In a judgment issued on February 19, 2024[1], the Court of Appeal reaffirmed the scope of the notion of “civil status,” a ground for discrimination prohibited under Article 10 of the Charter of Human Rights and Freedoms (the “Charter”): this term does not include “parenthood,” “parental status,” “family situation,” or “parental circumstances.”
Case Background
In front of the Arbitrator
The Canadian Union of Public Employees, Local 3333 (the “Union”), filed a grievance alleging, among other things, that certain provisions of the collective agreement binding it to the Employer, the Réseau de transport de Longueuil, were discriminatory and thus contrary to the Charter.
Among other arguments, the Union claimed that employees on parental leave are “discriminated against” because they cannot benefit from certain “attendance” leaves, while other employees absent for different reasons can benefit from them.
For the Union, the notion of “civil status” contained in Article 10 of the Charter includes “parenthood” and “parental circumstances.” In this respect, it relied on the jurisprudence of the Human Rights Tribunal, which interprets “civil status” as including “parental status.”
The arbitrator dismissed the grievance. Notably, in light of the Quebec Court of Appeal’s decision in the case Syndicat des intervenantes et intervenants de la santé Nord-Est québécois (SIISNEQ) (CSQ) v. Centre de santé et de services sociaux de la Basse-Côte-Nord[2] (the “SIISNEQ Decision”), the arbitrator concluded that the notion of “civil status” does not include “parental circumstances, parental status, and, even less so, parental leave among the fundamental rights protected by the charters”[3].
In front of the Superior Court
The Union thus sought judicial review of this arbitral award. The Superior Court dismissed the request for review on the grounds that the arbitrator’s decision was reasonable.
Court of Appeal Decision
In front of the Court of Appeal, the Union notably argued that the arbitrator had made an unreasonable decision by applying the SIISNEQ Decision.
For the Union, the ground of discrimination based on civil status provided in Article 10 of the Charter should include the concept of “parenthood” or “parental situation.” The Union argued that there is “contradictory jurisprudence” between the Court of Appeal and the Human Rights Tribunal on this issue, and that the arbitrator should have applied that of the Human Rights Tribunal.
The Court of Appeal rejects the union’s claims for various reasons.
Firstly, the Court of Appeal recalls that there is no “contradictory jurisprudence” when the Court of Appeal rules on a specific question, even in the presence of contrary decisions from a Tribunal, such as the Human Rights Tribunal. The Court of Appeal’s Decision then clearly takes precedence. Moreover, in this case, the Court of Appeal’s Decision retained by the arbitrator (the SIISNEQ Decision) has been treated in subsequent decisions that have never contradicted it.
Also, to reject the union’s claim, the Court of Appeal holds that during the 2018 public consultations on Bill 176, An Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance, the Commission des droits de la personne et des droits de la jeunesse proposed adding “family situation” to the grounds of discrimination prohibited by the Charter. However, the legislator did not follow up on this request.
[1] Public Service Union, local 3333 v. Longueuil Transport Network, Court of Appeal, February 19, 2024.
[2] 2010 QCCA 497.
[3] Ibid.
