When a collective agreement is negotiated, compromises are often
made. Benefits are given to some but not all employees.
However, this can risk being viewed as discriminatory –
depending on who receives the new benefits and who does not. In a
recent case before the Nova Scotia Court of Appeal, IAFF, Local 268
v Adekayode, it was examined whether or not it was
discriminatory for a collective agreement to top up federal EI
benefits for adoptive parents' parental leave but not for birth
In Adekayode, the Human Rights Board had initially
found that a policy of topping up EI benefits for adoptive but not
birth parents was discrimination based on family status as per
section 5(i)(r) of the Human Rights Act. However, the Court
of Appeal overturned this ruling. They held that while the Board
was correct in their analysis of discrimination under section 5 of
the Human Rights Act, section 6 would allow it. Section 6
6 Subsection (1) of Section 5 does not apply
. . . . .
(i) to preclude a law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals
or classes of individuals including those who are disadvantaged
because of a characteristic referred to in clauses (h) to (v) of
subsection (1) of Section 5.
The Board had found section 6 did not apply to the agreement in
this case because there was not a "planned scheme to address a
real and identified difficulty being experienced by employees
seeking to become adoptive parents", and thus the provision of
the collective agreement did not have amelioration as its goal.
However, the Court of Appeal noted that it is completely normal for
negotiating parties to approach the table with differing goals and
to strike a compromise at the end. This in itself does not prevent
the resulting collective agreement provisions from having an object
of improving the conditions of adoptive parents. In this
case, the Court of Appeal found that the goal was to improve the
condition of a "disadvantaged class" – adoptive
Accordingly, in collective agreements, while there may be
various goals of each party entering into an agreement and
different outcomes for different types of employees, it does not
necessarily mean that the result is discriminatory. The
key takeaway from this case is that while the differential
treatment of employees in a collective agreement may violate
human rights, it's important to properly examine the goal of
the provision in context with applicable law.
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