Date: 19971211
File: T-1802-96
OTTAWA, ONTARIO, DECEMBER 11, 1997
Present: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
Between:
CANADIAN HUMAN RIGHTS COMMISSION,
Applicant,
- and -
HUMAN RIGHTS TRIBUNAL,
composed of Roger Doyon, Andrée Marier and
Jean-Noël Carpentier,
Respondents,
- and -
EMPLOYMENT AND IMMIGRATION COMMISSION,
DEPARTMENT OF NATIONAL REVENUE (TAXATION),
TREASURY BOARD, PUBLIC SERVICE ALLIANCE OF CANADA,
Respondents,
- and -
JO-ANN DUMONT-FERLATTE ET AL. and
SUZANNE GAUTHIER ET AL.,
Mis en cause.
ORDER
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
Christiane Delon, LL.L.
Date: 19971211
File: T-1802-96
Between:
CANADIAN HUMAN RIGHTS COMMISSION,
Applicant,
- and -
HUMAN RIGHTS TRIBUNAL,
composed of Roger Doyon, Andrée Marier and
Jean-Noël Carpentier,
Respondents,
- and -
EMPLOYMENT AND IMMIGRATION COMMISSION,
DEPARTMENT OF NATIONAL REVENUE (TAXATION),
TREASURY BOARD, PUBLIC SERVICE ALLIANCE OF CANADA,
Respondents,
- and -
JO-ANN DUMONT-FERLATTE ET AL. and
SUZANNE GAUTHIER ET AL.,
Mis en cause.
REASONS FOR JUDGMENT
TREMBLAY-LAMER J.:
[1] This is an application under section 18.1 of the Federal Court Act1 for judicial review of a decision of the Human Rights Tribunal relating to the complaints of discrimination filed by a group of employees of the Public Service of Canada against their employer and union. The Tribunal dismissed the complaints, there being no prima facie case of discrimination. The applicant Canadian Human Rights Commission has asked the Court to issue a writ of certiorari quashing the decision of the Tribunal.
FACTS
[2] Between 1982 and 1995, a total of 105 employees of the Department of National Revenue and the Employment and Immigration Commission filed complaints with the Canadian Human Rights Commission alleging they had been discriminated against on the basis of their sex. Their complaints related to the provisions of their collective agreements, which limited the accumulation of vacation and sick leave credits and the monthly payment of the bilingualism bonus to employees who received pay or salary for at least ten days in each calendar month. The employer had refused to give the complainants these benefits while they were on maternity leave. The collective agreements provided for maternity leave without pay. Thus women who took maternity leave could not receive the benefits in question since they were not receiving any pay. The complainants alleged that their employer had discriminated against them by refusing to give them those benefits.
COLLECTIVE AGREEMENTS
[3] The relevant clauses of the collective agreements governing the complainants' work are reproduced below:
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Accumulation of Vacation Leave Credits |
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An employee shall earn vacation leave credits for each calendar month during which the employee receives pay for at least ten (10) days ... |
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Sick leave with pay - Credits |
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An employee shall earn sick leave credits at the rate of one and one-quarter (1 1/4) days for each calendar month for which the employee receives pay for at least ten (10) days. |
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[4] The provisions of the Treasury Board Personnel Management Manual read as follows:
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An eligible employee shall be entitled to receive the bilingualism bonus for the full month for any month in which the employee receives a minimum of ten (10) days pay in a position(s) to which the bilingualism bonus applies. |
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LEGISLATIVE PROVISIONS
[5] Section 2 of the Act prohibits discrimination:
| 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an equal opportunity to make for themselves the lives that they are able and wish to have, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
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2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
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[6] The prohibited grounds of discrimination are listed in section 3:
| 3.(1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.
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3.(1) Pour l'application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, l'état de personne graciée ou la déficience.
(2) Une distinction fondée sur la grossesse ou l'accouchement est réputée être fondée sur le sexe.
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[7] Sections 7 and 9 define discriminatory practices in relation to employment:
| 7. It is a discriminatory practice, directly or indirectly,
a) ...
b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
9.(1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination
a) ...
b) ...
c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement relate to the individual.
(2) ...
(3) ...
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7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) ...
b) de le "un individu > défavoriser en cours d'emploi.
9.(1) Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour une organisation syndicale :
a) ...
b) ...
c) d'établir, à l'endroit d'un adhérent ou d'un individu à l'égard de qui elle a des obligations aux termes d'une convention collective, que celui-ci fasse ou non partie de l'organisation, des restrictions, des différences ou des catégories ou de prendre toutes autres mesures susceptibles soit de le priver de ses chances d'emploi ou d'avancement, soit de limiter ses chances d'emploi ou d'avancement, ou, d'une façon générale, de nuire à sa situation.
(2) ...
(3) ...
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DECISION OF THE TRIBUNAL
[8] The Commission found that the provisions of the collective agreements did not expressly discriminate against pregnant women. It found, instead, that the clauses had an indirect discriminatory effect on women because they were subject to disadvantageous treatment, in comparison to men, in that they were deprived of the accumulation of their vacation and sick leave credits and of payment of their bilingualism bonus simply because they might be pregnant, a situation that men would never experience. In other words, the Commission relied on the argument of indirect discrimination, or discrimination that results from "adverse effect".
[9] The Tribunal dismissed the complaints. It was of the opinion that the Commission had not succeeded in establishing a prima facie case that the provisions of the collective agreements created a discriminatory effect. Relying on the opinion of Hugessen J. in Thibaudeau v. M.N.R.,2 the Tribunal held that it was not sufficient to compare the situation of women to the situation of men to determine whether the clauses created an adverse effect. He preferred to compare the treatment of women on maternity leave to the treatment of other employees who took a similar form of leave, that is, leave without pay. The Tribunal's analysis shows that maternity leave was treated much more advantageously than the other forms of leave without pay. Thus the impugned clauses did not have discriminatory effect on the basis of sex.
POSITION OF THE PARTIES
The applicant
[10] The Commission cited three arguments in support of its application. First, it contended that the Tribunal had erred in law when it held that it was not sufficient to [translation] "compare the situation of a pregnant woman to the situation of a man who will never experience pregnancy" in order to determine whether the clauses had discriminatory effect. According to the Commission, the approach taken by the Tribunal, which was to compare the treatment received by pregnant women with the treatment of other employees on leave without pay, is contrary to the principle laid down by the Supreme Court of Canada, which stipulates that a policy is discriminatory if it has "disproportionate" effect on the members of the protected group or if it affects a larger number of people of one sex than of the other.3 In the instant case, the clauses of the collective agreements do not affect men, who will never find themselves pregnant. Accordingly, the Commission concludes, the clauses are discriminatory.
[11] Second, the Commission contends that it has shown, prima facie, that the complainants were discriminated against. It established before the Tribunal that the complainants were employed in the federal public service, that they were covered by a collective agreement, that they were pregnant, that they took maternity leave and that they were unable to accumulate vacation and sick leave credits and could not receive their bilingualism bonus. In the Commission's eyes, this constitutes prima facie evidence of discrimination and should have entitled them to the remedy sought where the employer failed to show justification.
[12] Third, the Commission alleges that the Tribunal did not compare maternity leave with sick leave with pay. A comparison of that nature would have been desirable, having regard to the comments of McIntyre J. in Brooks v. Canada Safeway Ltd.,4 holding that maternity leave should not be treated less advantageously than other types of leave relating to health. Sick leave with pay confers entitlement to more benefits than maternity leave since it is a form of leave with pay and allows employees who have accumulated enough credits to take leave with pay. The employees may thus continue to accumulate vacation and sick leave credits and to receive the bilingualism bonus. Maternity leave is thus not treated as advantageously as sick leave with pay.
[13] These errors, as a whole, justify this Court in intervening. The Commission is asking that the decision of the Tribunal be quashed and that the matter be referred back to a new panel.
The respondents
[14] The respondents contend that the Tribunal did not err in law when it held that it was not sufficient to compare the situation of a pregnant woman to that of a man who will never experience pregnancy. The courts have held that in indirect discrimination cases, an employment rule is discriminatory if it adversely affects a group of employees in comparison with other employees to whom the rule applies.5
[15] According to the respondents, the Tribunal was therefore right to conclude that the Commission had not succeeded in showing, prima facie, that the clauses in the collective agreements in question were discriminatory. It is clear on reading the impugned provisions that they establish different treatment for all employees who do not work for ten days in a calendar month. The evidence before the Tribunal shows that the treatment is identical for all employees affected by the clauses, that is, employees on leave without pay. Accordingly, the impugned provisions do not indirectly disadvantage women in employment by reason of pregnancy.
[16] The respondents also contend that the Tribunal did not err in law when it declined to compare maternity leave to sick leave with pay, since they are two different kinds of leave (maternity leave is leave without pay). By accumulating sick leave credits, employees are able to take time off work for health reasons without loss of pay, until they exhaust their accumulated credits. The employer notes that in order to accumulate 17 weeks of sick leave with pay (which is how long maternity leave lasts), an employee must work for six years and not take any sick leave with pay during that period.
[17] Lastly, the respondents add that if the Court decides that the Tribunal did err in law, the case should be referred back to the same panel. There is nothing to reasonably justify appointing a new panel, given how long the initial trial lasted.
[18] The union that negotiated the collective agreements on behalf of the employees argues simply that it is not responsible for the fact that the Tribunal concluded that the complainants had been indirectly discriminated against, having regard to the employer's primary responsibility and the considerable efforts it made to accommodate them.
ISSUES
[19] In view of the parties' arguments, this case raises three issues:
| 1. Is it sufficient, in order to conclude that there was indirect discrimination, to compare the situation of pregnant women to the situation of men in general? |
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| 2. Can maternity leave be compared to sick leave with pay? |
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| 3. Has the Commission succeeded in establishing a prima facie case of discrimination? |
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ANALYSIS
Indirect discrimination
[20] A few preliminary comments need to be made concerning discrimination. Although the Canadian Human Rights Act prohibits discrimination based on the grounds listed in subsection 3(1), nowhere does it define what constitutes "discrimination". In Andrews v. Law Society of British Columbia,6 McIntyre J. defines the expression by incorporating three components. He states that discrimination is (1) a distinction, (2) based on a personal characteristic that corresponds to a prohibited ground of discrimination and that (3) imposes a burden on some individuals and not on others:
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I would say then that discrimination may be described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.7 |
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[21] Discrimination may be direct or indirect. Discrimination is said to be direct when, for example, a rule, condition or practice in employment prima facie creates a distinction based on a prohibited ground. This is the case where an employer refuses to hire women or black persons: its policy expressly creates a difference in treatment.
[22] On the other hand, indirect discrimination occurs where a rule, condition or practice in employment which is facially neutral adversely affects certain employees in the group to whom it applies by reason of a characteristic personal to them which corresponds to a prohibited ground.
[23] This is how the Supreme Court of Canada described this form of discrimination in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears.8 In that case, the appellant was employed part-time by a retail store. Her employer required that all employees periodically work on Saturday as a condition of their employment. The appellant alleged that this practice was discriminatory. The appellant, who was a member of the Seventh Day Adventists Church, was obliged not to work for a twenty-four hour period beginning at sundown on Friday, to keep the Sabbath. Her employer had tried to accommodate her, but had ultimately reduced her to casual employee status.
[24] McIntyre J., speaking for the Court, held that the employer's business hours policy constituted a form of discrimination based on religious belief. He stated that a condition of employement that appears to apply equally to all employees may be discriminatory if it has the effect of imposing a burden on an employee or group of employees which is not imposed on other employees to whom the same condition applies:
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An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.9 |
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[25] These two forms of discrimination - both direct and indirect - are prohibited by the Canadian Human Rights Act, and also by the other statutes that apply to human rights and which result in different consequences. If a court is of the view that there has been direct discrimination, the impugned rule will be quashed unless the employer is able to justify it. If the court is of the view that the discrimination is indirect, the rule will not be quashed. It must first be determined whether the employer has tried to accommodate the person discriminated against, that is, whether it has taken reasonable steps without suffering undue hardship.
[26] In the instant case, the impugned clauses of the collective agreements are based on the fact that the employee is not working. An employee who is not working receives no pay, and accordingly is not entitled to accumulate vacation leave credidts and sick leave credits and to the bilingualism bonus. These clauses do not prima facie create a distinction between women and men. They do not expressly distinguish between the sexes by treating women differently. The parties are in agreement that if there is discrimination in the instant case it would be indirect. The question is therefore now whether the clauses affect the complainants' group adversely in comparison with the other persons to whom they may apply.
Prima facie case
[27] In cases involving allegations of direct or indirect discrimination, the burden of proof is split between the party who alleges discrimination and the party who denies it. The complainant must make a prima facie case that he or she has been discriminated against. The employer must then show either that the rule is justified, in the case of direct discrimination, or that it has tried to accommodate the employee, in the case of indirect discrimination. The evidentiary standard that applies is the one used in civil matters: the balance of probabilities.10
[28] In the instant case, the Tribunal concluded that the Commission had not discharged its obligation of making a prima facie case that there had been discrimination. Just what is a prima facie case of discrimination?
[29] In Ontario Human Rights Commission v. Borough of Etobicoke, McIntyre J. stated that the complainant had to establish "a prima facie case of discrimination".11
[30] In O'Malley, he stated that such a case "is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer".12
[31] In Canada (Minister of National Defence) v. Mongrain,13 the Federal Court of Appeal added that it is not sufficient for the complainant to assert that he has reasonable grounds to believe that he has been discriminated against. He must make a prima facie case.
[32] Thus, in order to show that an employment rule is discriminatory, a complainant must establish a prima facie case that the three elements of the definition of discrimination are present. He or she must prove that the rule creates a distinction, that the distinction is based on a prohibited ground and that it imposes a burden on an individual or group of individuals.
[33] Discrimination is established by doing a comparative analysis. In direct discrimination cases, a complete case is one that shows that the employment rule, on its face, establishes distinctions based on prohibited grounds. Pierre Bosset talks about [translation] "showing different treatment in the clearest manner between group X and group Y"14 [emphasis mine]. It must be shown that the complainant has been treated differently from another group of people.
[34] It will be more difficult to make a case of different treatment when the discrimination is indirect, since it then results from a rule which on its face applies equally to everyone. In fact, there is prima facie no correlation between the criterion on which the distinction is based and its ultimate effect. The challenge is then to establish that the rule adversely affects a group in comparison to other people to whom the impugned rule may apply. However, the comparison may not be made, as the Commission contends, with other groups that are not affected by the rule.
[35] To illustrate the type of comparative analysis that must be done in indirect discrimination cases, we shall examine the decision of the Saskatchewan Court of Appeal in Anderson v. Saskatchewan Teachers' Superannuation Commission as an example.15 The complainants in that case were two teachers. They both took time off from work during the 1960s because they were pregnant.
[36] In 1990, they applied under the Saskatchewan Teachers' Superannuation Act16 (the "Superannuation Act") to buy back the period of time when they had taken time off work for maternity so that they could accumulate the 30 years of experience they needed in order to retire. Subsection 22(1) of the Superannuation Act allowed people who had been authorized to take maternity, adoption or parental leave to buy back their period of absence.
[37] The complainants' request was denied because at the time they were pregnant it was not the practice of the school board to approve maternity leave. Before 1976, teachers were instead required to resign their positions and apply to be reinstated once they were ready to return to work. The complainants filed a complaint with the Saskatchewan Human Rights Commission, alleging that subsection 22(1) of the Superannuation Act discriminated against women.
[38] The majority of the Saskatchewan Court of Appeal concluded that the provision of the Superannuation Act in question did not discriminate against women. Gerwing J.A. noted that subsection 22(1) created a distinction based on time, that is, it distinguished between people who took maternity, adoption or parental leave before 1976 and people who took leave after 1976. He used as the comparison group a group affected by the provision in issue: other people who had taken adoption or parental leave before 1976. Since the complainants had not been treated differently, subsection 22(1) was not discriminatory:
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I agree with the conclusion of the Queen's Bench judge below that it distinguishes between parents who took time off to care for their new children prior to the inception of the board-approved leaves in 1976 and all other teachers, some of whom took board-approved leaves of absence after the Act was amended in 1976. That is, the clear meaning of the section suggests that the fact that only women can become pregnant is beside the point. Men and adoptive parents who took parental leave before board-approved leaves were instituted have also been denied the option to buy back lost pension benefits. |
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The board of inquiry below did indeed fail to compare the position of women pregnant in the 1950s and 1960s to that of men, but compared them to another group of women, those pregnant and on maternity leave after 1976, in order to determine if discrimination had occurred. However, one must look at the legislation and that clearly shows that male teachers would fall into both categories, that is, those offered the buy-back and those who were not so offered. Accordingly, in my view, the conclusion of the Queen's Bench judge below, that the discrimination is not based on sex, is correct. The differentiation appears to be based only on time, that is, when the absence took place in relation to the enactment of the provision to permit pension benefits in situations where there has been a board-approved leave.17 |
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[39] The same method of comparative analysis was used by the Federal Court of Appeal in Hempel v. Canada Employment and Immigration Commission et al.18. That case involved a teacher who was off work because of illness. She was denied sickness benefits during the summer months, based on section 46.1 of the Unemployment Insurance Regulations.19 In Taylor v. Minister of Employment and Immigration20 it had been held that a teacher who was off work because of illness could not receive sickness bnefits during vacation periods because of paragraph 46.1(2)a). The appellant submitted that section 46.1 discriminated against people who are mentally ill.
[40] The Court of Appeal did not share that opinion. As McDonald J.A. pointed out, section 46.1 applies to all teachers who are off work because of illness. Teachers with a mental illness are not treated differently in comparison with other teachers who are off work because of illness:
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The fact that Ms. Hempel was mentally disabled does not single her out from receipt of benefits during the non-teaching period. |
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Persons receiving sickness benefits because of any physical condition other than pregnancy do not receive benefits over the summer period either. The applicant is not being denied a benefit or suffering any discriminatory burden simply because she was mentally ill for a period of time.21 |
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[41] Thus it is not enough to say that more women than men are affected by the clauses. We must consider whether women as a sub-group of employees covered by the rule are adversely affected in comparison with other employees who are affected by the rule. For example, in Thibaudeau,22 the Federal Court of Appeal concluded that paragraph 56(1)(b) of the Income Tax Act,23 which requires that a separated parent who has custody of the children of the marriage include any amount received pursuant to a judgment as an allowance for the maintenance of children was not a form of discrimination based on sex.
[42] According to Hugessen J.A., the fact that more women than men are adversely affected by a provision does not automatically make it discriminatory. In fact, if legislation has the same adverse effects on women as on men, even though their numbers may be smaller, it cannot be concluded that this is discrimination based on sex. Paragraph 56(1)(b) impacted in the same way on custodial fathers, and so paragraph 56(1)(b) did not discriminate on the basis of sex.
[43] In the instant case, if it appears from this comparison with the other people affected that the impugned clauses impose a disadvantage based on sex, we may then conclude that the Tribunal erred in finding that the Commission had not met its prima facie burden.
Comparison groups
[44] What are the appropriate comparison groups? The Commission contends that the Tribunal erred in refusing to compare maternity leave to sick leave with pay. I believe that there is no error here. In theory, when a person is off work because of illness, that person is not entitled to be paid because he or she is not doing work. This is the very essence of the contract of employment: pay is conditional on work being performed.
[45] The collective agreements provide that employees may accumulate a fraction of a sick day with pay for each day they work. Employees may therefore be off work because of illness without losing pay until they exhaust the number of days accumulated.
[46] Thus the impugned clauses of the collective agreements do not apply to employees who take sick leave with pay since those employees do not lose any pay. Sick leave with pay is therefore not an appropriate comparison. Rather, we must consider which groups of employees may be covered by the provisions in question. In other words, we must determine whether a pregnant woman who takes time off work because of maternity leave is treated differently from groups of employees who take leave of the same nature.
[47] The evidence given before the Tribunal was that maternity leave is a form of leave without pay. Since no work is done because of maternity, the employee receives no pay. Accordingly, the Tribunal was correct to compare maternity leave with the other forms of leave without pay provided for in the collective agreement, including paternity leave without pay, adoption leave without pay, leave without pay for the care and nurturing of pre-school age children, leave without pay for relocation of spouse, leave without pay for personal needs, sick leave without pay, leave without pay for education and training, military leave without pay, leave without pay to participate in the activities of an international organization, leave without pay to run in an election and leave without pay for union activities.
[48] The respondent employer had filed a table in evidence before the Tribunal identifying these various forms of leave without pay and the benefits associated therewith.
[49] This table clearly shows that the other forms of leave without pay are treated in the same manner as maternity leave. First, there is no distinction among the various forms of leave without pay with respect to accumulation of vacation and sick leave credits and the monthly payment of the bilingualism bonus. An employee who takes leave without pay, regardless of the form of the leave, cannot receive those benefits while he or she is off work. In addition, when any leave without pay is taken, job security is preserved, salary increases are guaranteed and the time used is recognized for calculating continuous service when retirement is taken and for calculating the rate at which vacation leave is accumulated.24
[50] However, in addition to all that, as the Tribunal noted, there are superior benefits for maternity leave. This is plain if we compare maternity leave to sick leave without pay because of disability. In the latter case, the employee is entitled to benefits paid under the long-term disability insurance plan or to unemployment insurance sickness benefits, provided that the person has exhausted his or her sick leave with pay credits. This requirement is not imposed for maternity leave without pay. In addition, a person on maternity leave will receive 93 per cent of her salary, while an employee on sick leave without pay will receive 70 per cent of insurable earnings.
[51] A pregnant woman who takes time off work for maternity leave is therefore not treated differently from groups of employees who take leave of the same nature.
CONCLUSION
[52] The Tribunal did not err in dismissing the complaints on the ground that the Commission had not succeeded in establishing a prima facie case that the impugned clauses of the collective agreements discriminated against the complainants. Accordingly, the application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
December 11, 1997
Certified true translation
Christiane Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1802-96
STYLE OF CAUSE: Canadian Human Rights Commission v.
Human Rights Tribunal et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 28, 1997
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
DATED: December 11, 1997
APPEARANCES:
François Lumbu and FOR THE APPLICANT
Odette Lalumière
Rosemarie Millar and FOR THE RESPONDENT
Hélène Laurendeau
James Cameron FOR THE PUBLIC SERVICE
ALLIANCE OF CANADA
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SOLICITORS OF RECORD:
Legal Services FOR THE APPLICANT
Canadian Human Rights Commission
Ottawa, Ontario
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
Raven, Allen, Cameron & Ballentyne FOR THE PUBLIC SERVICE
Ottawa, Ontario ALLIANCE OF CANADA
__________________
1 R.S.C. 1985, c. F-7.
2 [1994] 2 F.C. 189 (C.A.).
3 The Supreme Court stated that principle in the following decisions: Forget v. Quebec (Attorney General) , [1988] 2 S.C.R. 90; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; and Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279.
4 [1989] 1 S.C.R. 1219.
5 The respondents refer to the following decisions: Central Alberta Dairy Pool v. Alberta (Human Rights Commission) , [1990] 2 S.C.R. 489; Schachter v. Canada, [1992] 2 S.C.R. 679; Thibaudeau v. M.R.N., supra note 3, rev'd (sub nom. Thibaudeau v. Canada) [1995] 2 S.C.R. 627; Hempel v. Canada Employment and Immigration Commission et al. (1997), 205 N.R. 309 (F.C.A.).
6 [1989] 1 S.C.R. 143.
7 Ibid. at p. 174.
8 [1985] 2 S.C.R. 536.
9 Ibid. at p. 551. This passage was quoted by Wilson J. in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), supra note 6 at p. 506.
10[1982] 1 S.C.R. 202"> Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202 at 208; O'Malley, supra note 9 at pp. 558-59.
11 Ibid.
12 Supra note 9 at p. 558.
13 [1992] 1 F.C. 472 (C.A.) at 481.
14 Pierre Bosset, La discrimination indirecte dans le domaine de l'emploi - Aspects juridiques , Cowansville, Yvon Blais, 1989 at p. 59.
15 (1996) 130 D.L.R. (4th) 602 (Sask. C.A.).
16 R.S.S. 1978, c. T-9.
17 Supra note 15 at p. 606.
18 Supra note 6.
19 C.R.C. 1978, c. 1576.
20 (1991), 126 N.R. 345 (F.C.A.).
21 Supra note 6 at p. 311.
22 Supra note 5. The decision of Hugessen J.A. dealing with the question of discrimination on the basis of sex was not reversed by the Supreme Court.
23 R.S.C. 1985 (5th Supp.), c. 1.
24 Time spent on leave without pay for the care and nurturing of children, relocation of spouse and personal obligations is not recognized in calculating the rate at which vacation leave is accumulated and the length of continuous service required for pay scale increases.
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