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

· A ‘Pay Equity Agreement’ was reached between the N.F govt and public sector unions in 1988, which laid out a process and methodology for remedying the unequal pay received by individuals in predominately female areas of the health sector for work of equal value to those in predominately male areas. · In 1991, 3 years after the initial agreement had been made, the financial analysis of the cost of implementing the scheme was completed (govt estimated that it would cost $24 million) · At that time, the govt was going through a serious financial crisis, with budgetary deficits that had risen to the point where the province’s credit rating was at risk. · In response to the crisis, the govt implemented a series of measures, including a ‘Public Sector Restraint Act’, s.9 of which prohibited pay equity agreements from being implemented retroactively. This meant that the female hospital workers would not be paid the increased wages promised to them for the prior 3 years (1988-1991); and that workers who had retired during this period would not receive these payments (Deriving no benefit at all from the agreement their union had reached) · The appelant union of which these female hospital workers argues that s.9 of the PSRA violates s.15 of the Charter and is unconstitutional. i) Does s. 9 of the PSRA infringe s. 15(1) of the //Canadian Charter of Rights and Freedoms//? - YES ii) If so, is it saved by s.1? - YES // Supplementary issue: // iii) Did the Court of Appeal err in adding a further step to the section analysis, namely a requirement for the Court to determine explicitly at each stage whether the separation of powers doctrine has been offended? - YES [Binnie J.] __ Re: Presence of a constitutional obligation? __ · Definitely a contractual obligation à the Agreement was contractually binding on all parties; the Act effectively reduced the women’s pay below their contractual entitlememy (para 33) · But also a constitutional obligation as well à “…the question whether the targeting of acquired rights of women hospital workers in this case was discriminatory is clearly within the ambit of s. 15(1) scrutiny.” (para 37) __ Re: Infringment of s.15? __ · Act itself states that its purpose is to redress ‘gender discrimination’ so this necessarily implies that s.15 is invoked  · Does Law v. Canada s.15 analysis:  · comparator group= men in male dominated classifications performing work of equal value to women in female-dominated classifications (impact of Act adversely impacts the women because they are denied getting their contractually entitled pay, while men get theirs) à so differential treatment based on sex (based on whether job generally held by male or females) · Contextual factors considered à i) pre-existing disadvantage of women in the workforce; ii) postponement of pay equity did not correspond to the needs, capacity, or circumstances of the claimants; iii) Act rolled back ameliorative effects of the collective agreements iv) work is an important part of life/identity __ s.1 Analysis ____ à ____ Breach of s.15 justified by s.1? __ i//) Legislative measure had a pressing and substantial objective?-// YES · the need to addrees a fiscal crisis, which could lead to loss of credit rating, and adverse impact on the govts ability to borrow=matter of high importance  · precedent shows that Court is rightly very sceptical of justifiying infringements of Charter rights based on budgetary constraints/fiscal concerns; BUT can sometimes be justified in cases of “financial emergencies when measures must be taken to juggle priorities to see a government through the crisis”  · Exceptions must be made ona case-by-case basis; Must weigh both social values and dollars. “The weighing exercise has as much to do with social values as it has to do with dollars… The requirement to reduce expenditures, and the allocation of the necessary cuts, //was// undertaken to promote other values of a free and democratic society” (paras 72,75)
 * Newfoundland (Treasury Board) v. N.A.P.E.//, [2004] 3 S.C.R. 381// **
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ii) //Rational connection between measure and Objective?-// YES · Pay equity payments constituted a significant portion of the budget so made sense to postpone it in order to avert financial crisis

iii)//Minimal impairment?-// YES · measure was proportional to objective because of: (para 86-) o scale/seriousness of the crisis o the Act affirmed importance of pay equity by allocating immediate payment despite the tight budget o the immense cost of implementing the plan o consulted the union before hand to talk about alternatibes o govt had to take into account interests of a lot of different stakeholders (“numerous legitimate claims on the public purse by disadvanataged people…”-para 94) & there should be deference to the legislature to fulfill this role

iv) //Proportionality of means to objective?// · detrimental impact of delay in acheieving pay equity= does not outweigh the importance of preserving fiscal health of govt; did more harm than good (para 98) __ Re: Separation of Powers __ · separation of powers cannot be invoked to undermine operation of s.1 with birth of charter, new limits put on legislature, and courts put in charge of refereeing those limits; so the argument for even greater deference to legislature (argued by Marshall JA) would undermine s.1.