OSSTF v. Barton

OSSTF v. Barton Collection Decisions of the Court of Appeal Date 1998-08-24 Docket numbers C25557 Judges Robins, Sydney Lewis; McKinlay, Hilda Margaret; Osborne, Coulter Arthur Anthony Subject Civil Decision Content DATE: 19980824 DOCKET: C25557 COURT OF APPEAL FOR ONTARIO ROBINS, McKINLAY and OSBORNE JJ.A. BETWEEN: ) ) Leonard P. Kavanaugh THE ONTARIO SECONDARY SCHOOL ) for the appellant TEACHERS' FEDERATION, DISTRICT 34 ) ) Applicant ) (Respondent)) ) and ) Eric Del Junco ) for the respondent PETER G. BARTON, JAMES N. BARLET, ) LINVEL JONES ) ) (Respondent)) and ) Heard: April 22, 1998 ) THE ESSEX COUNTY BOARD OF ) EDUCATION ) ) (Appellant) ) McKINLAY J.A.: [1] This is an appeal with leave from a decision of the Divisional Court dated June 4, 1996, quashing the award of a majority of a Board of Arbitration acting pursuant to arbitration provisions in a Collective Agreement between the appellant, The Essex County Board of Education (the "School Board"), and the respondent, The Ontario Secondary School Teachers' Federation, District 34 (the "OSSTF"). [2] Carlinda D'Alimonte is a member of OSSTF, and a grievance filed by her was the subject of the arbitration proceedings. She is a teacher employed by the appellant and is a member of the bargaining unit covered by the Collective Agreement. [3] By letter to the appellant, dated August 28, 1992, Mrs. D'Alimonte applied to the appellant School Board for 27 weeks of leave, comprising 17 weeks of pregnancy leave and 10 weeks of parental leave, pursuant to the Collective Agreement. The request was approved by the appellant by letter. [4] Subsequently, by letter dated September 29, 1992, Mrs. D'Alimonte wrote to the School Board requesting additional benefits. She indicated that she would be "... unable to work for medical reasons during labour and following the delivery..." of her child. She requested that she be granted sick leave throughout the period commencing with her absence from work and concluding on the date when her physician certified her fit to return to work. She requested that her pregnancy and parental leave commence at the end of her sick leave. It should be noted at this stage that there was no reason to believe that the birth would be other than normal and, in fact, her child was delivered with no complications. [5] Mrs. D'Alimonte was actually paid the following: sick leave pursuant to the Collective Agreement at her full salary rate for four days preceding the birth of her child; two weeks of supplementary unemployment benefits pursuant to the agreement commencing on the date of birth; and pregnancy and parental leave benefits from two weeks following the birth. [6] Mrs. D'Alimonte's attending physician, Dr. R. Bourke, wrote a hand-written note to the School Board on September 29, 1991. It stated: The above named patient will be unable to work on the date of the birth of her child for medical reasons and also for a period of time following the delivery. That date depends upon the type of delivery and the possibility of any complications arising from the delivery. [7] He wrote two subsequent notes on prescription pad paper, one on October 1, 1991 and the other on December 3, 1992. The first says, "To stop work now. Due date Oct. 29/92". (The child was actually born on October 23, 1992.) The second says, "Return to work December 4/92". [8] A staff member of OSSTF, who represented OSSTF in the grievance procedure, wrote to Dr. Bourke before the hearing of the grievance stating that the above notes had "not been accepted as evidence of her actual physical disability during the period in question", and asking a number of questions for clarification. His response is quoted below: In response to your letter of June 14,1994. I am providing the following answers to your questions raised in your letter: 1. I graduated from Medical School in 1967 from the Royal College of Surgeons, Dublin Ireland. I was granted my Canadian Fellowship F.R.C.S. in Obstetrics and Gynaecology in 1973. 2. I did provide all 3 notes that are listed. 3. I was attending Physician at the birth of Carlinda D'Alimonte's child. 4. I think it is fairly obvious that she could not be working and delivering her baby at the same time. Therefore, it is impossible for her to be working and delivering on the same day. It is a standard teaching in Obstetrics that a normal post partum birth is 6 weeks. This allows the pelvis to heal adequately, the vaginal canal to heal naturally and properly. The uterus returns to its normal non pregnant state. The vaginal bleeding has usually subsided by 6 weeks. For all of the above it is normal that a woman remain off work for 6 weeks following delivery. [9] When he attended before the Board of Arbitration (the "Board"), Dr. Bourke declined to elaborate on the comments in his letter. It is interesting to note that nowhere in that letter does Dr. Bourke state that Mrs. D'Alimonte was suffering from a "sickness, or physical or emotional disability". These are the criteria for granting sick leave within the terms of Art. 12.01(a)(iii) of the Collective Agreement. [10] The OSSTF takes the position that Mrs. D'Alimonte was discriminated against on the basis of sex, contrary to ss. 5(1) and 10(2) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 by being denied sick leave subsequent to the birth of her child and prior to the commencement of pregnancy and parental leave. Those sections read: 5. - (l) 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, family status or handicap. 10. - (2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant. [11] The majority of the Board held that there had been no discrimination. The Divisional Court reversed that decision. Reasons of the Board of Arbitration [12] The essence of the majority and of the minority reasons of the Board are reproduced below: Majority opinion The long and short of it is that this collective agreement and federal and Ontario legislation have established a climate of labour relations in which sick leave and maternity leave are considered as separate types of leave. No one doubts that an employee is unable to work for part of the time that they are on maternity leave and in fact the U.I.C. income supplement paid for fifteen of those weeks helps make up for some of the lost pay. I find it of some significance that the Employment Standards Act does not include a sick leave plan and that the payment of benefits towards a sick leave plan is not within the contemplation of that Act. Thus, on balance I prefer the employer's position. The words "physical disability" in the sick leave plan in this collective agreement in their ordinary usage might well cover some of the time when a mother would be unable to work because of having given birth. This would be from the day of birth to perhaps four to six weeks thereafter. I do not think that the phrase "physical disability" can be given its wide ordinary usage but must be read in the context of the sick leave plan itself and the collective agreement. Physical disabilities due to maternity are, in my view, recognized in the Employment Standards Act maternity leave provisions and the sick leave plan must be interpreted to exclude them, therefore. In the result the grievance is dismissed. Minority opinion The fact that the collective agreement provides two different benefits for which eligibility may overlap in some instances, is not an argument for reading into the sick leave provisions an exclusion which is not present in the text of the agreement. Sick leave is an earned benefit whose fundamental purpose is to protect income when employees are unable to work on account of sickness and disability. There is no reason why a pregnant employee ought not be able to take advantage of this income protection plan. Had the parties intended to so narrow the sick leave provisions they would surely have said so. In the absence of clear language to this effect, an employee ought not to be deprived of such a benefit simply because she may be entitled to some lesser benefit under the agreement. Y In my view there is nothing absurd, unreasonable or anomalous in permitting women who are disabled on account of pregnancy to draw upon their sick leave credits in the same manner as an employee who has undergone surgery, who has broken his leg, or who suffers from a common cold. It is entirely consistent with the purpose of the sick leave plan that an employee have her income protected when she is unable to work on account of disability regardless of the nature of that disability. [Emphasis added.] Standard of Review [13] The Divisional Court held that the appropriate standard of review in this case is that of correctness, since the true issue in the case involves the application of a general public statute, namely the Ontario Human Rights Code, and not simply the interpretation of the Collective Agreement. With respect, I am of the view that there are two major issues in the case, each of which involves a different standard of review -- first, the interpretation of the leave provisions of the Collective Agreement and, second, whether the interpretation of those provisions results in discrimination contrary to the provisions of the Ontario Human Rights Code. With respect to the first, the privative provision in s. 72 of the School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S.2 applies. With respect to the second, if the interpretation of the relevant provisions of the Collective Agreement given by the Board of Arbitration is in conflict with the provisions of the Ontario Human Rights Code, then the provisions of the Code prevail. The standard of review on that issue is clearly one of correctness. Leave provisions in the Collective Agreement [14] The Collective Agreement sets out a number of different leaves of absence, each of which is distinct in character and purpose. An outline of some of those provisions and details of the relevant ones are set out below: 12.01 Short Term (a) Cumulative Sick Leave (i) The Plan shall apply to all permanent and probationary teaching employees under contract to the Board. . . . . (iii) Absence under this Plan shall apply to sickness, or physical or emotional disability certified by a medical practitioner or approved under the regulations governing Leaves of Absence. . . . . 12.02 Long Term Leaves (c) A. Pregnancy, Adoption and Parental Leave Pregnancy, adoption and parental leave shall be granted in accordance with the Employment Standards Act and the regulations established thereunder. Y . . . . (iii) The Board will provide for a Supplementary Unemployment Benefit Plan to pay the equivalent U.I.C. payment for the first two weeks of pregnancy leave or adoption leave to assist the teacher who would be without wage benefit for the first two weeks of pregnancy or adoption leave. [15] The majority of the Board held that the leaves provided for in the Collective Agreement were distinct, and intended for separate and distinct purposes. They were of the view that although there might be a "physical disability" component to recovery from pregnancy and giving birth, that was intended to be provided for in the maternity leave provisions of the Collective Agreement. In the argument before us, the appellant took the position that a pregnancy and delivery without complications was contemplated by the provisions of the Employment Standards Act (the provisions of which are incorporated into the Collective Agreement), and that such a pregnancy and delivery did not result in a sickness or physical disability within the meaning of the Collective Agreement. To apply the ordinary meaning of the words "physical disability" would be to ignore the intention of the parties when they entered into the Agreement. In my view, that is not an unreasonable reading of the Collective Agreement. [16] However, that does not end the matter. Such an interpretation of the provisions of the Collective Agreement may mean that the Agreement discriminates on the basis of sex (including pregnancy), proscribed by ss. 5(l) and 10(2) of the Ontario Human Rights Code. Ontario Human Rights Code [17] The basic position of the appellant is that the Agreement does not discriminate on the basis of pregnancy, and that any pregnant woman who also becomes sick or physically or mentally disabled may claim and receive sick leave in addition to her pregnancy leave. All sick or disabled persons are treated in exactly the same manner B male or female B pregnant or not pregnant. [18] That argument has substantial appeal in that it allows for uncomplicated administration of the Agreement. The problem is that all "disabled" persons are not treated the same by the agreement. Women giving birth normally, and who, it is acknowledged, would nonetheless be "physically disabled", in the ordinary sense of those words, for some undetermined length of time, would not receive leave with pay for that period. In my view, that is all that is being argued about in this case. In that sense, I agree with Adams J. that the Board's reading of the Agreement results in discrimination against pregnant women. See Brooks v. The Canada Safeway Ltd (1989), 59 D.L.R. (4th) 321 (S.C.C.). [19] The parties to the Agreement will, no doubt, consider ways to amend its provisions to preclude the practical complications of having to determine a specific period of disability in each case of an uncomplicated pregnancy and delivery. Result [20] In this case, Mrs. D'Alimonte had ample opportunity to prove the period of her disability. Her physician, although called as a witness, declined to give the relevant evidence and neither the Board nor the Divisional Court was able to determine the relevant period in which Mrs. D'Alimonte would have been entitled to sick leave. In the circumstances, I see no reason to send this matter back to the Board of Arbitration. [21] I would allow the appeal on that basis alone, set aside that part of the order of the Divisional Court which remitted the matter to the Board and provided for the payment of interest, and confirm the Board's dismissal. However, in the circumstances, I would make no order as to costs here or below. Released: August 24, 1998