The case began in February 2011 when the British Columbia Teachers’ Federation filed a grievance against the Surrey School Board, which is represented at the bargaining table by British Columbia Public School Employers’ Association.
In the collective agreement, the Surrey School Board benefits plan provides birth mothers, birth fathers and adoptive parents with 95% of their salary for the two-week unpaid waiting period for Employment Insurance benefits, and 70% of the difference between EI benefits and their salary for an additional 15 weeks of Supplemental Employment Benefits (SEB).
The SEB plan had been interpreted and applied to disallow birth mothers to SEB during their parental leave if they had already been paid out the two-week unpaid waiting period and 15 weeks of SEB during the period of maternity leave.
The Federation argued that the SEB plan was discriminatory against mothers because it failed to provide supplemental employment benefits during their parental leave which was paid out to the birth fathers and adoptive parents.
In April 2011, Arbitrator Hall concluded that the SEB plan, as it applied to parents claiming benefits from the point of pregnancy, breached the substantive equality rights of birth mothers under s. 15(1) of the Charter of Rights and Freedoms and s. 13(1) of the British Columbia Human Rights Code, and could not be justified under s. 1 of the Charter or s.13(4) of the Code.
The Federation’s grievance was upheld and the parties were ordered to engage in a new round of bargaining to work towards remedying the unequal treatment of birth mothers.
The Employer appealed the decision to the B.C. Court of Appeal. In September 2013, the Court of Appeal ruled that the arbitrator had erred and dismissed the Federation’s grievance on the basis that there was no unequal treatment of birth mothers concerning SEBs because:
- Both birth mothers on maternity leave and persons on parental leave were entitled to the same 15 weeks of SEB as well as payment for a two-week period before statutory benefits became available.
- Both forms of leave relate to the occasion of an addition of a new member to a family unit.
- Both types of leave are conducive to the societal purpose of the enhancement of family health and stability.
Accordingly, the Court of Appeal concluded that these leaves had the same common underlying purpose and were treated equally.
The Union appealed this decision to the Supreme Court of Canada. The main issue being whether failing to provide birth mothers with supplemental parental benefits above and beyond maternal leave was discriminatory.
On November 14, 2014 the Supreme Court issued a brief oral decision from the bench simply stating, in full:
“The Court of Appeal erred in failing to give deference to the Arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits. The Arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy. The appeal is allowed with costs and the Arbitrator’s award is restored”.
This decision is worthy of note for employers in Ontario who have similar language in their collective agreements and benefits plans providing SEB. Employers should ensure that the right to SEB during parental leave is equally afforded to birth mothers, birth fathers and adoptive parents to avoid allegations of discrimination.