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
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
The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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