Is Parental Situation a Prohibited Ground of Discrimination under the Charter of Human Rights and Freedoms?

Background

Québec’s highest court heard the appeal of a Superior Court judgment dismissing an application for judicial review filed by the Canadian Union of Public Employees, Local 3333 (hereinafter the “Union” or the “Appellant”) in respect of a grievance arbitrator’s award. 

The Union filed a group grievance alleging that a provision of the collective agreement regarding “attendance credits,” recognizing regular work attendance in exchange for time off, discriminated against employees on maternity, paternity or parental leave.

In order to benefit from this leave, certain conditions have to be met. Attendance credits are granted to employees who, during a given reference year, are not absent on more than three occasions or for more than ten days. When calculating the number of absences, the collective agreement expressly excludes certain types of leave, but maternity, paternity and parental leave are not specifically excluded.

The Union argued that the practice amounted to discrimination of a condition of employment based on sex, pregnancy and civil status, and that the latter included the concept of “parenthood” or “family situation.”

The Arbitration Award

The arbitrator considered three issues raised by the parties. First, he found that maternity, paternity or parental leave is not included in the personal leave exception in the collective agreement. Second, the arbitrator determined that employees on maternity, paternity or parental leave are not considered to be at work for the purpose of attendance credits. Third, relying on the decision in SIISNEQ,[1] the arbitrator concluded that the exclusion of these types of leave is not discriminatory within the meaning of section 10 of the Charter.

The arbitrator explained that personal leave is a special type of short-term leave, used for specific circumstances, whereas parental leave is long-term. Employees on such leave are exempt from any obligations to the employer. The parties had expressly provided for the specific circumstances under which parental leave was to be considered time worked, and obtaining attendance credits was not one of them.

Superior Court Judgment

The Superior Court concluded that it was reasonable for the arbitrator to find that excluding parental leave from eligibility for attendance credits was not discriminatory within the meaning of section 10 of the Charter. Therefore, the Superior Court dismissed the application for judicial review.

Court of Appeal’s Decision

1. Legal Framework of Sections 10 and 16 of the Charter

   The Court of Appeal began by reiterating the legal framework applicable to sections 10 and 16 of the Charter. Section 10 guarantees everyone the right to full and equal recognition and exercise of their rights and freedoms, without discrimination based on grounds such as race, sex, religion, civil status, etc. While section 10 cannot itself give rise to a cause of action, it does protect an individual’s right not to be subjected to distinctions or exclusions in respect of their conditions of employment, as provided in section 16.

   As such, a distinction that is unfavourable is not automatically discriminatory. To prove discrimination, it must be shown that the distinction relates to one of the prohibited grounds set out in section 10, and that it impairs the exercise of the specific right invoked. There are two types of discrimination: direct discrimination, which is an explicit distinction based on a prohibited ground, and constructive or adverse effect discrimination, which is the adverse effect of an seemingly neutral rule or practice that actually has a discriminatory effect on an employee or group of employees because of a distinct characteristic.

   A difference in treatment can be discriminatory even if it is based on choices made by the particular individual or group. To prove discrimination, the plaintiff bears the burden of proof with respect to three elements:

   1. prove that they were the subject of a distinction;
   2. establish that a ground protected under section 10 was a factor in the differential treatment; and
   3. demonstrate that such differential treatment jeopardizes the exercise of a Charter-protected right.
2. Analysis

   First, the Court of Appeal reiterated the concept previously established in SIISNEQ, which found that “civil status” in section 10 does not necessarily include “parenthood” or “parental situation”. The Court vigorously rejected the Union’s allegations that SIISNEQ was inconsistent with other decisions and that it was merely an “isolated” decision. In the Court’s opinion, those decisions in no way affect the reasoning in SIISNEQ. In fact, the Court of Appeal noted that subsequent case law has affirmed the ruling in SIISNEQ.

   The Court of Appeal pointed out that, unlike subsection 15(1) of the Canadian Charter of Rights and Freedoms,[2] the list of grounds of discrimination set out in section 10 of the Charter is exhaustive. It cannot be extended to include analogous grounds. The Court added that subsequent developments[3] suggest that parenthood or parental situation is not included in the ground of discrimination based on civil status.

   Second, the Court of Appeal considered whether excluding maternity leave from the types of leave taken into account in the granting of attendance credits was a ground of discrimination based on sex or pregnancy. The Appellant alleged that the arbitrator and the Superior Court had erred by using an inappropriate group of employees for comparison purposes. However, the Court of Appeal confirmed the legitimacy of the comparison group. The Court indicated that the comparison between employees on maternity, paternity or parental leave, all of which are excluded from the exceptions to the calculation of absence credits, allowed it to conclude that an employee on maternity leave was not excluded due to pregnancy. Instead, their exclusion was based on the length of the leave and the purpose of the attendance credits.

   In conclusion, the Court found that the arbitrator was not unreasonable in finding that the exclusion of maternity, paternity and parental leave is not a form of discrimination based on civil status.

Takeaways

In addition to the detailed discussion of the burden of proof incumbent on an applicant alleging “discrimination” under section 10 of the Charter, the Court of Appeal confirmed that the list of grounds of discrimination set out in section 10 is exhaustive. Accordingly, the “civil status” ground of discrimination does not include “parenthood” or “parental situation.”

The decision also confirms that making a distinction between absences relating to maternity, paternity and parental leave and other types of absences is not necessarily discriminatory, despite certain decisions previously rendered by the Human Rights Tribunal.