Tellier-Cohen v. Canada

Tellier-Cohen was employed by the Government of Canada and was not permitted to use her sick leave or annual leave for her absence from work due to her pregnancy and childbirth. She filed a complaint in the Human Rights Tribunal challenging the action of the government on the basis of sex discrimination under sections 7(b) and 3 of the Canadian Human Rights Act.

The Human Rights Commission found in favour of the complainant and the Treasury Board of the Government of Canada appealed on the grounds of misinterpretation of the collective agreement and in determining that pregnancy constituted a prohibited ground of discrimination within the meaning of the Human Rights Act.

The central issue of the appeal was whether discrimination because of pregnancy constitutes discrimination on the basis of sex in the employer’s interpretation of the collective agreement (employee-employer agreement) with respect to the use of leave, reimbursement of salary on account of refusal to allow her usage of accumulated sick leave.

The Human Rights Review Tribunal dismissed the appeal. It held that discrimination because of pregnancy does constitute discrimination on the basis of sex in matters relating to employment.

The Tribunal relied on section 11 of the Interpretation Act to give “fair, large, and liberal construction” when applying the Human Rights Act to workplace discrimination. It further held that pregnancy is not an illness and can be excluded from an employer’s health plan but still constitutes discrimination on the basis of sex. It stated that the employer should have been more accommodating in deciding the complainant’s leave requests. The refusal shows contempt for the complainant’s rights. It stated that most collective agreements give special treatment for the period of pregnancy and the period after childbirth and further held that the employer cannot take refuge behind a collective agreement to circumvent the Canadian Human Rights Act. The Act supersedes collective action agreements or negotiations between employer and employee. The Tribunal held that given Tellier-Cohen’s financial situation, anxiety, and frustration, $2,000 is not an unreasonable sum.

“In this regard, we regret the attitude of the employer, which should have shown greater understanding and been more accommodating in view of the fact that the complainant demonstrated considerable flexibility and common sense in her request.” (para 10)

“Substantial evidence of suffering "in respect of feelings or self-respect" was adduced before us. The employer’s discriminatory interpretation denied the respondent her right to opt for her paid annual 1982 CanLII 7 (CHRT) leave rather than for unpaid maternity leave and, consequently, temporarily deprived her of income which she was entitled to expect, and this created financial difficulties for her. The employer’s attitude forced the respondent to take legal action.” (para 11)

“It is true that the collective agreement is the result of negotiations between the employer and the union to which Mrs. Tellier-Cohen belonged and that it is binding on them. However, the employer cannot take refuge behind a collective agreement to circumvent the Canadian Human Rights Act.” (para 12)