Needed Guidance From The Court Of Appeal On The Question Of The Quasi-Constitutional Protection Of Parental Status In Québec – Employee Rights/ Labour Relations

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.

Footnotes

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”]

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