A provision negotiated in a collective agreement that gives benefits to adoptive but not biological parents is not contrary to Ontario’s
Human Rights Code
or the federal
Charter of Rights and Freedoms
, an Ontario court has ruled.
The agreement negotiated between the Ontario Secondary School Teachers’ Federation (OSSTF) and the Upper Canada District School Board for 1998 to 2000 ‘topped up’ 10 weeks of benefits to adoptive parents on parental leave but not to biological parents.
During negotiations for the collective agreement the OSSTF had proposed the top-up provision for both biological and adoptive parents. The school board rejected it because of its cost, and counter-proposed that benefits (for both adoptive and biological parents) be topped up for the mandatory two-week waiting period before parents become eligible for benefits.
The union proposed the compromise which ultimately was in the collective agreement, whereby the top-up was awarded for 10 weeks but only for adoptive parents.
In early 2000 the OSSTF filed a grievance on behalf of two fathers who had taken parental leave and been denied top-up benefits. It argued awarding benefits only to adoptive parents violated the non-discrimination provisions of the collective agreement, the Ontario
Human Rights Code
, and s. 15 of the
Canadian Charter of Rights and Freedoms
What the arbitration board said
The arbitration board ruling on the grievance heard from Judy Grove of the Adoption Council of Canada. She testified as an expert witness about the experiences of adoptive parents compared to that of biological parents. She said there were significant differences in their experiences in the period immediately after the child is brought home. There is a high incidence of special needs when an adopted child enters the family, she said. This is partly because most adopted children are not infants. Also, in many instances, the adoptions are international, she said.
Greg McGillis, the president of District 26 of the OSSTF confirmed that when the collective agreement was negotiated the rationale for the special treatment of adoptive parents was to recognize their different experiences.
The board used an approach similar to that of
Law v. Canada (Minister of Employment and Immigration)
to rule whether there was discrimination under provincial human rights legislation.
In applying it to this case, the board noted that the provision in the collective agreement had been freely negotiated, had been a union proposal and had been ratified by the membership. Special consideration is given to agreements agreed to through free collective bargaining, said the board.
In this instance there was clearly differential treatment between adoptive and biological parents (specifically, in this case, fathers). Ultimately the only issue to be decided was whether the differential treatment constitutes unlawful discrimination.
The provision had a clear ameliorative purpose, namely to provide a benefit to adoptive parents in recognition of their special needs. It did not demean or devalue the worth of biological fathers, ruled the board. It did not stigmatize them or give them a feeling of being disadvantaged and there was no violation of the applicants’ dignity. The collective agreement reflects nothing more than the recognition that one group has different needs than the other group.
The top-up was thus simply recognition of a special need. This was one of the rare cases in which differential treatment based on one or more grounds considered discriminatory by s. 15(1) of the charter does not amount to actual discrimination, the board said.
What the court said on judicial review
The Ontario Divisional Court endorsed the board of arbitration’s judgment. The purpose of s. 15(1) of the charter is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or social and political prejudice. There was nothing in the disputed provision that went against this goal.
There are other instances of differential treatment which have been judged legal, the court said. Examples include provisions of the Canada Pension Plan which give survivor benefits to spouses under 35 only if they had dependant children who are disabled. Another provision required different conditions of eligibility for people under 45 than those over 45. The court ruled the ameliorative purpose of the measure, along with the fact that it did not stereotype, exclude or devalue others, made the differential treatment acceptable. The distinctions correspond to the greater long-term needs and different respective circumstances, the court had found in its
In this case, the court said, a benefit targets adoptive parents who, according to evidence duly considered by the board, have special childcare needs. The provision does not disadvantage or stereotype an already disadvantaged group (since biological parents are not disadvantaged in Canadian society) and the benefit does not reflect negatively on the worth of biological parents.
In addition, the court said the modest financial benefit in dispute here was conferred by the majority upon a minority (adoptive parents) within the bargaining unit. Where the majority consensually proposes a benefit for the minority one cannot conclude the benefit undermines the dignity of the majority group. Therefore the court found the board did not err in finding there was no discrimination, and thus no violation of the
Human Rights Code.
For more information see:
Upper Canada District School Board v. O.S.S.T.F., District 26
, 2005 CarswellOnt 4574 (Ont. Div. Ct.)
What the charter says
The union’s argument that the provision awarding benefits to adoptive but not biological parents violates s. 15(1) of the
Canadian Charter of Rights and Freedom
was rejected by the board of arbitration and the Ontario Divisional Court. Section 15(1) reads as follows:
(1) Equality before and under law and equal protection and benefit of law
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
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