Newfoundland (Treasury Board) v. N.A.P.E.

Author's Note

The Supreme Court of Canada's decision in Newfoundland (Treasury Board) v. N.A.P.E. is a clear example of the manipulability of legal doctrine and the power of political objectives. Well-established legal principles should have lined up neatly to support a favourable outcome for the equality rights claimants in NAPE, whose pay equity entitlements were, by the admission of the government, "erased" for a period of three years. This did not happen because the Supreme Court of Canada decided that the circumstances in NAPE were too exceptional to bear the application of the established rules. The Women's Court of Canada decision in NAPE could have simply demonstrated how the established legal doctrine could and should have been applied to uphold the equality rights claim. However, this approach would have been too thin. It would not have done justice to the broader questions of substantive equality and government accountability that became more explicit as the case travelled up the judicial ladder.

A related issue was whether to approach NAPE as "a section 15 case" or as "a section 1 case." In the end, it was decided that this was not an either/or question. The outcome for the equality rights claim in NAPE was primarily determined by what the Supreme Court of Canada decided in relation to section 1 of the Charter, not what it decided on section 15. However, the Supreme Court's section 1 decision was very much influenced by its approach to section 15. The Women's Court of Canada decision tries to resist constructing section 15 and section 1 as separate legal containers and, instead, endeavours to connect them.

The decision to incorporate a full section 15 analysis was easier than the task of doing it, however. In NAPE, a section 15 infringement was found at all levels of judicial and tribunal consideration. This finding made it more challenging to frame an alternative approach to section 15 and to demonstrate concretely the shortcomings of Law v. Canada (Minister of Employment and Immigration). From the broader perspective of women's social equality, some of the story of sex-based wage discrimination and its relation to women's economic inequality was included. The decision also articulates principles for using international law, a discussion that is often glossed over in Supreme Court Charter jurisprudence. Perhaps this discussion will be useful in efforts to further social and economic rights in future Charter litigation.

NAPE also raised the need for a framework within which to critically assess arguments for deference to government where money must be spent to achieve equality. There are two aspects to this part of the Women's Court of Canada decision. The first aspect is the more abstract articulation of general principles that inform a substantive understanding of democracy. The second aspect is the concrete application of this approach to the situation in NAPE. The latter presented the most difficulty, including the challenge of articulating a principled way of avoiding a hierarchy of rights analysis. Although competing rights were not directly at issue in NAPE, there may be future cases where disadvantaged groups are in need of funding that is constructed as being scarce. The judgment also avoids positing alternatives that the government could have implemented that would have undermined the interests of organized labour more broadly. A particular struggle was whether to address the spectre of the government having no option but to choose between lay-offs and pay equity cutbacks. In the end, government accountability won out over the development of abstract legal principles in relation to hypothetical factual situations. More generally, this was the only Women's Court of Canada decision where section 1 was a prominent issue, and that created a sense of responsibility in terms of developing the section 1 analysis, particularly in this era of deference to limitations on social and economic rights.

The Women's Court of Canada decision in NAPE owes much to the arguments of one of the intervenors in the case at the Supreme Court of Canada, the Women's Legal Education and Action Fund (LEAF). I...