The status of a public sector retiree is not a prohibited ground for discrimination

In a decision dated December 22, 2020 (1), the Court of Quebec concluded that the reduction of fees paid to an assessor of the Tribunal des droits de la personne [Human Rights Tribunal], who also receives a public sector pension, is not discriminatory. However, such a reduction constitutes an illegal change to this member’s working conditions for which they are entitled to damages.

With a view to reducing public spending, the Government of Quebec decided to reduce the fees paid to assessors of the Tribunal des droits de la personne [Human Rights Tribunal] (“TDP”) who receive a pension from Quebec’s public service. The plaintiff is the only assessor affected by this measure. He contested it before the Court of Quebec (“Court”).

The plaintiff alleged that such a reduction goes against the Canadian Charter of Rights and Freedoms (“Canadian Charter”) and the Charter of Human Rights and Freedoms (“Quebec Charter”). Subsidiarily, he alleged that such a reduction is invalid in that it unilaterally and substantially modified his working conditions.

The Court concluded, on one hand, that this reduction is not discriminatory under the Canadian Charter or the Quebec Charter, but—on the other hand—ruled that the unilateral and substantial modification in the plaintiff’s working conditions is invalid. As a result, the Court upheld, in part, the plaintiff’s claims.

Only the Court’s reasons regarding the discrimination allegations are addressed in this article.

The government’s decision established a distinction between the TDP’s assessors, who receive a public sector pension, and other individuals. Only the assessors had their fees reduced.

However, to conclude that this distinction constituted discrimination under article 15 of the Canadian Charter, the Court first had to answer yes to the following two questions:

1. Does the contested measure establish a distinction based on an enumerated or analogous ground?
2. Does the contested measure impose a burden or deny a benefit in a way that reinforces, perpetuates or exacerbates the disadvantage faced by the plaintiff?

The answer to the first question is no. The status of Quebec public sector retiree is not an enumerated ground in the Canadian Charter and, after further analysis, it is not an analogous ground neither.

The Court held that the analogous ground is that which relates to personal characteristics that are immutable or inherent to the identity of any human being. The analogous ground also covers the belonging to a discrete and insular minority or a group that is historically disadvantaged or victim of prejudice founded on stereotypes.

In this case, the evidence, which was referred to as “very small”, does not establish an analogous ground.

As for the Quebec Charter, to conclude that there was discrimination, the Court had to answer yes to the following three questions:

1. Did the contested measure establish a distinction, exclusion or preference?
2. Is this distinction, exclusion or preference founded on a prohibited ground for discrimination listed in article 10?
3. Does this distinction, exclusion or preference have the effect of nullifying or impairing the right to equality?

It is worth noting that, contrary to the Canadian Charter, the Quebec Charter provides exhaustive prohibited grounds for discrimination so that only the grounds set forth in article 10 of this law are applicable as the basis for a discrimination complaint. It is this “social condition” ground that was invoked by the plaintiff in support of his claim and that was rejected by the Court.

The Court noted that the common element characterizing the situations recognized as falling under social condition is the vulnerability of the people involved or the fact that they are historically disadvantaged, deprived or victim of prejudice, or that there are stigmas or stereotypes related to their condition.

In this case, there is no evidence that allows the Court to conclude that the group of public sector retirees is made up of people who fit these characteristics.

Interestingly enough, the Court seemed to want to distinguish between a retiree who only receives income security and QPP benefits, and a retiree who also receives a pension from a pension plan. According to the judge, only the first retiree could be considered as a disadvantaged or vulnerable person.

This decision sheds light on the application of the notion of discrimination with regard to specific categories of retirees. It shows that it is difficult to have the notion of retiree recognized as one of the prohibited grounds that would trigger the application of the mechanisms set forth in the charters to protect the right to equality. A person’s being disadvantaged or vulnerable seems to be central to this recognition. It will be interesting to see how this decision is dealt with in the future when other courts will have to rule on allegations of discrimination against retirees.

If you have any questions about this decision or any other questions regarding pension plans, contact Normandin Beaudry’s legal team.

(1) Angers vs. Procureur général du Québec, 2020 QCCQ 9547 (Canlii).