Recently, an Ontario decision found that treating biological and adoptive parents differently is discriminatory and in contravention of the Ontario Human Rights Code. The decision serves notice to both employers and unions to carefully review their collective agreement parental leave provisions.

Arbitrator George Adams, Q.C. in a decision rendered May 13, 1999, held that the administration of the University of Ottawa was in violation of the provincial human rights code when it denied biological fathers parental leave benefits available to mothers and adoptive parents.

Adams had been asked to adjudicate a grievance between the University of Ottawa and the Association of Professors of the University of Ottawa relating to the parental leave provisions in the collective agreement which provide for a top up to employment insurance benefits to 95 per cent of salary for employees for up to 10 weeks.

The dispute was over the employer top-up to that portion of the entitlement under Section 23 of the Employment Insurance Act, known as the parental or child care leave benefit. This benefit is available for the care of a newborn child or a newly adopted child. The leave may be taken by either parent, split by the parents or taken in conjunction with or in addition to the portion of the benefit available only to mothers.

For parents of either sex absent from employment to care for a newborn or newly adopted child, the Act allows for a total of 18 weeks of leave -- an initial two week waiting period, 10 weeks of benefit (maximum $413 per week) and an additional six weeks leave without pay. This is in addition to the leave and benefit granted only to women pregnant or recovering from childbirth.

The grievance arose from an application for parental leave filed in July 1997 by a male faculty member, in anticipation of the birth of his son. The mother of the child owns her own company and was thus not eligible to receive EI benefits of any kind. She nonetheless took a leave of absence for 10 weeks to recover after the birth. During this period the couple decided the father would take parental leave to care for their son, when the mother went back to work.

The father applied for 12 weeks leave to begin in early January 1998 and was told by his dean that as the biological father he could only take leave without pay, although he was eligible for EI benefits to a weekly maximum of $413 during that time.

On the other hand, adoptive fathers or mothers were entitled to the top up to employment insurance parental benefits -- 95 per cent of salary for 10 weeks.

The parental or child care leave benefit was introduced by Parliament subsequent to a previous discrimination ruling (Schacter v. Canada, 52 D.L.R. 1988; also CHR vol. 9, D/5320; upheld in 66 D.L.R. 1990 by the federal Court of Appeal) which ruled that the there-to-fore UIC provision discriminated against fathers absent from work to share in the care of newborn children.

Subsequent to the change in legislation, many employers made the corresponding changes to their own policies.

Neighbouring Carleton University provides supplementary benefits to any employee receiving benefit under the EI Act for the full period during which they are entitled to EI benefits, including the waiting period.

The University of Ottawa made no changes pursuant to either the Schacter decision or the federal change in legislation. The university argued instead there is no discrimination in providing parental leave top-up benefits only to mothers and to adoptive parents of either sex, but not to biological fathers.

This is the first case to come before either the courts or an arbitrator examining the rights of fathers to parental leaves and benefits since the Schacter decision in 1988 which contributed to the change in federal EI (UI) legislation at that time. Given recent interest in policies on work and family and given also continued concern over the manner in which persistent career barriers to mothers are exacerbated by stereotypical attitudes towards fathers, this case is expected to be of broad social interest. The harm to the grievor's family in this case would have been that the mother would have been forced to assume sole care of their child and thus suffered considerable career disadvantage as a result.

Although the question asked of the arbitrator specifically referred to discrimination between biological and adoptive fathers on the prohibited grounds of family status, the arbitrator found there to be discrimination on grounds of both family status and sex between biological fathers, adoptive parents of either sex and biological mothers.

According to the wishes of the parties, remedy is left in their hands. The arbitrator remains seized of the case should the parties fail to find a mutually acceptable remedy.