Pregnancy and Parental Leave Top-Ups Are Separate and Distinct

It is discriminatory for employers to deny parental supplemental employment benefits (top-ups) to birth mothers because they receive pregnancy benefits. So said the Supreme Court of Canada in its unanimous oral decision from the bench on November 12, 2014, agreeing with the British Columbia Teachers’ Federation (BCTF).

The ruling stems from a grievance first filed by the federation in 2011 after teachers employed by the Surrey School District were denied parental leave benefits afforded in their collective agreement following the births of their children. The agreement provided pregnancy and parental leave and supplemental employment benefits (“SEB benefits”). In particular, a 15-week monetary top-up of 70 percent of the difference between the employee’s EI benefits and salary during parental leave. The federal Employment Insurance Act allows SEB top-ups to a certain percentage of salary.

The union argued the school board was discriminating against mothers because it didn’t provide the agreement’s 15 weeks of parental SEB benefits if they had already received the SEB pregnancy benefits.

While birth mothers are entitled to both pregnancy and parental leave under provincial legislation, and pregnancy and parental EI benefits under federal legislation, a birth mother who received pregnancy SEB benefits while on pregnancy leave under the teachers’ collective agreement, would not receive parental SEB benefits when on parental leave. This is notwithstanding that numerous Canadian courts have held that pregnancy and parental benefits serve different purposes: pregnancy benefits provide income while a woman is away from work due to pregnancy or recuperation from childbirth; parental benefits provide income while parents are away from work in order to care for and bond with their child.

The employer argued that there was no unequal treatment of birth mothers. The employer understood the collective agreement to provide only one SEB benefit that birth mothers could choose to during either pregnancy leave or parental leave.

The BCTF convinced the arbitrator that the denial of parental benefits to birth mothers violated the Canadian Charter of Rights and Freedoms and BC’s Human Rights Code. However, a subsequent ruling at the BC Court of Appeal in September 2013 overturned that arbitrator’s decision. The Court of Appeal disagreed that there were different purposes underlying pregnancy and parental leave. Instead, it held that “the underlying purpose of providing for birth or parental leave in legislation and the collective agreement is to further the interests of the child who is newly arrived in a family unit.”

The Court of Appeal concluded that the arbitrator:

“…erred when he found that birth mothers were subject to unequal treatment. Absent a sustainable finding of unequal treatment, there is no basis for the conclusion of the arbitrator that birth mothers are being treated in a discriminatory way contrary to the Human Rights Code.”

The British Columbia Teachers’ Federation appealed to the Supreme Court of Canada.

After hearing oral arguments, the November 12 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.

President of the teachers’ federation, Jim Iker, said in a statement:

“The Supreme Court of Canada said employers cannot discriminate against pregnant women and that benefit plans for new parents must be consistent with the Human Rights Code and Charter of Rights and Freedoms.”

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