BC Teachers’ Federation: A Finding of Discrimination Against Birth Mothers Affirmed by the SCC
On November 14, 2014, the Supreme Court of Canada rendered its oral judgment in British Columbia Teachers’ Federation v British Columbia Public School Employers’ Association, 2014 SCC 70 [BC Teachers], overturning the British Columbia (“BC”) Court of Appeal and affirming an arbitrator’s finding of discrimination against birth mothers. The case hinged on the determination of whether parental leave and pregnancy leave served significantly different purposes. If a significant difference was affirmed, then birth mothers would be entitled to take both leaves consecutively in order to receive the full benefit of each.
The matter was first brought before an arbitrator who affirmed the distinct purposes of each leave and found that it was discriminatory for an employer to deny the full benefit of both leaves to birth mothers. The BC Court of Appeal overturned the arbitrator before the Supreme Court restored the arbitrator’s ruling and affirmed the distinct purposes of pregnancy and parental leave. While it remains to be seen whether the Supreme Court’s ruling will have significant practical impact in the long term, the ruling signals the growing need for employers to take care in understanding and addressing employees’ family status needs whenever employment benefits are attached to such needs.
A union grievance alleging discrimination arose from the administration of employee leave benefits by the British Columbia Public School Board (“the Board”). Under the parties’ collective agreement, teacher employees who became new parents were entitled to take a leave of absence and receive supplemental employment benefit (“SEB”) payments from the Board for up to 17 weeks. New parents who were entitled to this benefit included birth mothers, birth fathers and parents of an adopted child.
For birth fathers and adoptive parents, this afforded 17 weeks of paid parental leave. For birth mothers, however, these 17 weeks accounted for both paid parental leave and paid pregnancy leave.
Responding to this administration of the SEB by the Board, the Union representing the teachers (“the Union”) filed a grievance alleging that such practices were discriminatory. According to the Union, the practices penalized birth mothers for taking paid pregnancy leave by affording mothers less paid parental leave than adoptive parents and birth fathers. The Union argued that pregnancy leave and parental leave serve distinct purposes, with pregnancy leave intended to provide birth mothers an opportunity to cope with the physical and psychological hardship of pregnancy and parental leave intended to provide all parents with time to bond with their infant children.
The Union’s grievance was brought before an arbitrator who decided in favour of the Union’s position and determined that the Board’s administration of the SEB was indeed discriminating against birth mothers. However, the arbitrator reserved the remedy to follow from this finding because the Board and the Union were in the midst of negotiating a new collective agreement.
The Board subsequently appealed the arbitrator’s finding.
The Ruling of the BC Court of Appeal
British Columbia’s labour laws permit the Court of Appeal to to review arbitrators’ decisions on questions of “general law.” The Court of Appeal confirmed its jurisdiction over the appeal on the basis of Labour Relations Code, 1996 RSBC, c 244, finding that questions surrounding discrimination constituted matters of general law. Accordingly, the Court of Appeal reviewed the arbitrator’s findings of discrimination on a correctness standard and determined that these findings were not correct.
The Court of Appeal’s decision hinged on its determination that, contrary to the Union’s arguments and the arbitrator’s finding, there is no significant difference between parental leave and pregnancy leave. Accordingly, 17 weeks of paid leave constituted the same benefit regardless of whether such leave amounted to both a pregnancy leave and a parental leave, or solely amounted to a parental leave.
In its ruling, the Court of Appeal found that the “general purpose” of both employment leaves “is a unitary one, namely the fostering of the health of parents and children to serve an important social interest.” Accordingly, both pregnancy leave and parental leave were considered as part of a “holistic approach to the advancement of a healthy environment for the young and their caregivers.”
The Ruling of the Supreme Court
Delivered in the form of a one-paragraph statement by Justice Karakatsanis, the Supreme Court’s oral ruling overturned the Court of Appeal’s decision and restored the arbitrator’s award. Despite its brevity, this ruling addressed two significant legal points.
First, the Supreme Court found that the Court of Appeal erred in “failing to recognize the different purposes of pregnancy benefits and parental benefits.” By holding this distinction as correct, the Supreme Court affirmed the Arbitrator’s finding of discrimination against birth mothers.
Second, the Supreme Court found that the Court of Appeal erred in “failing to give deference to the Arbitrator’s interpretation of the collective agreement.” The mention of a need for deference suggests that the arbitrator’s challenged findings were not reviewable on a question of general law. While this finding is not central to the Supreme Court’s judgment, it strongly undermines the Court of Appeal’s jurisdiction over the matter and indicates that similar future cases should be appealed to expert tribunals whose findings would subsequently be entitled to deference by courts.
Implications of the Decision
For employees who become birth mothers, the gains made in light of the Supreme Court’s ruling in BC Teachers remain uncertain over the long term.
In the short term, the decision will benefit all birth mothers working under collective agreements that promise SEB for both pregnancy and parental leave. These employees will now have a guaranteed right to consecutive paid leaves in order to recover from pregnancy and to bond with their infant children.
In the future, employers may respond by becoming less willing to provide SEB for both employees’ pregnancy leaves and parental leaves. If this reluctance translates into fewer collective agreements that promise SEB for both types of leave, then the Supreme Court’s affirmation of the distinct purpose of pregnancy leave and parental leave will have done little to practically advance the workplace rights of women in general and birth mothers in particular.
Even if the practical impact of the Supreme Court’s ruling in BC Teachers turns out to be minimal over the long term, the ruling nevertheless highlights the pressing need for employers to pay close attention to employees’ family-related needs whenever benefits are attached to family status. The Supreme Court’s affirmation of the arbitrator’s decision indicates that employees’ view of the purpose and value of family-status benefits will prevail wherever disagreements over such benefits arise, unless specific contractual language states otherwise. Accordingly, employers should not not expect to be given broad discretion when it comes to the administration of benefits related to employees’ family status.
More generally, the Supreme Court’s ruling also follows decisions such as R v Lavallee,  1 SCR 852, in recognizing the voices of women on issues that the law has historically interpreted through a more male-centric point of view. This is particularly noteworthy in light of recent critical concerns over the shrinking representation of female voices on the bench of Canada’s highest court.