Intersections and Roads Untravelled: Sex and Family Status in Fraser v Canada

Authors

  • Jennifer Koshan

DOI:

https://doi.org/10.21991/cf29420

Abstract

It has been a long road to the judicial recognition of women’s inequality under the Cana‑ dian Charter of Rights and Freedoms.1 The Supreme Court of Canada ruling in Fraser v Can‑ ada is significant for being the first decision where a majority of the Court found adverse effects discrimination based on sex under section 15,2 and it was only two years prior that a claim of sex discrimination in favour of women was finally successful at the Court,3 almost 30 years after their first section 15 decision in Andrews v Law Society of British Columbia. 4

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], s 15.
2 Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser].
3 Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux,  2018 SCC 17 [Alliance] (majority found sex discrimination under s 15 and rejected the government’s justification argument under s 1 in the pay equity context). See also Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 [Centrale] (majority found violation of s 15 but accepted the government’s s 1 argument, also in the pay equity context). For comments on these decisions see Fay Faraday, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020) 94 SCLR (2d) 301; Jonnette Watson Hamilton & Jennifer Koshan, “Equality Rights and Pay Equity: Déjà Vu in the Supreme Court of Canada” (2019) 15 JL & Equality 1. See also British Columbia Teachers’ Federation v British Columbia Public School Employers’ Association, 2014 SCC 70 (a one-paragraph decision restoring an arbitrator’s award allowing a s 15 employment benefits claim by women); Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 (finding a violation of s 15 but accepting the government’s s 1 argument, again in the pay equity context).
4 [1989] 1 SCR 143, 56 DLR (4th) 1.

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Published

2021-05-12