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HomeMy WebLinkAbout2004-2081.Policy Grievance.05-03-29 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-2081 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ASSOcIatIOn of Management, AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (PolIcy Gnevance) Association - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Steven Barrett Sack Goldblatt Mitchell BarrIsters and SOlICItorS FOR THE EMPLOYER Mary Gersht Counsel Management Board Secretanat HEARING December 7 2004 2 DeCISIon After resolvIng an IndIVIdual gnevance In September 2004 the partIes agreed to address a polIcy Issue relatIng to parental leave at a heanng on December 7 2004 Under the Employment Standards Act, 2000 ("the ESA") an employee can take eIther 35 or 37 weeks of parental leave after a bIrth or an adoptIOn. For the purposes of thIS decIsIOn, I wIll assume that we are dealIng wIth an employee who IS entItled to 3 7 weeks of parental leave The Issue In dIspute IS whether an employee who takes less than 3 7 weeks of parental leave and returns to work for the Employer can then take another penod off as parental leave For example, can a father take 12 weeks of parental leave, return to work for the Employer for 8 weeks, and then take a further penod of up to 17 weeks as parental leave? The Umon takes the posItIOn that an employee IS entItled to splIt up parental leave In thIS way and that the CollectIve Agreement and the ESA permIt such a result. The Employer takes the posItIOn that an employee can only take parental leave for one contInUOUS penod. In ItS VIew the CollectIve Agreement and the ESA provIde that parental leave IS completed once an employee returns to work for the Employer even If the employee dId not take hIS or her full entItlement. There was no challenge to my JunsdIctIOn to hear and determIne thIS dIspute The partIes dId not call oral eVIdence Counsel Introduced documents on consent and made theIr submIsSIOns What IS at stake IS not only the nght to take an addItIOnal parental leave but the benefits assocIated wIth parental leave An employee on parental leave IS entItled to a "top-up" payment for a number of weeks and can contInue to partICIpate In benefit plans 3 The Employer provIdes employees wIth a Pregnancy Parental and AdoptIOn Leave InformatIOn Package ConsIstent WIth the posItIOn the Employer takes before me, thIS Package refers to the consequences of returmng to work as follows Return to Work Durin2 Leave Period Any return to work wIll termInate the leave Subsequent leave may be granted - under dIscretIOnary unpaid leave terms No entItlement to SUB-Allowance, even If the employee contInues to receIve EI benefits The submIssIOns of counsel focused on the parental leave provIsIOns In both the CollectIve Agreement and In the ESA, wIth a recogmtIOn that the dIspute wIll ultImately be resolved by an InterpretatIOn of the ESA ArtIcle 24 of the CollectIve Agreement deals wIth pregnancy leave, parental leave and the employment Insurance top-up For our purposes, the relevant provISIOns relatIng to parental leave are as follows 24 7 Parental Leave: The Employer shall grant a leave of absence wIthout pay In accordance wIth Part XIV of the Employment Standards Act, 2000 to an employee who has at least thIrteen (13) weeks servIce WIth the Crown and who IS the parent of a chIld. 24 8 Parental leave may begIn, (a) no earlIer than the day the chIld IS born or comes Into custody care and control of the parent for the first tIme and, (b) no later than fifty-two (52) weeks after the day the chIld IS born or comes Into the custody care and control of the parent for the first tIme 24 9 The parental leave of an employee who takes pregnancy leave must begIn when the pregnancy leave ends unless the chIld has not yet come Into the custody care and control of a parent for the first tIme 24 10 Parental leave ends thIrty-five (35) weeks after It began for an employee who takes pregnancy leave and thIrty-seven (37) weeks after It began for an employee who dId not take pregnancy leave An employee who has gIven notIce to end parental leave may change the notIce (a) to an earlIer date If the employee gIves the Employer at least four (4) weeks wntten notIce before the earlIer date or 4 (b) to a later date If the employee gIves the Employer at least four (4) weeks wntten notIce before the date the leave was to end. 24 11 Employment Insurance Top-up An employee who IS entItled to pregnancy/parental leave and who provIdes the Employer wIth proof that he or she IS In receIpt of employment Insurance benefits pursuant to the Employment Insurance Act (Canada) shall be paid an allowance In accordance wIth the Supplementary Benefit Plan. 24 13 In respect of the penod of parental leave, payments made accordIng to the Supplementary Employment Benefit Plan wIll consIst of the folloWIng (a) Where the employee serves the employment Insurance WaitIng penod, for the first two (2) weeks, payments eqUIvalent to mnety-three percent (93%) of the actual weekly rate of pay for hIS or her classIficatIOn, and shall also Include any Increases In salary that he or she would have attaIned had he or she been at work dunng the leave of absence as they are or would have been, Implemented, and, (b) for each week, up to a maXImum of fifteen (15) addItIOnal weeks, payments eqUIvalent to the dIfference between the sum of the weekly Employment Insurance benefits the employee receIves for the week and any other salary earned by the employee dunng the week, and mnety-three (93%) of the actual weekly rate of pay for hIS or her claSSIficatIOn, and shall also Include any Increases In salary that he or she would have attaIned had he or she been at work dunng the leave of absence as they are or would have been, Implemented. 24 14 Payments under the Supplementary Employment Benefit Plan wIll not apply to leave that contInues after fifty-two weeks folloWIng the day the chIld IS born or comes Into the custody care and control of the parent for the first tIme, where Employment Insurance benefits do not apply NotwIthstandIng any other artIcle In thIS agreement, vacatIOn credIts and semonty contInue to accrue dunng pregnancy leave (ArtIcle 24.2) parental leave (ArtIcle 24 7) and extended leaves (ArtIcle 24 17 and 24 19) ContInuous servIce for severance accrues dunng pregnancy and parental leave except dunng the last SIX (6) weeks of unpaid leave folloWIng parental leave for a bIOlogIcal father or adoptIve parent. 24 15 Benefit Plans Dunng pregnancy leave, parental leave and extended leave, an employee who partICIpates In the Benefit Plans referred to In ArtIcles 31 to 36 shall contInue that partICIpatIOn unless he or she elects In wntIng not to do so (a) Where an employee elects to contInue to make hIS or her penSIOn 5 contnbutIOns under eXIstIng practIce, pensIOnable servIce shall also accrue and the Employer shall contInue to make ItS contnbutIOns (b) Extended leave IS only covered by thIS ArtIcle If the purpose of the extensIOn IS dIrectly related to parental leave taken by a bIOlogIcal father or adoptIve parent. 24 16 Unless an employee gIves the Employer wntten notIce referred to In ArtIcle 24 15 the Employer shall contInue to pay the premIUms for the Benefit Plans In ArtIcles 31 to 36 that the Employer was paYIng Immediately before the Employee's pregnancy leave parental leave and extended leave and the employee shall contInue to pay the premIUms for the group Insurance coverages that the employee was paYIng ImmedIately before the pregnancy leave or parental leave 24 17 Pregnancy plus Parental Leave: An employee on pregnancy leave IS entItled to a parental leave of absence of up to thIrty-five (35) weeks 24 18 Parental leave for an employee who also took pregnancy leave shall commence ImmedIately folloWIng the expIry of the pregnancy leave 24 19 Extension of Parental Leave: Except for an employee to whom ArtIcle 24 17 applIes, an employee on parental leave IS entItled, upon applIcatIOn In wntIng at least two (2) weeks pnor to the expIry of the leave, to a consecutIve leave of absence wIthout pay and wIth accumulatIOn of credIts for not more than SIX (6) weeks 2420 An employee returmng to work after pregnancy leave, parental leave or extended leave referred to In ArtIcles 24 19 or 24 22 shall be reInstated to the posItIOn the employee most recently held wIth the Employer on a regular and not a temporary basIs, If the posItIOn stIll eXIsts, or to a comparable posItIOn, If It does not. 24 21 The Employer shall pay a reInstated person salary that IS at least equal to the greater of; (a) the salary the employee was most recently paid by the Employer or (b) the salary that the employee would be earnIng had the person worked throughout the leaves of absence referred to In ArtIcles 24 2, 24 7 24 19 or 24 22 2422 An employee who has worked less than thIrteen (13) weeks wIth the Crown and becomes the parent of a chIld shall be granted upon request a leave of absence wIthout pay and wIthout accumulatIOn of credIts and servIce under dIscretIOnary leave provISIOns of ArtIcle 23.2 (Leaves of Absence) for up 6 to the folloWIng pen ods (a) fifty-two (52) weeks for an employee who would otherwIse be elIgIble for pregnancy leave and parental leave under ArtIcles 24 2 and 247 and, (b) forty-three (43) weeks for an employee who would otherwIse be elIgIble for parental leave and extended leave only under ArtIcles 24 7 and 24 19 If otherwIse elIgIble, the employee IS entItled to contInue benefit coverage dunng the leave by paYIng both the employee's and the Employer's share of the premIUms The above CollectIve Agreement proVIsIOns mIrror to a consIderable degree the parental leave proVIsIOns In the ESA Of course It IS the proVIsIOns of the ESA whIch establIsh the mImmum standards for parental leave In Ontano The relevant parental leave proVIsIOns In the ESA are as follows Parental Leave 48 (1) An employee who has been employed by hIS or her employer for at least 13 weeks and who IS the parent of a chIld IS entItled to a leave of absence WIthout pay folloWIng the bIrth of the chIld or the comIng of the chIld Into the employee's custody care and control for the first tIme When leave may begIn (2) An employee may begIn parental leave no later than 52 weeks after the day the chIld IS born or comes Into the employee's custody care and control for the first tIme RestnctIOn If pregnancy leave taken (3) An employee who has taken pregnancy leave must begIn her parental leave when her pregnancy leave ends unless the chIld has not yet come Into her custody care and control for the first tIme N OtI ce (4) SubJ ect to subsectIOn (6) an employee WIshIng to take parental leave shall gIve the employer wntten notIce at least two weeks before the day the leave IS to begIn. 7 NotIce to change date (5) An employee who has gIven notIce to begIn parental leave may begIn the leave (a) on an earlIer day than was set out In the notIce If the employee gIves the employer a new wntten notIce at least two weeks before that earlIer day or (b) on a later day than was set out In the notIce, If the employee gIves the employer a new wntten notIce at least two weeks before the day set out In the ongInal notIce If chIld earlIer than expected (6) If an employee stops workIng because a chIld comes Into the employee's custody care and control for the first tIme earlIer than expected, (a) the employee's parental leave begIns on the day he or she stops workIng; and (b) the employee must gIve the employer wntten notIce that he or she IS takIng parental leave wIthIn two weeks after stoppIng work. End of parental leave 49 (1) An employee's parental leave ends 35 weeks after It began, If the employee also took pregnancy leave and 37 weeks after It began, otherwIse EndIng leave early (2) An employee may end hIS or her parental leave earlIer than the day set out In subsectIOn (1) by gIVIng the employer wntten notIce at least four weeks before the day he or she wIshes to end the leave ChangIng the date (3) An employee who has gIven notIce to end hIS or her parental leave may end the leave, (a) on an earlIer day than was set out In the notIce If the employee gIves the employer a new wntten notIce at least four weeks before the earlIer day or (b) on a later day than was set out In the notIce, If the employee gIves the employer a new wntten notIce at least four weeks before the day IndIcated In the ongInal notIce Employee not returmng (4) An employee who takes parental leave shall not termInate hIS or her employment before the leave expIres or when It expIres wIthout gIVIng the employer at least four weeks' wntten notIce of the termInatIOn. 8 ExceptIOn (5) SubsectIOn (4) does not apply If the employer constructIvely dIsmIsses the employee GENERAL PROVISIONS CONCERNING LEA YES Rights dunng leave 51 (1) Dunng any leave under thIS part, an employee contInues to partIcIpate In each type of benefit plan descnbed In subsectIOn (2) that IS related to hIS or her employment unless he or she elects In wntIng not to do so Benefit plans (2) SubsectIOn (1) applIes WIth respect to pensIOn plans, lIfe Insurance plans, accIdental death plans, extended health plans, dental plans and any prescnbed type of benefit plan. Employer contnbutIOns (3) Dunng an employee's leave under thIS Part, the employer shall contInue to make the employer's contnbutIOns for any plan descnbed In subsectIOn (2) unless the employee gIves the employer a wntten notIce that the employee does not Intend to pay the employee's contnbutIOns, If any ReInstatement 53 (1) Upon the conclusIOn of an employee's leave under thIS Part, the employer shall reInstate the employee to the pOSItIOn the employee most recently held WIth the employer If It stIll eXIsts, or to a comparable pOSItIOn, If It does not. ExceptIOn (2) SubsectIOn (1) does not apply If the employment of the employee IS ended solely for reasons unrelated to the leave Wage rate (3) The employer shall pay a reInstated employee at the rate that IS equal to the greater of, (a) the rate that the employee most recently earned WIth the employer and (b) the rate that the employee would be earmng had he or she worked throughout the leave 9 I also was referred to the provIsIOns relatIng to parental benefits In the Employment Insurance Act ("the EIA") Under the EIA an employee can be off work collectIng EI parental benefits, return to work for hIS or her employer and then be off work agaIn collectIng EI parental benefits S 23 (2) of the EIA provIdes as follows Parental benefits 23 (2) SubJect to sectIOn 12, benefits under thIS sectIOn are payable for each week of unemployment In the penod (a) that begIns wIth the week In whIch the chIld or chIldren of the claimant are born or the chIld or chIldren are actually placed wIth the claimant for the purpose of adoptIOn, and (b) that ends 52 weeks after the week In whIch the chIld or chIldren of the claimant are born or the chIld or chIldren are actually placed wIth the claimant for the purpose of adoptIOn. In support of the posItIOn that an employee cannot take a parental leave, return to work for the Employer and then take another parental leave dunng whIch the employee collects the top-up payment, counsel for the Employer relIed on the language In the CollectIve Agreement and the ESA Counsel submItted that the Employer's practIce of only permIttIng one contInuous penod of parental leave IS consIstent WIth the provIsIOns of both the CollectIve Agreement and the ESA Turmng first to the CollectIve Agreement, counsel argued that the words utIlIzed by the partIes contemplate a sIngle parental leave of absence Counsel noted that ArtIcle 24 7 provIdes that the Employer shall grant "a leave of absence" In accordance wIth the ESA, and does not IndIcate that the Employer shall grant leaves of absence Counsel noted that the references In ArtIcle 24 8 to when a parental leave may begIn and In ArtIcle 24 10 to when such a leave ends are agaIn sIngular When referrIng to the nght to gIve notIce to change the end ofa leave In ArtIcle 2410 counsel noted that there IS no provIsIOn for multIple notIces and submItted that the partIes would have provIded for multIple notIces If they Intended that an employee could take more than one parental leave wIthIn the allowable penod. Counsel 10 submItted that by referrIng to a leave of absence the begInmng and end of a leave and the notIce provIsIOns In the sIngular Illustrates that the partIes dId not contemplate that an employee could take more than one penod of parental leave Counsel argued that the wordIng of the parental leave provIsIOns do not present two lIngUIstIcally permISSIble meamngs Counsel emphasIzed that ArtIcle 24 11 sets out two condItIOns for the receIpt of the top- up payment. In addItIOn to the receIpt ofEI parental benefits, an employee must be entItled to parental leave Counsel submItted that an employee who returns to work for the Employer after a penod of parental leave IS no longer entItled to receIve the top-up payment dunng a subsequent leave because there IS no entItlement under the ESA for an addItIOnal penod of parental leave TurnIng to the ESA, counsel referred to the words In s 48( 1) and (2) and s 49(1) and (2), and noted the utIlIzatIOn of the sIngular when a leave and a notIce are mentIOned, thereby IllustratIng that only one leave IS contemplated. Counsel also submItted that the ESA, 2000 PolIcy and InterpretatIOn Manual ("the ESA Manual") can be used as an aid to InterpretatIOn. The IntroductIOn In the ESA Manual IndIcates that the document "IS a pnmary reference source of the polIcIes of the DIrector of Employment Standards respectIng the InterpretatIOn, admInIstratIOn and enforcement of the ESA, 2000" It represents to the publIc the Employment Standards Branch's VIew on how the parental leave proVIsIOns are to be admInIstered. In commentIng on s 49(1) the ESA Manual provIdes as follows 18 6 1 End of Parental Leave, s. 49(1) 49(1) An employee's parental leave ends 35 weeks after It began, If the employee also took pregnancy leave, and 37 weeks after It began, otherwIse A parental leave wIll end 35 weeks after It began If the employee also took a pregnancy leave, or 37 weeks after It began If the employee dId not take a pregnancy leave, unless the employee provIdes notIce of an earlIer return date pursuant to s 49(2) In other words, the employer must assume that an employee who has taken a 11 parental leave wIll be gone for the full 35 or 37 weeks unless the employee gIves wntten notIce to the contrary ThIS provIsIOn IS sImIlar to the correspondIng provIsIOn (s 40(2)) of the former Employment Standards Act (Under the former Act, the length of the parental leave was 18 weeks If the chIld was born and came Into the employee's custody care and control before December 31 2000 the 35/37 week leave was avaIlable only to employees whose chIld was born or came Into theIr custody care and control on or after December 31 2000 ) The length of parental leave was Increased In order to enable employees to take advantage of the extended Employment Insurance parental benefits made avaIlable In December 2000 It IS Important to note, however that there remaIn sIgmficant dIfferences regardIng entItlements between the Employment Standards Act, 2000 and the federal Employment Insurance Act For example, parents can take some paid work WIth theIr employer WIthout lOSIng any EI parental benefits They can also Interrupt the penod In whIch they receIve EI benefits and return to work, then begIn reCeIVIng benefits agaIn at a later date However If an employee does eIther of those thIngs WIth respect to the employer from whom they took the leave theIr parental leave wIll be consIdered to have ended under the Employment Standards Act, 2000 (Employees wIll not be consIdered to have ended theIr ESA, 2000 leave If they take work WIth an employer from whom they dId not take the leave For example, an employee may take a parental leave from theIr full-tIme Job WIth employer A and work part-tIme WIth employer B dunng theIr leave WIthout lOSIng theIr entItlement to the ESA, 2000 parental leave from theIr full-tIme Job) Once an employee begIns a parental leave, they have the nght to take the full 35 or 37 weeks For example, a bIrth father whose chIld dIes five weeks Into hIS parental leave has the nght to take the remaInIng 32 weeks ofleave Ifhe WIshes To support the proposItIOn that the ESA Manual can and should be used as an aid to Interpret the parental leave proVIsIOns, counsel relIed on Re Olympia York Development Ltd and leT U Loc 6 (1994) 43 L AC (4th) 71 (Kates) The Issue In that case concerns how overtIme hours worked should be credIted In the gnevor's overtIme bank. ConcludIng that the InterpretatIve manual was not bIndIng but could be used as an aid to InterpretatIOn, arbItrator Kates found the umon' s InterpretatIOn of the relevant collectIve agreement proVIsIOn more reasonable and that "Moreover that InterpretatIve approach WIth respect to the contentIOUS term contaIned In art. 9 11 of the collectIve agreement IS supported by the publIc polIcy consIderatIOns contaIned In the InterpretatIve gUIdelInes descnbed In the InterpretatIOn manual Issued by the Employment Standards Branch and whIch IS Intended for umform applIcatIOn save to the extent the collectIve agreement expressly Intends the contrary " 12 Counsel also referred to certaIn parts of the Mimstry of Labour's websIte whIch comments on pregnancy/parental leave In a Fact Sheet. The Fact Sheet begIns by notIng that It IS for InfOrmatIOn and convemence only and that It IS not a legal document. Counsel submItted that the advIce In the Fact Sheet IS consIstent WIth the Employer's InterpretatIOn of the pregnancy/ parental leave provIsIOns The folloWIng questIOn and answers are set out In the Fact Sheet Does pregnancy leave have to be taken all at one time? Yes Once an employee has started her Pregnancy leave, she must take It all at once and cannot splIt It up Does Parental leave have to be taken all at one time? Yes Once an employee has started Parental leave, he or she must take It all at one tIme and can't splIt It up An employee can't use up part of the leave, return to work for the employer from whIch he or she took the leave and then go back on Parental leave for the unused portIOn. Although the federal Employment Insurance program allows employees to earn a lImIted amount of wages wIthout havIng theIr parental benefits reduced, an employee who goes back to work for the employer from whom he or she took the leave, even If It IS only for a few hours a week, wIll gIve up the rest of hIS or her leave Counsel noted that there are other ways In whIch the ESA and the EIA do not mIrror each other beSIdes the area that dIvIdes the partIes In thIS dIspute She noted that an employee may begIn a parental leave under the ESA no later than 52 weeks after the bIrth, but an employee who begIns the leave In the 51st week wIll collect lIttle In the way ofEI parental benefits because the penod for paYIng benefits under the EIA ends 52 weeks after the week In whIch the chIld IS born. She also referred to the provISIOn In the EIA whIch permIts the extensIOn of the payment penod If a chIld IS hospItalIzed and that the ESA does not contaIn a provISIOn for extendIng the maXImum allowable parental leave penod. 13 Counsel submItted that the ESA parental leave provIsIOns reflect a number of polIcy consIderatIOns She noted that the purpose of these provIsIOns IS to permIt parents to take tIme off work to spend tIme WIth theIr young chIldren wIthout lOSIng theIr Job Counsel submItted that the reqUIrement for one contInUOUS leave recogmzes the Interests of employers She argued that such a reqUIrement IS Intended to mImmIze admInIstratIve dIfficultIes and the dIsruptIOn and uncertaInty that would be created If an employee were entItled to take multIple parental leaves totallIng the maXImum 37 weeks Counsel argued that a reVIew of the parental leave provIsIOns as a whole Illustrates a scheme whereby an employee IS entItled to take only one contInUOUS leave of absence The essence of the Umon' s posItIOn IS that there IS nothIng In the CollectIve Agreement or the ESA whIch prevents an employee from takIng more than one parental leave, recogmZIng that the total number of weeks cannot exceed 37 weeks In ItS VIew an employee IS entItled to an addItIOnal parental leave and the top up payment, as long as the condItIOns for reCeIVIng thIS payment have been met. Counsel for the Umon argues that the Employer's InterpretatIOn of the relevant provIsIOns IS too restnctIve and that the Employer IS readIng words Into the CollectIve Agreement and the ESA whIch are sImply not present. Counsel asserts that the Umon's InterpretatIOn of the ESA IS consIstent WIth pnncIples artIculated by the Supreme Court of Canada In decIsIOns InvolvIng the ESA and the EIA Counsel submIts that there IS no partIcular magIc In the use of the words "a leave of absence" In the CollectIve Agreement and In the ESA Counsel argued that If the partIes and the LegIslature Intended that there be a sIngle leave or one contInUOUS leave they would have used dIfferent language to express such an IntentIOn and the absence of such language suggests that they had no such IntentIOn. In counsel's submIsSIOn, the use of the words "a leave of absence" IS 14 not InCOnsIstent WIth the notIOn that an employee can take a parental leave for a number of weeks, return to work for the Employer and then take another parental leave Counsel submItted that the words "a leave" could mean each leave, that the oblIgatIOn to gIve two weeks notIce before the leave IS to begIn can be gIven before takIng an addItIOnal parental leave and that the words "an employee may begIn parental leave In s 48(2) of the ESA suggests that an employee can take more than one parental leave Counsel referred to ArtIcle 8 3 of the CollectIve Agreement whIch deals wIth leave of absence for ASSOCIatIOn actIVItIes and s 50(1) of the ESA, the emergency leave provISIOn, to Illustrate examples of where the words "a leave of absence" are used In other provISIOns and where the IntentIOn IS to refer to multIple leaves of absence Counsel argued that there IS no basIs for concludIng that the use of the same words In the parental leave provISIOns should be Interpreted dIfferently and In the restnctIve manner suggested by the Employer In InterpretIng the ESA, counsel argued that It IS Important to take Into account the relatIOnshIp between the parental leave provISIOns In the ESA and the EIA Counsel noted that the proVInCIal statute entItles employees to take tIme off from work wIth Job protectIOn, whIle the federal statute provIdes for the payment of benefits whIle an employee IS off work on parental leave Counsel also noted that an employee can contInue to receIve EI parental benefits for addItIOnal tIme off work, even after they enJoyed an ImtIalleave and returned to work for theIr employer Counsel submItted that the parental leave provISIOns In both statutes are Intended to be complementary and that an InterpretatIOn of the ESA whIch dIsentItles an employee to a parental leave whIle the employee can be off work reCeIVIng EI parental benefits does not make sense Counsel referred to a sectIOn of Hansard to Illustrate that the LegIslature Intended that the parental leave provISIOns In the ESA complement the relevant EIA provISIOns In commentIng In 15 Hansard Issue L121B on BIll 147 an Act to reVIse the law related to employment standards, Mr Joseph Tascona (Bame-SImcoe-Bradford) spoke on behalf of the Government as follows Parental leave IS ObvIOusly very fundamentally Important for people who desIre to raise a famIly or have a famIly They need that balance to be able to deal wIth the sItuatIOn. The federal government has Increased the entItlement penod that you can collect employment Insurance benefits up to 52 weeks It's the Employment Standards Act that has to complement that. It's the Employment Standards Act that allows for the tIme to be taken off and not lose your J ob and to make sure that penod of tIme IS set out to match the federal employment Insurance benefits OtherwIse It doesn't make a lot of sense to be provIdIng federal employment Insurance benefits for parental leave for a certaIn penod of tIme If the proVInce doesn't match It to make sure there's J ob protectIOn for that entIre penod. Counsel submItted that, In order to complement the federal scheme for compensatIng employees on parental leave, the LegIslature Intended to permIt employees to splIt up theIr parental leave and that the language In the ESA reflects thIS IntentIOn. Counsel argued that any dIfferences between the EIA and the ESA are clearly set out In each statute, but there IS no IndIcatIOn In the ESA that employees cannot splIt up theIr parental leave WhIle acknowledgIng that an InterpretatIOn manual could be used as an aid to InterpretatIOn, counsel submItted that I was not bound by the ESA Manual and that, In thIS Instance, the reference In the ESA Manual to the Issue In dIspute should be gIven no weIght. Counsel argued that the ESA Manual SImply asserts that an employee cannot splIt up parental leave wIthout proVIdIng a basIs for thIS assertIOn and wIthout proVIdIng a polIcy context to support the assertIOn. Counsel submItted that the absence of any polIcy JustIficatIOn for the assertIOn In the ESA Manual dIstIngUIshes thIS case from Re Olympia York Development Ltd and leT U Loc 6 supra, where arbItrator Kates had the benefit of the polIcy conSIderatIOns set out In the ESA Manual wIth respect to the Issue there In dIspute Counsel also submItted that the Mimstry of Labour's Fact Sheet on Pregnancy Leave & Parental Leave, for sImIlar reasons, and 16 because of the nature of the document, should not be used In InterpretIng the parental leave provIsIOns In the ESA Counsel also submItted that It would be Inappropnate to take Into account any dIsruptIOn that mIght occur to employers Counsel argued that the parental leave provIsIOns do not suggest that the pnncIple of aVOIdIng dIsruptIOn to an employer's busIness IS a relevant factor other than by provIdIng a notIce reqUIrement. In counsel's submIssIOn, the dIsruptIOn Issue IS addressed by requmng an employee to gIve an employer wntten notIce at least two weeks before the leave IS to begIn, whether It IS an ImtIalleave or a subsequent parental leave Counsel submItted that It IS necessary when InterpretIng the relevant provIsIOns of the ESA to take Into account the purpose of parental leave and to consIder the provIsIOns as a whole Counsel submItted that It IS InCOnsIstent WIth the ObVIOUS purpose of parental leave to Interpret the ESA In a way whIch demes an employee entItlement to an addItIOnal parental leave In counsel's VIew the Employer's posItIOn IS not conSIstent WIth the purpose of the parental leave provIsIOns Counsel referred to a number of Supreme Court of Canada decIsIOns In support of hIS submIssIOn that In InterpretIng employment related statutes such as the EIA and the ESA the Court, where appropnate, prefers an InterpretatIOn whIch favours the Interests of employees Counsel referred me to certaIn passages In the decIsIOns, wIthout fOCUSIng on the specIfic facts In each case I wIll take the same approach In bnefly reVIeWIng four of the decIsIOns In the first three cases, the Court IS InterpretIng certaIn provISIOns In the former Unemployment Insurance Act, 1971 ('the UIA") In Canada (Attorney General) v Abrahams 17 [1983] 1 S C.R. 2, the Issue was whether a claimant was dIsentItled to benefits under the UIA, by VIrtue of s 44( 1 ) In findIng In favour of the claimant, Wilson J wntIng for the Court, comments as follows SInce the overall purpose of the Act IS to make benefits avaIlable to the unemployed, I would prefer a lIberal InterpretatIOn of the re-entItlement provIsIOns I thInk any doubt anSIng from the dIfficultIes of the language should be resolved In favour of the claimant In Hills v Canada (Attorney General) [1988] 1 S C.R. 513 the Issue was whether the claimant who lost hIS employment as a result of a work stoppage could prove that he was not "finanCIng" the labour dIspute wIthIn the meamng of s 44(2)(a) In allOWIng the appeal, L'Heureux-Dube J wntIng for the maJonty wrote as follows 96 WhIle sectIOn 44 may be open to a broad InterpretatIOn of "financIng" In my VIew the purpose of the sectIOn (to dIsentItle stnkers from benefits) as well as the purpose of the Act as a whole (to proVIde benefits to Involuntanly unemployed persons) dIctate that a narrow InterpretatIOn be gIven to the dIsentItlement provIsIOns of that sectIOn. Any doubt, as Wilson J pOInted out In Abrahams supra, should be resolved In favour of the claimant, partIcularly In the context descnbed above In Canada (Canada Employment and Immigration Commission) v Gagnon [1988] 2 S C.R. 29 the Issue was whether a claimant IS entItled to an extenSIOn of hIS benefit penod under s 20(7)(b) of the UIA In allOWIng the appeal, L'heureux-Dube J wntIng for the Court, wrote as follows 44 In bnef, both the wordIng and the context, as well as the IntentIOn that emerges from the Act, support the appellant's InterpretatIOn. 45 That IS not to say that the proVISIOns of the Act are a model of clanty TryIng to reconcIle them reqUIres an uncommon degree of dextenty WIth the result that In borderlIne cases such as the one at bar where two InterpretatIOns are pOSSIble takIng Into account that the purpose of the Act IS to compensate workers who are Involuntanly unemployed, the worker must be gIven the benefit of the doubt (Abrahams V Attorney General of Canada, supra) 18 The next decIsIOn Involves InterpretIng the ESA At Issue In Rizzo & Rizzo Shoes Ltd [1998] 1 S C.R. 27 was whether the termInatIOn of employment caused by the bankruptcy of an employer gave nse to a claim provable In bankruptcy for termInatIOn pay and severance pay under the ESA Access to the benefits at Issue under the ESA turns on the questIOn of whether employment was termInated "by an employer" NotIng the plaIn language In the relevant statutory provIsIOns, the Court of Appeal held that employees termInated as a result of a bankruptcy were termInated by operatIOn of law and not "by an employer" In allowIng the appeal, IacobucCI J wntIng for the Court, commented as follows 22 I also rely on s 10 of the InterpretatIOn Act, R.S 0 1980 c.219 whIch proVIdes that every Act "shall be deemed to be remedIal" and dIrects that every Act shall "receIve such fair large and lIberal constructIOn and InterpretatIOn as wIll best ensure the attaInment of the obJect of the Act accordIng to ItS true Intent, meamng and spmt" 23 Although the Court of Appeal looked to the plaIn meamng of the speCIfic proVISIOns In questIOn In the present case, WIth respect, I belIeve that the court dId not pay suffiCIent attentIOn to the scheme of the ESA, ItS obJect or the IntentIOn of the legIslature nor was the context of the words In Issue appropnately recogmzed 36 Finally WIth regard to the scheme of the legIslatIOn, SInce the ESA IS a mechamsm for proVIdIng mImmum benefits and standards to protect the Interests of employees, It can be charactenzed as benefits-confernng legIslatIOn. As such, accordIng to several deCISIOns of thIS Court, It ought to be Interpreted In a broad and generous manner Any doubt anSIng from dIfficultIes oflanguage should be resolved In favour of the claimant (see, e g. Abrahams v Attorney General of Canada, [1983] 1 S C.R. 2, at p 10 Hills v Canada (Attorney General) [1988] 1 S C.R. 513 at p 537) It seems to me that, by lImItIng ItS analYSIS to the plaIn meamng of ss 40 and 40a of the ESA, the Court of Appeal adopted an overly restnctIve approach that IS InCOnSIstent WIth the scheme of the Act. Counsel submItted that the language In the relevant proVISIOns, both In the CollectIve Agreement and In the ESA IS clear and conSIstent WIth the InterpretatIOn advanced by the Umon. However If I found that the language IS capable of two InterpretatIOns or ambIguous, counsel submItted that the applIcatIOn of the pnncIples artIculated by the Supreme Court of Canada In the 19 foregoIng decIsIOns should result In an InterpretatIOn of the parental leave provIsIOns In the ESA whIch allows employees to take more than one leave of absence The CollectIve Agreement specIfically provIdes In ArtIcle 24 7 that the Employer shall grant a parental leave of absence wIthout pay In accordance wIth Part XIV of the ESA The provIsIOns In the CollectIve Agreement whIch provIde employees wIth addItIOnal benefits whIle on parental leave, such as the top-up provIsIOn, are avaIlable to employees as long as they are entItled to parental leave Therefore as both counsel recogmzed, a resolutIOn of thIS dIspute reqUIres me to Interpret the parental leave provIsIOns In the ESA Although the focus has been on parental leave, I note that that the relevant words In s 24.2 of the ESA, the pregnancy leave provIsIOn, are vIrtually IdentIcal to the words used In the parental leave provIsIOns Therefore, the InterpretatIOn one gIves to the parental leave provIsIOns In the ESA would undoubtedly have an Impact on the pregnancy leave provIsIOns as well As preVIOusly noted, I was referred to the ESA Manual, the Fact Sheet and the extract from Hansard reproduced above I am not prepared to gIve any sIgmficant weIght to these sources I agree wIth counsel for the Umon that the ESA Manual sImply asserts that an employee cannot splIt up parental leave, wIthout provIdIng any explanatIOn or any polIcy basIs for the assertIOn and therefore IS not partIcularly helpful The Fact Sheet IS sImIlarly of lIttle assIstance In Rizzo & Rizzo Shoes Ltd supra, the Court, In commentIng on the lImIted role Hansard can play In the InterpretatIOn of legIslatIOn, referred to the folloWIng comment In R v Morgentaler [1993] 3 S C.R. 463 at p 484 " ProVIded that the court remaInS mIndful of the lImIted relIabIlIty and weIght of Hansard eVIdence, It should be admItted as relevant to both the background and purpose oflegIslatIOn." The extract from Hansard does bnefly touch on the background and the purpose of the parental leave amendments, and to thIS extent IS somewhat 20 useful However the general reference to the complementary nature of the ESA and the EIA whIch undoubtedly eXIsts to a degree, IS not partIcularly helpful wIth respect to the specIfic Issue whIch IS In dIspute between the partIes In InterpretIng the parental leave provIsIOns In the ESA, It IS Important to consIder the purpose of these provIsIOns and the relevant words contaIned thereIn In the context of the parental leave provIsIOns as a whole HavIng regard to the InterpretIve approach of the Supreme Court of Canada as demonstrated by the references set out above, It IS to be noted that parental leave provIdes a dIfferent context from those addressed In the Court decIsIOns Parental leave IS a benefit whIch an employee IS not compelled to take It IS avaIlable to an employee on a voluntanly basIs If an employee elects to take parental leave, he or she can take the full entItlement of 37 weeks or can take less than hIS or her full entItlement. The comments of the Court In the EIA cases are made In the context of a statute whIch IS desIgned to compensate workers who are Involuntanly unemployed. In Rizzo & Rizzo Shoes Ltd supra, the Court was dealIng wIth the applIcatIOn of the ESA In CIrcumstances where employees had been termInated by a bankruptcy Although the parental leave provISIOns provIde a dIfferent and umque context, the comments of the Court, partIcularly In Rizzo & Rizzo Shoes Ltd supra, are nonetheless stIll applIcable to the CIrcumstances before me The ESA IS benefits-confernng legIslatIOn and should not be Interpreted In restnctIve manner Rather the ESA should be Interpreted In a broad and generous manner conSIstent WIth the dIrectIOn contaIned In s 10 of the Interpretation Act After consIdenng the relevant parental leave provISIOns In the ESA In lIght of the submISSIOns of counsel and after applYIng the InterpretatIve approach referred to above, It IS my conclUSIOn that the LegIslature Intended to proVIde employees wIth the opportumty to take one contInUOUS parental leave of absence folloWIng a bIrth or an adoptIOn 21 As counsel for the Employer noted, the words used In s 48 and s 49 of the ESA are In the sIngular whIch suggests an IntentIOn to provIde for a sIngle leave of absence For example, s 48( 1) refers to "a leave of absence" s 48(2) uses the words "may begIn a parental leave" and the notIce reqUIrement In s 48(4) reqUIres that an employee gIve at least two weeks wntten notIce before the day "the leave" IS to begIn. S 49(1) provIdes that "an employee's parental leave ends" eIther 35 or 37 weeks after It began. The wordIng of the relevant provISIOns does not dIsclose an IntentIOn to proVIde more than one leave of absence If the LegIslature had Intended to proVIde for multIple parental leaves, such an IntentIOn could have been easIly expressed by USIng dIfferent language SImIlarly If the words "a leave" In s 48(1) were Intended to mean "each leave" as the Umon argued, the draftsperson could easIly have used language to proVIde that more than one leave could be taken. Although the words In s 48 and s 49 of the ESA are sIgmficant In that they contemplate a sIngle leave I agree wIth the Umon that the InqUIry cannot end there and must also conSIder the words wIthIn the parental leave provISIOns as whole An eXamInatIOn of the parental leave provISIOns as a whole suggests the creatIOn of a well-defined parental leave scheme What IS also notIceable IS the absence of the type of provISIOns one would expect If employees were entItled to take more than one parental leave after the bIrth of a chIld or an adoptIOn. S 48(1) proVIdes for "a leave of absence" and s 48(4) reqUIres that an employee gIve two weeks wntten notIce before the day the leave IS to begIn. S 48(5) permIts an employee, upon 2 weeks wntten notIce, to change the start of a leave to an earlIer or a later day S 49 addresses the endIng of a parental leave, wIth s 49(1) proVIdIng that "an employee's parental leave ends" 35 or 37 weeks "after It began" S 49(2) permIts an employee to end the parental leave earlIer than the 35 or 37 weeks, upon 4 weeks wntten notIce 22 S 49(3) permIts an employee who has provIded a notIce to end the parental leave, to end the leave on an earlIer or a later day provIdIng the employee gIves 4 weeks wntten notIce The scheme created by the foregoIng provIsIOns has a number of tellIng features It IS assumed that an employee takIng parental leave wIll take the full 37 weeks, unless the employee gIves notIce of an earlIer end date Such an assumptIOn IS consIstent WIth the notIOn of a sIngle parental leave of absence ProvIdIng that the leave ends 37 weeks after It began, rather than sImply provIdIng that an employee IS entItled to 37 weeks of parental leave, suggests that parental leave IS to be for a sIngle contInUOUS penod. A provISIOn whIch permIts an employee, upon 4 weeks wntten notIce, to change the end day of the leave to a later day wIth the potentIal result that an employee wIll enJ oy 37 weeks of parental leave, appears agaIn to be consIstent WIth an IntentIOn to provIde only a sIngle leave of absence It seems to me that It would be unnecessary to have such a provISIOn If an employee was entItled to take more than one parental leave If the Umon' s posItIOn IS correct, an employee could gIve two weeks wntten notIce and take a second parental leave, whether the employee returned to work or not, rather than extendIng the ImtIalleave In fact, entItlement to a second parental leave could create a conflIct WIth the proVISIOn whIch permIts extendIng the end day ThIS could anse In a sItuatIOn where an employee, two weeks from the end day WIshes to extend the end day of a parental leave, but IS unable to due so because the four weeks wntten notIce cannot be gIven. If entItlement to a second parental leave WIth two weeks notIce was avaIlable the employee could proVIde suffiCIent notIce to take a second parental leave to begIn ImmedIately upon the completIOn of the first one ThIS result would be InCOnSIstent WIth the reqUIrement to gIve at least 4 weeks notIce to change the end day of a leave In lIght of the above observatIOns, whIch clearly suggest an IntentIOn to proVIde for a SIngle contInUOUS parental leave, one would expect explICIt language to 23 support an IntentIOn to provIde for multIple parental leaves Language eVIdencIng such an IntentIOn IS sImply not present. The Umon pOInts to the words "a leave of absence" In S 50(3) of the ESA In support of ItS posItIOn. S 50 provIdes that an employee IS entItled to an emergency leave of absence upon any one of a number of tnggenng events An employee under thIS provIsIOn can take a total of 10 days' leave each year When one consIders S 50 as a whole, It IS qUIte clear from the context that an employee IS entItled to more than one leave under thIS provISIOn. The context In S 50 serves to hIghlIght the dIfferent context that eXIsts for the parental leave provISIOns The eXIstence of one tnggenng event, the bIrth of a chIld or an adoptIOn, and the opportumty to take a maXImum number of weeks ofleave whIch must commence wIthIn a speCIfic penod, suggests also that a sIngle leave IS contemplated by the parental leave provISIOns The Umon relIes on that fact that the ESA IS Intended to complement the EIA and submIts that the ESA should be Interpreted In a way whIch favours splIttIng up a parental leave because an employee IS entItled to receIve EI parental benefits even If weeks of unemployment are Interrupted by a return to work. I agree wIth the Employer's submIsSIOn that the fact the parental leave provISIOns In the ESA and the parental benefits provISIOns In the EIA are not completely complImentary takes some force away from the Umon' s submIsSIOn. One sIgmficant dIfference between the two statutes concerns when an employee can start a parental leave under the ESA and when EI parental benefits are no longer payable under the EIA EI parental benefits are payable only wIthIn a penod of 52 weeks from the bIrth, yet an employee can commence a parental leave Just before the 52nd week after the bIrth. An employee who commences a parental leave In the 51 st week after a bIrth wIll only receIve EI parental benefits for the one week. Although thIS scenano would not lIkely occur In practIce thIS potentIal sItuatIOn demonstrates In 24 a fairly dramatIc way that there can be a dIsconnect between takIng a parental leave and reCeIVIng EI parental benefits Conversely Just because an employee IS In receIpt ofEI parental benefits does not mean, by Itself, that the employee IS entItled to parental leave If It was Intended that entItlement to a parental leave IS only dependent on an employee reCeIVIng EI parental benefits, such an IntentIOn could have been easIly and clearly expressed. The Umon argues that InterpretIng the parental leave provIsIOns In a way whIch demes employees entItlement to an addItIOnal parental leave IS InCOnsIstent WIth the purpose of these provIsIOns It also argues that It would be Inappropnate to take Into account the dIsruptIOn multIple leaves of absence would cause the Employer when InterpretIng the parental leave provIsIOns, gIven that thIS Issue has been addressed by the reqUIrement to gIve wntten notIce I dIsagree wIth these submISSIOns The pnmary purpose of the parental leave provIsIOns IS to proVIde an employee wIth the opportumty to be away from work after the bIrth of a chIld or an adoptIOn, wIthout nskIng the loss of one's Job However It IS clear from the provIsIOns In theIr entIrety that an effort has been made to balance thIS employee benefit wIth an employer's Interest In aVOIdIng undue dIsruptIOn to ItS operatIOns If the Umon' s posItIOn represented the preferred InterpretatIOn, an employee could gIve the reqUIred notIce and alternate between a week of parental leave and a week at work for the Employer for a number of months If It were possIble to take less than a full week of parental leave, an employee could take every Fnday and Monday off for a penod of tIme whIle workIng the rest of the week. SplIttIng up parental leave In thIS manner would have the potentIal to be qUIte dIsruptIve for an employer even when the reqUIred notIce has been gIven, and there IS nothIng In the ESA parental leave provISIOns whIch remotely contemplates such a result. I agree wIth the Employer's submISSIOn that the desIgn of the parental leave provISIOns to proVIde for a 25 sIngle leave of absence IS Intended In part to aVOId the dIsruptIOn that could be created If employees were permItted to splIt up parental leave In my VIew a reqUIrement that an employee can only take one leave has the effect of ensunng that employees wIll take a leave for as long as possIble, thereby ensunng that the purpose of the provIsIOn wIll be served. I am satIsfied that the words In the parental leave provIsIOns In the ESA are not capable of two meamngs when consIdered In lIght of theIr purpose and the context of the provIsIOns as a whole The ESA provIdes for a sIngle parental leave of absence, whatever ItS duratIOn. Once an employee returns to work for the Employer at the end of a parental leave, the entItlement to parental leave has been exhausted, even If the employee dId not take the full 37 weeks of parental leave SImIlarly It follows that the CollectIve Agreement also contemplates that an employee IS entItled to take one contInUOUS parental leave of absence An employee IS not entItled to a second parental leave dunng whIch the top-up payment IS avaIlable Dated at Toronto thIS 29th day of March, 2005