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

The Supreme Court of Canada’s decision in Newfoundland (Treasury Board) v. N.A.P.E. is a clear example of the manipulability of legal doctrine and the power of political objectives. Well-established legal principles should have lined up neatly to support a favourable outcome for the equality rights claimants in NAPE, whose pay equity entitlements were, by the admission of the government, ‘‘erased’’ for a period of three years. This did not happen because the Supreme Court of Canada decided that the circumstances in NAPE were too exceptional to bear the application of the established rules. The Women’s Court of Canada decision in NAPE could have simply demonstrated how the established legal doctrine could and should have been applied to uphold the equality rights claim. However, this approach would have been too thin. It would not have done justice to the broader questions of substantive equality and government accountability that became more explicit as the case travelled up the judicial ladder. A related issue was whether to approach NAPE as ‘‘a section 15 case’’ or as ‘‘a section 1 case.’’ In the end, it was decided that this was not an either/or question. The outcome for the equality rights claim in NAPE was primarily determined by what the Supreme Court of Canada decided in relation to section 1 of the Charter, not what it decided on section 15. However, the Supreme Court’s section 1 decision was very much influenced by its approach to section 15. The Women’s Court of Canada decision tries to resist constructing section 15 and section 1 as separate legal containers and, instead, endeavours to connect them. The decision to incorporate a full section 15 analysis was easier than the task of doing it, however. In NAPE, a section 15 infringement was found at all levels of judicial and tribunal consideration. This finding made it more challenging to frame an alternative approach to section 15 and to demonstrate concretely the shortcomings of Law v. Canada (Minister of Employment and Immigration). From the broader perspective of women’s social equality, some of the story of sex-based wage discrimination and its relation to women’s economic inequality was included. The decision also articulates principles for using international law, a discussion that is often glossed over in Supreme

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