An SCC majority said a daycare subsidies regulation discriminates against women refugee claimants
A Quebec regulation that excludes refugee claimants from receiving daycare subsidies effectively discriminates against women refugee claimants, the Supreme Court of Canada found in a split decision Friday, ruling that refugee claimants in the province are, in fact, eligible for subsidized childcare.
Writing for the majority, Justice Andromache Karakatsanis said the regulation violates s. 15(1) of the Canadian Charter of Rights and Freedoms, which guarantees freedom from discrimination. Karakatsanis also found that the breach is not saved by s. 1 of the Charter, which holds that Charter rights can be subject to reasonable limits.
To the extent that the Quebec regulation “is inconsistent with the equality rights of the Charter, it is ‘of no force or effect,’” Karakatsanis wrote.
Chief Justice Richard Wagner and Justice Malcolm Rowe agreed with the majority’s results, but departed from the majority’s reasons in separate opinions. Justice Suzanne Côté dissented.
Sibel Ataogul, one of the lawyers at Melançon Marceau Grenier Cohen who represented the plaintiff at the centre of the case, Bijou Cibuabua Kanyinda, told Canadian Lawyer that the high court’s decision means “everything to us.
“This is really for all the thousands of refugee claimants who want to work and whose kids need help after the harrowing ordeal that they go through to come here,” Ataogul says.
Kanyinda is originally from the Democratic Republic of the Congo. In 2018, she arrived in Quebec with her three children and immediately made a refugee protection claim. Her refugee status was approved in 2021.
While her refugee claim was being processed, Kanyinda received a work permit from the province. She contacted three daycare centres to find subsidized childcare for her children, but was repeatedly rejected because her refugee claim was still pending.
Under s. 3 of Quebec’s Reduced Contribution Regulation, which lists the categories of people that are eligible for subsidized daycare, including Canadian citizens living in Quebec, permanent residents, international students, holders of temporary resident permits or work permits, and those with refugee status.
Kanyinda filed a lawsuit challenging s. 3 of the RCR, arguing that it breaches s. 15(1) of the Charter because it discriminates based on sex, citizenship, and a new proposed analogous ground: immigration status. Analogous grounds of discrimination are those beyond the nine that are explicitly listed in s. 15(1), like colour, religion, ethnic origin, and sex.
A Quebec court rejected each of Kanyinda’s claims, ruling that s. 3 of the RCR did not discriminate against individuals based on citizenship, since it entitled seven categories of non-citizens to daycare subsidies. The court also declined to recognize immigration status as a new analogous ground, and found that s. 3 did not discriminate against individuals based on sex because it did not create a sex-based distinction between women and men refugee claimants.
However, the Quebec Court of Appeal disagreed, finding that the regulation created a distinction based on sex and discriminated against women because it perpetuated the historical disadvantage of women and their underrepresentation in the workforce. The province’s attorney general appealed to the high court.
Blocking access to subsidized daycare could worsen ‘economic disadvantages’
In Friday’s decision, Karakatsanis outlined the two-pronged test for determining whether a s. 15(1) Charter breach has occurred. First, a claimant must prove the challenged conduct “creates a distinction” based on the nine enumerated grounds of discrimination listed in s. 15(1) or analogous grounds. Second, the claimant must prove that the conduct “imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.”
Karakatsanis noted that in cases where a seemingly neutral rule or practice actually produces discriminatory effects, evidence that a specific group is disproportionately impacted will often also be relevant at the second stage of the test.
The justice wrote that s. 3 of the RCR meets the first prong of the test because it creates a distinction based on sex. The provision has a disproportionate impact on women refugee claimants compared to men refugee claimants, because the former typically carry a greater share of childcare responsibilities and the availability of affordable daycare is tied to their ability to work.
Karakatsanis pointed to evidence that was presented in this case, which she described as “telling”: “every refugee claimant surveyed with children under six, who reported that lack of daycare access prevented them from working, was a woman.”
Kanyinda’s claim also meets step two of the s. 15(1) test, since s. 3 of the RCR exacerbates the disadvantages faced by women refugee claimants.
“This court has recognized the ‘feminization of poverty’ as an ‘entrenched social phenomenon,’” the justice wrote. “Blocking access to subsidized daycare threatens to reinforce and worsen this economic disadvantage, particularly among a group that is already socio-economically vulnerable.”
The majority found that s. 1 of the Charter could not justify the discrimination breach by the Quebec regulation. The province argued that it wanted to limit daycare subsidies for those with a sufficient link to the province. However, Karakatsanis noted that the regulation provides daycare subsidies to multiple categories of people without permanent status, like international students. This makes it “difficult to see how refugee claimants, who wish to establish themselves more permanently in Canada, are not eligible,” the justice said.
While the Quebec Court of Appeal said daycare subsidies should be available to refugee claimants with work permits, the high court majority reached a broader conclusion, holding that s. 3 of the RCR includes all parents living in Quebec who are refugee claimants, regardless of whether they hold work permits.
In a concurring opinion, Rowe agreed with the majority’s finding that s. 3 of the RCR discriminates based on sex and that the infringement is not justified by s. 1 of the Charter.
However, unlike the majority, he found that there was a “rational connection” between the regulation and Quebec’s objective of limiting daycare subsidies to individuals with a sufficient link to the province.
Wagner also agreed with the majority’s result, but said the Quebec regulation mainly discriminates based on refugee claimant status rather than sex.
Côté, meanwhile, said she would have allowed Quebec’s appeal. She agreed with Wagner’s assessment that s. 3 of the RCR “creates a distinction” based on refugee claimant status, but said the distinction is lawful because that status cannot be recognized as a new analogous ground.
Reviewing the decision, Connor Bildfell, a partner at McCarthy Tétrault LLP who represented one of the intervenors in the case, the Canadian Association of Refugee Lawyers, noted that the high court “carefully scrutinized the connection between the stated objective of the Charter limit (namely, limiting benefits to people with a ‘sufficient’ connection to Quebec) and the means chosen by the government to achieve that objective (namely, excluding refugee claimants).
“Based on that careful scrutiny, the majority held that the means chosen lacked a rational connection to the stated objective,” Bildfell said, adding, “We expect the court’s rigorous approach to the s. 1 justification analysis will influence future Charter cases, especially those where the law passed by government has a weak or non-existent connection to the government’s stated objective.”
Ataogul, the lawyer representing Kanyinda, noted that Wagner’s recognition that the Charter protects refugee claimant status as an analogous ground was the first time such a finding had come from the high court.
But the decision is also notable for another reason. The lawyer said she began representing Kanyinda on a pro bono basis after discovering that one of her friends, also a refugee claimant and mother, could not access daycare subsidies.
“I just want to tell all my colleagues: take that pro bono case because you care about it,” Ataogul says. “Take your neighbour’s case, help people around you, because you never know. You might end up at the Supreme Court.”
The Quebec Ministry of Justice did not immediately respond to a request for comment.
