants in the job-sharing program-from contributing to their pensions in the same way as members who worked full time or took leave without pay.

At the Federal Court, the judge denied the application. An appeal to the Federal Court of Appeal was also unsuccessful. The court held that job-sharing RCMP members did not receive inferior compensation to members on leave without pay and that any adverse impact on job-sharing participants flowed from their choice to work part-time and not from the pension plan.

Decision

Section 15 of the Charter reads as follows:

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.

To prove a prima facie violation of section 15, a claimant must demonstrate that the impugned law or state action:

1. on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
2. imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

With respect to the first step of this test, the SCC considered the extensive law with respect to adverse impact discrimination in the human rights jurisprudence. It emphasized that in a case where the law is not discriminatory on its face but by way of its “adverse effect”, the question is whether the law has a disproportionate impact on members of a protected group. At the second stage of the test, the SCC noted that the goal is to examine the impact of the harm caused to the affected group.

Taking into account this law, the SCC found that the lower courts’ focus on the RCMP members’ “choice” to job-share was a misapprehension of the applicable law. The relevant evidence showed that most of the job-sharing RCMP members were women with children and that women historically and disproportionally bear the brunt of childcare responsibilities, the latter fact having been recognized repeatedly in previous judgments by the SCC and in the academic literature. The Court found that the first stage of the section 15 test was met. The SCC further found that there was “no doubt” that the adverse impact reinforced, exacerbated or perpetuated disadvantage.

Implications

While Fraser deals specifically with a Charter claim based on the policies of the federal government vis-à-vis these employees’ pension plans, the law of discrimination under provincial human rights legislation that applies to private employers is analogous.

In terms of implications for the development of the law in this area, the dissent of Justice Rowe and Justice Brown criticized the majority’s conclusion that the disparities in how the program affected the protected group were sufficient to show causation between the law and the alleged disadvantage. The dissenting judgment argued that evidence of correlation instead of causation improperly relaxed the claimants’ evidentiary burden “to the point of insignificance.” The majority, in turn, dismissed this argument as taking too formalistic an approach to section 15 of the Charter. This divide between the majority and the dissent demonstrates that decision-makers will continue to struggle with the proper interpretation of our human rights laws and the Courts’ role in remedying alleged discrimination.

From a practical perspective, it is clear from this decision that even a program likely meant to address some of the disadvantages faced by women in the workforce-in this case by offering them an opportunity for continued part-time work through the job-sharing program-may continue to perpetuate adverse effect discrimination. Employers should carefully consider whether workplace policies and programs, even if designed to accommodate employees in the workplace, may inadvertently continue to facilitate systemic discrimination. This can be achieved by considering questions like: what are the long-term consequences of this program? Will it affect an employee’s eligibility for other benefits or workplace policies?

We encourage our employer clients with questions about alleged discrimination to seek legal advice early. A proactive approach is key when modifying workplace policies and programs, and may prevent a policy change from inadvertently leading to an expensive human rights proceeding.

Closing Remarks

We are committed to providing you with updates relevant to both employees and businesses to help you succeed in the workplace. Our team continues to work both in the office and remotely with our stringent COVID-19 Safety Plan protocols in place, and all of our lawyers remain ready as always to assist you with your legal needs.