A shifting workplace
Historically, women in Canada were expected to work primarily in the home. And even if they worked outside the home, it was assumed they’d leave paid employment to marry, have children, and be supported by their husbands. Thus, women were rarely encouraged to pursue high education or long-term careers. And the work they did take usually offered lower pay scales than comparable “male bread-winner” jobs. As a consequence, if a young woman was injured and unable to work, the assessment of her economic losses would be based, at best, on a low-earning working life. This modest assessment could be reduced still more with a “marriage contingency deduction” to take probabilities of marriage and childbearing into account. Once she was married, after all, her paid work would likely cease, as would her loss of income.
Have things changed?
In 2001, Human Resources Development Canada reported that, between 1976 and 2000, women in the workforce more than doubled, going from 3.6 million to 7.4 million, bringing them to 46% of the workforce. Yet women were still far more likely to interrupt careers to care for family and remained the prime caregivers at home.1
Furthermore, according to a Statistics Canada’s 2002 report2, in 1999, “women were paid an average of 80 cents for every dollar earned by men. In other words, women earned an average of $17.14 per hour while men received $21.54 per hour.” Some of the wage-gap could be accounted for by such factors as women doing more part-time work, or working in lower-paying industries, but 38.8% of the gap remained “unexplained.” A significant differential in wage gap remains to the present day.1
Despite continuing inequities, the growth in female employment has been recognised and has led to new understandings in the courts – new valuations of women’s unpaid work, new assessments of women’s income earning potentials.
1Statistics Canada. Table 11-10-0143-01 Average female and male earnings and female-to-male earnings ratio
Claim for loss of housekeeping ability
In May, 1988, a 35 year-old woman named Ms. Kroeker was injured in an accident. Shortly thereafter, she married. Ms. Kroeker’s injuries were such that, in addition to difficulties at her paid job, she found it difficult or impossible at home to vacuum, cook, iron, do the laundry, wash the floors, carry grocery bags, clean windows, appliances and perform other domestic tasks. The trial judge accepted there was a “diminution in … [Ms. Kroeker’s] ability to perform normal household tasks.”
Rather than simply expecting her husband to take up the slack (as the court knew he had done), the B.C. Court of Appeal held that the work Ms. Kroeker could no longer do should be independently assessed and recognized as something of economic value which she had lost. They further decided that Ms. Kroeker should be compensated for this loss even though her domestic work had been unpaid and she was unlikely, due to her husband’s help, to hire an outside person.
This decision has significantly expanded women’s claims for loss of housekeeping ability.
In 2015, the BC Court of Appeal upheld a housekeeping award of $15,000 a year for a young female lawyer who suffered from pain and loss of stamina which the court decided would likely make it difficult for her to come home after a day’s work and perform heavier household tasks requiring extended bending, reaching or scrubbing.
Claim for loss of income earning ability
In 1991, a B.C. trial judge stated that he “accepted as a starting point, that the measure of the (female) plaintiff’s earning capacity should not be limited by statistics based on her sex.” Two 1997 decisions have taken those “radical” words and used them to further advance the law concerning the assessment of claims where women (or girls) have sustained injuries that prevent them from working.
One of the judges went so far as to comment: “Indeed, it may be as inappropriately discriminatory to discount an award solely on statistics framed on gender as it would be to discount on considerations of race or ethnic origin.”
In each case the judges were careful to base their awards on the specific factual characteristics (e.g. the work experience and demonstrated career goals) of the female plaintiffs whose cases they decided. But the trend they recognised is clear: getting married doesn’t necessarily mean a woman will have children. Having children doesn’t necessarily mean a woman will leave the workforce. If a woman does stop working, she may return to full-time work later, or may upgrade her education and look for a better-paying job. All of these changes allow for increases in a woman’s income earning capacity.
Claim for loss of marriageability
A final confirmation that things have shifted comes in claims for loss of marriageability.
When women were not expected to work outside the home, it was assumed they would rely on marriage partners to support them financially. This meant that where a young girl was injured seriously enough to affect her opportunity to marry, she sustained the loss of an opportunity to enjoy a higher economic standard of living through marriage. Thus girls and young women could advance economic claims for their loss of marriageability. With the recognition that women can earn income in their own right, claims for loss of marriageability are being replaced by claims for loss of their own ability to earn income.
Women today have more (and perhaps more difficult) choices than ever before regarding parenting, marriage, education, work. And whichever route a woman chooses, the fact that those choices exist means she now has the right to challenge stereotypes, put forward her unique losses, and claim full compensation for them.
1The “Who, What, When and Where” of Gender Pay Differentials, Catalogue no. 71-584 MIE, no. 4, Statistics Canada
2Work-Life Compendium 2001: 150 Canadian Statistics on Work, Family & WellBeing, Centre for Families, Work and Well-Being, Univ. of Guelph, 2001, Human Resources Development Canada
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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