Needed guidance from the Court of Appeal on the question of the quasi-constitutional protection of parental status in Québec
Introduction
In this matter, the Canadian Union of Public Employees (the “Union”), which represents bus drivers and related services employees employed by the Réseau de transport de Longueuil (the “Employer”), alleged, through a group grievance, that a provision of the collective agreement concerning the granting of attendance credits discriminated against employees who had taken maternity leave, paternity leave or parental leave. This clause provided, as a condition for obtaining attendance credits, an aggregate maximum of three occurrences and 10 days of absence during the reference year and listed types of absences which, exceptionally, should not be taken into account in this calculation, such as social leaves and union leaves. These exceptions did not however include parental leaves.
The Union’s grievance, brought under sections 10 and 16 of the Charter of Human Rights and Freedoms1 (the “Charter”) alleged discrimination based on sex, pregnancy and civil status, maintaining that this latter ground should be interpreted as including “parenthood” or “family situation”. The Employer maintained that the exclusion of these three types of leave from the exceptions provided for in the clause resulted from negotiations between the parties and were explained by their long duration, contrary to social leaves, and by the purpose of attendance credits, which is to recognize the regularity of the employees’ work performance.
The arbitrator rejected the grievance and concluded that the clause was not discriminatory2. The Superior Court upheld the arbitral award by dismissing the Union’s application for judicial review3. The Court of Appeal recently dismissed the Union’s appeal and thus confirmed the reasonableness of the arbitral award4.
Analysis
Discrimination based on civil status
First, the Court of Appeal reiterated its conclusion reached in 2010 in SIISNEQ5 and reaffirmed several years later in Beauchesne6 to the effect that parental status was not a ground of discrimination included in civil status and that it was a [TRANSLATION] “basic error” to make a [TRANSLATION] “matching of necessity that does not exist between parental leave, parental condition and civil status”.7
In this regard, the Court of Appeal criticized the Union for maintaining that there was contradictory case law by invoking decisions rendered by the Human Rights Tribunal (the “Tribunal”)8, thereby unjustifiably disregarding the principle of vertical stare decisis. The Court of Appeal thereby indicated that the Tribunal had rather [TRANSLATION] “put on the back burner” the Court of Appeal’s ruling on this question in some of its decisions.9 In the same breath, the Court of Appeal stressed the fundamental importance of judicial ordering in Quebec for maintaining healthy socio-legal stability.10
The Court of Appeal reinforced this argument by indicating that even though the Charter is to be interpreted broadly and liberally, it is important to take into account that, contrary to subsection 15(1) of the Canadian Charter11, the enumeration of the protected grounds for discrimination under section 10 of the Charter is exhaustive.12 The Court specified moreover that the advisability of making an addition to that list is up to the legislator and that it is [TRANSLATION] “revealing” that it abstained from doing so despite the proposals in this regard made by the Commission des droits de la personne et des droits de la jeunesse in 2018.13
Discrimination based on “pregnancy” or “sex”
In addition, the Court of Appeal analysed whether the exclusion of maternity leave from the types of leave that are not taken into account for the purpose of granting attendance credits constitutes a form of discrimination based on pregnancy or sex; the application of these grounds in this instance, unsurprisingly, not having been challenged. On this issue, the Union alleged that the arbitrator used an inappropriate group of employees with which to compare the situation of employees on maternity leave by stating that [TRANSLATION] “acknowledging that an employee having benefitted from maternity leave is entitled to attendance credits would be tantamount to granting her a benefit which all other employees having been absent more than 10 days during this year would be deprived of”.14
The Court of Appeal did however confirm the reasonableness of this comparison group, indicating that in this instance the comparison of the employee on maternity leave with individuals on paternity leave or parental leave, or even deferred pay leave15, whose exclusion was not based on a prohibited ground, led to the conclusion that the employee on maternity leave had not been excluded because of her pregnancy, but rather, like the other comparables, because of the length of the leave and of the purpose of the attendance credits. The Court of Appeal thus concluded that there was no discriminatory treatment in this case.16
Finally, although this was not required, the Court of Appeal nonetheless addressed the third element constituting discrimination within the meaning of section 10 of the Charter and concluded that a contextual analysis did not show that the employee who was absent on maternity leave suffered any real prejudice as a result of not being granted attendance credits. Among the factors analysed, the Court of Appeal took into account the duration of the maternity leave, i.e. 18 weeks, as well as the various benefits and allowances provided in the collective agreement that were equivalent to or exceeding those provided in the Act respecting labour standards17 and the Quebec Parental Insurance Plan18, on the one hand, and those available to the employees in the comparison group, on the other hand.19
Conclusions
This recent judgment of the Court of Appeal clarifies the state of the law and removes any ambiguity as to the fact that family or parental status is not protected by section 10 of the Charter, and in doing so, rectifies a certain drift that was becoming apparent in the jurisprudence of some lower courts.20
In our view, this decision also sheds interesting light on the choice of the appropriate comparison group when analysing whether or not a clause that provides a benefit for employees tied to work effectively and regularly performed, such as the attendance-credit clause in this case, is discriminatory, given that the inclusion of this type of clause is not uncommon and often gives rise to a number of questions regarding the right to equality of certain employees.
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1 CQLR, c. C -12
2 Syndicat canadien de la fonction publique, Section locale 3333 v. Réseau de transport de Longueuil, 2020 QCTA 295
3 Syndicat canadien de la fonction publique, section locale 3333 v. Martin, 2021 QCCS 4894
4 Syndicat canadien de la fonction publique, section locale 3333 v. Réseau de transport de Longueuil, 2024 QCCA 204
5 Syndicat des intervenantes et intervenants de la santé nord-est québécois (SIISNEQ) (CSQ) v. Centre de santé et de services sociaux de la Basse-Côte-Nord, 2010 QCCA 497 [“SIISNEQ”]
6 Beauchesne v. Syndicat des cols bleus regroupés de Montréal (SCFP-301), 2013 QCCA 2069, [“Beauchesne”], para. 102
7 SIISNEQ, para. 25
8 For example: Commission des droits de la personne et des droits de la jeunesse (Boismenu et autres) v. 9233-6502 Québec (Le Balthazar Centropolis), 2019 QCTDP 30
9 Syndicat canadien de la fonction publique, section locale 3333 v. Réseau de transport de Longueuil, supra, note 4, para. 63
10 Id., para. 66
11 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, (UK) 1982, c. 11
12 Syndicat canadien de la fonction publique, section locale 3333 v. Réseau de transport de Longueuil, supra, note 4, para. 71
13 Id., paras. 73 to 76.
14 Id., paras. 80 and 81.
15 This was a leave of a minimal duration of three months that also was not part of the types of leave not taken into account for the purposes of granting attendance credits.
16 Syndicat canadien de la fonction publique, section locale 3333 v. Réseau de transport de Longueuil, supra, note 4, para. 85
17 CQLR, c. N-1.1
18 Instituted by the Act respecting parental insurance, CQLR c. A-29.011, s. 1.
19 Syndicat canadien de la fonction publique, section locale 3333 v. Réseau de transport de Longueuil, supra, note 4, paras. 91 to 98
20 See also for example l’Université de Montréal (SERUM) Alliance de la fonction publique du Canada (AFPC) and Université de Montréal, 2020 CanLII 9630 (QC SAT), paras. 51 to 55 (Syndicat des employés de la recherche de l’Université de Montréal [SERUM] Alliance de la fonction publique du Canada [AFPC] and Université de Montréal, 2021 QCTA 584 – decision on determining the indemnity).
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