Newfoundland Treasury Board v. NAPE
The NAPE case is ultimately about money, and asks: is it fair to fight a deficit on the backs of women workers? In 1991, the government of Newfoundland and Labrador reneged on a pay equity agreement with women workers. The excuse was that the province faced a severe deficit.
The Supreme Court of Canada found that, ordinarily, budgetary considerations alone would not permit governments to violate equality rights. However, the Court went on to treat extraordinary cases of “fiscal crisis” as an exception.
The Women’s Court of Canada decision challenges this reasoning, from the general principle about monetary costs as a justification for rights violations to the very existence of a crisis and the assertion that alternatives were unavailable.
Summary
The NAPE case is ultimately about money, and asks: is it fair to fight a deficit on the backs of women workers?In 1991, the government of Newfoundland and Labrador reneged on its 1988 pay equity agreement with a group of women workers represented by NAPE. The government passed legislation that, in its own words, “erased” the pay equity adjustments that female employees were owed for work performed between 1988 and 1991. The government’s rationale for reneging on its agreement and abdicating its responsibility to pay the women equally was that it faced a severe deficit.
In its 2004 decision, the Supreme Court of Canada found that ordinarily, budgetary considerations alone would not permit governments to violate equality rights such as women’s right to be paid equally for work of equal value. However, the Supreme Court went on to find that in extraordinary cases of “fiscal crisis”, financial constraints could provide such a justification.
The Women’s Court of Canada decision critiques this reasoning in several respects. First, the WCC decides that financial considerations can never be the sole reason for violating equality rights – otherwise, governments could raise vague notions of cost savings as a way of avoiding their Charter obligations.
Second, even if budgetary constraints might override Charter rights in emergency situations, the government’s claim of a fiscal crisis in this case was not proved, as the deficit for the period in question was relatively normal.
Third, the WCC finds that there were other reasonable ways the government could have reduced its deficit without violating women’s equality rights. For example, across-the-board wage cuts using the pay equity adjusted wages of the women workers would have required male workers to share the burden of the deficit more equally with women.
Overall, the WCC decision affirms that governments cannot simply use cost as a justification for violating Charter equality rights.