Monday, 21 September 2015

Supreme Court affirms pregnancy and parental leave distinct benefits

In a ruling apt to have positive ramifications for working women across the country, the Supreme Court has affirmed an arbitral finding that pregnancy leave and parental leave are distinct benefits.


In 2012, the British Columbia Teachers’ Federation (BCTF) brought a grievance against the Board of Education School District No. 36 (the Board), alleging the Board discriminated against birth mothers in its administration of employee benefits and was in violation of  the Human Rights Code and of s. 15 of the Charter[1].

The collective agreement allowed new parents and birth mothers to receive a supplemental employment benefit (SEB) and to take a 17-week leave of absence. The employees entitled to the SEB were biological and adoptive parents. This seemingly straightforward SEB was fine until then Board interpretation complicated matters. Essentially, the Board interpreted the benefit to encapsulate both parental and pregnancy leave, lumping them each into the same 17-week period.

The union grieved, alleging the Board’s interpretation discriminated against birth mothers, as it did not sufficiently take account of the purpose of pregnancy leave. The union’s position was that pregnancy and parental leave are distinct benefits and birth mothers should be entitled to both.

Arbitral decision

At arbitration, the union argued that the SEB benefits were distinct; the purpose of pregnancy leave was to give mothers a chance to deal with the physical and psychological stresses of pregnancy, while the purpose of parental leave was distinct from pregnancy leave in that it was intended to allow new parents time to bond with their babies.

In essence, the union argued that to combine the purpose of pregnancy leave and parental leave into the same 17-week period deprived birth mothers of a benefit they were uniquely entitled to benefit from. It was the union’s position that birth mothers should be entitled to each benefit separately and to deprive birth mothers of the distinction was discriminatory. The arbitrator agreed with the position of the union. The Board appealed[2].

The British Columbia Court of Appeal overturned the arbitral decision, and the union appealed up to the Supreme Court.

Supreme Court ruling[3]

In a terse judgment, the Supreme Court upheld the initial decision of the arbitrator. This is to say that the Supreme Court ruled that pregnancy leave and parental leave do serve distinct purposes and that in administering only one 17-week benefit period for both pregnancy and parental leave, the Board did discriminate against birth mothers.

Interestingly, the Supreme Court also stated that the Court of Appeal did not give sufficient deference to the arbitrator’s interpretation of the Collective Agreement. In our view, this statement fortifies support for arbitral expertise in the interpretation of collective agreements.


The take-away here is that, moving forward, SEB clauses in collective agreements covering pregnancy and parental leave may be interpreted as distinct benefits. This is good news for working mothers and new parents. However, this case also provides a clear signal to employers, and unions can expect employers to be more vigorous in weeding out the distinction in benefits when it comes time to renegotiate a collective agreement.

[1] [2012] B.C.C.A.A.A. No. 138 (QL).
[2] British Columbia Public School Employers’ Association v. British Columbia Teachers’ Federation, 2013 BCCA 405
[3] 2014 CanLII 12475.

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