Discriminatory generosity: when those who are away win the day!



Publication February 2017

On January 30, 2017, the Court of Appeal of Québec issued a unanimous decision confirming that employers who choose to provide certain benefits to employees who take time away from work have an obligation to provide those benefits on a non-discriminatory basis.1

For example, if an employer pays a premium to someone who is away for a short time owing to parental or family obligations, then that employer must, according to the Court, pay the same premium to an employee who is away on maternity leave.

In passing, the Court reiterated that “family status” is not a prohibited ground for discrimination under the Quebec Charter of Human Rights and Freedoms (Charter).

The facts

In renewing their collective agreement in July 2012, the parties agreed that jurists performing the duties listed in the Directive concernant la classification des avocats et notaires (directive respecting the classification of lawyers and notaries) would be granted a premium equal to 2% of the salary paid for each regular hour compensated for such work. A retroactive lump sum was also granted to jurists for the hours paid between April 2011 and the date the agreement was signed. For the purposes of this article, we will refer to these amounts as the “jurist premium.”

However, the parties did not agree on how the jurist premium would apply to jurists who were absent from work. Consequently, the employer refused to pay the premium to employees on maternity leave, adoption leave, paternity leave or sick/disability leave (after the sick leave provided in the agreement had been exhausted) or to employees on an unpaid leave (“Group 1”). 

The employer agreed, however, to pay the jurist premium to employees who took time off work for union business, statutory holidays, family or parental reasons or jury or witness duty (“Group 2”).

Mtre. Lecavalier, an employee on maternity leave who did not receive the premium, filed a grievance, which was referred to arbitration.  

Ruling by the Quebec Court of Appeal

In its ruling, the Court begins by acknowledging that an employer’s duty to compensate an employee is usually conditional on work being performed by the employee. However, when employers decide to provide benefits to employees on leave from work, they “[translation] must do so in a manner that ensures the application of such benefits does not result in discrimination for a prohibited ground.”2

To justify its refusal to pay the jurist premium to employees on maternity leave, the employer argued, among other things, that such employees did not received a salary, but rather an indemnity in lieu of salary.3

For the Court, this argument does not hold water: the jurist premium is granted to employees who perform duties and are compensated for their work. Therefore, at first glance, it does not apply to employees who are on leave from work.

Moreover, the collective agreement specifically excludes the premiums from the concept of salary. Consequently, the jurist premium should not be paid to any absent employee since such employees do not work and the salary or indemnity they receive while on leave expressly excludes the jurist premium.

However, according to the Court, the employer adjusted the wording of the agreement and granted the jurist premium to certain absent employees. Whether they received an indemnity or salary pure and simple made absolutely no difference. The Court also finds the failure to explain the distinction “suspicious and troubling.”

The employer’s refusal to adjust the definition of salary for long-term absences, including maternity leave, and its decision to do so for short-term absences, therefore leads to only one finding: discrimination.


In issuing this decision, the Court of Appeal is sending a clear message: employers who grant benefit X to absent employees must do so in a way that is not discriminatory.  

It may be wise for employers wishing to avoid a legal battle to grant the same benefits to all absent employees; however, this Court reiterates that there is nothing prohibiting employees from treating certain types of absences differently or granting benefits that are adjusted according to the nature of the leave – for example, as in the case at issue, granting an indemnity equal to 66% of salary to employees on disability leave and 93% to employees on maternity leave.

Although the Court does not deal with it at great length, the matter of identifying an appropriate “comparison group” is also of paramount importance.

In other words, employers may, in certain cases, be able to justify the difference in salary or to demonstrate that the comparable group receives the same salary and that there is therefore no difference in salary.

Note that this decision does not prevent an employer from tying the entitlement to certain benefits to the actual performance of work. In this instance, however, this requirement will have to be applied on a non-discriminatory basis.


1.  2016 QCCA 103.

2.  Ibid. para 41.

3.  The collective agreement stipulated that the employer would pay employees on maternity leave an indemnity equal to the difference between 93% of her weekly salary and the benefits under the Quebec Parental Insurance Plan for the first 21 weeks of leave.



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