On December 3, 2008, the Tribunal des droits de la personne (hereinafter the "Tribunal") rendered a decision on the solidary liability of the employer and the union in a case of discrimination arising from the application of a collective agreement[1]. The collective agreement entered into between the employer and the union stipulated that adoptive fathers would receive 20 weeks of paternity leave, at 95% of their salary, whereas biological fathers were only entitled to 5 days of paternity leave, 3 of which were paid. Following the birth of their children, 2 employees at the Société de transport de Montréal filed complaints with the Commission des droits de la personne et de la jeunesse (the "Commission"), alleging discrimination. The Commission sought relief against the employer and the union before the Tribunal.

It has been established that the Tribunal has jurisdiction to rule on issues arising from the negotiation or formulation of a collective agreement. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on, amongst other things, civil status. Filiation is included in the concept of civil status, and both the employer and the union acknowledged the discriminatory nature of the distinction made in the collective agreement between the rights of adoptive fathers and biological fathers. The employer compensated the plaintiffs for the material damages they sustained due to this discrimination. However, the plaintiffs were claiming moral damages. Consequently, only the question of the respective liability of the employer and the union in terms of the awarding of moral damages remained for the Tribunal to decide.

The provisions of a collective agreement cannot derogate from the protections against discrimination contained in Quebec’s Charter of Human Rights and Freedoms[2](the "Charter"), which are implicitly incorporated in the collective agreement. The collective agreement is the outcome of an agreement negotiated between the employer and the union, and they are both responsible for the discriminatory provisions it contains. The union’s responsibility stems from its status as the exclusive representative for the employees in the bargaining unit. It is not up to the Tribunal to re-examine the negotiations as a whole to determine whether it was the employer or the union that insisted on including the discriminatory provision in the collective agreement. However, the union’s liability may be mitigated or ruled out if it can demonstrate a special situation, that is, that it opposed the discriminatory measure in a sustained and sincere manner but it encountered insurmountable resistance from the employer.

Under the circumstances, the union failed to satisfy the burden of proof. The distinction between adoptive fathers and biological fathers went back more than 18 years. Although the union had encouraged its members to complain to the Commission, that alone did not relieve it of its duty to fairly represent its members and negotiate their employment conditions. The fact is that the union had negotiated collective agreements containing discriminatory provisions several times. Meanwhile, it is significant that the 2004-2007 collective agreement, which contained the same discriminatory provisions against biological fathers, was finalized after the complaints were filed with the Commission. Finally, although the union had argued that it made gains for the majority of its members, this did not justify the provisions discriminating against biological fathers.

The union and the employer were solidarily ordered to pay the plaintiffs moral damages, namely $7,500 for one and $5,000 for the other. The Tribunal also ordered the employer and the union to negotiate a new non-discriminatory parental leave plan within a period of 3 months.

On January 27, 2009, the Court of Appeal granted the union’s motion for leave to appeal the Tribunal’s judgment[3]. It was determined that the issues to be submitted to the Court of Appeal are:

  1. Is it accurate to say that the logic of the protection of the collective interest no longer allows the union to justify, in terms of its civil liability, the practice of discrimination against a portion of its members by considering the gains obtained for the employees as a whole?
  2. If so, is this tantamount to imposing a duty of result on the union in terms of the absence of any discriminatory provisions in the collective agreement?
  3. In this case, has the union incurred its liability for the moral damages to be paid to the plaintiffs?