Discriminatory to provide birth mothers same amount of top-up benefits as birth fathers, adoptive parents
In a rare oral judgment that was issued on November 12, 2014 - British Columbia Teachers' Federation v. British Columbia Public School Employers' Association, 2014 SCC 70 - the Supreme Court of Canada overturned a decision by the BC Court of Appeal and restored the decision of a labour arbitrator concerning top-up benefits provided to teachers who are new parents.
The labour arbitrator, John B. Hall, had ruled that it was discriminatory - under section 15 of the Charter of Rights and Freedoms and section 13 of the BC Human Rights Code - to provide the same amount of top-up benefits to birth mothers as birth fathers and adoptive parents.
Specifically, Arbitrator Hall had ruled:
I have no hesitation accepting the Union's submission that the affected teachers in this case are birth mothers, and that "pregnant women have been a disadvantaged group": [Tomasson v. Attorney General of Canada (2007), 2007 FCA 265 (CanLII), 284 D.L.R. (4th) 440 (Fed. C.A.)], at para. 125. Birth mothers experience differential treatment if they are denied parental leave SEB plan benefits available to other parents in the bargaining unit. Alternatively, they experience differential treatment if they must forego pregnancy leave SEB plan benefits in order to claim on the same basis as other parents. I likewise accept the Union's submission that the scenario presented by the Employer's interpretation of the Collective Agreement creates a disadvantage for birth mothers by perpetuating prejudice or stereotyping. The courts have found that 15 weeks is a reasonable period of time for recovery from pregnancy related health issues: see Tomasson, at paras. 117-119 and 123. The three examples in the Agreed Facts here demonstrate the reality that some women may take considerably longer to recover; that is, the period may extend well beyond their pregnancy leave. Until they have recovered, birth mothers will not be in the same position as birth fathers and adoptive parents to care for and bond with their children. I find this amounts to substantive discrimination in the sense set out in [Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC),  1 S.C.R. 497] and in R. v. Kapp, 2008 SCC 41 (CanLII),  2 SCR 483, and infringes their human dignity.
The BC Teachers' Federation issued the following news release on November 12, 2014, following the Supreme Court of Canada's judgment:
BC teachers win pregnancy leave case at Supreme Court of Canada
In a welcome move, the Supreme Court of Canada sided with the BC Teachers' Federation today in its efforts to defend pregnancy leave rights immediately after oral arguments were made. The Supreme Court of Canada issued its unanimous decision from the bench, agreeing with the union that denying parental benefits to birth mothers, because they received pregnancy benefits, was discriminatory.
"This victory at the Supreme Court of Canada is not just for teachers," said BC Teachers' Federation President Jim Iker. "This is a victory for all working women who are pregnant or may become pregnant in the future. The Supreme Court of Canada said employers cannot discriminate against pregnant women and that benefit plans for new parents must be consistent with the Charter of Rights and Freedoms. On behalf of all BC teachers I want to thank our in-house BCTF lawyers, Robyn Trask and Diane MacDonald, for their excellent work on behalf of our members."
The ruling stems from a grievance first filed by BCTF in 2011 after teachers employed by the Surrey School District were denied parental leave benefits following the births of their children. The union took the position that birth mothers are entitled to pregnancy leave and that all parents (including birth mothers) are also entitled to parental leave. The union argued it was discriminatory to deny birth mothers parental leave because the two forms of leave serve different purposes.
At arbitration, the BCTF was successful in its arguments and the arbitrator found that the denial of parental benefits to birth mothers violated the Charter and the Human Rights Code. However, a subsequent ruling at the BC Court of Appeal overturned that arbitrator's decision. Today's ruling by the Supreme Court of Canada restores the arbitrator's decision and sends the matter back to the parties to renegotiate in a non-discriminatory manner. The arbitrator retains jurisdiction if the parties are unable to reach an agreement.
"Today's Supreme Court of Canada win is another proud day for BC teachers who have a long record of defending our Charter rights against unfair labour practices," said Iker. "The BCTF and the Surrey Teachers' Association are very happy about this decision, which recognizes the health effects of pregnancy and affirms equality rights for women. We are also pleased this prompt decision allows the parties to return to addressing the remaining issue of remedying the discrimination."