Ontario Secondary School Teachers' Federation v. Upper Canada District School Board et al.

[Indexed as: Ontario Secondary School Teachers' Federation v. Upper Canada District School Board]

78 O.R. (3d) 194

[2005] O.J. No. 4057

Court File No. 307/04

Ontario Superior Court of Justice Divisional Court, O'Driscoll, Jennings and Swinton JJ. September 26, 2005

Charter of Rights and Freedoms -- Equality rights -- Family status -- Provision in collective agreement which accorded supplemental unemployment benefits during parental leave to adoptive parents but not to biological parents not violating s. 15(1) of Charter --- Board of Arbitration reasonably finding on basis of evidence before it that adoptive parents have special child care needs and that benefit in question was targeted to those needs -- Provision not undermining human dignity of biological parents -- Canadian Charter of Rights and Freedoms, s. 15(1) -- Human Rights Code, R.S.O. 1990, c. H.19.

Human rights -- Discrimination -- Analysis in Law applying to Human Rights Code -- Provision in collective agreement which accorded supplemental unemployment benefits during parental leave to adoptive parents but not to biological parents not violating Human Rights Code -- Board of Arbitration reasonably finding on basis of evidence before it that adoptive parents have special child care needs and that benefit in question was targeted to those needs -- Provision not undermining human dignity of biological parents -- Human Rights Code, R.S.O. 1990, c. H.19.

The grievors were biological fathers who were denied supplementary employment insurance benefits ("top-up benefits") under their collective agreement after [page195] the birth of their children. They filed grievances, arguing that the collective agreement provision which accorded top-up benefits during parental leave to adoptive parents but not to biological parents was contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 and s. 15(1) of the Canadian Charter of Rights and Freedoms. The grievances were dismissed. The union applied for judicial review of the board of arbitration's award.

Held, the application should be dismissed.

With respect to the interpretation of the Human Rights Code or the Charter, the board of arbitration was held to a standard of correctness. However, deference was owed to the board's findings of fact, and those findings would only be overturned if there was no evidence upon which the finding was based or if the finding was patently unreasonable.

The arbitration board did not err in holding that, in determining whether there has been discrimination under the Human Rights Code, the approach of the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration) is to be applied.

The arbitration board made a key finding of fact when it stated that the expert evidence demonstrated that adoptive parents have special child care needs which biological parents do not have, and that the purpose of the impugned provision was to respond to those needs. That finding of fact was based on the evidence before the board and was reasonable. The provision was not one which disadvantaged or stereotyped an already disadvantaged group, as biological parents are not a disadvantaged group in Canadian society. Nor did the provision of the benefit only to adoptive parents reflect negatively on the worth of biological parents, nor reflect a stereotype that biological mothers have primary responsibility for child rearing. It was noteworthy that the modest financial benefit in dispute was conferred by the majority upon a distinct minority within the bargaining unit, that is, adoptive parents. Where the majority consensually proposes a benefit for the minority such as this, one cannot conclude that the benef it undermines the human dignity of biological parents, who are the majority group. The arbitration board did not err in finding that there was no violation of the Human Rights Code. For the same reasons, the Board did not err in finding that the impugned provision did not discriminate against biological parents on the analogous ground of family status contrary to s. 15(1) of the Charter.

APPLICATION for a judicial review of an award of a board of arbitration.

Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49, apld Association of Professors of the University of Ottawa and University of Ottawa (Melchers Grievance), [1999] O.L.A.A. No. 387 (Arb. Bd., G.W. Adams); Izaak Walton Killam Health Centre v. Nova Scotia Nurses' Union (2003), 2003 89521 (NS LA), 120 L.A.C. (4th) 353 (Ont. Arb. Bd., Veniot); Ontario Hydro v. Ontario Hydro Professional & Administrative Employees (Maternity Grievance), [1999] O.L.A.A. No. 362, [1999] L.V.I. 3032-I (Arb. Bd., M.G. Picher), distd Brooks v. Canada Safeway Ltd., 1989 96 (SCC), [1989] 1 S.C.R. 1219, [1989] S.C.J. No. 42, 58 Man. R. (2d) 161, 59 D.L.R. (4th) 321, 94 N.R. 373, [1989] 4 W.W.R. 193, 45 C.R.R. 115, 26 C.C.E.L. 1, 89 C.L.L.C. 17,012; Gibbs v. Battlefords and District Co-Operative Ltd., 1996 187 (SCC), [1996] 3 S.C.R. 566, [1996] S.C.J. No. 55, 148 Sask. R. 1, 140 D.L.R. (4th) 1, 203 N.R. 131, 134 W.A.C. 1, [1997] 1 W.W.R. 1, 24 C.C.E.L. (2d) 167, [1997] I.L.R. Â1-3432, 96 C.L.L.C. 51, consd [page196] Other cases referred to Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, 34 B.C.L.R. (2d) 273, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, 36 C.R.R. 193, 25 C.C.E.L. 255; B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, [2002] S.C.J. No. 67, 219 D.L.R. (4th) 701, 294 N.R. 140, 99 C.R.R. (2d) 65, 2002 C.L.L.C. 230-037, 2002 SCC 403, 22 C.C.E.L. (3d) 153 (sub nom. Ontario Human Rights Commission v. Mr. A); British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46, 66 B.C.L.R. (3d) 253, 176 D.L.R. (4th) 1, 244 N.R. 145, [1999] 10 W.W.R. 1, 68 C.R.R. (2d) 1, 46 C.C.E.L. (2d) 206, 99 C.L.L.C. 230-038; British Columbia Government and Service Employees' Union v. British Columbia (Public Service Employee Relations Commission), [2002] B.C.J. No. 1911, 216 D.L.R. (4th) 322, [2002] 10 W.W.R. 298, 98 C.R.R. (2d) 235, 2002 BCCA 476 , 4 B.C.L.R. (4th) 301 (C.A.); British Columbia Public School Employer's Assn. v. British Columbia Teachers' Federation, 2003 BCCA 323, [2003] B.C.J. No. 1272, [2003] 8 W.W.R. 718, 2004 C.L.L.C. 230-006, 2003 BCCA 323, 15 B.C.L.R. (4th) 58 (C.A.); Canada (Human Rights Commission) v. Minister of National Revenue, [2003] F.C.J. No. 1627, 2003 FC 1280, [2004] 1 F.C.R. 679, 242 F.T.R. 175, [2004] 2 C.T.C. 61, 126 A.C.W.S. (3d) 886; Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, 302 N.R. 34, [2003] 5 W.W.R. 1, 2003 SCC 19, 11 B.C.L.R. (4th) 1; Gwinner v. Alberta (Human Resources and Employment), [2004] A.J. No. 788, 354 A.R. 21, 245 D.L.R. (4th) 158, 329 W.A.C. 21, [2004] 8 W.W.R. 407, 120 C.R.R. (2d) 373, 2004 ABCA 210, 29 Alta. L.R. (4th) 37 (C.A.) [Leave to appeal to SCC denied [2004] S.C.C.A. No. 342]; Gwinner v. Alberta (Minister of Human Resources and Employment), [2002] A.J. No. 1045, 2002 , ABQB 685, 217 D.L.R. (4th) 341, [2003] 4 W.W.R. 454, 11 Alta. L.R. (4th) 259, 321 A.R. 279, 116 A.C.W.S. (3d) 407 (Q.B.); Isabelle v. Ontario Public Service Employees Union, 1981 44 (SCC), [1981] 1 S.C.R. 449, 122 D.L.R. (3d) 385, 36 N.R. 500, 82 C.L.L.C. 14,120; Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513, 114 D.L.R. (3d) 162, 4 A.C.W.S. (2d) 397 (C.A.); Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 190 (SCC), [1996] 2 S.C.R. 3, [1996] S.C.J. No. 54, 140 Nfld. & P.E.I.R. 63, 134 D.L.R. (4th) 1, 196 N.R. 212, 438 A.P.R. 63, 96 C.L.L.C. 230-023; Ontario Nurses' Assn. v. Orillia Soldiers Memorial Hospital (1999), 1999 3687 (ON CA), 42 O.R. (3d) 692, [1999] O.J. No. 44, 169 D.L.R. (4th) 489, 40 C.C.E.L. (2d) 263, 99 C.L.L.C. 230-007 (C.A.) [Leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 118]; Saskatchewan (Department of Finance) v. Saskatchewan (Human Rights Commission), 2004 SKCA 134, [2004] S.J. No. 637, 254 Sask. R. 185, 24 , 5 D.L.R. (4th) 636, 336 W.A.C. 185, [2005] 2 W.W.R. 401, 35 C.C.E.L. (3d) 185, 2004 SKCA 134 (C.A.); Upper Canada District School Board and O.S.S.T.F., District 26 (Lynch) (Re) (2004), 2004 94742 (ON LA), 126 L.A.C. (4th) 158 (Ont. Arb. Bd.); Voice Construction Ltd. v. Construction & General Worker's Union, Local 92, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, 238 D.L.R. (4th) 217, 318 N.R. 332, [2004] 7 W.W.R. 411, 2004 SCC 23, 29 Alta. L.R. (4th) 1, 14 Admin. L.R. (4th) 165 Statutes referred to Canadian Charter of Rights and Freedoms, s. 15 Employment Insurance Act, S.C. 1996, c. 23, ss. 12 [as am.], 13, 22, 23 [as am.] Human Rights Code, R.S.O. 1990, c. H.19, ss. 5 [as am.], 10 [as am.], 24 [as am.] [page197] Rules and regulations referred to Employment Insurance Regulations, SOR/96-332, ss. 37 [as am.], 38 [as am.]

David A. Wright, for applicant. Michael A. Hines, for respondents.

The judgment of the court was delivered by

[1] SWINTON J.:-- The applicant, the Ontario Secondary School Teachers' Federation ("OSSTF"), commenced an application for judicial review on June 2, 2004 seeking an order quashing the majority award of a tripartite board of arbitration dated March 17, 2004 (reported as Upper Canada District School Board and O.S.S.T.F., District 26 (Lynch) (Re) (2004), 2004 94742 (ON LA), 126 L.A.C. (4th) 158 (Ont. Arb. Bd.)). The first and second named personal respondents comprised the majority of the board and dismissed a grievance filed by OSSTF. The third named personal respondent filed a dissent.

[2] The issue in this case is whether a collective agreement provision which accords supplemental unemployment benefits during parental leave to adoptive parents but not to biological parents is contrary to both the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), and s. 15(1) of the Canadian Charter of Rights and Freedoms.

Background Facts

[3] The federal Employment Insurance Act, S.C. 1996, c. 23, as amended, provides for benefits to be paid to a claimant "who proves her pregnancy" and to a claimant "to care for one or more new-born children of the claimant or one or more children placed with the claimant for the purpose of adoption under the laws governing adoption in the province where the claimant resides" (ss. 12-13, 22-23). Up to 15 weeks of pregnancy benefits and up to 35 weeks of parental leave benefits are payable. The parental leave benefits may be divided between the parents, and a two-week waiting period must be served by one of the parents. A biological mother may receive both pregnancy and parental benefits.

[4] The Act also provides for the establishment of supplemental unemployment benefit plans ("SUB plans"), which permit an employer to supplement the employment insurance ("EI") benefits received by claimants without reducing their benefits (Can. Reg. SOR/96-332, ss. 37-38). [page198]

[5] Article 12.14 of the 1998-2000 collective agreement between the parties addresses the supplemental unemployment benefit plan as follows:

12.14 Supplemental Employment Insurance

(a) The Board shall provide a pregnancy/parental leave sub plan for teachers under the Canada Employment Insurance Act. The Teacher's regular weekly earnings shall be determined by dividing the annual rate of salary at the commencement of the leave by the number of school days in the year, and then multiplying by five (5). No teacher shall receive any supplemental employment insurance benefit for any period of time during which no teaching duties would have been scheduled to be performed.

(b) The benefits under this clause may be claimed by the mother. Under the provisions of this plan the Board shall pay sixty percent (60%) of the teacher's regular weekly earnings for each of the two (2) qualifying weeks. For the next fifteen (15) weeks of employment insurance benefits, the Board shall pay a weekly supplement equal to the difference between sixty percent (60%) of the teacher's regular weekly earnings and the amount of the weekly unemployment insurance benefits.

(c) The benefits under this clause may be claimed by an adoptive parent while caring for an adoptive child. Under the provisions of this plan the Board shall pay sixty (60%) of the teacher's regular weekly earnings for each of the two (2) qualifying weeks. For the next ten (10) weeks of employment insurance benefits, the Board shall pay a weekly supplement equal to the difference between sixty (60%) of the teacher's regular weekly earnings and the amount of the weekly unemployment insurance benefits.

[6] Thus, under the collective agreement, women who take pregnancy leave are entitled to receive the difference between their employment insurance benefits and 60 per cent of their salary for 15 weeks, plus 60 per cent of their earnings during the two-week qualifying period (Article 12.14(b)). Pursuant to Article 12.14(c), an adoptive parent is eligible for a top-up of salary during the ten weeks of parental leave, receiving the difference between employment insurance benefits and 60 per cent of salary, plus 60 per cent of salary during the two-week qualifying period. There is no top-up for biological parents during parental leave.

[7] According to the applicant's factum, during negotiations for the collective agreement, OSSTF originally proposed a top- up provision that would provide benefits to both biological and adoptive parents in equivalent amounts during parental leave. The School Board reacted negatively, citing cost as the primary concern. It proposed a top-up benefit only for the two- week EI qualifying period. In response, OSSTF proposed the top-up only for adoptive parents which is found in the collective agreement. [page199]

[8] Two men employed as secondary school teachers with the School Board filed a grievance with respect to the SUB plan for parental leave. Fred Lynch is the natural/biological father of a daughter born on February 14, 2000. The School Board approved his parental leave taken from February 28, 2000 to May 19, 2000, a period of 12 weeks. Mr. Lynch received regular employment insurance benefits from Human Resources Development Canada for ten weeks following the qualifying period of two weeks. He requested supplemental employment insurance benefits under the collective agreement during the parental leave. The request was denied by the School Board.

[9] The second grievor, Tim Zander, is the natural/biological father of two children. He took parental leave on two occasions: between January 9, 2000 and March 31, 2000, and between September 4, 2001 and May 3, 2002. On each occasion, Mr. Zander received regular employment insurance benefits for the ten weeks following the two-week qualifying period. The School Board did not consider Mr. Zander eligible for top-up under the SUB plan for either period of parental leave, and none was paid.

[10] OSSTF filed an amended grievance by letter, dated May 18, 2000, which stated, in part:

Therefore, in accordance with Article 17.07 of the Collective Agreement, the Bargaining Unit hereby amends the grievance filed on behalf of Mr. Lynch, now also to include Mr. Zander and any other member of the Bargaining Unit so affected, that the Board violated the Collective Agreement including but not limited to Article 12.14 of the Collective Agreement in denying Mr. Zander the Supplemental Employment Insurance provisions as outlined in the current Collective Agreement.

[11] OSSTF alleged that Article 12.14(c) of the September 1, 1998-August 31, 2000 collective agreement violates the non- discrimination provisions of the collective agreement, the Ontario Human Rights Code and s. 15 of the Canadian Charter of Rights and Freedoms because it accords top-ups to employment insurance benefits during parental leaves for adoptive parents but not for biological parents.

The decision of the majority

[12] An Agreed Statement of Facts and a Supplemental Agreed Statement of Facts was filed with the arbitration board at its hearing. In addition, Judy Grove, Executive Director of the Adoption Council of Canada, was called as an expert witness by the School Board, and she testified about the experience of adoptive parents when a child first arrives in their home. Essentially, she testified about the "significant differences" in the experiences of natural and adoptive parents in the period immediately after an [page200] adoptive child is brought home. She stated that there is a high incidence of special needs when an adoptive child enters a family, in part because most children adopted are not infants, and many are international adoptions.

[13] The arbitration board also heard evidence from the President of District 26 of the OSSTF, Greg McGillis, who said that the rationale for the special treatment of adoptive parents was to recognize the different experience of adoptive as opposed to biological parents.

[14] The majority first asked whether the analysis of the equality guarantee in the Charter undertaken by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1 should be applied in determining whether there was discrimination under provincial human rights legislation, and concluded that it should be applied for the following reasons [at p. 173 L.A.C.]:

... the Board is satisfied that the preponderance of jurisprudence supports the proposition that the Law analysis of s. 15 of the Charter should be extended to the assessment of discrimination under provincial human rights legislation. In making this determination the Board relies on the authorities cited above by the employer. It also refers specifically to the decision of the Supreme Court of Canada in B. v. Ontario [(2002), 2002 SCC 66, 219 D.L.R. (4th) 701]. The Court in determining whether there was a violation of the Ontario Human Rights Code clearly refers to its own decision in Law. As well, it confirms, again, that human rights legislation has a unique quasi-constitutional nature. That being the case, it simply makes no sense to look at the term "discrimination" in any provincial human rights legislation as being unique and interpreted in a vacuum. It is important that a common, consistent approach be used by tribunals across Canada to ensure consistency of tr eatment and interpretation. Any other approach could lead, potentially, to differing interpretations of fundamental values that have been adopted with significant uniformity by all Canadian jurisdictions. [p. 21]

[15] The Board then went on to apply Law, stating [at pp. 175-77 L.A.C.],

A proper analysis must, as stated by the Court, be made in the context provided by each case. In the instant case the contextual framework is twofold: first, the provision in the collective agreement reflects a provision freely negotiated, was a union proposal and was ratified by the membership. The case law recognizes that there are special considerations applicable to agreements that have been agreed to through free collective bargaining.

Second, the Board must make its decision based on the evidence before it. In the instant case, the expert evidence of Ms. Grove established differential needs between adoptive and biological parents in the period after the arrival of the child at home. Mr. McGillis, one of the OSSTF negotiators, acknowledged that the special needs of adoptive fathers was the rationale for the different treatment.

In the instant case, there is differential treatment between adoptive and natural fathers. The distinction clearly brings into play one of the enumerated [page201] goals [sic] of the OHRC as well as the Charter. The question then is whether the differential treatment constitutes unlawful discrimination.

The response to that is based squarely on the expert evidence of Ms. Grove and the testimony of Mr. McGillis. Ms. Grove's evidence demonstrates special needs for adoptive fathers as compared to natural fathers when the child is introduced to the home. Mr. McGillis acknowledged the special needs. [p. 24]

As in the Law case, there is a clear ameliorative purpose to the impugned provision of the collective agreement. It is to provide an additional benefit to adoptive fathers in recognition of their special needs. The result is not to demean or devalue the worth of natural fathers. It is not to stigmatize them or to give them a feeling of being disadvantaged. The collective agreement provision reflects nothing more than a recognition that one group -- adoptive fathers -- has different needs than the other group -- natural fathers. The collective agreement reflects nothing more than what was stated by Mr. McGillis, that adoptive parents (fathers) have different needs. The top-up simply was the parties' recognition of that special need.

In the result, therefore, as the Court stated in Law "I find it difficult to perceive in the purpose or effects of the impugned legislation a violation of the applicant's dignity". Similarly, we find it difficult to perceive in the purposes or effects of the impugned collective agreement a violation of the grievor's dignity. [pp. 25-26]

This Board therefore concludes as did the Court in Law [at para. 110] that:

I conclude then, that this is one of the rare cases contemplated in Andrews supra, in which differential treatment based on one or more of the enumerated or analogous grounds in s. 15(1) is not discriminatory. It is important to identify such cases through a purposive analysis of s. 15(1), in order to ensure that analysis under s. 15(1) does not become mechanistic, but rather addresses the true social, political and legal context underlying each and every equality claim.

As the majority of the arbitration board concluded that the differential treatment was not discriminatory, the grievance was dismissed.

The applicable standard of review

[16] The applicant argued that the correct standard of review in this case is correctness, given that the task of the arbitration board was to apply human rights legislation and the Charter. In contrast, the School Board argued that the standard should be reasonableness, given that the determination of whether there was discrimination was a question of mixed fact and law.

[17] In Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, [2004] S.C.J. No. 2, 238 D.L.R. (4th) 217, the Supreme Court of Canada observed [page202] that different standards of review may apply to different questions before an arbitration board (at paras. 19 and 21).

[18] With respect to the interpretation of a human rights code or the Charter, the board of arbitration is held to a standard of correctness, as these are questions of legal interpretation where the board has no greater expertise than a court (Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 190 (SCC), [1996] 2 S.C.R. 3, [1996] S.C.J. No. 54, 134 D.L.R. (4th) 1, at paras. 12-14; Ontario Nurses' Association v. Orillia Soldiers Memorial Hospital (1999), 1999 3687 (ON CA), 42 O.R. (3d) 692, [1999] O.J. No. 44 (C.A.), at pp. 702-03 O.R.). However, deference is owed to the board's findings of fact, and those findings will only be overturned if there was no evidence upon which the finding was based (Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513, 114 D.L.R. (3d) 162 (C.A.), at p. 521 O.R.) or if the finding was patently unreasonable (Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, at para. 41).

The Issues

[19] At issue in this case is whether the arbitration board erred in applying the Law analysis in the interpretation of the Human Rights Code and also erred in finding that the SUB plan for adoptive parents was not discriminatory on the basis of family status, contrary to both the Code and the equality guarantee in s. 15(1) of the Charter.

Whether the Law analysis applies to the Human Rights Code

[20] Counsel for the School Board argued that the proper approach to the interpretation of the Human Rights Code was to ask whether there was discrimination using the Law test. If there was no discrimination, the Code was not violated. In other words, he argued that the approach to discrimination is the same under both the Charter and the Code. In support of this position, decisions of the British Columbia, Alberta and Saskatchewan Courts of Appeal were cited (British Columbia Government and Service Employees' Union v. British Columbia (Public Service Employee Relations Commission), 2002 BCCA 476, [2002] B.C.J. No. 1911, 216 D.L.R. (4th) 322 (C.A.), at para. 12; British Columbia Public School Employers' Assn. v. British Columbia Teachers' Federation, 2003 BCCA 323, [2003] B.C.J. No. 1272, [2003] 8 W.W.R. 718 (C.A.), at paras. 90-96; Gwinner v. Alberta (Human Resources and Employment), 2004 ABCA 210, [2004] A.J. No. 788, 245 D.L.R. (4th) 158 (C.A.), at para. 4 [Leave to appeal to S.C.C. deni ed [2004] S.C.C.A. No. 342]; [page203] Saskatchewan (Department of Finance) v. Saskatchewan (Human Rights Commission), 2004 SKCA 134, [2004] S.J. No. 637, 245 D.L.R. (4th) 636 (C.A.), at para. 9).

[21] The applicant took the position that the arbitration board erred in applying Law, as the Charter analysis was inappropriate, given the different language and structure of s. 15(1) of the Charter and the Human Rights Code. Reliance was placed on the decision of Reilly J. in Canada (Human Rights Commission) v. Minister of National Revenue, 2003 FC 1280, [2003] F.C.J. No. 1627, [2004] 1 F.C.R. 679 (T.D.), which held that the definition of discrimination in Law did not apply to the interpretation of human rights legislation (at para. 8).

[22] Section 5(1) of the Ontario Human Rights Code states,

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or disability.

"Family status" is defined in s. 10(1) to mean "the status of being in a parent and child relationship". Section 24(1) provides a number of defences, including a bona fide qualification defence in clause (b). It reads,

24(1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(b) the discrimination in employment is for reasons of age, sex, record of offences, marital status or same-sex partnership status if the age, sex, record of offences, marital status or same-sex partnership status is a reasonable and bona fide qualification because of the nature of the employment.

Section 24(2) provides that a qualification is not reasonable and bona fide unless the person who is the subject of discrimination cannot be accommodated without undue hardship.

[23] The majority of the arbitration board held that in determining whether there has been discrimination under the Code, the approach of the Supreme Court of Canada in Law is to be applied. In Law, the Supreme Court attempted to synthesize its past s. 15 jurisprudence, setting out guidelines for the application of s. 15(1). Iacobucci J. stated that a court determining a discrimination claim under s. 15(1) should make three broad inquiries (at para. 88(3)):

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? [page204]

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[24] Key to the interpretation of s. 15(1) of the Charter is the protection of human dignity. In the words of Iacobucci J. at para. 51:

It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

[25] In that case, the court was asked to find that provisions of the Canada Pension Plan violated s. 15(1) because survivor benefits were not available to spouses under the age of 35, who had no dependent children, unless they were disabled. As well, those under the age of 45 were subject to conditions for eligibility not imposed on those over 45 years of age. The court held that the provisions were not discriminatory within s. 15(1) of the Charter, as they did not violate the claimant's essential human dignity, "when the dual perspectives of long-term security and the greater opportunity of youth are considered". Moreover, the legislation did not "stereotype, exclude, or devalue adults under 45" (at para. 102). Finally, the ameliorative purpose of the legislation was a consideration, as Iacobucci J. stated at para. 103,

Given that the appellant is more advantaged in a relative sense, and that the legislative distinctions in the present case largely correspond to the greater long-term need and different circumstances experienced by the more disadvantaged group being targeted by the legislation, I find it difficult to perceive in the purpose or effects of the impugned legislation a violation of the appellant's dignity.

[26] There has long been a cross-fertilization between human rights legislation and s. 15 of the Charter. In Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, 56 D.L.R. (4th) 1, the first major case interpreting s. 15 of the Charter, the Supreme Court of Canada looked to human rights code jurisprudence to assist it in determining the meaning of "discrimination" (at pp. 174-75 S.C.R., pp. 18-19 D.L.R.). McIntyre J., writing for the majority on this issue, was well aware that [page205] the Charter and the codes were differently structured, as the codes contain specific defences (at p. 175 S.C.R., p. 19 D.L.R.). Nevertheless, he found helpful the concept of discrimination which had developed to date under the codes.

[27] Since Andrews, the concept of equality and discrimination in human rights codes has reflected the developing equality jurisprudence under the Charter (see, for example, Brooks v. Canada Safeway Ltd., 1989 96 (SCC), [1989] 1 S.C.R. 1219, [1989] S.C.J. No. 42, 59 D.L.R. (4th) 321, at p. 1232 S.C.R., p. 331 D.L.R.; Gibbs v. Battlefords and District Co- Operative Ltd., 1996 187 (SCC), [1996] 3 S.C.R. 566, [1966] S.C.J. No. 55, 140 D.L.R. (4th) 1, at pp. 577-79 S.C.R., pp. 9-10 D.L.R.; British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employee's Union, 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46, 176 D.L.R. (4th) 1 ("Meiorin"), para. 48). It has also been noted that both s. 15 and the codes pursue the same objective -- namely, the protection of human dignity (B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, [2002] S.C.J. No. 67, 219 D.L.R. (4th) 701, at para. 46). Indeed, the preamble to the Ontario cod e states, in part,

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community ...

[28] In my view, the arbitration board in this case did not err in applying the analysis used in Law. I agree with the observations on Law made by Madam Justice Greckol of the Alberta Court of Queen's Bench in the Gwinner v. Alberta (Minister of Human Resources and Employment) case, 2002 ABQB 685, [2002] A.J. No. 1045, 217 D.L.R. (4th) 341 (Q.B.)), which was affirmed by the Alberta Court of Appeal and cited earlier in these reasons. In that case, she was determining whether a government assistance programme for widows, but not divorced and single women, was discriminatory. In her view, the application of Law is appropriate in some cases interpreting human rights legislation, although a decision-maker should always be aware of the difference in the language of the Charter and the human rights codes. As she stated at para. 103:

The Law analysis is particularly applicable in this case, where there is a human rights equality challenge to legislation which sets up a government program of financial support that is alleged to be discriminatory. Here, as in Law, the government raises a serious question as to whether the dignity interest of the Claimants is engaged.

[29] In my view, the approach in Law is consistent with that taken by the Supreme Court of Canada in both Brooks [page206] and Gibbs, supra. In each case, the court determined whether there had been discrimination in a health benefit plan provided to employees by assessing the fairness of the distinctions made in the plan. Applying Brooks in Gibbs, Sopinka J. stated (at para. 38):

As set out in Brooks, in determining whether an insurance plan discriminates, it is first necessary to determine the true character or underlying rationale of the plan in the circumstances of the particular case. As noted above, discrimination should not be found on the basis of a comparison between the benefits given to employees pursuant to different insurance purposes.

He went on to say that a full evidentiary record was necessary to make a determination of the purpose of the plan. In both Gibbs and Brooks, the court considered not only whether there was differential treatment between groups of employees, but also took into account the history of disadvantage experienced by those treated less favourably by the insurance plan. In Brooks, Dickson C.J.C. concluded that there was discrimination against pregnant women, because the employer had chosen to exclude them during a period of their pregnancy from a benefit plan whose purpose was to compensate employees absent for health-related reasons. At p. 1238 S.C.R., p. 335 D.L.R., he concluded that such an exclusion was an unfair disadvantage, citing Andrews, supra, because the plan placed a disproportionate share of the costs of pregnancy on women. Similarly, in Gibbs, Sopinka J. held that the lesser benefits under the plan for those who were mentally ill rather tha n physically ill constituted discrimination, given the historical disadvantage and negative stereotyping experienced by the mentally disabled (at paras. 34, 37).

[30] In this case, the determination of the purpose of the SUB plan is of fundamental importance. The applicant argues that the purpose of Article 12.14(c) is to provide financial support to parents during the period when a new child enters the home, so as to assist them with child care needs and promote parent-child bonding. Therefore, the applicant submits, there is discrimination against biological fathers, because they do not receive the same financial benefit as adoptive fathers. In contrast, the respondent argues that the purpose of the provision is to provide financial support for adoptive fathers in the period when a child enters the home, because of the special needs of adoptive families.

[31] The determination of the appropriate comparators is a key element in determining whether there has been discrimination (Orillia Hospital, supra, at p. 704 O.R.). In my view, the appropriate comparison here is between adoptive parents and biological parents. Although the grievors are biological fathers, the provision of the collective agreement which they attack makes a distinction between biological parents and adoptive parents. [page207]

[32] The arbitration board made a key finding of fact when it stated that the expert evidence "demonstrates special needs for adoptive fathers as compared to natural fathers when the child is introduced to the home" (p. 24 of the award) [p. 175 L.A.C.]. As well, the board found that the purpose of the provision, as stated by Mr. McGillis, was to respond to the special needs of adoptive parents. It is not the role of this court to interfere with such findings of fact, which were based on the evidence before the board (Keeprite, supra).

[33] The applicant pointed to a number of arbitration awards in which arbitrators have held that a top-up plan that provides benefits to adoptive parents and not to biological parents is discriminatory (Association of Professors of the University of Ottawa and University of Ottawa (Melchers Grievance), [1999] O.L.A.A. No. 387 (Arb. Bd., G.W. Adams); Ontario Hydro v. Society of Ontario Hydro Professional & Administrative Employees (Maternity Grievance), [1999] O.L.A.A. No. 362, [1999] L.V.I. 3032-I (Arb. Bd., M.G. Picher); Izaak Walton Killam Health Centre v. Nova Scotia Nurses' Union (2003), 2003 89521 (NS LA), 120 L.A.C. (4th) 353 (Ont. Arb. Bd., Veniot)).

[34] It should first be noted that none of those awards is binding on the arbitration board (Isabelle v. Ontario Public Service Employees Union, 1981 44 (SCC), [1981] 1 S.C.R. 449, 122 D.L.R. (3d) 385 at p. 457 S.C.R., p. 390 D.L.R.). More importantly, there was evidence before the arbitration board in this case of the special needs of adoptive parents which showed the particular purpose of the language in the provision. The evidentiary record before the other boards was different (see, for example, University of Ottawa at paras. 26 and 28).

[35] In Gibbs, Sopinka J. observed that an insurance plan might, in some circumstances, legitimately limit coverage to certain injuries (at paras. 38, 40). However, the purpose of the insurance plan must be determined in a manner consonant with the goals of human rights legislation, which is to protect against historical disadvantage and negative stereotyping (at paras. 36-37).

[36] In this case, the benefit is targeted to adoptive parents who, according to the evidence accepted by the majority, in general have special child care needs. The provision is not one which disadvantages or stereotypes an already disadvantaged group, as in Gibbs and Brooks, as biological parents are not a disadvantaged group in Canadian society. Nor does the provision of the benefit only to adoptive parents reflect negatively on the worth of biological parents, nor reflect a stereotype that biological mothers have primary responsibility for child rearing. Moreover, it is noteworthy in this case, that the modest financial benefit in dispute was conferred by the majority upon a distinct minority [page208] within the bargaining unit -- that is, adoptive parents. Where the majority consensually proposes a benefit for the minority such as this, one cannot conclude that the benefit undermines the human dignity of biological parents, who are the majority group. Therefore, I conclude that the arbitration board did not err in finding that there was no discrimination and, therefore, no violation of the Human Rights Code.

Whether the provision is constitutional

[37] In oral argument, counsel for the applicant indicated that the applicant rested its case primarily on the Human Rights Code argument. In the alternative, it argued that the arbitration board erred in finding a violation of s. 15 of the Charter.

[38] In applying the Charter analysis from Law, the first two questions are whether there has been differential treatment and, if so, upon an enumerated or analogous ground. The provision providing a top-up for adoptive parents does constitute differential treatment between adoptive and biological parents and does so on the analogous ground of family status. However, the majority of the arbitration board concluded that the distinction drawn did not interfere with the essential purpose of s. 15, as the provision of the collective agreement does not violate human dignity, and therefore, there was no discrimination in a substantive sense, as required by the third step of the Law analysis.

[39] In my view, the majority of the board was correct. On the facts found by the board, the collective agreement provides a financial benefit to adoptive parents because of their special needs during the period when their new child arrives in the home. While biological parents are not entitled to an equivalent top-up, this is not a case where the provision undermines the human dignity of the biological parents, nor does it reflect gender stereotypes. Biological parents are not a group which has historically suffered disadvantage in our society. The expert evidence showed that adoptive parents have special needs, and the term providing the top-up benefit only to adoptive parents was proposed by the union and ratified by a majority of the people who would be affected by the provision.

[40] Law states that the determination whether a provision violates the human dignity of an individual is to be made from the perspective of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to and under similar circumstances as the claimant (at para. 61). Standing in the position of a biological parent covered by this collective agreement, one cannot conclude that the limited benefit [page209] provided to adoptive parents violates the human dignity of biological parents or their worth as parents. This limited benefit plan for adoptive parents but not biological parents does not engage the purpose of s. 15, as there is no negative reflection here on the human dignity of biological parents.

Conclusion

[41] For these reasons, the application for judicial review is dismissed. As the parties agreed that the successful party should be awarded costs of $6,500, costs are awarded to the respondent in the amount of $6,500.

Application dismissed.