The Newfoundland government recognized that women were being paid less then men in many areas of employment in their province. To correct this situation they implemented a pay equity program that was to begin in 1988 and lead to equal wages for men and women. However, the province experienced severe financial difficulties and was forced to pass a bill stating that this pay equity program would not start until 1991. The appellant union argues that this was a violation of the s.15 rights of female workers, and that they should be reimbursed for the lost wages from 1988 to 1991. This amounts to approximately $24 million. The government also made many other cuts to their spending during these three years including hospital beds and teachers' salaries. Both at trial and at appeal the delay was found to amount to discrimination, but that the violation was saved under s.1.
- Does the delay of the implementation of the pay equity program violate the women's rights under s.15 of the Charter?
- If so, can the violation be saved under s.1?
- Are financial concerns enough to satisfy the s.1 test?
Binnie, writing for a unanimous court, agrees that this delay of the program amounts to discrimination as it creates a distinction on an enumerated ground, and all four of the contextual factors lead to the conclusion that it is discriminatory. Binnie then reviews past Supreme Court decisions that state that in general financial concerns were not enough to justify discrimination under s.1 of the Charter.
Binnie agree with this, and holds that in normal circumstances financial concerns are not enough to justify saving discrimination under s.1. However, he finds that this extreme financial crisis was not a "normal circumstance". They look at evidence of how many other programs were cut back, and what an asset the saved $24 million was at that time. As a result, he determines that there was definitely a pressing and substantial objective on the part of the government in passing this legislation. He concludes that although this impairment may not seem minimal to the women, it was proportional to the government's objective in the financial crisis.
The savings ($24 million) were so substantial that the benefit of relocating that money outweighed giving it to the women. For further proof that the government acted reasonably, the court looks to evidence that they offered the members of the union a chance to look for alternative means such as cutbacks and layoffs, but they declined. $24 million was such a large amount of money in the difficult time that it was more reasonable to spend it elsewhere. There was no evidence of bad faith on the part of the government, further shown by their agreement to only delay, and not scrap the pay equity plan.
The final argument concerns the Newfoundland Court of Appeal judge's opinion that another step should be added to the Oakes test to ensure that the courts are giving enough deference to the legislatures. He wrote a great deal about this, and stated that the courts are infringing on legislative action too much and should not be able strike down legislation easily, even when it violates the Charter. However, Binnie does not agree with this and states that the division of powers is taken into consideration in the Oakes test to a satisfactory level. It is the court's duty to keep the legislature in check with the Constitution, and limiting this power is nonsensical.
- Financial issues can play a role in determining if something that is deemed to be discriminatory can be saved under s.1; in times of severe financial crisis money must be allocated accordingly.
- The division of powers (judicial deference to the legislatures) is given sufficient consideration in the Oakes test.
In 2006, the provincial government made an ex gratia payment of $24 million to a group of unions in recognition of the sacrifice made by the women in the 1988-91 period.