LEAF and Women’s Economic Equality Rights: Reflections on a Pay Equity Case and an Equality-Rights Conference

On May 12th of this year, the Women’s Legal Education and Action Fund (LEAF) appeared before the Supreme Court of Canada to argue in support of the need to protect and advance women’s equality rights in the context of a pay equity case, Newfoundland Association of Public Employees (NAPE) v. Newfoundland [2004]. At issue in the case is whether the Newfoundland government can pay women less than men for work of equal value. This case affects 5,300 female employees of the Newfoundland government, and has the potential to establish a precedent that will affect female employees across Canada.

LEAF argued that the Newfoundland government admitted that it had violated the equality rights of its female employees when it agreed to compensate them for the unequal wages they’d been paid in the past, and that the government violated the equality rights of the women when it reneged on its agreement to provide the employees with pay equity. The government’s position was that it could not afford to implement the agreement to provide for pay equity. LEAF argued that while it is always cheaper to discriminate, the government’s budgets cannot be balanced on the backs of the disadvantaged in society and that the guaranteed equality rights of women must be respected.

The Court seemed quite interested in the discrimination experienced by the women in this case, and in the effects of the pay inequity. However, they also seemed concerned about the costs involved in providing the pay equity compensation at issue. In response to the Court’s concern about costs, LEAF argued that the costs involved should not be characterized exclusively as costs to the government. Indeed, the costs involved were the costs owed to the female employees for the wages they’d been denied and the discrimination they faced from the lack of recognition of the value of their work.

LEAF was represented by Karen Schucher and Fiona Sampson. The Court reserved its decision; a decision from the Court is not expected for at least several months.

Role of the Charter

On a related matter, LEAF recently hosted a conference examining the role of the Charter in securing social and economic rights for all Canadians, particularly women and other vulnerable groups. The conference was held in Toronto on May 7-9, 2004. The conference was hosted by LEAF and several anti-poverty advocacy groups, including the Income Security Advocacy Centre, the Charter Committee on Poverty Issues, the National Anti-Poverty Organization and the Together Against Poverty Society.

The conference brought together an impressive group of lawyers, activists and academics whose work focuses on using the law to improve the material well-being of those who are most marginalized in our society. We were particularly pleased to have a number of representatives from Quebec, where the anti-poverty movement has succeeded in having the provincial legislature pass a statute aimed at preventing poverty.

The conference was part of LEAF’s « Impact Study » of the case of Gosselin v. Canada [2002] 4 S.C.R.. Gosselin was the first case in which the Supreme Court of Canada was asked to apply section 15 of the Charter to a welfare provision that denied full benefits to a specified group (in this case, persons under age 30). Ms. Gosselin was a young woman who was allowed only $170 per month under the program and consequently endured much hardship.

LEAF and other equality-seeking groups were extremely disappointed when the SCC found that this treatment was not discriminatory. Much of the discussion at the conference focused on the reasons that the section 15 case failed, and strategies for improving the prospects for success in the future.

This conference was part of the larger « Law Project » in which LEAF has been examining and strategizing about the state of equality jurisprudence in Canada post the Supreme Court of Canada decision in Nancy Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. case.

Fiona Sampson is the Director of Litigation at LEAF.