When a collective agreement is negotiated, compromises are often made.  Benefits are given to some but not all employees. However, this can risk being viewed as discriminatory – depending on who receives the new benefits and who does not. In a recent case before the Nova Scotia Court of Appeal, IAFF, Local 268 v Adekayode, it was examined whether or not it was discriminatory for a collective agreement to top up federal EI benefits for adoptive parents’ parental leave but not for birth parents.

In Adekayode, the Human Rights Board had initially found that a policy of topping up EI benefits for adoptive but not birth parents was discrimination based on family status as per section 5(i)(r)  of the Human Rights Act. However, the Court of Appeal overturned this ruling. They held that while the Board was correct in their analysis of discrimination under section 5 of the Human Rights Act, section 6 would allow it. Section 6 states that:

6 Subsection (1) of Section 5 does not apply

. . . . .

(i) to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5.

The Board had found section 6 did not apply to the agreement in this case because there was not a “planned scheme to address a real and identified difficulty being experienced by employees seeking to become adoptive parents”, and thus the provision of the collective agreement did not have amelioration as its goal. However, the Court of Appeal noted that it is completely normal for negotiating parties to approach the table with differing goals and to strike a compromise at the end. This in itself does not prevent the resulting collective agreement provisions from having an object of improving the conditions of adoptive parents.  In this case, the Court of Appeal found that the goal was to improve the condition of a “disadvantaged class” – adoptive parents.

Accordingly, in collective agreements, while there may be various goals of each party entering into an agreement and different outcomes for different types of employees, it does not necessarily mean that the result is discriminatory. The key takeaway from this case is that while the differential treatment of employees in a collective agreement may violate human rights, it’s important to properly examine the goal of the provision in context with applicable law.

Written with the assistance of Kira Misiewicz, articling student.

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