Canada ( Human Rights Commission ) v. Canada ( Human Rights Tribunal )
T-1802-96
Tremblay-Lamer J.
11/12/97
26 pp.
Application for judicial review of Human Rights Tribunal's decision relating to complaints of discrimination filed by group of Public Service of Canada employees against their employer and union-Tribunal dismissing complaints, as no prima facie case of discrimination-Complaints relating to provisions of their collective agreements limiting accumulation of vacation and sick leave credits and monthly payment of bilingualism bonus to employees receiving pay or salary for at least ten days in each calendar month-Employer refusing to give complainants these benefits while on maternity leave-Discrimination may be direct or indirect-In instant case, impugned clauses of collective agreements based on fact employee not working-Employee not working receiving no pay, accordingly not entitled to accumulate vacation leave credits and sick leave credits, or to bilingualism bonus-Parties agree if discrimination in instant case, indirect-Question whether clauses affecting complainants' group adversely in comparison with other persons to whom may apply-Tribunal concluding Commission had not discharged obligation of making prima facie case of discrimination-To show employment rule discriminatory, complainant must establish prima facie case three elements of definition of discrimination present-Must prove rule creates distinction, distinction based on prohibited ground and distinction imposes burden on individual or group of individuals-Where discrimination indirect, must prove rule adversely affects group in comparison to other people to whom impugned rule may apply-Not enough to say more women than men affected by clauses-Must consider whether women as sub-group of employees covered by rule adversely affected in comparison with other employees affected by rule-Tribunal did not err in refusing to compare maternity leave with sick leave with pay-Must ask whether pregnant woman taking time off work for maternity leave treated differently from groups of employees taking leave of same nature-Maternity leave form of leave without pay-Tribunal correct to compare maternity leave with other forms of leave without pay provided for in collective agreements-Other forms of leave without pay treated in same manner as maternity leave-Benefits for maternity leave even superior-Pregnant woman taking time off work for maternity leave therefore not treated differently from groups of employees taking leave of same nature-Application dismissed.