Pay equity ruling slammed

By DENE MOORE

October 29, 2004

ST. JOHN'S, Nfld. (CP) - The Supreme Court of Canada has given governments across the country the right to dodge the Charter of Rights by claiming financial hardship, says the union that lost a pivotal pay equity case Thursday.

The court, in a unanimous ruling, found that Newfoundland was justified in 1991 when it tried to deal with a financial crisis by deferring pay equity payments to female health-care workers, even though the move violated their equality rights.

The ruling means governments now have carte blanche to put cash ahead of the charter, said Sheila Greene, lead counsel for the Newfoundland Association of Public Employees.

"It means it's going to be substantially easier for a government to justify violating any kind of equality rights," she told a news conference in St. John's.

Health care, language services and education are all at risk, she said.

"It doesn't just affect women. This is a really sad day for the disabled community, for minorities of any kind, for religious minorities. It affects every person in Canada."

Despite the dire warnings from the union, the justices stated that governments are entitled to some slack, but only in exceptional situations.

The ruling said the courts will "continue to look with strong skepticism at attempts to justify infringements of charter rights on the basis of budgetary constraints. To do otherwise would devalue the charter because there are always budgetary constraints."

In Newfoundland's case, the province faced a severe fiscal crisis, wrote Justice Ian Binnie.

"The spring of 1991 was not a 'normal' time in the finances of the provincial government," he said.

The province was facing a $120-million deficit because of a cut in federal transfer payments. The deferment saved $24 million, the province said.

Binnie said there comes a time when budget problems "can attain a dimension that elected governments must be accorded significant scope to take remedial measures, even if the measures taken have an adverse effect on a charter right."

Prime Minister Paul Martin rejected the union's interpretation.

"As far as I'm concerned, we're talking about rights," he said from Ottawa. "Many of these are charter rights and I've made it very clear that I believe it is the responsibility of government to uphold charter rights."

Newfoundland argued it had to defer the pay adjustments, originally agreed to in 1988, to stave off a money crisis that threatened the province's credit rating.

Finance Minister Loyola Sullivan said that at the time, hospital beds were being cut, schools were closed and other public services were slashed.

"The greater good of the public was at stake," he said.

British Columbia, New Brunswick, Alberta and Quebec joined Newfoundland in fighting the court case.

The ruling affects more than 5,000 current and former Newfoundland government employees, 80 per cent of them women.

Henrietta Hillier, a licenced practical nurse for 21 years in Grand Bank, Nfld., said she's owed about $7,000.

"Now I'm not going to get anything," she said. "(The government) took my money to do the roads."

It's an insult to women and a dangerous precedent, said Louise Guerrette-Winchester, president of the New Brunswick Coalition for Pay Equity.

"We're fighting for pay equity in New Brunswick, and if government can decide that they're in a crisis situation financially, then we're stuck," she said.

The Canadian Association for Community Living had intervened in the case, along with the Canadian Hearing Society, Council of Canadians with Disabilities and several health unions.

Fiona Sampson, director of litigation for the Women's Legal Education and Action Fund, said the case affects everyone who experiences a wage gap, including aboriginals and the disabled.

"They've decided that women's equality rights are a luxury that can be bought and sold, and that in times of fiscal crisis . . . that cost-cutting measures take precedent (and) can trump women's equality rights," Sampson told CBC Newsworld shortly after the ruling was released.

The court did not say what constitutes a financial crisis and did not specify when Newfoundland would have to make the payments, said the union.

The province's fiscal situation has worsened since 1991. It now faces an $840-million deficit, but Sullivan said the decision won't be used to justify future budgetary cuts.

He wouldn't say when or if the province plans to make the back payments.

"I can't make any commitment to that," he said. "We've got a huge deficit."

Pay equity was introduced to the province in 2001.

The case was the first before the court to weigh charter guarantees against fiscal capacity.

The court has yet to rule on a similar case concerning expensive treatment for autistic children.

The B.C. government has appealed two lower court decisions ordering it to pay for the $60,000-a-year therapy.