Canada: Bender: No Discrimination Based On Sex Or Family Status

Employers whose workforce accrue seniority based on days actually worked will want to take note of a recent employment decision by the Human Rights Tribunal of Ontario ("HRTO") which considered allegations of discrimination based on sex (including pregnancy) and family status.

In Bender v. Limestone District School Board, an educational assistant alleged that her employer's practice of calculating seniority on the basis of time worked as a casual employee was discriminatory because it effectively excluded her time on maternity leave. The complaint was dismissed by the Vice Chair on the ground that all casual employees who became permanent employees were not credited seniority when they were unavailable for work, regardless of the reason for the unavailability.


On April 21, 2001, Ms. Shellie Bender ("Bender") commenced employment with the Limestone District School Board (the "Board") as a casual educational assistant. Under the collective agreement, casual employees were not provided any guarantee with respect to hours of work. Conversely, casual employees were not required to provide the Board with any guarantee of availability.

In April 2005, Bender took her first maternity leave, returning in October 2006 as a casual educational assistant with the Board. Between 2007 and 2011, Bender took her second maternity leave and was also off on sick leave on several occasions. On February 1, 2012, she was hired as a full-time caretaker.

In January 2013, Bender requested credits towards her seniority for the period she was on maternity and sick leave. She was advised that under the collective agreement, time spent on maternity leave would not accrue towards her seniority and that she would only be credited for actual days worked as a casual employee. Bender commenced an application with the HRTO alleging that the Board's practice was discriminatory on the basis of sex, including pregnancy, and family status contrary to the Human Rights Code (the "Code").

Position of the Parties

Bender took the position that the Board's refusal to recognize her maternity was discriminatory given its effect on educators who identify as women. She argued that women who get pregnant and take maternity leaves are put at a disadvantage compared to their male counterparts because they are unable to accumulate the same amount of seniority over a fixed period of time. On this basis, she claimed that the provision of the collective agreement was discriminatory since it limited her ability to accrue seniority. This in turn reduced her chances of filling vacancies and made her more vulnerable to layoffs and less likely to be hired back after layoffs.

Bender relied heavily on the 1999 Ontario Court of Appeal decision in Ontario Nurses' Association v. Orillia Soldier Memorial Hospital which dealt with the impact of seniority provisions in a collective agreement. In that case, a collective agreement provided that nurses on unpaid long-term disability leave would remain employees but would not accumulate seniority after one year of absence. This was significant given that seniority was directly tied to workplace opportunities, including filling vacancies and determining the order of layoffs and hire backs. However, unlike Bender's case, seniority was accorded to these individuals based on the passage of time of employment rather than actual performance of work. After a careful review of the collective agreement, the Court of Appeal concluded that the provision in question was discriminatory as it exposed nurses on long-term disability leave to an increased risk of layoff and made them less able to compete equally for promotions.

The Board argued that Orillia did not apply and differentiated it on the ground that it involved the entitlement of seniority credits of permanent employees rather than casual employees. The Board maintained that all casual employees were treated the same under the collective agreement in that they did not accrue seniority when they were unavailable for work, regardless of the reason for the unavailability. The Board emphasized that this method of calculating seniority was the only way to award casual employees any recognition for their past service since the collective agreement afforded them the complete discretion to refuse work at any time and for whatever reason.


The Vice Chair's decision turned primarily on the fact that the collective agreement accorded seniority based on performance of work rather than the passage of time of employment. This was a key distinction from Orillia because it meant that all casual employees were subject to the same calculation of seniority credits, regardless of the reason for their unavailability. In addition, the Vice Chair noted that, although Bender had the right to be offered work, she had no right to guaranteed regular hours. In light of this, the Vice Chair opined that it could not be said "that but for childbirth and associated leave (or any other form of protected leave), she would have been offered a certain number of hours of work".

In conclusion, the Vice Chair held that Bender's inability to accrue seniority while on maternity leave did not amount to discrimination under the Code and accordingly dismissed the application. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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