Fortis Energy Inc. and MoveUP-COPE, Local 378 (Administration of Sick Leave Benefits), Re, 2021 CarswellBC 4166

In this case, Black Gropper represented MoveUP in successful policy grievances against FortisBC Energy Inc. and FortisBC Customer Service Centre (the “Employers”). The grievances challenged the Employers’ interpretation of “active duty” in the collective agreements to disqualify members on modified hours of work from accruing sick leave until they returned to their pre-disability hours or are permanently accommodated into a position with reduced hours.

Black Gropper successfully argued the Employers’ practice was discriminatory under section 13(1)(b) of the Human Rights Code (the “Code”). Arbitrator Bell found that sick leave in the collective agreement was a status-based benefit, and the Employers’ interpretation was prima facie discriminatory as it disregards the purpose of the sick leave benefit. Arbitrator Bell declared that the Employers’ interpretation of “active duty” as requiring return to pre-disability hours contravened the Code. In reaching these conclusions, Arbitrator Bell found the reasoning in two Ontario decisions on similar issues particularly persuasive Rouge Valley Health System and ONA (Ng), Re, (2014) 119 C.L.A.S. 87 (Trachuk) and Health Sciences North and CUPE, Local 1623 (A), Re, (2017) 130 C.L.A.S. 291 (Trachuk). This marks the first time the findings in these cases have been adopted in this Province.

British Columbia Public School Employers' Association School District No. 73 (Kamloops-thompson) v British Columbia Teachers Federation Kamloops -Thompson Teachers' Association, 2020 CanLII 76278 (BC LA); and British Columbia Public School Employers’ Association School District No. 73 (Kamloops-thompson) v British Columbia Teachers Federation Kamloops-Thompson Teachers’ Association, 2021 CanLII 20861 (BC LA)