Gagnon, Beaupré, Dumais (ad hoc)

Appeal from a judgment of the Superior Court dismissing an application for judicial review of a grievance arbitrator’s award. Dismissed.

The collective agreement grants attendance credits to employees who are not absent more than 3 times or for more than 10 days during a reference year. To calculate the number of absences or days of absence, the collective agreement excludes certain types of leave, but not maternity, paternity, or parental leave. Seized with a grievance in this regard, the arbitrator did not agree with the union, finding that parenthood is not a prohibited ground of discrimination under the Charter of human rights and freedoms (CQLR, c. C-12) and that, in the case of maternity leave, the applicable provisions of the agreement did not undermine the employee’s right to the full and equal recognition of her working conditions in accordance with sections 10 and 16 of the Quebec Charter.

Given the principle of vertical stare decisis, and contrary to what the union argues, there is no contradictory case law on the issue of whether the ground of discrimination based on “civil status” should include the notion of “parenthood” or “parental situation”. Syndicat des intervenantes et intervenants de la santé Nord-Est québécois (SIISNEQ) (CSQ) c. Centre de santé et de services sociaux de la Basse-Côte-Nord (C.A., 2010-03-18), 2010 QCCA 497, SOQUIJ AZ-50618263, 2010EXP-1182, 2010EXPT-799, J.E. 2010-638, D.T.E. 2010T-215, [2010] R.J.D.T. 47, which decided that it does not, has not been contradicted by the Court’s subsequent case law, on the contrary. The Human Rights Tribunal, however, appears to have put that teaching on the back burner in certain decisions. In this context, the arbitrator cannot be blamed for preferring the Court’s decision to those of the Human Rights Tribunal. Certainly, the Charter of human rights and freedoms must be interpreted liberally, contextually, purposively, and consistently with federal and provincial human rights statutes unless the legislature’s intention is otherwise. In this regard, it is important to take into account that, contrary to section 15(1) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I), the list of prohibited grounds of discrimination in section 10 of the Quebec Charter is exhaustive. It therefore cannot be interpreted in a way that adds new [translation] “analogous” grounds of discrimination to the enumerated grounds, unlike its federal counterpart, especially since the provincial legislature did not accept the proposals to include the words “in particular” or “family status” in the list of prohibited grounds of discrimination. If the legislature does not speak in vain, its silence or abstention can also carry meaning.

In addition, comparing an employee on maternity leave with one on paternity or parental leave (for whom the exclusion is not based on a prohibited ground) leads to the conclusion that the former was not excluded due to her pregnancy, but rather, like paternity and parental leave, due to the length of the leave and the purpose of the attendance credits. In this context, there is no discrimination. In any event, a contextual analysis, taking into account the provisions of the collective agreement regarding [translation] “compensation and other benefits” provided for in the case of maternity leave, does not indicate that employees who are absent for this type of leave suffer actual prejudice because they cannot take advantage of the attendance credits.

Text of the decision: http://citoyens.soquij.qc.ca