Case information

Labour relations — Collective agreements — Attendance leave — Conditions for obtaining leave — Terms of application — Interpretation of exceptions to types of absences included in terms of application — Maternity, paternity and parental leave excluded from exceptions with result that employees opting for those leaves cannot have access to attendance leave — Union alleging that those exclusions are discriminatory within meaning of Charter of human rights and freedoms, which protects from discrimination based on civil status and pregnancy — Whether exclusion, preference or distinction based on ground of civil status must be given broad, liberal and evolutionary interpretation and include parenthood situation — Regarding discrimination analysis, whether arbitrator rendered unreasonable decision, particularly with respect to choice of comparator group — Charter of human rights and freedoms, CQLR, c. C 12, ss. 10, 16.

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The applicant, Syndicat canadien de la fonction publique, section locale 3333, is an employee association certified under the Labour Code, CQLR, c. C 27. The applicant represents bus drivers and personnel in related services in the employ of the respondent, Réseau de transport de Longueuil. In July 2018, the parties signed a collective agreement expiring December 31, 2021. That agreement included a series of leave provisions. In March 2019, the applicant filed a collective grievance because of a difference of opinion over the terms of application of the attendance leave provided for in clause 32.07 of the agreement, which allows an employee to use their sick leave credits and the balance of a time bank in order to benefit from one or two weeks of additional leave per year. In fact, the parties did not agree on the meaning that should be given to the second term of application, which states that [TRANSLATION] “[a]ll types of absences are included, with the exception of social leave, personal leave granted pursuant to clause 34.01 a), union leave, training provided by the Employer, court appearances pursuant to clause 18, an employment injury and lateness as specified in paragraphs 1 and 2 of clause 29.03”. According to the applicant, the exceptions to the absence types must include maternity, paternity and parental leave, otherwise that provision would be discriminatory within the meaning of ss. 10 and 16 of the Charter of human rights and freedoms, CQLR, c. C 12 (Quebec Charter). The applicant argues that there is then discrimination on the basis of civil status in the case of paternity and parental leave. In the case of maternity leave, according to the applicant, the measure is also discriminatory because it is based on pregnancy. The arbitrator found that the non-inclusion of these leaves does not constitute discrimination within the meaning of ss. 10 and 16 of the Quebec Charter, nor does it result in, for an employee who has taken maternity leave, discrimination based on pregnancy. The Superior Court dismissed the applicant’s application for judicial review of the arbitrator’s decision, and the Court of Appeal dismissed the appeal.