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Supreme Court of Canada gives quick win to BCTF on parental benefits

The Supreme Court of Canada recently made a rare oral ruling from the bench, giving the B.C. Teachers’ Federation (“BCTF”) a quick win in their appeal of a decision by the B.C. Court of Appeal regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms.

The case started in 2012 with a grievance filed by the BCTF against the British Columbia Public School Employers’ Association and the Board of School Trustees of School District No. 36 (collectively, the “Employer”). The grievance alleged that the collective agreement discriminated against birth mothers in that it only provided supplemental employment benefits (“SEB”) to a birth mother for pregnancy leave or parental leave. That is, birth mothers could qualify for the SEB during either pregnancy leave or parental leave; birth fathers and adoptive parents could of course only receive the SEB during parental leave. In any case, birth mothers, birth fathers and adoptive parents were eligible for a total SEB of 17 weeks.

The arbitrator held this constituted discriminatory and unequal treatment because birth mothers could not qualify for parental leave SEB if they received the pregnancy leave SEB, even though these leaves are for different purposes. The arbitrator did not opine on the appropriate remedy for the discrimination, because the parties were engaged in collective bargaining and could determine themselves how best to remedy the offending provision of the collective agreement in light of the arbitrator’s decision.

The B.C. Court of Appeal decision held that the arbitrator had erred in finding discriminatory or unequal treatment. In fact, birth fathers had been brought into the SEB scheme in earlier versions of the collective agreement in order to provide equal treatment for all parents. The court concluded that the distinction between the purpose of pregnancy/maternity leave and parental leave was not material and that, since the collective agreement provided the same SEB benefit to birth mothers, birth fathers and adoptive parents, there was no unequal treatment.

The Supreme Court of Canada made quick work of the BCTF’s appeal, ruling from the bench that the B.C. Court of Appeal’s decision could not be sustained and reinstating the decision of the arbitrator. In its following written decision, the Court held simply:

The Court of Appeal erred in failing to give deference to the Arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits. The Arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy. The appeal is allowed with costs and the Arbitrator’s award is restored.

What does this mean for employers? First off, it bears repeating that the arbitrator did not make any remedial order, expecting that the parties would resolve it following the grievance decision. Accordingly, the state of the law remains simply that employers cannot discriminate in the provision of benefits on the grounds protected under the Human Rights Code. Employers should review their leave and benefit policies and any applicable agreements to ensure that birth mothers are afforded access to benefits that are available to mothers and parents.

Of concern to employers is the fact that the BCTF mutually bargained this benefit and its terms with the Employer. Having struck this deal with the Employer, it seems the BCTF should be equally liable for any discrimination against birth mothers. For this reason, beware of concession bargaining where a union appears to be offering a concession that it could turn around and challenge as soon as the collective agreement is settled.

By Christopher McHardy

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP
McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more
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