The Women's Court of Canada: Equality Rights Theory at Work

Prof. Denise Réaume

From the Spring/Summer 2006 issue of Nexus.

Including an equality rights provision (s. 15) in the Canadian Charter of Rights and Freedoms raised hopes that the formalistic approach characteristic of previous judicial forays into equality matters would be relegated to the jurisprudential dustbin. The Supreme Court of Canada decision in Andrews v. Law Society of B.C. prompted optimism because of the Court's embrace of an ideal of substantive equality grounding s. 15 and explicit rejection of the formalistic past. Within a decade, however, hope has been converted into frustration. Recent jurisprudence, while still proclaiming substantive equality, has failed to give the concept life.

Out of this frustration a bold thought experiment emerged at a recent LEAF colloquium: what if equality scholars and advocates were to write 'shadow' judgments of the main s. 15 cases and put our own theories of equality to work in judgment format? Could we convince others that our idealism could also be realistic - that equality could be given more substance while still observing recognized forms of legal argument?

Thus was born the Women's Court of Canada, a loose and growing collection of equality thinkers from across the country that has joined together to rewrite equality jurisprudence. We are a collection of women, rather than a collectivity. Each judgment is written by an individual or team of authors and is the responsibility of its author(s). Other members of the group provide feedback, but the judgments are not pronouncements of the group as a whole. The aim is to let equality thinkers show the concrete results of applying what they each consider the best account of equality. We do not all agree with one another about the best theory or its best doctrinal shape, but we respect each others' views enough to think that the collection of judgments we produce will provide a rich and illuminating store of argument and analysis.

That we have styled ourselves the Women's Court of Canada reflects a commitment to articulate how sex equality can be taken seriously in s. 15 jurisprudence, and our experience of working with gender issues. We have not limited ourselves, however, to cases that have been litigated as sex equality cases. Instead, we aim to uncover the gender issues present in cases analyzed on other grounds, as well as to develop our various accounts of equality in a way that both does justice to sex equality and lays a foundation for a comprehensive approach to the constitutional remedying of all forms of inequality.

My shadow judgment of Law v. Canada illustrates this philosophy. Law was argued in the 'lower courts' as an age discrimination case, tout court. The 30 year old claimant challenged the Canada Pension Plan limitation on eligibility for a pension payable on the death of a contributing spouse to those over age 35 (absent extenuating circumstances) as discrimination based on age - it treats those over age 35 better than those under. This exclusive focus on the age-related differential treatment provides an incomplete picture of the program and its rationale. The inescapable fact is that the vast majority of survivor pension recipients are women, simply because women are more likely than men to outlive their spouse. This part of the CPP was designed with the needs and interests of women in mind and cannot be properly understood or evaluated absent this gendered context. Differences in the working lives of men and women have shaped the benefit from the beginning and are relevant to assessing its constitutionality. Although the social realities of women's exclusion from the workforce were taken into account in the original design of the policy, Parliament has overlooked the hurdles women still face despite increasing participation in paid work.

The Supreme Court of Canada held that the benefit is designed to provide long-term financial security for Canadians who lose a spouse. It would be better to say that the CPP treats a contributor's pension as a family asset, thereby recognizing the joint contribution that spouses make to each other's economic well-being. This characterization better dignifies women's contribution to the family rather than treating women as mere "dependents".

The age cut-off initially recognized that women were less likely than men to be receiving employment income; faced with her spouse's death a woman would need replacement income to make up for the loss of his salary. The use of age instead of recipient's income level, however, means that many who are fully able to provide for their own long-term financial stability still qualify while some of those under the cut-off age may be in greater need, yet are denied. Either the program is significantly flawed, or we must assume that Parliament's concern for the need occasioned by the death of a spouse is a concern for the relative drop in household income that is likely to come in its wake, something likely to affect almost all survivors.

Against this backdrop, the age restriction seems to be grounded not merely in the empirical expectation that survivors below a certain age do not suffer a significant drop in household income following a spouse's death, but rather in the normative requirement that younger survivors should make their own efforts to offset that loss rather than relying on a long-term pension. To paraphrase Margaret Thatcher, younger spouses should just 'get on their bicycles'!

While it may be sensible to tell younger survivors not to expect long-term income support, this does not explain why the CPP has no provision for at least short-term assistance in adjusting to the loss of a spouse's income. Since most surviving spouses, at all age groups, are women, denying any assistance to those under a certain age differentially affects mainly women in that age group.

Such a program is constitutional only if this differentiation does not violate the dignity of those affected. Income support is a matter of s. 15 significance not because more money in one's pocket is always a good thing, but rather because in a modern society a certain level of income is vital to keeping a roof over one's head, staying healthy, and joining in social life as an equal. However, the assumption that the loss of a spouse by younger survivors causes no serious financial dislocation, even in the short term, seems to adopt a male norm. It treats as the typical younger spouse someone who is employed and fully self-sufficient. Unfortunately, this description is still more accurate for men than for women.

StatsCan data shows that the employment rate among women is lower than men's in all age categories except those under 24; likewise with the percentage of women in paid work. Even in households with no children, women's workforce participation rate is lower than men's. Women's unemployment rate is also higher for women in every age group once we include those involuntarily working part-time rather than full-time.

Women are still streamed into lower paying jobs, and are often paid less than comparable male jobs. Even unattached women, whose workforce participation is likely to be most like men's, earn less than men. Young women suffer from pay inequity too: women between 35 and 44 earn only 95% of what similarly situated men earn, while women aged 25 - 34 earn only 90% of a male wage. According to recent data, wives' earnings represent only 32% of the income of dual-earner families. Many, even women without children, continue to shoulder the lion's share of household responsibilities to the detriment of their earning capacity.

Put bluntly, the old adage that most women are just a divorce away from poverty could easily extend to the death of a spouse. The loss of a male spouse will often precipitate a sharper drop in the surviving female spouse's standard of living than vice versa, and will be harder to make up. It is precisely the female survivor who is likely to face the most exigent circumstances following the death of her spouse: the loss of more than half, perhaps significantly more than half, her previous household income and the need to make substantial investments in her own earning capacity in order to put herself on an even financial keel.

The expectation that women under the age cut-off should support themselves like an able-bodied, childless man is an example of what feminists have come to call "equality with a vengeance." Disadvantaged groups such as women tend either to be subjected to derogatory or paternalistic stereotypes or assumed and required at their own peril to be like men whether they are or not, whether they have been given the chance to be or not, and whether it suits their own aspirations or not. This ignores the real work of achieving equality: clear-sighted examination of the actual conditions of women's lives to determine what they need in order to flourish on their own terms, to live lives of dignity and full participation in society.

The Women's Court of Canada would hold that a survivor pension scheme that has so clearly ignored the social conditions affecting younger women must be found to be discriminatory not only on the basis of age, but also on the basis of sex. Indeed, it is attention to the gender dimension of the program that makes vivid the violation of human dignity entailed by the exclusion from the benefit.

The Women's Court hopes to publish its judgments in the Canadian Journal of Women and the Law as well as create a website for the Court.