Docket: T-2076-14
Citation:
2015 FC 1287
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 18, 2015
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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NATHALIE NADEAU
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
The Attorney General of Canada [AGC] is seeking
judicial review of a decision by a Public Service Labour Relations Board
adjudicator [Adjudicator], dated September 11, 2014, allowing a grievance
filed by the respondent, Nathalie Nadeau, on May 22, 2009.
[2]
In her grievance, Ms. Nadeau challenges the
decision of the Correctional Service of Canada [CSC] to refuse to pay her a
clothing allowance, as well as the CSC’s inability and refusal to provide her
with a maternity uniform. Ms. Nadeau contests the CSC’s interpretation of
section 43.03 of the collective agreement, reproduced in an appendix to
these reasons, between the Treasury Board and the Union of Canadian
Correctional Officers-Syndicat des agents correctionnels du Canada-CSN
(UCCO-SACC-CSN) [collective agreement] and relies on section 7 of the Canadian
Human Rights Act, RSC 1985, c H-6 [CHRA], also reproduced in the
appendix, to argue that she was the victim of discrimination on one of the
prohibited grounds of discrimination set out in subsection 3(1) of the
CHRA.
[3]
The Adjudicator concluded that the employer had
discriminated against Ms. Nadeau on the basis of sex (pregnancy) by
refusing to pay her a clothing allowance or provide her with a maternity uniform,
and that it had not succeeded in raising a defence under section 15 of the
CHRA (section 15, reproduced in the appendix). He therefore allowed
Ms. Nadeau’s grievance; ordered the CSC to pay her the clothing allowance
provided for under section 43.03 of the collective agreement, prorated to
the time worked during her assignment to administrative duties; and, relying on
paragraph 53(2)(e) of the CHRA, ordered the CSC to pay her $1,500
for pain and suffering.
[4]
The AGC’s application for judicial review is
limited to the Adjudicator’s conclusion relating to the payment of the clothing
allowance. He asks the Court to allow his application, set aside this
conclusion by the Adjudicator and refer the matter back for redetermination by
another adjudicator in light of the reasons of the Court.
[5]
For the reasons that follow, the Court finds
that the Adjudicator did not err in applying the prima facie case test
for discrimination and that his decision is reasonable.
II.
Background
[6]
Ms. Nadeau has been working as a correctional officer
at CSC since November 1998. As such, she is subject to the
above-referenced collective agreement, and her position is classified at the CX-01
group and level.
[7]
In her work, Ms. Nadeau is required to wear
a uniform that is provided to her free of charge by her employer under
section 7 of the National Joint Council’s Uniforms Directive, which is
reproduced in the appendix.
[8]
On December 14, 2008, Ms. Nadeau
learned that she was pregnant. She notified her manager of this and asked to
remain at home until after her appointment with a doctor to determine her
functional limitations. Mindful of the difficulties she had obtaining a uniform
during her first pregnancy in 2006, Ms. Nadeau therefore requested a
maternity uniform.
[9]
On February 11, 2009, Ms. Nadeau met
with her doctor and received a medical certificate confirming that she was
12 weeks pregnant and describing her functional limitations, including one
not to work in contact with inmates for the duration of her pregnancy.
[10]
On February 13, 2009, Ms. Nadeau’s
spouse placed the medical certificate in the mailbox of François Bénard,
Correctional Manager. A few days later, Mr. Bénard informed Ms. Nadeau
that she was being reassigned to a job with the administrative assistant at
Scheduling and Deployment, starting February 24, 2009.
[11]
On February 24, 2009, Ms. Nadeau returned
to work, but she still did not have a maternity uniform. Ms. Nadeau
reports that, in the months from December to February, she and her spouse asked
the employer many times to update them on the status of the request for an
adapted uniform and to confirm the instructions for obtaining one.
[12]
On March 3, 2009, at the request of her
employer, Ms. Nadeau went to see the seamstress, Linda Bédard, who noted
that it was difficult to alter Ms. Nadeau’s work clothes so that they
would be suitable for a pregnant woman.
[13]
At the end of March 2009, Jean Simard,
Assistant Director of Operations at the institution, informed Ms. Nadeau that
pregnant correctional officers did not have to wear a maternity uniform when
they were reassigned to other areas, that she would not be provided with
another uniform, and that she would therefore have to wear her own maternity
clothes. Mr. Simard told Ms. Nadeau that CSC could pay her the
clothing allowance provided under section 43.03 of the collective
agreement, prorated to the duration of her reassignment. However, on
April 29, 2009, Mr. Simard informed Ms. Nadeau that the
temporary reassignment, even if it was for a pregnancy, had to be at least six
months long for a correctional officer to be entitled to the allowance under
section 43.03 of the collective agreement.
[14]
On this point, it bears noting that the language
of section 43.03 of the collective agreement does indeed require that the
aforementioned reassignment be not less than six months in a fiscal year,
that is, between April 1 in one year and March 31 in the following
year. However, despite the clear wording of section 43.03, CSC agreed, in
this case, to depart from the language of the provision and instead require
that the reassignment be for not less than six months regardless of the
fiscal year. It repeated this position at the hearing.
[15]
On May 22, 2009, Ms. Nadeau filed a
grievance regarding the interpretation or application of section 43.03 of
the collective agreement. In that grievance, Ms. Nadeau challenged the
fact that CSC refused to pay her a $600 clothing allowance or to provide her
with a maternity uniform, and she reserved all other rights under the
collective agreement, as well as the right to actual, moral or punitive
damages, with retroactive effect and with interest at the legal rate, without
prejudice to other vested rights.
[16]
On August 14, 2009, Ms. Nadeau left her
position to go on maternity leave, so her reassignment ended on that date. The
reassignment therefore was for less than the required six-month period, even
when allowing for the overlap of two fiscal years.
[17]
On February 23, 2010, the Acting Assistant
Commissioner rendered the final-level grievance reply. He concluded that [translation] “management
fully respected the provisions of your collective agreement” and
dismissed Ms. Nadeau’s grievance.
[18]
On September 11, 2014, the Adjudicator allowed
Ms. Nadeau’s grievance and concluded that section 43.03 of the
collective agreement was discriminatory. He ordered CSC to pay Ms. Nadeau the
clothing allowance provided under section 43.03 of the collective
agreement, prorated to the time she worked during her assignment to
administrative duties, and to pay her $1,500 for pain and suffering, as is permitted
under paragraph 53(2)(e) of the CHRA.
III.
Issue
[19]
The parties agree on the issue. The Court must
therefore determine whether the Adjudicator erred in applying the prima
facie case test for discrimination.
IV.
Standard of review
[20]
The Court agrees with the parties’ position that
the issue raised in this application for judicial review is a question of mixed
fact and law and therefore must be analyzed in accordance with the
reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47
[Dunsmuir]).
V.
Positions of the parties
A.
AGC’s Position
[21]
The AGC submits that the Adjudicator’s
conclusion does not fall within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir). According
to the AGC, the Adjudicator misapplied the legal test with regard to the
allegations of discrimination made under the CHRA. The Adjudicator erred, first
of all, in assuming in fact and in law that the provision of the collective
agreement has a disproportionate effect on pregnant women and, second, in
finding without any factual foundation that the time-related distinction in the
collective agreement is inherently discriminatory, without regard for the
purpose or objective of the benefit.
[22]
The AGC relies on the legal framework for
dealing with discrimination complaints and submits that the Adjudicator committed
three errors in applying it.
(1)
Legal framework
[23]
The AGC notes, citing Ontario Human Rights
Commission v Simpsons Sears Ltd, 1985 2 SCR 536 [O’Malley]), that
there are two types of discriminatory conduct that may violate human rights
legislation: direct discrimination, on one hand, and adverse impact or indirect
discrimination on the other hand. This distinction is important in determining
what evidence is required, since circumstantial evidence may be sufficient in
cases of direct discrimination, while “[i]n a case of
adverse impact discrimination, on the other hand, the evidence offered is not
circumstantial but rather centers on showing that the neutral rule, policy or
requirement disproportionately negatively impacts members of the protected
group. To prove this, statistical evidence is often required” (Agnaou
v Canada (Attorney General), 2014 FC 850 at para 131[Agnaou]). The
AGC also notes that, in cases of indirect discrimination, a claimant’s burden
of proof is heavier (Withler v Canada (Attorney General), 2011 1 SCR 396
at para 64).
[24]
The AGC therefore submits that at the stage of
making out a prima facie case of discrimination, the complainant must
show (1) that she has a personal characteristic protected from discrimination;
(2) that she experienced adverse differential treatment; and (3) that the
protected characteristic was a factor in the adverse differential treatment. The
complainant must therefore prove that there is a connection between the adverse
differential treatment and the ground of discrimination (Moore v British
Columbia (Education), 2012 3 SCR 360 [Moore]). Once prima facie discrimination
has been established, the onus is then on the respondent to justify the conduct
or practice, either by giving a reasonable explanation that is not a pretext or
by establishing a bona fide justification or occupational requirement
under section 15 of the CHRA. If the conduct cannot be justified, the
court will return a finding of discrimination.
(2)
Three errors in applying the test
[25]
According to the AGC, the Adjudicator made three
errors in applying the above test: (1) he failed to consider the connection
between the adverse differential treatment and the ground of discrimination;
(2) he assessed the evidence improperly by relying on the claim that
section 43.03 of the collective agreement has a disproportionately
negative effect on pregnant women; and (3) he assumed that a time-related
distinction is inherently discriminatory, without any supporting evidence and
without regard for the objective of the collective agreement.
[26]
As regards the first error, the Adjudicator failed
to explain the connection between the adverse differential treatment, namely,
CSC’s refusal to grant Ms. Nadeau a clothing allowance, and the ground of
discrimination, namely, Ms. Nadeau’s pregnancy, and simply noted that she
was pregnant and did not receive the clothing allowance.
[27]
The Adjudicator also failed to assess whether Ms. Nadeau’s
pregnancy played a role in CSC’s decision to deny her a clothing allowance. He
concluded, without any evidence of this from Ms. Nadeau, that there was
sufficient evidence to make out a prima facie case of discrimination on
a balance of probabilities. In this sense, the Adjudicator failed to consider
whether the requirement under the collective agreement that the assignment be
for no less than six months, which is the factor that led CSC to refuse to
grant Ms. Nadeau a clothing allowance, constitutes indirect
discrimination, such that it would have disproportionate effect on persons
belonging to a protected group, in this case, pregnant women.
[28]
The AGC adds in cases of discrimination by
adverse effect, there is no presumption that the provision of the collective
agreement wholly caused or contributed to the adverse differential treatment (Moore;
Symes v Canada, 1993 4 SCR 695 at para 134).
[29]
In relation to the second error, the AGC submits
that the Adjudicator assessed the evidence improperly, that Ms. Nadeau did
not present any evidence that pregnant women tend not to receive the clothing
allowance under section 43.03 of the collective agreement, and that this
section has a disproportionate adverse effect on persons who belong to the
protected group, that is, pregnant women. What is more, according to the AGC, the
Adjudicator did not explain how the time-related restriction in section 43.03
has a differential effect on pregnant women, as opposed to men or non-pregnant
women. The AGC notes that no statistical evidence was mentioned.
[30]
Regarding the third error, the AGC submits that
the Adjudicator had to consider whether the six-month threshold under
section 43.03 of the collective agreement places pregnant women at a
disproportionate disadvantage, which was not done. Evidence that some women may
not meet the time-related requirement because of the timing of their pregnancy
is not enough to make out a prima facie case of indirect discrimination.
The AGC submits that the case law in general instructs us that a time-related
distinction is not necessarily based on a ground of discrimination and is
therefore not discriminatory, although it is necessary to examine the reasons
behind a time-related distinction to make sure that it is not discriminatory (see
Nova Scotia (Workers’ Compensation Board) v Martin; 2003 2 SCR 504 at
para 73; Guild v Canada (Attorney General), 2006 FC 1529, at
paras 18-19; Anderson v Saskatchewan Teachers’ Superannuation
Commission, (1995) 130 DLR (4th) 602 at paras 3-4; Canada (Attorney
General) v Hislop, 2007 1 SCR 429 at para 37).
[31]
The purpose of section 43.03 of the
collective agreement is to ensure that correctional officers who wear uniforms
and those who do not receive equitable treatment. The allowance is designed to
ensure that an employee in a position at the CX level who does not have a
uniform is not at a disadvantage in relation to an employee in a position at
the CX level who has one. However, the Adjudicator did not consider the purpose
of section 43.03 in making his decision. The Adjudicator mentioned that
the purpose of section 43.03 was to cover the cost of civilian clothes
worn by correctional officers in certain circumstances but was actually
identifying the means to that end, namely, the equitable treatment of
correctional officers.
[32]
According to the AGC, the parties to the
collective agreement were of the view that an assignment to a non-uniformed
position for a period of six months or less would not unduly penalize
correctional officers financially, whereas those who are reassigned to a
position for more than six months are more likely to be impacted by not being
able to wear a uniform. The AGC therefore submits that the parties made a
reasonable choice. The Court also notes in passing that the AGC makes no
mention here of the limitation in section 43.03, which states that the
reassignment must be for a period that is not less than six months per fiscal
year.
[33]
A confluence of circumstances determines whether
a pregnant woman meets the six-month time requirement in section 43.03. In
Ms. Nadeau’s case, she allowed two months to go by between the date she
informed her manager of her pregnancy (December 14, 2008) and the date she
submitted the medical confirmation of her pregnancy and the related functional
limitations (February 13, 2009). Since Ms. Nadeau was reassigned for
only five months and three weeks, she could not meet the six-month time
requirement (see Miceli-Riggins v Canada (Attorney General), 2013 FCA 158
at para 79 [Miceli-Riggins]).
[34]
The AGC cites the Supreme Court’s judgment in British
Columbia (Public Service Employee Relations Commission) v BCGSEU, 1999 3 SCR
3 [Meiorin], in support of his argument that the mere fact that a
standard affects women and men differently is on its own not enough to
establish that section 43.03 is prima facie discriminatory. He maintains
that there is no evidence that very few pregnant women receive the clothing
allowance. Section 43.03 of the collective agreement affects all employees
who are assigned to other duties for a period of less than six months in the
same manner, be they men or women, pregnant or not. CSC’s refusal in this case
thus had nothing to do with the fact that Ms. Nadeau was pregnant; rather,
it was based on the length of her reassignment.
[35]
The applicant therefore submits that the Adjudicator
decision with regard to the discriminatory effect of the clothing allowance
provided under section 43.03 of the collective agreement is unreasonable.
B.
Position of Ms. Nadeau
[36]
Ms. Nadeau submits that the Adjudicator’s
decision is reasonable because he did not err in applying the legal test for
discrimination, the prima facie case test.
[37]
Ms. Nadeau also began by setting out the
applicable legal framework and then analyzed whether the Adjudicator erred in
applying it.
(1)
Legal framework
[38]
Ms. Nadeau submits that the statutory
provisions prohibiting discrimination, such as section 7 of the CHRA,
which is raised in this case, protect citizens against three types of
discrimination: direct, indirect (see O’Malley) and systemic (see CN
v Canada (Canadian Human Rights Commission), 1987 1 SCR 1114 at para 34
[CN v Canada], and that these concepts were defined without these
judgments.
[39]
Ms. Nadeau notes that no evidence of an
intention to discriminate is required to prove an allegation of discrimination.
The Supreme Court stated in Meiorin that the distinction between the
different types of discrimination may have some significance from an analytical
standpoint, but very little from a legal standpoint, since the main concern is
the effect of the impugned provision. Accordingly, the approach to determining
whether an allegation of discrimination is well founded is the same, regardless
of the type of discrimination alleged, and consists of two steps. In the
context of an employment relationship, the employee must first establish prima
facie proof of discrimination. Once this has been established, it is then
up to the employer to show that the standard is not actually discriminatory
because it constitutes a bona fide occupational requirement (Meiorin at
para 3).
[40]
Ms. Nadeau cites Ontario Human Rights Commission
v Etobicoke, 1982 1 SCR 202, and O’Malley, which set out the test to
be used to determine whether there is prima facie discrimination,
and the three components of a prima facie case, just as the AGC also
described it (see paragraph 24 of this decision).
[41]
Ms. Nadeau also cites Canadian Human
Rights Commission v Canada (Attorney General), 2005 FCA 154 at paras 27-28
[CHRC v Canada 2005], in support of her position that a prima facie
case does not require a particular type of evidence to establish that a
complainant has been discriminated against. A flexible legal test better
advances the objective of the CHRA. According to Ms. Nadeau, statistical
evidence is not necessary in all cases (Halifax Employers Association v Tucker,
2008 FC 516 at para 68; Agnaou; Gaz métropolitain Inc v Commission
des droits de la personne et des droits de la jeunesse, 2011 QCCA 1201 at
paras 27, 47 [Gaz métropolitain]; Radek v Henderson Development
(Canada) Ltd, 2005 BCHRT No 302).
[42]
Ms. Nadeau also submits that the case law regarding
section 15 of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B to the Canada
Act, 1982 (UK), 1982, c 11 [Charter], should be applied with caution
in cases concerning discrimination complaints under human rights legislation
because the relevant legal framework for a section 15 analysis is much
stricter, particularly in terms of the burden of proof (Jennifer Koshan, “Under the influence: Discrimination under human rights
legislation and section 15 of the Charter” (2014) 3:1 Can J Hum Rights
115 at pp 139-142; Denise Réaume, “Defending
the Human Rights Codes from the Charter” (2012) 9 JL & Equality 67 at
pp 68-69).
(2)
Adjudicator’s application of the legal framework
[43]
Ms. Nadeau submitted to the Adjudicator (Adjudicator’s
decision, para 94) that the six-month requirement under section 43.03
of the collective agreement, although facially neutral, had a prejudicial
effect on her because of her pregnancy, and that her allegation was therefore
one of indirect discrimination.
[44]
Ms. Nadeau submits that the Adjudicator
applied the three criteria set out in O’Malley to make out a prima
facie case of discrimination and that he recognized that Ms. Nadeau
bore the burden of proof; he therefore made no error.
[45]
Ms. Nadeau offers a response to the
applicant’s arguments to the effect that the Adjudicator made three errors.
[46]
As regards the first error alleged by the AGC, Ms. Nadeau
submits that the evidence presented to the Adjudicator allowed him to conclude
that there was a connection between the adverse differential treatment and the
ground of discrimination because the evidence showed that the reasons for her
reassignment lasting less than six months were directly linked to her
pregnancy.
[47]
This is the conclusion to be drawn from the
uncontested evidence from the administrative process triggered when she
notified her employer of her pregnancy, a process that led to delays. Thus, in
terms of delays, it is necessary to consider, among other things, the time
before the woman realizes she is pregnant; the time to arrange an appointment
to obtain the medical certificate establishing the employee’s functional
limitations, if any; the employer’s process for reassigning the employee; and
the fact that the employee will have to go on leave before giving birth. It is
therefore entirely reasonable to conclude that in many cases, the reassignment
of a pregnant woman will inevitably be less than six months.
[48]
Therefore, solely on the basis of the delays
attributable to the administrative process, pregnancy is certainly one of the
factors explaining why Ms. Nadeau did not meet the six-month time
requirement.
[49]
Furthermore, Ms. Nadeau submits that there
is a second aspect to the connection between the excessive burden imposed by
the six-month threshold under section 43.03 of the collective agreement. Since
wearing a uniform is not prohibited when on reassignment, but the employer does
not provide one suitable for pregnant women, these women must find an
alternative to this uniform for the duration of their reassignment because of
the physical changes intrinsically linked to pregnancy. By way of comparison,
reassigned officers who wish to wear their uniforms until they qualify for the
clothing allowance will generally be able to do so, since they are not subject
to any prohibition in this regard.
[50]
As regards the second error raised by the AGC, Ms. Nadeau
argues that the Adjudicator correctly assessed the evidence presented in
support of the claim that section 43.03 of the collective agreement affects
pregnant women disproportionately.
[51]
According to Ms. Nadeau, the evidence
required by the AGC, that is, evidence showing that pregnant woman tend not to
receive the allowance, would have been relevant in a context of direct
discrimination, but it is less relevant in the current context of indirect
discrimination. Ms. Nadeau further submits that no particular type of
evidence is required and that statistical evidence is not necessary. Ms. Nadeau
agrees with the AGC that the evidence of indirect discrimination is not
circumstantial.
[52]
In this case, the proof of the disproportionate
effect of section 43.03 of the collective agreement on pregnant women was
established through the testimonies of Ms. Nadeau and Ms. Ross and
was corroborated by the employer’s witness. These testimonies establish that
the delays related to pregnancy make it especially difficult for pregnant women
to meet the six-month time requirement.
[53]
As regards the third error raised by the AGC, Ms. Nadeau
agrees that it should not be assumed that a time-related provision is
inherently discriminatory. However, she submits that the Adjudicator did not
make such an assumption and that his finding was, on the contrary, based on an
analysis leading to the conclusion that the time-based provision created a disproportionate
hardship.
[54]
Ms. Nadeau also argues that there is no
need to consider the purpose or objective of the benefit at the stage of making
out a prima facie case of discrimination, but that the purpose or
objective becomes a consideration at the stage where the employer must provide
justification (Meiorin at paras 54, 57).
[55]
If such were not the case and the objective of
the benefit had to be evaluated at the prima facie determination stage,
Ms. Nadeau submits that it then becomes even clearer that the
six-month threshold is discriminatory.
[56]
The applicant states that section 43.03 of
the collective agreement ensures that employees do not have to spend money on
clothing for work. Correctional officers usually wear a uniform, and there is
nothing prohibiting them from wearing one on reassignment; however, because of
the physical changes intrinsically linked to pregnancy, pregnant women cannot
wear their usual work uniforms when they are reassigned.
[57]
Thus, section 43.03 of the collective
agreement generally allows reassigned employees to wear their work uniform for
the first six months, when they do not receive the clothing allowance, while
pregnant women cannot wear their uniforms for the first six months of their
reassignment and are therefore disadvantaged.
[58]
In the alternative, Ms. Nadeau submits that
even if the Court finds that the Adjudicator made one or more errors in
applying the legal framework concerning prima facie proof of
discrimination, none of these errors makes the decision unreasonable.
VI.
Analysis
[59]
The Court, like the parties, will briefly
summarize the applicable legal framework in this case and will then turn to
determining whether the Adjudicator erred in applying it as the AGC claims.
A.
Legal framework
[60]
Section 7 of the CHRA, reproduced in the appendix,
tells us that it is a discriminatory practice, in the course of employment, to
differentiate adversely in relation to an employee on a prohibited ground of
discrimination. Earlier on in the CHRA, we find the prohibited grounds of
discrimination set out in subsection 3(1), and subsection 3(2) states
that where the ground of discrimination is pregnancy, the discrimination shall
be deemed to be on the ground of sex. The Supreme Court has stated in O’Malley
and CN v Canada that the CHRA must be interpreted as addressing
direct, indirect and systemic discrimination.
[61]
The parties have firmly established that under Meiorin,
an allegation of discrimination must be evaluated in two steps. In the context
of an employment relationship, the employee must first make out a prima
facie case of discrimination. If this is established, the burden of proof
then shifts to the employer, who must justify the practice, either by giving a
reasonable explanation that is not a pretext or by establishing a bona fide
justification or occupational requirement under section 15 of the CHRA,
which is reproduced in the appendix.
[62]
Furthermore, the Supreme Court confirmed in paragraph 18
of O’Malley that a prima facie case of discrimination does indeed
depend on the three conditions named by the parties: (1) the complainant
must prove that she has a special personal characteristic that falls within one
of the prohibited grounds of discrimination; (2) the complainant had to
experience adverse differential treatment; and (3) the complainant’s special
personal characteristic that falls within a prohibited ground of discrimination
was a factor in the adverse differential treatment.
[63]
In this case, the first two conditions have been
met and are not in issue. First, Ms. Nadeau was pregnant and therefore had
a personal characteristic that falls within one of the prohibited grounds of
discrimination under subsection 3(1) of the CHRA, namely, sex.
Furthermore, Ms. Nadeau was denied the benefit provided under section 43.03
of the collective agreement.
[64]
The third condition must therefore be analyzed
in this case to determine whether pregnancy has been proven to be a factor in
the adverse differential treatment.
[65]
Regarding the required proof, Agnaou
reiterates, at paragraphs 130-131, that circumstantial evidence is
relevant in the context of direct discrimination, but not in a case of indirect
discrimination.
B.
The Adjudicator’s decision is reasonable
[66]
The AGC submits that the Adjudicator failed to
consider whether Ms. Nadeau’s pregnancy played a role in CSC’s decision to
deny her a clothing allowance and cites a passage from the decision that does
indeed appear to give that point only cursory treatment.
[67]
However, having reviewed the entire decision,
and in particular paragraphs 30 to 40, 51, 55, 60, 69, 74 to 76 and 81 and
not simply the passage cited by the AGC, the Court is satisfied that the
Adjudicator examined the connection between Ms. Nadeau’s pregnancy and the
minimum threshold for the term of the reassignment (not less than six months)
that must be met to qualify for the allowance. Moreover, the evidence presented
allowed the Adjudicator to conclude that Ms. Nadeau could not meet the
minimum threshold, when allowing for the overlap of two fiscal years, because
of her pregnancy.
[68]
The administrative process that is triggered
when a woman learns that she is pregnant is well substantiated. In addition,
the length of a pregnancy and the fact that a woman is not necessarily aware of
her condition in its early days are well known. There is nothing here that would
indicate that the time taken to arrange an appointment with the doctor was
abnormally long, so it is reasonable to conclude that Ms. Nadeau did not
complete more than the six months on reassignment required to receive a
clothing allowance because of her pregnancy. Furthermore, contrary to what the AGC
argues, the Court cannot conclude that Ms. Nadeau’s ineligibility for the
clothing allowance was due to circumstances unique to the her and not shared by
other women (Miceli-Riggins at para 79 a contrario).
[69]
The AGC then goes on to submit that the
Adjudicator improperly assessed the evidence supporting the argument that section 43.03
of the collective agreement has a disproportionately negative effect on
pregnant women and, more specifically, that the required evidence, particularly
statistical evidence, was not presented.
[70]
In Agnaou, the Court noted that
statistical evidence is often necessary in the case of an allegation of
indirect discrimination to prove that a rule, policy or requirement has a
disproportionately negative effect on individuals belonging to a protected
group, in a context of direct discrimination. The Court then cited the example of
a minimum height requirement for an occupation and stated that statistical
evidence would therefore be needed to show that, on average, women are shorter
than men, thereby establishing prima facie discrimination.
[71]
However, statistical evidence is not always
necessary (Gaz métropolitain at paras 27, 47), and no particular
type of evidence is required to make out a prima facie case of discrimination
(CHRC v Canada 2005 at paras 27-28).
[72]
The Court agrees with Ms. Nadeau’s position
that the present case involves indirect discrimination, as the parties have
recognized; that circumstantial evidence is not appropriate; and that
statistical evidence is not necessary here because the temporal and physical
imperatives of a pregnancy are well known.
[73]
Therefore, and as stated above, the Court is
satisfied that the Adjudicator did not err in assessing the evidence.
[74]
Finally, regarding the third error raised
by the AGC, the Court is satisfied that the Adjudicator did not assume that a
time-based requirement is inherently discriminatory, without evidence and
without regard for the objective of the collective agreement. The Court agrees
with Ms. Nadeau’s position that the passages cited by the AGC do not admit
such a conclusion. The Court finds that the objective of section 43.03 of
the collective agreement does not need to be considered at this stage (Meiorin
at paras 54, 57).
Conclusion
[75]
For all these reasons, the Court is satisfied
that the Adjudicator’s decision is reasonable, in that it falls within the
range of acceptable outcomes which are defensible in respect of the facts and
law, and that the Court’s intervention is unwarranted. The application for
judicial review is dismissed.
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