Brooks v. Canada Safeway Ltd.

Brooks v. Canada Safeway Ltd.
Collection
Supreme Court Judgments
Date
1989-05-04
Report
[1989] 1 SCR 1219
Case number
20131
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Manitoba
Subjects
Constitutional law
Notes
SCC Case Information: 20131
Decision Content
Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219
Susan Brooks Appellant
v.
Canada Safeway Limited Respondent
and between
Patricia Allen and Patricia Dixon and
the Manitoba Human Rights Commission Appellants
v.
Canada Safeway Limited Respondent
and
Women's Legal Education and Action Fund (L.E.A.F.) Intervener
indexed as: brooks v. canada safeway ltd.
File No.: 20131.
1988: June 15; 1989: May 4.
Present: Dickson C.J. and Beetz, McIntyre, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for manitoba
Civil rights -- Employment -- Sex discrimination -- Pregnancy ‑‑ Company's accident and sickness plan excluding pregnant women from benefits during a seventeen‑week period -- Whether plan discriminates against pregnant employees ‑‑ Whether discrimination on the basis of pregnancy is discrimination on the basis of sex -- The Human Rights Act, S.M. 1974, c. 65, s. 6(1).
Respondent's group insurance plan provided weekly benefits for loss of pay due to accident or sickness. The plan covered pregnant employees, subject to an exclusion from coverage during the period commencing the tenth week prior to the expected week of confinement and ending with the sixth week after the week of confinement. During that seventeen‑week period, pregnant women, even if they suffered from an ailment totally unrelated to pregnancy, were not entitled to any compensation under the plan. The appellants, who worked for the respondent, all became pregnant in 1982 and were denied under the plan weekly benefits during the seventeen‑week disentitlement period. They received instead pregnancy benefits under the Unemployment Insurance Act, 1971. The appellants filed complaints with the Manitoba Human Rights Commission alleging that the differential treatment of pregnancy in the respondent's plan constituted discrimination on the basis of sex contrary to s. 6(1) of The Human Rights Act of Manitoba. The adjudicator dismissed the claims. The Court of Queen's Bench and the Court of Appeal upheld the adjudicator's decisions.
Held: The appeals should be allowed.
(1) Discrimination on the Basis of Pregnancy
The complete disentitlement of pregnant women during a seventeen‑week period from receiving accident or sickness benefits under the respondent's plan constitutes discrimination by reason of pregnancy. Pregnant employees receive significantly less favourable treatment under the plan than other employees. The plan singles out pregnancy for disadvantageous treatment, in comparison with any other health reason which may prevent an employee from reporting to work.
Pregnancy, while it is not properly characterized as a sickness or an accident, is a valid health‑related reason, in our society, for absence from work and as such should not have been excluded from the respondent's plan. The respondent's plan is designed to compensate employees who are absent from work for valid health-related reasons. Further, in distinguishing pregnancy from all other health‑related reasons for not working, the plan imposed unfair disadvantages on pregnant women. Everyone in society benefits from procreation but one of its major costs is placed, under this plan, on one group in society -- pregnant women. Removal of unfair disadvantages imposed on groups in society is a key purpose of anti‑discrimination legislation. Finding that the respondent's plan is discriminatory furthers this purpose. In sum, where an employer enters the field of compensation for health conditions and then excludes pregnancy as a valid reason for compensation, the employer has acted in a discriminatory fashion. A plan would be considered discriminatory even if it did not exclude coverage for non‑pregnancy-related illness and accidents. It is enough that the plan excludes compensation for pregnancy.
The respondent alleged that the decision to exclude pregnancy from the scope of its plan was not a question of discrimination, but a question of deciding to compensate some risks and to exclude others. Underinclusion may be simply a backhanded way of permitting discrimination. Once an employer decides to provide an employee benefit package, exclusions from such schemes may not be made, like in this case, in a discriminatory fashion.
Section 19(h)(vii) of the Unemployment Insurance Act, 1971 regulations, while it addresses employer plans which do not compensate pregnant women during the 17‑week period, does not constitute a permissible distinction pursuant to s. 7(2) of the Manitoba Human Rights Act. Distinction along sex lines might have been permissible in employee benefit plans only if such regulations had been passed pursuant to s. 7(2). In the absence of regulations under that provision, discrimination in employee benefit packages is not permissible.
(2) Discrimination on the Basis of Sex
Discrimination on the basis of pregnancy is discrimination on the basis of sex. The decision of this Court in Bliss, which reached the opposite conclusion, is inconsistent with the Court's approach to interpreting human rights legislation taken in subsequent cases and should no longer be followed. Pregnancy discrimination is a form of sex discrimination simply because of the basic biological fact that only women have the capacity to become pregnant. Appellants' disfavoured treatment under the plan flowed entirely from their state of pregnancy, a condition unique to women. Those who bear children and benefit society as a whole should not be economically or socially disadvantaged. It is thus unfair to impose all of the costs of pregnancy upon one half of the population.
It is also wrong to believe that pregnancy related discrimination could not be sex discrimination because not all women become pregnant. While pregnancy-based discrimination only affects part of an identifiable group, it does not affect anyone who is not a member of the group. Indeed, pregnancy cannot be separated from gender. The fact, therefore, that the plan did not discriminate against all women, but only against pregnant women, did not make the impugned distinction any less discriminating.
Cases Cited
Overruled: Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; not followed: Geduldig v. Aiello, 417 U.S. 484 (1974); General Electric Co. v. Gilbert, 429 U.S. 125 (1976); referred to: Nashville Gas Co. v. Satty, 434 U.S. 136 (1977); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Century Oils (Canada) Inc. v. Davies (1988), 22 B.C.L.R. (2d) 358; Canada Safeway Ltd. v. Manitoba Food and Commercial Workers Union, Local 832, [1981] 2 S.C.R. 180; Canada Safeway Ltd. v. Steel, [1985] 1 W.W.R. 479 (Man. C.A.), application for leave to appeal dismissed, [1985] 1 S.C.R. x (sub nom. Manitoba Human Rights Commission v. Canada Safeway Ltd.)
Statutes and Regulations Cited
Act to amend the Unemployment Insurance Act, 1971 (No. 3), S.C. 1980‑81‑82‑83, c. 150, s. 4.
Human Rights Act, S.M. 1974, c. 65, ss. 6(1) [am. 1976, c. 48, s. 6; am. 1977, c. 46, ss. 2, 3; am. 1982, c. 23, s. 9], 7(2) [rep. & subs. 1976, c. 48, s. 11; am. 1977, c. 46, s. 2; am. 1982, c. 23, s. 20], 19 [am. 1978, c. 43, s. 4].
Human Rights Code, S.M. 1987‑88, c. 45, s. 9(2)(f).
Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, s. 30(2) [am. 1974‑75‑76, c. 66, s. 22; 1976‑77, c. 54, s. 38(2)].
Unemployment Insurance Regulations, C.R.C. 1978, c. 1576, s. 19(h)(vii) [en. SOR/85‑3, s. 2].
Authors Cited
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
MacPherson, James. "Sex Discrimination in Canada: Taking Stock at the Start of a New Decade" (1980), 1 C.H.R.R. c/7.
Pannick, David. Sex Discrimination Law. Oxford: Clarendon Press, 1985.
APPEALS from a judgment of the Manitoba Court of Appeal (1986), 42 Man. R. (2d) 27, 7 C.H.R.R. D/3475, affirming a judgment of Simonsen J. (1985), 38 Man. R. (2d) 192, 86 CLLC {PP} 17, 010, 7 C.H.R.R. D/3185, which affirmed the decisions of a Board of Adjudication (1985), 6 C.H.R.R. D/2560 and D/2840. Appeals allowed.
Aaron L. Berg and Gordon Hannon, for the appellants.
Roger J. Hansell, Q.C., and Bruce Bowman, for the respondent.
C. Lynn Smith and Kathryn Thomson, for the intervener.
//The Chief Justice//
The judgment of the Court was delivered by
THE CHIEF JUSTICE -- The principal issue to be considered in these appeals is whether a company accident and sickness plan which exempts pregnant women from benefits during a seventeen-week period discriminates because of sex, as prohibited by The Human Rights Act of Manitoba, S.M. 1974, c. 65.
In March of 1983, Susan Brooks, of Brandon, Manitoba, laid a complaint before the Manitoba Human Rights Commission against her employer, Canada Safeway Ltd. (Safeway), on the ground that Safeway's employee benefit plan contravened s. 6(1) of The Human Rights Act of Manitoba. Mrs. Brooks said the plan discriminated on the basis of sex and family status in denying certain benefits to pregnant women. At a later date Patricia Allen and Patricia Dixon laid similar complaints. The Attorney General of Manitoba, the Honourable Roland Penner, Q.C., appointed J. F. Reeh Taylor, Q.C., a Board of Adjudication to hear and decide the three complaints. The adjudicator held against the complainants, as did the Court of Queen's Bench and the Court of Appeal for Manitoba. Leave was granted to appeal to this Court, [1987] 1 S.C.R. vi.
I
Facts
Susan Brooks, Patricia Allen and Patricia Dixon were part-time cashiers employed by Safeway. All three became pregnant during 1982. Safeway maintains a group insurance plan that, among other forms of coverage, provides weekly benefits for loss of pay due to accident or sickness. Safeway describes its benefit package to employees in a pamphlet entitled Group Insurance Benefits For You and Your Dependents as follows:
Weekly benefits are payable in event of loss of earnings due to accident or sickness which prevents you from performing any and every duty pertaining to your employment or occupation. You need not be house-confined; however, you must be under the direct care of a physician.
To qualify for coverage under the plan, an employee must have worked for Safeway for three consecutive months. Benefits are payable to a maximum of 26 weeks during any continuous period of disability. Employees receive two-thirds of weekly salary up to a ceiling of $189 per week.
Prior to an amendment on January 1, 1981, pregnancy was exempted from coverage under the plan. At the time each of the appellants became pregnant the plan provided:
Disability benefits will also be made available for pregnancy related illness. However, disability benefits will not be payable:
a)during the period commencing with the tenth week prior to the expected week of confinement and ending with the sixth week after the week of confinement;
b)during any period of formal maternity leave taken by the employee pursuant to provincial or federal law or pursuant to mutual agreement between the employee and the Company, or
c)during any period for which the employee is paid Unemployment Insurance maternity benefits.
There is no dispute that the Safeway plan treats pregnancy differently from other health-related causes of inability to work. Pregnant employees are excluded from receiving any benefits during what is referred to as the "10-1-6" period, namely, the ten weeks before the anticipated date of birth, the actual birth week, and six weeks after. During this seventeen-week period, the exemption from coverage is absolute regardless of the reason an employee is unable to report to work. Pregnant women suffering from non-pregnancy-related afflictions are ineligible for benefits simply because they are pregnant. Women who are unable to work because of pregnancy-related complications are also not eligible to receive weekly benefits. The mere fact of pregnancy disentitles Safeway's female employees from receiving standard compensation for temporary disability during the "10-1-6" period.
For part of the period during which pregnant women are ineligible to receive disability benefits, some coverage is available under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, as amended. At the relevant time s. 30 of that Act provided for the payment of weekly benefits for unemployment resulting from pregnancy for a maximum of fifteen weeks in the following periods:
30. . . .
(2) Benefits under this section are payable for each week of unemployment in the period
(a) that begins
(i) eight weeks before the week in which her confinement is expected, or
(ii) the week in which her confinement occurs,
whichever is the earlier, and
(b) that ends
(i) seventeen weeks after the week in which her confinement occurs, or
(ii) fourteen weeks after the first week for which benefits are claimed and payable in any benefit period under this section,
whichever is the earlier,
if such a week of unemployment is one of the first fifteen weeks for which benefits are claimed and payable in her benefit period.
Section 30 was substantially amended in An Act to amend the Unemployment Insurance Act, 1971 (No. 3), S.C. 1980-81-82-83, c. 150, s. 4.
The maternity benefits available under the Unemployment Insurance Act, 1971 did not constitute an exact substitute for the coverage that would be provided by the Safeway plan. Women were only entitled to a maximum of fifteen weekly payments under the Unemployment Insurance Act, 1971 but were deprived of seventeen weeks of benefits under the Safeway plan. For two weeks Safeway employees unable to work by reason of pregnancy were without a source of unemployment benefits. Employees also received less money per week under the Unemployment Insurance Act, 1971 provisions than they would have if they were entitled to recover under the Safeway plan. Benefits under the Unemployment Insurance Act, 1971 were calculated on the basis of 60 per cent of eligible income. The Safeway plan, in contrast, provided 66 2/3 per cent of weekly earnings. The qualifying period for benefits under the Unemployment Insurance Act, 1971 was also significantly longer than the qualifying period under the Safeway plan. During the relevant period, s. 30(1) of the Unemployment Insurance Act, 1971 required a woman to have ten weeks of insurable earnings in the twenty-week period immediately preceding the thirtieth week before the expected date of childbirth, in other words, to have commenced work at least forty weeks before the anticipated date of birth. The Safeway plan entitled employees to full coverage after only three months of employment.
All three appellants applied for weekly benefits under the Safeway plan for a period of pregnancy related disability that included the seventeen-week disentitlement period. All three claims were refused. The appellants applied for, and received, pregnancy benefits under the Unemployment Insurance Act, 1971. Each appellant received less money than she would have received had she been eligible under the Safeway plan. We were told, for example, that in the case of Mrs. Brooks, Unemployment Insurance provided $133.47 weekly, compared to approximately $188 weekly she might have received under the Safeway plan.
Each of the appellants filed a complaint with the Manitoba Human Rights Commission alleging that the differential treatment of pregnancy in the Safeway plan constituted discrimination on the basis of sex and on the basis of family status contrary to s. 6(1) of The Human Rights Act of Manitoba.
II
Legislation
At the time of the applications, the relevant sections of the Manitoba Human Rights Act provided:
Discrimination prohibited in employment
6 (1) Every person has the right of equality of opportunity based upon bona fide qualifications in respect of his occupation or employment or in respect of training for employment or in respect of an intended occupation, employment, advancement or promotion, and in respect of his membership or intended membership in a trade union, employers' organization or occupational association; and, without limiting the generality of the foregoing
(a) no employer or person acting on behalf of an employer, shall refuse to employ, or to continue to employ or to train the person for employment or to advance or promote that person, or discriminate against that person in respect of employment or any term or condition of employment;
(b) no employment agency shall refuse to refer a person for employment, or for training for employment, and
(c) no trade union, employers' organization or occupational association shall refuse membership to, expel, suspend or otherwise discriminate against that person; or negotiate, on behalf of that person, an agreement that would discriminate against him;
because of the race, nationality, religion, colour, sex, age, marital status, physical or mental handicap, ethnic or national origin, or political beliefs or family status of that person.
Exception
7 (2) No provision of section 6 or subsection (1) shall prohibit a distinction on the basis of age, sex, family status, physical or mental handicap or marital status
(a) of any employee benefit plan or in any contract which provides an employee benefit plan, if the Commission is satisfied on the basis of the guidelines set out in the regulations that the distinction is not discriminatory or that the employee benefit can be provided only if the distinction is permitted;
In 1987 the Manitoba Human Rights Act was repealed and replaced by The Human Rights Code, S.M. 1987-88, c. 45. Section 6 of the former Act was replaced by s. 9 which prohibits discrimination on a number of grounds including:
9 (2) . . .
(f) sex, including pregnancy, the possibility of pregnancy, or circumstances related to pregnancy;
III
The Human Rights Tribunal
1. The Complaint of Susan Brooks
The complaint of Mrs. Brooks was heard before the complaints of the other two appellants: (1984), 6 C.H.R.R. D/2560. Adjudicator Taylor concluded that the complaint of Mrs. Brooks had been filed out of time. Section 19 of The Human Rights Act required a complaint to be filed with the Commission "not later than 6 months after the date of the alleged contravention or, where a continuing contravention is alleged, after the date of the last alleged contravention . . ." Mrs. Brooks filed her complaint on March 22, 1983. The adjudicator found that the contravention, if any, occurred at the beginning of the disentitlement period, on or about August 30, 1982, when Safeway notified Mrs. Brooks that she was denied benefits. Adjudicator Taylor did not regard Safeway's refusal to pay benefits throughout the seventeen-week period as a continuing contravention within the meaning of the statute.
In anticipation of the two other complaints, and in the event he had erred in holding the complaint by Mrs. Brooks to be out of time, Adjudicator Taylor dealt with the merits of Mrs. Brooks' complaint. He considered first the question whether the Safeway plan did in fact discriminate against pregnant employees. The adjudicator made the following remarks (at p. D/2562):
It is a simple fact, undisputed by the Respondent, that the treatment accorded a pregnant employee under the Canada Safeway Limited accident and sickness plan is markedly different from that accorded any other employee. Indeed, it is not merely pregnancy-related problems that are not covered under the plan during the seventeen-week period referred to above; any accident or sickness, whether pregnancy-related or not, occurring during the same seventeen weeks is excluded from the Canada Safeway Limited plan, and the pregnant employee must, during that limited time, rely upon benefits obtainable from the Unemployment Insurance Commission. Even if she qualified to receive U.I.C. benefits during the entire seventeen weeks, the pregnant employee will receive a lesser amount during that period than would a non-pregnant employee who was away from work by reason of some other physical disability.
Adjudicator Taylor had no difficulty in concluding that Safeway's plan, "while by all accounts a generous one, does in fact discriminate against pregnant employees."
Having established the existence of pregnancy-based discrimination, the adjudicator then focussed his attention on the question whether to discriminate against someone because of her pregnancy is to discriminate against her "because of (her) sex or family status". He was of the view that the concept of family status was inapplicable to pregnancy since in his view an unborn child is not yet a member of a "family" and therefore could not be considered as part of a complaint of discrimination because of family status.
Adjudicator Taylor then rejected the argument that discrimination on the basis of pregnancy is discrimination on the basis of sex. He relied on the decision of this Court in Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183. In Bliss, the Court held that s. 46 of the Unemployment Insurance Act, 1971, which disentitled pregnant women from receiving basic unemployment benefits, restricting them to special maternity benefits during a portion of their pregnancy, did not deny women the right to equality free from discrimination on the basis of sex, guaranteed by s. 1(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III. Adjudicator Taylor noted that Bliss had been followed across the country and that courts in England and in the United States had also concluded that discrimination on the basis of pregnancy did not amount to sex discrimination. He observed that after the Supreme Court of the United States of America had held in Geduldig v. Aiello, 417 U.S. 484 (1974), General Electric Co. v. Gilbert, 429 U.S. 125 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), that discrimination by reason of pregnancy was not synonymous with discrimination by reason of sex, the Congress of the United States enacted a bill amending Title VII of the Civil Rights Act of 1964 so as to include, within the meaning of discrimination on the basis of sex, discrimination based upon pregnancy, childbirth or related medical conditions. The adjudicator also pointed to the fact that some provinces had amended their human rights legislation in the wake of Bliss to add pregnancy as a prohibited ground of discrimination. Adjudicator Taylor interpreted these amendments as recognition that sex discrimination does not include discrimination on the basis of pregnancy. Absent a broadened definition, the adjudicator concluded he was bound by Bliss to hold that discrimination on the basis of pregnancy was not sex discrimination.
2. The Complaints of Patricia Allen and Patricia Dixon
The complaints of the appellants Mrs. Allen and Mrs. Dixon were heard by Adjudicator Taylor one month after the decision in Mrs. Brooks' complaint. For the reasons given in Brooks, the adjudicator held that the appellants had not suffered discrimination on the basis of sex or family status contrary to s. 6(1) of the Manitoba Human Rights Act: (1985), 6 C.H.R.R. D/2840.
IV
The Manitoba Court of Queen's Bench
Mrs. Brooks, Mrs. Allen, Mrs. Dixon and the Human Rights Commission of Manitoba appealed the decisions of Adjudicator Taylor. Simonsen J. delivered brief reasons: (1985), 38 Man. R. (2d) 192, 86 CLLC {PP} 17,010, 7 C.H.R.R. D/3185. He began by rejecting the adjudicator's conclusion that the complaint of Mrs. Brooks was out of time. In Simonsen J.'s view, the refusal to pay benefits for seventeen weeks amounted to continuing discrimination. There was nothing in the Manitoba Human Rights Act requiring the limitation period to commence during the first week for which benefits could have been claimed. Simonsen J. took the view that the alleged seventeen weeks of discrimination commenced on August 21, 1982 and ended on December 22, 1982 and that the limitation period would begin to run on the later date. Mrs. Brooks' complaint, filed on March 22, 1983, was therefore timely, that is, within the six-month limitation period.
Simonsen J. agreed with the adjudicator's finding, as well as his reasoning, that the Safeway plan discriminated against pregnant employees. He said:
It must be recognized . . . that no benefits were payable for accident or sickness to a pregnant employee during the 17 week exclusion period whether related to pregnancy or not. Coverage under the policy for a pregnant employee was suspended for 17 weeks.
He continued:
Was it discrimination to have a group policy which suspended coverage to a pregnant employee for the 17 week period during which some alternate coverage in the form of unemployment insurance was available? There was no obligation on the pregnant employee to take leave for the 17 week period but when leave was taken unemployment insurance was the only option available.
The learned adjudicator found discrimination. I agree with his reasoning and conclusions.
Simonsen J. then considered whether discrimination on the basis of pregnancy was prohibited by the Manitoba Human Rights Act. He agreed with the adjudicator's conclusion that pregnancy was not encompassed in "family status" and held that the Safeway plan could not be faulted for discriminating on the basis of family status. Simonsen J. was also of the view, largely on the authority of Bliss and cases subsequent to that decision, that the adjudicator was correct in finding that discrimination on the basis of pregnancy was not included in the phrase "discrimination by reason of sex". In the absence of an expanded statutory definition of sex, Simonsen J. felt he could reach no other conclusion.
V
The Court of Appeal of Manitoba
In very brief reasons, the Manitoba Court of Appeal (O'Sullivan, Huband and Twaddle JJ.A.) unanimously dismissed the appeal: (1986), 42 Man. R. (2d) 27, 7 C.H.R.R. D/3475. The decision of the Manitoba Court of Appeal may be set out in full:
The facts are amply canvassed by Simonsen J., with whose reasons we substantially agree, but we go further and say we are not satisfied that in the context of this case there was any discrimination at all.
It may be noted that the disability plan in question is only part of a health benefit package agreed to between employer and union. One questions why complaint was not made against the union as well as against the company.
The appeal is dismissed with costs.
VI
Issues and Interventions
The appellants appealed the decision of the Manitoba Court of Appeal on the following issues:
1. Did the Court of Appeal for Manitoba err in concluding that the disability plan offered by the respondent to its employees was not discriminatory?
2. Did the Court of Appeal for Manitoba err in law in adopting the conclusion of the learned judge and adjudicator below that discrimination due to "pregnancy" does not constitute discrimination because of "sex", as prohibited by the Manitoba Human Rights Act?
3. Did the Court of Appeal for Manitoba err in law in adopting the conclusion of the learned judge and adjudicator below that discrimination due to "pregnancy" did not constitute discrimination on "family status", as set out in the Manitoba Human Rights Act?
The question of the timeliness of Mrs. Brooks' complaint was not raised before this Court.
The Women's Legal Education and Action Fund (L.E.A.F.) intervened in support of the appellants' position.
VII
Was the Disability Plan Discriminatory?
What does discrimination mean? The most recent pronouncement on this point will be found in the judgment of my colleague, McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-75:
What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon the cases in this Court, in isolating an acceptable definition. In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 551, discrimination (in that case adverse effect discrimination) was described in these terms: "It arises where an employer . . . adopts a rule or standard . . . which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force". It was held in that case, as well, that no intent was required as an element of discrimination, for it is in essence the impact of the discriminatory act or provision upon the person affected which is decisive in considering any complaint. At page 547, this proposition was expressed in these terms:
The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.
In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, better known as the Action Travail des Femmes case, where it was alleged that the Canadian National Railway was guilty of discriminatory hiring and promotion practices contrary to s. 10 of the Canadian Human Rights Act, S.C. 1976-77, c. 33, in denying employment to women in certain unskilled positions, Dickson C.J. in giving the judgment of the Court said, at pp. 1138-39:
A thorough study of "systemic discrimination" in Canada is to be found in the Abella Report on equality in employment. The terms of reference of the Royal Commission instructed it "to inquire into the most efficient, effective and equitable means of promoting employment opportunities, eliminating systemic discrimination and assisting individuals to compete for employment opportunities on an equal basis." (Order in Council P.C. 1983-1924 of 24 June 1983). Although Judge Abella chose not to offer a precise definition of systemic discrimination, the essentials may be gleaned from the following comments, found at p. 2 of the Abella Report.
Discrimination . . . means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics . . . .
It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.
There are many other statements which have aimed at a short definition of the term discrimination. In general, they are in accord with the statements referred to above. I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
The first issue in these appeals is whether the complete disentitlement of pregnant women during a seventeen-week period from receiving disability benefits under the Safeway plan constitutes discrimination by reason of pregnancy. In my view, this ground of appeal may be addressed briefly. I have no difficulty in concluding that the Safeway sickness and accident plan discriminates against pregnant women.
As I have indicated, Adjudicator Taylor found the treatment accorded a pregnant employee (at p. D/2562):
. . . markedly different from that accorded to any other employee. Indeed, it is not merely pregnancy-related problems that are not covered under the plan during the seventeen week period . . . ; any accident or sickness, whether pregnancy related or not, occurring during that same seventeen weeks is excluded . . . .
He also observed that even if the employee qualifies for maternity benefits from the Unemployment Insurance Commission, the pregnant employee would receive (at p. D/2562):
. . . a lesser amount during that period than would a non-pregnant employee who was away from work by reason of some other physical disability.
Simonsen J. shared the view that the plan discriminated against pregnant women.
The Court of Appeal for Manitoba was not satisfied that in the context of the case there was any discrimination at all. Apart from noting that the disability plan in question was only part of a health benefit package agreed to between employer and union, the Court gave no reason for finding an absence of discrimination.
In my view, it is beyond dispute that pregnant employees receive significantly less favourable treatment under the Safeway plan than other employees. For a seventeen-week period, pregnant women are not entitled to any compensation under the plan, regardless of the reason they are unable to work. During those seventeen weeks, even if a pregnant woman suffers from an ailment totally unrelated to pregnancy, she is ineligible for benefits simply because she is pregnant. The plan singles out pregnancy for disadvantageous treatment, in comparison with any other health reason which may prevent an employee from reporting to work. With the sole exception of pregnancy, eligibility for compensation under the plan is available on broad and general terms. It is indeed generous, save in respect of pregnant women. For any single continuous period during which an employee is incapable of performing at work for health reasons, 26 weeks of benefits are available. Employees may recover under the plan without being house confined. No restrictions are placed on disability, with the solitary exception of pregnancy. It is difficult to conclude otherwise than that, as a result of the unfavourable treatment accorded to pregnancy vis-à-vis all other medical conditions, the Safeway plan discriminates on the basis of pregnancy.
Counsel for Safeway advanced a number of arguments in support of the proposition that the disability plan does not discriminate by reason of pregnancy. The submissions can be grouped into five main headings. First, it was argued that pregnancy is neither "a sickness or an accident" and therefore, it need not be covered by a sickness and accident plan; second, that pregnancy is a voluntary state and, like other forms of voluntary leave, it should not be compensated; third, the plan could not be discriminatory because there was no intention to discriminate; fourth, the plan was not discriminatory but was underinclusive in that it exempted certain disabilities from coverage; finally, on the basis of a rather novel interpretation of the relationship between regulations under the Unemployment Insurance Act, 1971, and the Manitoba Human Rights Act it was claimed that The Human Rights Act implicitly permits employee benefit plans to exclude compensation for pregnancy. In my view, none of these arguments can assist Safeway in escaping the conclusion that its sickness and accident plan discriminates on the basis of pregnancy.
The first two claims, that pregnancy is neither an accident nor an illness and that it is voluntary, are closely related. I agree entirely that pregnancy is not characterized properly as a sickness or an accident. It is, however, a valid health-related reason for absence from the workplace and as such should not have been excluded from the Safeway plan. That the exclusion is discriminatory is evident when the true character, or underlying rationale, of the Safeway benefits plan is appreciated. The underlying rationale of this plan is the laudable desire to compensate persons who are unable to work for valid health-related reasons. Pregnancy is clearly such a reason. By distinguishing "accidents and illness" from pregnancy, Safeway is attempting to disguise an untenable distinction. It seems indisputable that in our society pregnancy is a valid health-related reason for being absent from work. It is to state the obvious to say that pregnancy is of fundamental importance in our society. Indeed, its importance makes description difficult. To equate pregnancy with, for instance, a decision to undergo medical treatment for cosmetic surgery -- which sort of comparison the respondent's argument implicitly makes -- is fallacious. If the medical condition associated with procreation does not provide a legitimate reason for absence from the workplace, it is hard to imagine what would provide such a reason. Viewed in its social context pregnancy provides a perfectly legitimate health-related reason for not working and as such it should be compensated by the Safeway plan. In terms of the economic consequences to the employee resulting from the inability to perform employment duties, pregnancy is no different from any other health-related reason for absence from the workplace.
Furthermore, to not view pregnancy in this way goes against one of the purposes of anti-discrimination legislation. This purpose, which was noted earlier in the quotation from Andrews, supra, is the removal of unfair disadvantages which have been imposed on individuals or groups in society. Such an unfair disadvantage may result when the costs of an activity from which all of society benefits are placed upon a single group of persons. This is the effect of the Safeway plan. It cannot be disputed that everyone in society benefits from procreation. The Safeway plan, however, places one of the major costs of procreation entirely upon one group in society: pregnant women. Thus in distinguishing pregnancy from all other health-related reasons for not working, the plan imposes unfair disadvantages on pregnant women. In the second part of this judgment I state that this disadvantage can be viewed as a disadvantage suffered by women generally. That argument further emphasizes how a refusal to find the Safeway plan discriminatory would undermine one of the purposes of anti-discrimination legislation. It would do so by sanctioning one of the most significant ways in which women have been disadvantaged in our society. It would sanction imposing a disproportionate amount of the costs of pregnancy upon women. Removal of such unfair impositions upon women and other groups in society is a key purpose of anti-discrimination legislation. Finding that the Safeway plan is discriminatory furthers this purpose.
In sum, if an employer such as Safeway enters into the field of compensation for health c