Substantive Equality, the Supreme Court of Canada, and the Limits to Redistribution

This article seeks to discover why constitutionally guaranteed equality rights have had a limited redistributive impact in Canada. It begins by reviewing different conceptions of equality, identifying the conception that is dominant within the Supreme Court’s jurisprudence, and illustrating how this conception is not conducive to redistribution. It then shifts to Newfoundland v NAPE, a 2004 decision of the Supreme Court of Canada in which a unanimous Court upheld, as a demonstrably justified limitation on equality rights, legislation enacted by the Newfoundland government that overrode the pay equity agreement the government had negotiated with the unions representing women health-care workers. As this case proceeded through the courts, the national press reported a debate amongst Canadian elites about whether it was legitimate for the courts to issue decisions that interfered with the ability of elected governments to determine their spending priorities. The discussion of Newfoundland v NAPE emphasizes four themes in the decision that block or impede the redistributive potential of substantive equality — private debts versus public obligations, dignity versus distribution, fiscal crisis, and the separation of powers — which function as formidable hurdles for the transposition of a conception of substantive equality that is strongly redistributive into Canadian jurisprudence.