Lavoie v. Treasury Board of Canada

Lavoie v. Treasury Board of Canada
Collection
Canadian Human Rights Tribunal
Date
2008-06-20
Neutral citation
2008 CHRT 27
File number(s)
T1154/3606
Decision-maker(s)
CAHILL, Kathleen
Decision type
Decision
Decision Content
BRIGITTE LAVOIE
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
TREASURY BOARD OF CANADA
Respondent
DECISION
2008 CHRT 27 2008/06/20
MEMBER: Kathleen Cahill
I. INTRODUCTION
II. THE FACTS
A. Evidence of the complainant, Ms. Lavoie
B. The respondent's evidence
C. The Commission's evidence
III. ISSUES
IV. ADMISSIBILITY OF THIS COMPLAINT
V. LEGAL BACKGROUND
VI. ANALYSIS
A. Prima facie evidence of discrimination
(i) The facts particular to Ms. Lavoie
(ii) The new policy
B. Did the respondent provide a reasonable explanation?
(i) Parental leave trends
(ii) Statistical evidence filed at the hearing
(iii) Bona fide occupational requirement
VII. THE RELIEF REQUESTED BY MS. LAVOIE AND THE COMMISSION:
A. Amendment of the policy to eliminate discriminatory aspects
B. Loss of opportunities or privileges and loss of salary
C. Special compensation
D. Interest
VIII. THE TRIBUNAL'S ASSERTION OF JURISDICTION
I. INTRODUCTION [1] On January 19, 2004, Brigitte Lavoie (Ms. Lavoie) filed a complaint against Treasury Board of Canada (the respondent) alleging that the new Term Employment Policy (the new policy) discriminates on the basis of sex.
[2] Ms. Lavoie alleges that paragraph 7(2)(a) of the new policy breaches sections 7, 8 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), based on the fact that periods of maternity leave or parental leave without pay are not counted in calculating the cumulative three-year working period required for conversion from term employee status to indeterminate employee (permanent) status in the federal Public Service.
[3] The Canadian Human Rights Commission (the Commission) attended the hearing which was held at Ottawa on September 24, 25, 27 and 28, 2007, and from January 21 to January 25, 2008.
[4] Based on an agreement made when the first complaint of discrimination was filed by Ms. Lavoie on July 10, 2007, the respondent contends that Ms. Lavoie cannot dispute the new policy in a personal capacity, which includes claiming relief on a personal basis. For the reasons given in the decision, I dismiss this ground of inadmissibility.
[5] For the reasons stated below, I have determined that the respondent differentiated adversely against Ms. Lavoie in the course of employment when it refused to count the period of parental leave in determining her eligibility for an indeterminate appointment (section 7 of the Act). For the same reason, I find that the new policy deprived Ms. Lavoie of employment opportunities (section 10 of the Act).
[6] By not counting the maternity leave or parental leave, the respondent's new policy differentiates adversely in the course of employment (section 7 of the Act) female term employees who take maternity and/or parental leave and deprives or tends to deprive these employees of employment opportunities on the basis of their sex (section 10 of the Act).
[7] I also order the respondent to amend the new policy in such a way as to remove the discriminatory aspects to the effect that periods of maternity leave or parental leave longer than 60 consecutive calendar days are not counted for the purposes of calculating cumulative service for an indeterminate appointment.
[8] Accordingly, Ms. Lavoie's complaint is allowed.
II. THE FACTS A. Evidence of the complainant, Ms. Lavoie [9] Historically, the Long Term Specified Period Employment Policy (the former policy) provided the right to convert a term appointment to an indeterminate appointment for any person in a term appointment for a five-year period. Under the former policy, leave without pay, regardless of the period of time, was taken into account in calculating the cumulative service of five years.
[10] At the end of 2002, the respondent adopted a new term employment policy (the new policy) pursuant to which the necessary cumulative service to convert a position would thereafter be three years. This new policy excluded leave without pay of more than 60 consecutive calendar days from the calculation of cumulative service.
[11] Pursuant to the new policy, maternity leave and parental leave are considered as leave without pay. Accordingly, the period of this leave is not taken into account in calculating the three years of cumulative service.
[12] The new policy came into force at Industry Canada on April 1, 2003, with immediate application to term contracts already in effect. Therefore, as of April 1, 2003, for all contracts in effect, periods of leave without pay of more than 60 consecutive days were no longer counted when calculating the cumulative service of three years.
[13] With the application of the new policy, Ms. Lavoie's parental leave, from April 1, 2003, until the end of her contract (August 5, 2003), was not counted as part of the cumulative service of three years. According to Ms. Lavoie, if the period of absence starting from April 1, 2003, had been counted, her term position would have been converted to an indeterminate appointment. Accordingly, Ms. Lavoie would have been given indeterminate employee status.
[14] Ms. Lavoie obtained her first term employment contract on August 7, 2000, as a programmer-analyst at the Intellectual Property Office at Industry Canada. This one-year contract was successively renewed in August 2001 and August 2002, specifically beginning on August 5, 2002 until August 5, 2003, inclusively. There was no interruption of service between the two contract renewals.
[15] During maternity leave in December 2000, the complainant was replaced in her duties by her spouse, himself a term employee hired after Ms. Lavoie.
[16] Regarding the nature of her work at the time that she took her leave in August 2002, Ms. Lavoie declared that she performed the same work as three male indeterminate employees, one female term employee and two consultants.
[17] At the beginning of 2002, Ms. Lavoie told her superiors that she intended to take a second maternity leave. In approximately April 2002, she was told that because of her impending absence, she would be immediately changing teams, since there had to be a person available for the project on which she was working. After indicating that she intended to file a complaint of discrimination, her superiors changed their decision, apologized for the imbroglio and advised her that she would be continuing in the same team.
[18] On August 19, 2002, Ms. Lavoie took maternity leave ending on December 8, 2002 (17 weeks), followed by parental leave until August 19, 2003.
[19] Initially, Ms. Lavoie undertook to return to work on March 3, 2003.
[20] On February 21, 2003, she notified Industry Canada by e-mail that she had to extend her parental leave because she had not found anyone to take care of her child and because there was no space available at the daycare before the summer.
[21] The same day, Sylvie Manseau, her immediate supervisor, sent the following e-mail to the complainant:
[translation]
As you plan to extend your maternity leave, I must advise you that your position will not be extended beyond August 5, 2003. As you are already aware, CS-02 competitions are currently taking place for indeterminate positions and, as indicated in the e-mail that I sent to you on December 5, 2002, the terms of employees who are not appointed to one of these positions will end at the close of the competition.
[22] At the end of the exams and interview (March, April and May 2003) in which Ms. Lavoie had participated, she was informed in May 2003 that she had finished last in the CS-02 competition, i.e. eighth where there were seven indeterminate positions. Ms. Lavoie explained that she placed eighth in the competition because of the refusal of her then-supervisor, Ms. Goulet, to allow her to participate free of charge in training on a new work method in electronic language. This training was held during her maternity leave absence. Ms. Goulet explained to her that if she wanted to benefit from this training, she had to personally assume the expense, which according to Ms. Lavoie was approximately $10,000. Ms. Lavoie could not afford this expense.
[23] Ms. Lavoie was the only one of the eight term employees at her workplace who did not obtain an indeterminate appointment. Her husband was among the seven individuals who did obtain an indeterminate appointment.
[24] On June 2, 2003, Marc Lalande, Supervisor, Compensation and Benefits Division, informed Ms. Lavoie that under the collective agreement, considering that she had extended her leave beyond March 3, 2003, and that her contract ending on August 5, 2003, would not be renewed, she had to reimburse Industry Canada for the maternity benefits she received pursuant to the Supplementary Unemployment Benefit Plan (SUBP), i.e. $12,897.62.
[25] On June 11, 2003, Ms. Lavoie received a letter from Sylvie Manseau of Industry Canada, confirming that her employment would end on August 5, 2003.
[26] On June 2, 2003, Ms. Lavoie filed a grievance contesting Industry Canada's refusal to pay her parental benefits (SUBP) for the period between January and August 2003.
[27] On July 10, 2003, Ms. Lavoie filed with the Canadian Human Rights Commission against Industry Canada a complaint of discrimination on the basis of sex, based on sections 7, 10 and 14 of the Act.
[28] On July 18, 2003, Ms. Lavoie filed a grievance contesting Industry Canada's refusal to pay her the maternity allowance retroactive adjustment (SUBP) following the salary increase negotiated between Treasury Board and her union, the Professional Institute of the Public Service of Canada.
[29] On July 30, 2003, a letter signed by Mario Blais, Compensation Advisor, stated that Ms. Lavoie owed a gross amount of $12,899.42 in maternity benefit overpayments (SUBP).
[30] During a mediation session on October 20, 2003, Ms. Lavoie and Industry Canada agreed to settle the complaint filed with the Commission on July 10, 2003. It is important to point out that at the hearing, the parties waived all immunity from disclosure in regard to the agreement.
[31] The principal elements of this agreement are as follows:
Without [translation] an admission of liability in regard to the complaint, Industry Canada gave Ms. Lavoie an indeterminate appointment to begin on November 17, 2003. M s. Lavoie undertook to reimburse the benefits received under the SUBP. Ms. Lavoie acknowledged that [translation] this settlement is complete and final compensation for the alleged incidents and accordingly Industry Canada is discharged of all of the claims and causes of action resulting from the incidents in question. The grievances filed by Ms. Lavoie [translation] would follow their normal course and were not withdrawn. [translation] The complainant and her union reserve the right to file a complaint against the Treasury Board Secretariat regarding its policy entitled `Term Employment Policy'.
[32] The Commission approved this settlement on October 27, 2003.
[33] Ms. Lavoie began her new indeterminate employment with Industry Canada on November 17, 2003.
[34] On January 19, 2004, Ms. Lavoie filed a new complaint before the Commission, this time against Treasury Board, alleging that the new policy was discriminatory, claiming losses resulting from the benefits of which she was allegedly deprived based on, in Ms. Lavoie's opinion, the application of the new policy.
[35] At the hearing, Ms. Lavoie stated that during the mediation meeting, all of the remedies resulting from the application of the new policy, including her request to have the new policy abolished, had not been discussed.
[36] Ms. Lavoie testified that the representatives of Industry Canada had never wanted to discuss all of her claims relating to the application of the new policy, so that the agreement settled only the matter of the indeterminate appointment.
[37] At the hearing, Ms. Lavoie stated that the Industry Canada representatives in attendance at the mediation stated that her claims resulted from the application of the new policy and that only Treasury Board had the authority to address these issues.
[38] According to Ms. Lavoie, it was in this context that it was agreed and stated in the agreement that she reserved the right to file a complaint with the Commission against Treasury Board contesting the new policy.
[39] Following the loss of her employment in August 2002, Ms. Lavoie testified that she lived on loans. Because of these accumulated debts, she had to file for bankruptcy in 2006. The complainant separated from her spouse and sold her house. In accordance with the terms of the agreement, she reimbursed the benefits received pursuant to the SUBP.
[40] Isabelle Pétrin, Labour Relations Officer for the Professional Institute of the Public Service of Canada, attended the mediation meeting held on October 20, 2003.
[41] Ms. Pétrin testified that at this meeting, the Industry Canada representatives had always maintained that they were not responsible for anything involving the new policy; as a result, the substance of the discrimination complaint was not discussed.
[42] According to Ms. Pétrin, the employment start date, i.e. November 17, 2003, was not negotiable from the point of view of the Industry Canada representatives.
[43] Before closing her case, Ms. Lavoie stated that she was including the Commission's evidence in her evidence.
B. The respondent's evidence [44] Lise Séguin testified at the hearing.
[45] In 2002-2003, Ms. Séguin was Human Resources Director of the Intellectual Property Office at Industry Canada. At that time, Ms. Séguin was responsible for all of the complaints filed at the Commission against the department.
[46] Ms. Séguin attended the meeting held on October 20, 2003, as a human resources advisor. At that time, she was accompanied by Agnès Lajoie, Director of the Patent Branch at the Intellectual Property Office.
[47] Ms. Séguin explained that Ms. Lavoie had told her story. Then each party left to confer. On returning, Agnès Lajoie stated that they were prepared to offer a permanent position to Ms. Lavoie, namely an indeterminate appointment.
[48] Ms. Séguin testified that the date of November 17, 2003, is explained by the fact that management had taken a gamble by increasing its resources despite the lack of operational needs, but was however anticipating the departure of one person as of November 17, 2003. It was in this context that the date of November 17, 2003, was proposed.
[49] According to Ms. Séguin, there was no discussion regarding the new policy, apart from Ms. Pétrin's alleged statement at one point that the new policy discriminated against pregnant women.
[50] For Ms. Séguin, the new policy was not their responsibility; Industry Canada had not instigated this new policy, but rather Treasury Board.
[51] Ms. Séguin did not wish to discuss the new policy. To the contrary, Industry Canada had to apply the new policy and it did so.
[52] Ms. Lavoie and Ms. Pétrin were the ones who asked that the agreement specify the right to file a complaint against Treasury Board. For Ms. Séguin, Ms. Lavoie had the right to complain about any policy and this was not their responsibility.
[53] Ms. Séguin stated that she does not make it a practice to reserve compensation claims for other departments. She would not have signed an agreement of such magnitude if there had not been a waiver such as the one referred to in article 2 of the agreement.
[54] On cross-examination, Ms. Séguin acknowledged that she could not agree on relief measures inconsistent with the application of the new policy.
[55] Ila Murphy, Senior Project Officer with the Treasury Board Secretariat, was an active participant in developing the new policy as well as in the consultations preceding its adoption.
[56] Ms. Murphy explained that the Public Service Alliance of Canada (PSAC) had, during the collective agreement negotiations in the autumn of 2001, requested that the number of term employees be reduced.
[57] This is how, in November 2001, PSAC and the respondent came to agree to establish a joint committee made up representatives of PSAC and of the respondent to study the term employment situation in the Public Service of Canada.
[58] This committee carried out research to identify the categories of persons contemplated by term employment within the Public Service and consulted various interested parties, including employees and managers.
[59] In performing its mandate, this committee organized workshops across Canada with term employees as well as managers.
[60] There was a survey of term employees who were PSAC members. Ms. Murphy stated that of the 1,251 term employees who responded to the survey, 71% were women.
[61] This participation rate is representative of the percentage of women holding term appointments within the Public Service which, according to the report, was 61% at March 31, 2002. In September 2001, the average age of indeterminate employees was forty-three (43) years while the average age of term employees was thirty-seven (37) years.
[62] The joint committee filed a report in August 2002 setting out several observations including some regarding the treatment of term employees.
[63] One of the principal observations was the very significant insecurity felt by the majority of term employees: the inability to make plans for the future, difficulty obtaining loans and mortgages, hesitance to start a family, stress related to financial responsibilities, anxiety every year on each contract renewal.
[64] Without amounting to a major finding, the report notes that there was sufficient mention of term employees that were not extended for maternity reasons.
[65] As a supporting document of the report, there are the results of the 14 focus groups made up of term employees, PSAC members. The insecurities of these employees are reported, including those of some women who feared that if they were to become pregnant that their employer would let their term lapse at the earliest opportunity.
[66] One of the principal recommendations is formulated as follows:
Term employees in the federal Public Service should be automatically converted to indeterminate status after two years of cumulative service, in the same department, without a break in service of more than 60 consecutive calendar days.
[67] The report recommends progressively implementing the reduction of the period of cumulative service, namely:
When the policy comes into effect, employees with three or more years of service would be converted to indeterminate appointments; One year after the policy comes into effect, employees with two or more years of service would be appointed; Thereafter, term employees would be given indeterminate appointments after accumulating the required two years of service.
[68] Ms. Murphy explained at the hearing that one of the concerns was to avoid readjustments of the workforce within a department. Therefore, due consideration had to be given to the risk of having a surplus of indeterminate employees in a given unit, which could eventually lead to indeterminate employee dismissals. Dismissals involve costs.
[69] The public interest and the additional burden on taxpayers were considered in developing a new policy. It had to be ensured that this new policy would not involve additional costs for the Crown.
[70] According to Ms. Murphy, it was a matter of balancing the fair treatment of term employees and maintaining a certain operational flexibility in favour of the managers.
[71] Then, Ms. Murphy and a colleague, André Carrière, prepared a first draft of the policy that was the subject of a consultation with the unions, including PSAC.
[72] This draft specifically provided for the exclusion of leave without pay in calculating cumulative service. The draft also included a change with regard to the recommendation made by the Joint Committee. Instead of the two years referred to in the report, the cumulative service provided in the draft policy was three years, without reference to a progressive implementation as the report had provided.
[73] Ms. Murphy explained that this change in regard to the service period was due to the managers who considered that the two-year period was too short. A two-year period could create a risk that managers would be prompted to prefer hiring temporary employees. Unlike term employees, temporary employees have fewer benefits, are not unionized and do not receive merit ratings.
[74] On December 20, 2002, the Right Honourable Lucienne Robillard, President of the Treasury Board, publicly announced the new policy, specifying in her news release that the deputy heads of the departments would have from April 1, 2003 to April 1, 2004, to implement it.
[75] The news release summarizes the changes, including the following:
The threshold for term to indeterminate appointment will be three years in the same department without a break in service longer than 60 consecutive calendar days. A period of leave of absence without pay longer than 60 consecutive calendar days, while it will not constitute a break in service, will not be included in the calculation of the cumulative working period for appointment to indeterminate status.
[76] Ms. Murphy confirmed in her testimony that the new policy did not make a distinction between the various categories of leave without pay.
[77] Dr. Simon Langlois, a tenured professor of the sociology department at the Université Laval, testified as an expert. Dr. Langlois filed a report entitled [translation] Parental leave in Canada. Sociological trend analysis.
[78] First, Dr. Langlois painted a sociological portrait of parental leave trends, pointing out the development of an increasing number of men taking parental leave. According to Dr. Langlois, this increase in fathers taking parental leave appears to be related to the adoption of new policies in the Employment Insurance Plan improved in 2001. Dr. Langlois reported that Statistics Canada qualified the trend as a significant increase.
[79] A survey established that men tend to take shorter leave, i.e. generally less than six months. In fact, more than two thirds returned to work in the month following the birth or adoption of the child.
[80] The same survey indicates a willingness on the part of the parents to take longer leave when conditions are more favourable. Dr. Langlois pointed out that the adoption of the new Régime d'assurance parentale au Québec (RQAP) illustrates this trend of fathers' behaviour. In fact, men represented one third of the RQAP beneficiaries in the first year that the program came into effect. These results are higher than those recorded by Statistics Canada in all of Canada.
[81] Recognizing that equality of men and women in terms of taking parental leave has not been [translation] perfectly achieved, Dr. Langlois determined that an increasing number of fathers will take parental leave in the future.
[82] Second, Dr. Langlois noted an emerging trend of sharing duties and responsibilities in family matters. The responsibility traditionally assigned to mothers because of inter alia restrictive cultural norms are fading to give way to a better balance in sharing duties and responsibilities within the couple.
[83] Dr. Langlois analyzed the statistics provided by the respondent in regard to taking more than 60 days of leave without pay among term employees in the respondent's employ. He was of the opinion that a firm conclusion could not be made in terms of the causal relationship between women taking maternity leave and parental leave and the effect of this leave on indeterminate conversion. Dr. Langlois pointed out in his report that, except for 2003-2004, the statistics do not systematically establish a disproportionate effect on female term employees. Finally, Dr. Langlois was of the opinion that the statistics did not support a conclusion regarding the effect on the number of women having access to indeterminate employment.
C. The Commission's evidence [84] Dr. Jeffrey G. Reitz, professor of sociology at the University of Toronto, testified as an expert witness. Dr. Reitz filed a report in which he principally assessed whether the statistical data provided by the respondent at the request of the Commission revealed a prejudicial effect of the new policy on women hired for term appointments within the Public Service of Canada.
[85] First, Dr. Reitz noted that there are more women among term employees. It is more likely that more women than men will become term employees with the Public Service of Canada. According to the statistics provided by the respondent, 59.8% were women in 2003-2004, 59.8% in 2004-2005 and 59.4% in 2005-2006.
[86] Dr. Reitz is of the opinion that a negative impact of the new policy on women can be assessed from two perspectives:
Are women more likely to be affected by the fact that absences longer than 60 consecutive calendar days are excluded from cumulative service? Is there a decreasing incidence of indeterminate conversion among women or can we observe that a longer period is required for women to obtain indeterminate conversion?
[87] After analyzing the statistics provided by the respondent, Dr. Reitz determined that the new policy had a negative effect on women and created obstacles to their eligibility for indeterminate employment.
[88] Among term employees, the numbers indicate that women tend to take leave of more than 60 consecutive days. This difference between genders is explained inter alia by maternity, but also by an increased incidence of long-term parental leave among women. Finally, the number of men taking parental leave of less than 60 days is higher than the number of women.
[89] On the second perspective of his analysis, even though it is more difficult to assess in terms of causal relationship, Dr. Reitz observed inter alia that the percentage of women obtaining indeterminate conversion after three years was lower than expected, considering that there are more women among term employees.
[90] Indeed, he noted that a greater percentage of women had indeterminate conversion at the end of seven years. For Dr. Reitz, this observation could be the result of the application of the new policy and indicate that taking maternity leave and/or parental leave of more than 60 days significantly delayed a number of women in acquiring indeterminate employee status.
III. ISSUES [91] Does the Tribunal have the jurisdiction to hear Ms. Lavoie's complaint filed on January 19, 2004, based on the settlement made in the previous complaint?
[92] In the affirmative, was Ms. Lavoie discriminated against on the basis of sex within the meaning of sections 7 and 10 of the Act?
[93] Are the provisions of paragraph 7(2)(a) of the new policy discriminatory toward women on maternity leave and/or parental leave under sections 7 and 10 of the Act?
IV. ADMISSIBILITY OF THIS COMPLAINT [94] The respondent submitted that the complaint filed by Ms. Lavoie is inadmissible, taking into account that she waived claims to other relief in the settlement dated October 20, 2003. Specifically, the respondent contends that Ms. Lavoie compromised all aspects of this complaint against the respondent when she accepted the agreement dated October 20, 2003.
[95] From the outset, bear in mind that on February 5, 2007, Karen A. Jensen, member of this Tribunal, decided a motion on the inadmissibility argument filed by the respondent in this matter (see: 2007 CHRT 3).
[96] Ms. Jensen determined that the respondent's motion seeking the dismissal of the complaint on the grounds that the issues raised had been settled and would now be moot could not be granted.
[97] Relying inter alia on sections 40 and 53 of the Act, Ms. Jensen dismissed the respondent's motion on the grounds that the Act does not require that a complaint contemplate individual relief or that the complainant be the victim of discriminatory practices.
[98] Secondly, Ms. Jensen wrote that when the settlement was made, Ms. Lavoie reserved her right to file a complaint against the respondent Treasury Board in regard to the new policy. Ms. Jensen determined that the discriminatory nature of the new policy had therefore not been examined.
[99] Finally, Ms. Jensen left it to this Tribunal to determine, in the event that the complaint were founded, whether Ms. Lavoie was entitled to claim relief, given the settlement reached with Industry Canada.
[100] At this hearing, the respondent acknowledges that Ms. Lavoie may challenge the new policy. It disputes, however, her right to contest it on a personal basis, including the right to claim relief measures.
[101] For the reasons given below, I determine that Ms. Lavoie reserved the right to challenge the new policy on a personal basis in every aspect, including that of claiming relief measures on a personal basis. It is important to refer to the principal aspects of this agreement (see: Bushey v. Sharma, 2003 C.C.R.D. No. 7, paragraph 20):
Without [translation] an admission of liability in regard to the complaint, Industry Canada gave Ms. Lavoie an indeterminate appointment to begin on November 17, 2003. Ms. Lavoie undertook to reimburse the benefits received under the SUBP. Ms. Lavoie acknowledged that [translation] this settlement is complete and final compensation for the alleged incidents and accordingly Industry Canada is discharged of all of the claims and causes of action resulting from the incidents in question. The grievances filed by Ms. Lavoie [translation] would follow their normal course and were not withdrawn. [translation] The complainant and her union reserve the right to file a complaint against the Treasury Board Secretariat regarding its policy entitled `Term Employment Policy'.
[102] Note that the agreement was between the complainant and Industry Canada and that the waiver (article 2) specifically contemplates Industry Canada. Ms. Lavoie expressly reserved the right to file a complaint against the respondent Treasury Board in regard to the new policy. Ms. Lavoie did not receive any financial compensation for the alleged discriminatory aspect of the new policy.
[103] On reading the agreement, I find that Ms. Lavoie did not waive the right to challenge the policy on a personal basis or the right to claim relief measures in the event that her complaint were allowed.
[104] At the hearing, the parties asked me to receive testimony regarding the discussions which took place during the mediation. According to the parties, the agreement is clear on reading, but they do not interpret it the same way.
[105] After analyzing the testimonial evidence given on this point by Ms. Lavoie and the respondent, I find that the discussions between the parties on October 20, 2003, confirm that the agreement contemplated only the settlement of the claims that were the responsibility of Industry Canada.
[106] Ms. Séguin confirmed the testimony of Ms. Lavoie and that of Ms. Pétrin to the effect that there was no discussion of the new policy because it was not their responsibility, but rather that of Treasury Board. In short, Ms. Séguin could not discuss the discrimination alleged by the complainant or the resulting relief measures. This is how the complainant came to reserve the right to challenge the new policy.
[107] The respondent submitted at the hearing the argument on the indivisibility of the Crown. Ms. Lavoie responded that Ms. Jensen had already decided this issue on the first motion. In any event, I find that in this case, Ms. Lavoie and Industry Canada agreed to leave pending all of Ms. Lavoie's allegations bearing on the new policy and the resulting relief measures. The parties did not divide the Crown into two distinct legal entities, but rather severed the allegations. Accordingly, the respondent's motion for inadmissibility is dismissed (see: Bushey v. Sharma, 2003 C.H.R.D. No. 15, paragraph 143).
V. LEGAL BACKGROUND [108] Section 7 of the Act provides that it is a discriminatory practice to refuse to continue to employ any individual, or in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination, including sex.
[109] According to section 10 of the Act, it is a discriminatory practice for an employer to establish or pursue a policy or practice, or to enter into an agreement affecting any matter relating to employment that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[110] In a matter such as this, the burden of proof is first on the complainant, Ms. Lavoie, and the Commission, who must establish prima facie evidence of discrimination (see: Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R.D/1616,1618; Basi v. Canadian National Railway Company (1988), 9 C.H.R.R.D/5029; Premakumar v. Air Canada, T.D. 03/02, 2002/02/04; and Lincoln v. Bay Ferries, [2004] F.C.A. 204).
[111] Prima facie evidence is evidence which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent (see: Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, at page 208; Ontario (Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536, at paragraph 28).
[112] In Lincoln v. Bay Ferries Ltd (supra, at paragraph 22 of the decision), the Federal Court of Appeal states that to answer the question as to whether prima facie evidence has been established, the Tribunal must not, at this stage, take into account the respondent's answer.
[113] Once prima facie evidence has been established, the respondent's explanations must be reasonable or satisfactorily explain the otherwise discriminatory practice (see: Lincoln v. Bay Ferries Ltd., supra, paragraph 23 of the decision; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2005] F.C.A. 154, at paragraphs 26 and 27).
[114] It must be pointed out that the conduct of an employer will not be considered discriminatory if the employer is able to establish that any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement (BFOR) (paragraph 15(1)(a) of the Act). For a practice to be considered to have a BFOR, it must be established that the accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (subsection 15(2) of the Act).
[115] Discrimination on the basis of pregnancy or childbirth is discrimination on the basis of sex (subsection 3(2) of the Act and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219). Subsection 3(2) also contemplates the period following childbirth (see for example: Tomasso v. Canada (Attorney General), 2007 FCA 265, paragraphs 117 and 119).
[116] In Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, 1279 (Dickson J.), the Supreme Court of Canada defined discrimination on the basis of sex as follows:
. . . practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.
[117] The case law recognizes the difficulty establishing allegations of discrimination through direct evidence. The Tribunal must take into account all of the circumstances to establish whether there is what was described in Basi (supra) as the subtle scent of discrimination.
[118] To determine whether there is discrimination on the basis of sex, I must examine the evidence filed by Ms. Lavoie regarding the effect of their policy on Ms. Lavoie's personal situation. I must also determine whether the new policy has discriminatory effects on female term employees based on gender. It is important to note that even if Ms. Lavoie's personal situation did not establish prima facie evidence of discrimination, I must nevertheless determine whether the respondent's new policy makes distinctions based on gender.
[119] At the hearing, Ms. Lavoie and the respondent did not make any specific arguments regarding section 8 of the Act. I find on this basis that Ms. Lavoie abandoned this argument. Accordingly, my analysis will not bear on an alleged breach of this section.
[120] In this case, Ms. Lavoie and the Commission must establish the following:
The respondent differentiated adversely against Ms. Lavoie in the course of employment when it refused to count the parental leave absence in determining her eligibility for an indeterminate appointment (section 7 of the Act). For the same reason, the new policy deprived Ms. Lavoie of employment opportunities (section 10 of the Act). By failing to include the maternity leave and parental leave, the respondent's new policy differentiates adversely in the course of employment (section 7 of the Act) in regard to female term employees who take maternity leave and/or parental leave and deprives or tends to deprive these employees of employment opportunities on the basis of their sex (section 10 of the Act).
[121] Ms. Lavoie alleges that in the course of employment, there was adverse differentiation in her regard because of the application of the new policy on the basis that from April 1, 2003, her leave of absence was no longer counted for the purposes of calculating cumulative service. Accordingly, she was four months short of the three years of uninterrupted service, depriving her of the right to become an indeterminate employee.
[122] The respondent contends that all of the evidence submitted by Ms. Lavoie and the Commission is not sufficient to find that there was prima facie evidence of discrimination for the reasons that I would summarize as follows:
Paragraph 7(2)(a) of the new policy applies to all persons who are on leave without pay, including those on sick leave or disability leave, educational leave, secondment, personal obligation leave, etc. Accordingly, maternity leave and parental leave are not the only ones contemplated by the new policy. Considering the foregoing, the respondent submits that Ms. Lavoie as well as all of the female term employees taking maternity leave and/or parental leave must be compared with others who are on leave without salary; Men and women are also contemplated by paragraph 7(2)(a) since, for example, men as well as women may take parental leave, sick leave or disability leave. As soon as a measure affects men as much as women in the same way, which would apply to this case, this measure cannot be considered discriminatory based simply on the fact that more women than men are likely to be affected by this measure; Only a measure with a disproportionate effect on female persons could be considered to discriminate on the basis of sex.
[123] For the reasons stated hereafter, I find that the complainant, Ms. Lavoie, and the Commission established prima facie evidence of discrimination based on sex.
VI. ANALYSIS A. Prima facie evidence of discrimination (i) The facts particular to Ms. Lavoie [124] Ms. Lavoie was given her first term employment contract in August 2000 as a programmer-analyst with Industry Canada. This contract for a term of one year was successively renewed in August 2001 and August 2002. There was no interruption of service between the contract renewals. I agree with Ms. Lavoie's claim that she had acquired the three years of cumulative service on August 5, 2003.
[125] Ms. Lavoie's evidence indicates that Ms. Manseau told her that because of the extension of her maternity leave, she had to advise Ms. Lavoie that her employmen