Law Times

Law Times • augusT 21, 2017 Page 9 www.lawtimesnews.com Female former Mounties bring action over benefits Human rights check needed for pension plans B Y MICHAEL MCKIERNAN For Law Times P ension plan sponsors need to work a human rights check into their compliance reviews, says a Toronto lawyer. In the recent case of Fraser v. Canada (Attorney General), Federal Court Justice Catherine Kane ruled against a trio of re- tired Mounties who claimed the RCMP's pension plan discrimi- nated against them on the basis of sex and parental status. Despite the result, Sean Sells, a Toronto labour and employ- ment lawyer with a focus on pension litigation, says similar claims are on the rise and em- ployers can guard against them by taking a proactive approach to human rights issues. "Administrators or sponsors will often treat pension stan- dards and income tax legislation as the guiding factors for plan terms, but to me, it's not enough any more to say that you're in compliance with the Pension Benefits Act," says Sells, counsel to the Toronto office of Hicks Morley Hamilton Stewart Storie LLP. "You need a holistic ap- proach, and as cases like this indicate, the plan has to be re- viewed through a number of lenses, including a consideration of whether the terms meet the Human Rights Code." Those who fail to perform a thorough review of potentially discriminatory plan terms are taking a big risk, he says, thanks to the financial consequences of an unfavourable court or hu- man rights tribunal ruling. "Whether you're a public or private employer, complaints about the terms of the plan are not really about the treatment of any single individual. The outcomes have the potential to apply to a significant number, if not all, of the plan members," says Sells. "Administrators have a fiduciary obligation to act with an even hand to all members, and if they're found to have act- ed in a discriminatory way, the financial repercussions can be huge, particularly as the size of the plan gets bigger." However, plan sponsors can comfort themselves in the knowledge that discrimination claims are increasingly tough to establish, according to Sells. "When it comes to the terms of pension plans, administrators necessarily draw lines, distin- guishing members on the basis of age, employment status and years of service, among others," he says. "Even if you can identify differential treatment of a par- ticular group, it doesn't mean that it's discriminatory." "It's an uphill task to prove discrimination in a pension, particularly on the grounds of gender or family status," agrees Toronto pensions lawyer Ari Kaplan. "The RCMP case is just one in a long line of cases that have been unsuccessful." The female former Mount- ies first complained about their treatment back in 2000 after realizing they would not be al- lowed to "buy back" full-time pension benefits for the years they spent in job-sharing pro- grams following their return from maternity leave. Had they taken a leave with- out pay over the same period in- stead of working reduced hours, the RCMP's rules would have allowed the women to buy back the full-time benefits by making retroactive payments. Instead, they said they were left with a reduced income in retirement because the plan only counted their part-time hours for those years of service. Grievances filed over the rules were backed by the Exter- nal Review Committee, an in- dependent tribunal tasked with adjudicating RCMP disputes, but then dismissed in 2010 by the police force's commissioner, who is not bound by ERC deci- sions. The women brought the Fed- eral Court action in 2014, alleg- ing that the legislation regula- tions governing the RCMP pen- sion plan violated s. 15(1) of the Canadian Charter of Rights and Freedoms. According to Kane's decision, the vast majority of job-sharing RCMP officers are women. Of those people, more than 60 per cent did so because of childcare responsibilities. But the judge dismissed the claim all the same, noting that "not all adverse im- pacts are discriminatory." "The impact on their pension benefits is not because they are women or because of their pa- rental status. The impact on their pension benefits is because they worked part-time," Kane wrote in the June 9 decision. "Their pension ref lects their part-time status just as it would for anyone who worked part-time at some point in their career." Kaplan, the principal at Ka- plan Law, says the judge's deci- sion demonstrates her sympa- thy with the former Mounties' plight. "The judge clearly recognizes this was an important public policy case, and that is empha- sized by the fact that there were no costs ordered," he says. "The reality is that women continue to face barriers in the work place, many of which are due to the daunting challenges of balancing family and career," Kane wrote. "That the Applicants found a way to meet the challenges and later returned to full-time du- ties and had long careers in the RCMP is an example of more f lexible arrangements that now exist to respond, to some extent, to these challenges," she added, before commending the women for pursuing the litigation "to raise awareness about the need for employment policies and leg- islation to continue to evolve to better meet the needs of women and parents in the work force." Paul Champ, who acted for the women at the Federal Court, says the decision has now been appealed. "We thought we had a good case, but, unfortunately, the judge took a different view," says Champ, the principal at Ottawa litigation boutique Champ and Associates. He says his disappointment was tempered by the amount of support his clients have received from within the RCMP. "Many in leadership posi- tions have backed them, and the RCMP's legal defence fund also supports the case," he says. "Although the RCMP remains about 75-per-cent male, it showed there is broad support for the claim. We're just hoping the courts and the government will listen at the next level." Gregory Tzemenakis, a Jus- tice Canada lawyer who acted for the Crown in the case, de- clined to comment due to the pending appeal. Champ says his clients were mischaracterized as part-time employees, noting that the fed- eral RCMP Act does not provide for part-time officers. Instead, he says, they should be seen as full- time employees who temporar- ily reduced their hours. He says a combination of legislative action, litigation and voluntary sponsor-led overhauls have helped eliminate some of the most blatant forms of dis- crimination in pension plans over the last few decades, but he adds that there remains work to be done. "What we believe we have found here is that there remain some residual issues in plan de- sign that continue to put up bar- riers to full equality for women in the workforce," Champ says. "If you temporarily leave the workforce, you shouldn't suffer a reduced pension as a result." Kaplan says plan sponsors should have a mechanism for advising members about what effect changes in their current employment could ultimately have on their future retirement income. In the RCMP case, Kane's de- cision notes that the women did not dispute signing memoran- dums of understanding that laid out the terms and conditions of their job-sharing arrangements. However, they also claimed they received conf licting advice from pay and benefits advisors re- garding their pension status and ability to buy back full-time ben- efits for the period. "In the pension context, I always like to say that fulsome and transparent disclosure of the consequences of a particu- lar voluntary choice by a plan member is often the best way to insulate an employer or admin- istrator from a lawsuit," Kaplan says. LT Sean Sells says employers who fail to perform a thorough review of potentially discriminatory plan terms are taking a big risk. FOCUS It's an uphill task to prove discrimination in a pension, particularly on the grounds of gender or family status. Ari Kaplan Presented by Lexpert, the prestigious Rising Stars Awards Gala honours winners from across Canada and welcomes law firm and in-house leaders and distinguished guests to celebrate and network with others who are at the top of the legal profession. GALA DINNER AND AWARDS PRESENTATION Honouring Canada's Leading Lawyers Under 40 – from law firms and in–house – this event will pay tribute to the rising stars of the legal community EMCEE Jean Cumming, Editor-in-Chief, Lexpert THE FAIRMONT ROYAL YORK HOTEL, TORONTO Thursday, November 16, 2017 5:30 - 7:00 p.m. Cocktail Reception 7:00 p.m. Gala Dinner and Awards Presentation 9:30 p.m. After Party Dress: Business attire LEXPERT.CA/RISING-STARS To purchase tickets or to sponsor the event, contact: MediaSolutions.Sales@thomsonreuters.com Founding Partner Bronze Sponsor Hosted in Partnership with Untitled-6 1 2017-08-15 4:52 PM

• Cover