Quebec government lawyers and notaries, forced back to work after Canada’s longest public sector strike, won a legal battle against the provincial government after the Quebec Court of Appeal held that the government discriminated against jurists on maternity leave.
In a nuanced decision that will provide comfort to both employers and labour organizations, the appeal court found that it is not discriminatory if employers under certain circumstances “distinguish” for purposes of compensation between employees who provide services to employers and those who do not such as those in maternity or sick leave. But the appeal court added that it is discriminatory if employers provide different compensation to different groups of employees who do not provide services to employers, if the distinction was based on prohibited grounds.
“Employers will be reassured by the decision in terms of the overarching principle,” said Nicolas Joubert, a Montreal employment and labour lawyer with Lavery. “In this case the principle was not necessarily discriminatory but its application created a problem.”
According to Luc Bruneau, a Montreal lawyer who plead the case for the 1,100 members of Les avocats et notaires de l’État québécois (LANEQ), the appeal court ruling is “very important” because the courts have traditionally been “prudent” when dealing with discrimination cases involving remuneration. “The principle has always been in these cases that employees had to provide services to employers,” remarked Bruneau, who is one of LANEQ’s lead negotiators in the labour conflict with the provincial government. “The appeal court opens the door to cases involving employees who do not provide services to employers.”
Under the current collective agreement, a lump sum equal to two per cent of the salary is supposed to paid for each regular hour paid to the “jurist for work performed as a jurist” during the period from April 1, 2011 to April 4, 2012. But the provincial government refused to pay the two per cent bonus to jurists who were on maternity leave even though it paid the bonus to attorneys and notaries who were for instance on union or family leave.
LANEQ filed a grievance, maintaining that the employer had discriminated against pregnant women in violation of the collective agreement, subsection 15(1) of the Canadian Charter of Rights and Freedoms and section 10 of the Quebec Charter of human rights and freedoms. An arbitrator dismissed the grievance but it was overturned by Quebec Superior Court Judge Mark Peacock, a decision which in turn was appealed by the Quebec government.
Heeding guidance from the Supreme Court of Canada in R. v. Kapp,  2 SCR 483, 2008 SCC 41, the Quebec appeal court noted that there is a two-part test to show discrimination occurred under s.15(1) of the Canadian Charter: does the law creates a distinction based on an enumerated or analogous ground, and does the distinction create a disadvantage by perpetuating prejudice or stereotyping. Following yet more guidance by the SCC in Withler v. Canada (Attorney General),  1 SCR 396, 2011 SCC 12, the appeal court noted that “care must be taken to avoid converting the inquiry into substantive equality into a formalistic and arbitrary search for the ‘proper’ comparator group.” A formal analysis therefore should not fall into the trap of becoming a formal comparison with a selected comparator group, but “an approach that takes into account the full context,” said Quebec Court of Appeal Justice Robert Mainville in a unanimous decision in Procureur générale du Québec c. Association des juristes de l’État 2017 QCCA 103.
The three-part test for a breach of section of the Quebec Charter is slightly different, noted the appeal court. A breach is established when a plaintiff can show on the balance of probabilities a case of prime facie discrimination resulting from a distinction, exclusion or preference; based on one of the prohibited grounds that compromises their right to full and equal recognition and exercise of their human rights; and in relation to a right protected under another Quebec Charter article. In short, section 10 does not set out an autonomous right.
The employer’s refusal to pay the bonus during a maternity leave “may constitute” discrimination on the basis of sex and pregnancy, grounds of discrimination listed in section 10 of the Quebec Charter, held the appeal court. The appeal court also noted that under subsection 15(1) of the Canadian Charter, discrimination based on sex includes discrimination based on pregnancy. But the fact that an employer distinguishes between different types of work absences does not necessarily mean that it constitutes discrimination, added the appeal court. It points out that it is not necessarily discriminatory when an employee on maternity leave receives 93 per cent of her salary during a period of 21 weeks while an employee on sick leave is paid nearly 67 per cent of their salary for 52 weeks.
“It all depends on the context of the distinction and its justification,” said Justice Mainville. “When an employer provides benefits to employees who are absent from work, it must do so in a way that that ensures its application does not lead to discrimination based on prohibited grounds,” warned Justice Mainville.
Justice Mainville found it “troubling and suspect” that the Quebec government treated jurists on leave differently than others, particularly since there was “no explanation” that was offered by the government over the distinctions it has made.
“The appeal court decision clarifies and provides guidance over how to establish comparator groups, given that in this case many people who were on leave were able to obtain the bonus while others on maternity leave did not,” said Bruneau.
In the meantime, the four-month strike by Quebec government lawyers and notaries is over after the Quebec government introduced back-to-work legisation. (More on that in another story).
“It’s clear that the government wanted to exhaust us, break us,” said Bruneau.
This story was originally published in The Lawyers Weekly.