COMMENTS
CHRONIQUE DE JURISPRUDENCE
Brooks, Allen & Dixon v. Canada Safeway Ltd-
A Comment (Bliss Revisited)
Lorna A. Turnbull*
Three pregnant employees of Canada Safe-
way Ltd were denied disability benefits al-
though they were covered by their employer’s
disability insurance plan. Both the adjudi-
cator and the Manitoba Court of Queen’s
Bench held that the disability plan was dis-
criminatory, but not on the basis of sex. The
Manitoba Court of Appeal affirmed the de-
cisions, holding, further, that the plan was not
discriminatory at all. The author examines
several types of discrimination and argues
that the Canada Safeway plan is discrimi-
natory because it treats pregnant women dif-
ferently from employees who are otherwise
temporarily disabled and thus unable to
work. In the leading case of Bliss v. A.G. Ca-
nada, the Supreme Court of Canada held that
differential treatment of pregnant women is
not discrimination on the basis of sex. It is
argued, however, that such treatment is pro-
hibited by various human rights codes, and
that the Supreme Court, in deciding Brooks,
Allen & Dixon v. Canada Safeway Ltd,
should overrule its holding in Bliss.
Canada Safeway a refuse A trois de ses em-
ployees enceintes les prestations d’incapacit6
pr6vues au regime d’assurance-incapacit6 de
la compagnie. LUarbitre et la Cour du banc de
]a Reine du Manitoba ont d~cid6 que le r6-
gime 6tait discriminatoire mais qu’il ne
comportait pas de discrimination sexuelle.
La Cour d’appel du Manitoba, en plus de
confirmer ]a decision, affirma que le regime
n’6tait nullement discriminatoire. L’auteure
6tudie divers types de discrimination et
conclut que le regime d’assurance de Canada
Safeway est discriminatoire en ce qu’il traite
les femmes enceintes diffiremment des
autres employes souffrant d’une incapacit6
temporaire les empechant de travailler. Dans
‘affaire Bliss c. PG. Canada, la Cour su-
pr~me du Canada d~cida que le fait d’accor-
der un traitement diff6rent aux femmes
enceintes ne constituait pas une discrimina-
tion sexuelle. L’auteure pretend qu’un tel trai-
tement contrevient A divers codes de droits
et libert6s et que la Cour supreme devrait
profiter de l’affaire Brooks, Allen & Dixon
pour renverser l’arret Bliss.
*B.A. (Hon.), LL.B. 1989 (pending). I wish to thank Professor W.E Pentney for his assistance
in preparing this article for publication.
McGill Law Journal 1989
Revue de droit de McGill
1989]
I.
Introduction
COMMENTS
Even in the 1980s women are still striving to achieve equality. One of
the key factors influencing women’s equality is their ability to bear children.
This capacity has long been used to justify differential and discriminatory
treatment of women and it continues to stand as an obstacle to their equality.
This biological difference between women and men is used to justify “wom-
en’s inferior social status, reduced workplace opportunities, limited personal
options and regulated reproductive freedom.”l Judicial decisions concerning
pregnancy and women’s equality have an importance that extends beyond
the particular case in issue. These decisions perpetuate stereotypic thinking
about women, first and foremost, as wives and mothers, and only second-
arily, as legitimate members of the workforce. As well, they allow such
stereotyped images to be attributed to “Nature” rather than acknowledging
that these restrictions placed on women are the direct responsibility of the
legislatures and courts.2 It is critically important to distinguish between true
biological differences between women and men and the differences that are
perceived to exist because of stereotypes and social expectations about their
respective roles. For this reason, the impact of court decisions about preg-
nancy and sex discrimination cannot be ignored and the decisions must not
go unchallenged.
The reasons for judgement in the decision of the Manitoba Court of
Appeal in Brooks, Allen & Dixon v. Canada Safeway Ltd3 speak volumes
by their brevity. The decision is all of two paragraphs in length. It is abun-
dantly clear that to O’Sullivan, Huband and Twaddle JJ.A. the issue of
whether pregnancy can form the basis of discrimination because of sex is,
in essence, a non-issue.
Various jurisdictions in Canada have had legislation preventing dis-
crimination on the basis of sex for close to twenty years.4 But only in the
late 1970s did the issue of whether pregnancy discrimination could consti-
tute sex discrimination come to the attention of our courts. In 1978, Mr.
Justice Ritchie, speaking for a unanimous seven-man bench in the Supreme
Court of Canada 5 held in obiter dicta that differential treatment of pregnant
IK.E. Mahoney & S.L. Martin, eds, Equality and Judicial Neutrality (Toronto: Carswell,
1987) at 193.
2Bliss v. A.G. Canada, [1979] 1 S.C.R. 183 at 190, 23 N.R. 527, 92 D.L.R. (3d) 417, [1978]
6 W.W.R. 711, 78 C.L.L.C. 14, 175 [hereinafter Bliss cited to S.C.R.], where Mr. Justice Ritchie
stated, “Any inequality between the sexes in this area is not created by legislation but by nature.”
3(1986), 42 Man. R. (2d) 27 (C.A.).
4See e.g., British Columbia’s Human Rights Act, S.B.C. 1969, c. 10 and Canadian Human
Rights Act, S.C. 1976-77, c. 33.
5Bliss, supra, note 2.
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women did not amount to discrimination on the basis of sex.6 He quoted
Pratte J. of the Federal Court of Appeal saying:
Assuming the respondent to have been “discriminated against”, it would
not have been by reason of her sex. Section 46 applies to women, it has no
application to women who are not pregnant, and it has no application, of
course, to men. If s. 46 treats unemployed pregnant women differently from
other unemployed persons, be they male or female, it is, it seems to me, because
they are pregnant and not because they are women. 7
This case, Bliss v. A.G. Canada, was significant because it sounded the
death knell for the Canadian Bill of Rights.8 Ms. Bliss had failed to meet
the requirements to qualify for special maternity benefits under the un-
employment insurance program but was capable of meeting the lower stand-
ard to qualify for regular unemployment insurance benefits. She sought to
claim regular benefits for the time that she was available for work prior to,
and following, the birth of her child, but s. 46 of the Unemployment Insu-
rance Act, 19719 denied regular benefits to pregnant women for a period of
15 weeks surrounding the expected date of birth. Thus, Ms. Bliss was entitled
to neither maternity nor regular payments.
The Bliss case has been the only pronouncement of the Supreme Court
of Canada on this issue and it has had a profound impact on the cases that
have followed. Many instances of similar claims have arisen10 and while
6Courts in both the United States and England have come to similar conclusions. In 1974
(Geduldig v. Aiello, 417 U.S. 484) and again in 1976 (General Electric Co. v. Gilbert, 429 U.S.
125), the United States Supreme Court found that comprehensive disability insurance plans
that did not cover pregnancy were not discriminatory because the programs did not exclude
anyone on the basis of gender, but merely removed one physical condition, pregnancy, from
the list of conditions which would be covered. Moreover, there was no evidence that these
plans were in fact worth more to men than to women and thus they were found not to have
an adverse effect on women. Even more alarming is the English case of Turley v. Allders
Department Stores Ltd, [1980] I.C.R. 66 (Employment Appeal Tribunal). The complainant,
who had been dismissed from her job because of her pregnancy, claimed to have been dis-
criminated against on the basis of sex. At the hearing and on appeal, it was held that there
was no discrimination because a pregnant woman was not and never could be similarly situated
to a man and thus she need not be accorded the same rights or benefits.
7Bliss, supra, note 2 at 190.
8Originally enacted as S.C. 1960, c. 44; now, R.S.C. 1970 (Appendix III).
9S.C. 1970-71-72, c. 48.
10See, e-g., Leier v. C.LP. Paper Products Ltd (5 January 1978), Saskatchewan (Norman,
Adjudicator), referred to in Giouvanoudis v. Golden Fleece Restaurant (1984), 5 C.H.R.R. D/
1967 (Ontario Board of Inquiry); Re Wong and Hughes Petroleum Ltd (1983), 46 A.R. 276,
28 Alta L-R (2d) 155, 4 C.H-LIRR D/1488 (Q.B.); Tellier-Cohen v. Treasury Board (1982), 3
C.-.LRIR D/792, 82 C.LLC. 17,007 (Canadian Human Rights Review Tribunal) (reversed in
part by (1982), 4 C.1LR.R D/l 169, 82 C.LLC. 17,016 (Canadian Human Rights Review
Tribunal)); and Hollowayv. MacDonald(1983), 83 C.LLC. 17,019,4 C.H.R.R. D/1454 (British
Columbia Board of Inquiry) [decided on other grounds].
1989]
CHRONIQUE DE JURISPRUDENCE
the adjudicators and tribunals hearing them may have been inclined to find
that pregnancy discrimination is synonomous with sex discrimination, they
have considered themselves constrained by the obiter of the Supreme Court
of Canada in Bliss.
[I]n our view, the unanimous obiter dictum of the Supreme Court is not an
opinion which lesser adjudicators can afford to treat lightly. If discrimination
on the basis of pregnancy, or some related condition, is … said to be sex
discrimination, it will be because the Legislature has so decreed.’
However, some tribunals have refused to follow Bliss. For example, the
tribunal in the case of Tellier-Cohen v. Treasury Board said that it could not
subscribe to this obiter dictum, for it creates a separate sexual category for
pregnant women and avoids dealing with the real problem of sexual
discrimination.’ 2
Several legislatures in the country have been driven by the patent ab-
surdity of the results in those cases where sexual discrimination was denied,
to “decree” that pregnancy discrimination is sex discrimination. Canada,
Alberta, Saskatchewan, Quebec, Ontario and now Manitoba 13 all have pro-
visions in their human rights codes stating that, for the purposes of the
codes, discrimination on the basis of pregnancy will be deemed to be dis-
crimination on the basis of sex.
The appeal from the Manitoba Court of Appeal’s decision in Brooks,
Allen & Dixon v. Canada Safeway Ltd 4 was heard by the Supreme Court
of Canada on June 15, 1988. After a decade of living with the aftermath of
Bliss, the Court now has the opportunity to correct the mistakes of the past.
This is a decision that bears watching carefully.
II. The Facts and Judicial History of the Case
The complainants, Ms. Brooks, Ms. Allen and Ms. Dixon were all em-
ployees of Canada Safeway Ltd in Manitoba. They, and all other employees,
were covered by a group disability insurance plan maintained by Canada
Safeway. The plan provided for the payment of weekly disability benefits
ILeier v. C.I.R Paper Products Ltd (5 January 1978), Saskatchewan (Norman, Adjudicator),
cited in W.S. Tamopolsky, Discrimination and the Law including Equality Rights under the
Charter (rev’d ed. by W.F. Pentney) (Toronto: De Boo, 1985) at 8-13.
12Supra, note 10 at D/794.
13Canadian Human Rights Act, S.C. 1976-77, c. 33, as am. S.C. 1980-81-82-83, c. 143, s.2;
The Individual’s Rights Protection Act, S.A. 1972, c. 2, as am. S.A. 1980, c. 27, s. 27; Saskatch-
ewan Human Rights Code, R.S.S. 1979, c. S-24.1, s. 2(o); the Quebec Charter of Human Rights
and Freedoms, S.Q. 1975, c. 6, as am. S.Q. 1982, c. 61; Ontario’s Human Rights Code, S.O.
1981, c. 53, as am. S.O. 1986, c. 64, s. 18(7); Manitoba’s recently amended Human Rights Act,
S.M. 1974, c. 65, as am. S.M. 1987, c. 45, s.9(2).
4Supra, note 3.
McGILL LAW JOURNAL
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based on 67% of an employee’s regular weekly earnings, calculated as an
average over the 12 weeks immediately preceding the onset of his or her
disability. The benefits covered a range of disabilities. Pregnancy was also
included, with the exception of a period of ten weeks preceding the week
of birth and six weeks following the week of birth. During these 17 weeks
a pregnant employee had no coverage whatsoever for any disabilities in-
cluding those unrelated to the pregnancy such as a broken leg.’ 5
Pregnant employees were not compelled to cease work during the 17
week period and were still entitled to their regular wage if they did continue
to work. However, if an employee did decide, or was obliged for health
reasons, to stop working during that 17 week period, the only benefits she
could claim would be unemployment insurance maternity benefits, if she
qualified for them. The unemployment insurance benefits are calculated as
60% of the average earnings for the previous 20 weeks of employment. For
most employees, this resulted in a smaller recovery from unemployment
insurance than that which they would have been eligible to recover if their
claims had been allowed under the group disability insurance plan.
Brooks, Allen and Dixon were all pregnant and were unable to recover
disability benefits for their time away from work during the 17-week period
surrounding the births of each of their children.
Reeh Taylor, the adjudicator at the hearings for Brooks16 and for Allen
and Dixon’ 7 held in both cases that the Canada Safeway insurance plan
does discriminate against pregnant employees because the result of applying
its 17-week exemption period is that pregnant employees receive fewer ben-
efits than other employees suffering a temporary disability.
He then went on to hold that such discrimination was not discrimi-
nation because of sex. He held that “sex” was to be narrowly construed as
“gender” and that the correct analysis was that articulated by Ritchie J. in
Bliss: if these individuals are treated differently than others it is because
they are pregnant and not because they are women. In any event, even if
Taylor did not agree with Mr. Justice Ritchie’s reasoning in Bliss, he felt
bound by the higher authority and would have arrived at the same result.
Simonsen J., speaking for the Manitoba Court of Queen’s Bench’ 8 af-
firmed Taylor’s decision. The Court confirmed that the plan did “in fact
discriminate against pregnant employees” and agreed that this discrimi-
15Brooks v. Canada Safeway Ltd (1985), 6 C.H.R.R. D/2560 at D/2561.
16Ibid.
17Dixon & Allen v. Canada Safeway Ltd (1985), 6 C.H.R.R. D/2840 (Manitoba Board of
IsBrooks, Allen & Dixon v. Canada Safeway Ltd (1985), 38 Man. R. (2d) 192, 7 C.H.R.R.
Adjudication).
D/3185, 86 C.L.L.C. 17,010.
1989]
COMMENTS
nation was not because of the employees’ sex. Simonsen J. too, cited the
now famous obiter of Mr. Justice Ritchie and appears to have adopted it
as his own –
at the very least he saw no reason to question it.
Brooks, Allen and Dixon appealed to the Manitoba Court of Appeal19
and the Court disposed of the appeal with astonishing expediency. In less
than 85 words they stated that they “substantially agree[d]” 20 with Simonsen
J. and that they would “go further and say [they] are not satisfied that in
the context of this case there was any discrimination at all.”12 1 The Court
also questioned the decision of the complainants not to bring an action
against their union which was responsible for having negotiated the disa-
bility benefits package with Canada Safeway.22
III. Have Brooks, Allen and Dixon Been Discriminated Against?
A. Discrimination Defined
Discrimination is defined in the Canadian Living Webster Encyclopedic
Dictionary of the English Language as:
the making of a difference in particular cases, as in favor of or against a person,
particularly when influenced by race or creed rather than individual merit …. 23
The making of distinctions that are harmful to members of specified
classes is precisely the type of behaviour to which the human rights codes
in Canada are directed. Discrimination, in the sense of making unfavourable
distinctions, is generally recognized to take three forms: 24
(i) malicious and intentional drawing of distinctions against a particular
group;
(ii) “adverse effect” discrimination where a rule that appears neutral
on its face has a disparate, negative impact on a particular group; and
‘9Supra, note 3.
2Ibid. at 28.
21Ibid.
22The Court seems to imply that because Brooks, Allen and Dixon chose not to sue their
union, which had bargained for the disability benefits plan, they should not have been able to
succeed in their action against Canada Safeway either. The choice of whom to bring the action
against is strictly that of the complainants (and the Commission) and has no bearing on the
responsibility of Canada Safeway for discriminating against Brooks, Allen and Dixon. This
issue did not warrant the attention given to it by the Court.
23Vol. 1 (Chicago: English Language Institute of America, 1974) at 286.
24W.S. Tamopolsky, Discrimination and the Law including Equality Rights under the Charter
(rev’d ed. by W.E Pentney) (Toronto: DeBoo, 1985).
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[Vol. 34
(iii) differential treatment that, while not necessarily motivated by mal-
ice, results in harm to the group so treated.
The first form of discrimination is easily understood and our horror as
a society at its existence needs no explanation. The second and third forms
of discrimination require more detailed explanation, in order to determine
if this disability benefit plan did, in fact, discriminate against a particular
group.
(ii) Adverse Effect
Until 1985, only harm which was caused by differential treatment was
recognized by the Supreme Court of Canada as discrimination.25 But in that
year, the Court, adopting the reasoning of the United States Supreme Court
in Griggs v. Duke Power Co.26 recognized “adverse effect” discrimination.
Mr. Justice McIntyre, speaking for the unanimous Court in Ontario Human
Rights Commission and O’Malley v. Simpson-Sears Ltd,27 said that such
discrimination arises where
an employer for genuine business reasons adopts a rule or standard which is
on its face neutral, and which will apply equally to all employees, but which
has a discriminatory effect upon a prohibited ground on one employee or a
group of employees in that it imposes, because of some special characteristic
of the employee or group, obligations, penalties, or restrictive conditions not
imposed on other members of the work force.28
Proof of adverse effect discrimination requires evidence of (i) a neutral
rule (ii) that applies to all or most employees (iii) but that has an adverse
effect on a particular employee or group of employees (iv) because of some
special characteristic of the group. In this context, malicious intent need
not be shown and is, by definition, irrelevant since it is a neutral rule that
is in issue.
In this case, there was no adverse effect discrimination. It was not a
neutral rule that applied to most or all employees. The rule in this case
specified different treatment for different groups: non-pregnant persons were
25However, several tribunal decisions had gone beyond the differential treatment concept.
See, e.g., Singh (Ishar) v. Security and Investigation Services Ltd (Ontario, 1977) [unreported];
Rand v. Sealy Eastern Ltd (1982), 3 C.H.R.R. D/938 (Ontario Board of Inquiry); Marcotte v.
Rio Algom Ltd (1982), 5 C.H.R.R. D/2010 (Canada Human Rights Commission Review Tri-
bunal); and Christie v. Central Alberta Dairy Pool (1984), 6 C.H.R.R. D/2488 (Alberta Board
of Inquiry).
26401 U.S. 424 (1971).
27Ontario Human Rights Commission and O’Malley v. Simpson Sears Ltd, [1985] 2 S.C.R.
536, 23 D.L.R. (4th) 321, 12 O.A.C. 241, 52 O.R. (2d) 799, 64 N.R. 161, 9 C.C.E.L. 185, 17
Admin. L.R. 89, 86 C.L.L.C. 17,002 [hereinafter O’Malley cited to S.C.R.].
281bid at 551.
1989]
CHRONIQUE DE JURISPRUDENCE
to be provided full coverage at all times that they suffered a temporary
disability, whereas pregnant persons were to be barred from any coverage
for an arbitrary 17-week period.
(iii) Differential Treatment
Professor Blumrosen, 29 in tracing the evolution of the concept of dis-
crimination in the United States, describes the concept of differential treat-
ment as follows:
Discrimination consists of causing economic harm to an individual by treating
members of his minority group in a different and less favorable manner than
similarly situated members of the majority group. Proof involves evidence of
differential treatment and harm.30
From the fact of differential treatment that results in a disadvantage to
the target group it is possible to infer or impute a malicious intent. However,
such intent need not be shown; it is sufficient to demonstrate differential
treatment and resulting harm. For example, the requirement that a native
Indian pay in advance for a hotel room when no such demands were made
of other persons in identical circumstances, is discriminatory.31
B.
Is there Discrimination in Canada Safeway’s Benefits Plan?
The answer to this question must surely be “yes!”. Canada Safeway’s
policy excluding a woman from coverage for 17 weeks surrounding the birth
of her child clearly has an adverse impact on the woman concerned. There
are several ways of measuring this impact. Most obviously, such a woman
would not be protected for any risk for a period exceeding four months,
while other employees are not subjected to such a prolonged lapse in cov-
erage and protection. Secondly, even though there may have been some
other type of insurance coverage available to this woman, its value would
be less than that available to other employees suffering a temporary disability
who were entitled to claim under the plan (i.e. unemployment insurance
was calculated at 60% of 20 weeks whereas the Canada Safeway disability
benefits were at 67% of 12 weeks).
The basis of this adverse impact on the women working at Canada
Safeway is differential discrimination. The evidence shows the differential
treatment and the harm.
29″Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Dis-
crimination” (1972-73) 71 Mich. L. Rev. 59.
30Ibid. at 67.
31Ermine v. United Enterprises Ltd and Capri Motor Inn (Saskatchewan Human Rights
Commission, 1976), referred to in Tarnopolsky, supra, note 24.
McGILL LAW JOURNAL
[Vol. 34
It is difficult to imagine how the Manitoba Court of Appeal could have
concluded that these facts showed no discrimination. Possibly, they are still
operating on the now outmoded assumption that proof of discrimination
requires proof of malicious intent. However, the written judgement is so
brief that it is difficult to glean their reasons. Nonetheless, it is clear from
numerous judgements of the Supreme Court of Canada that malice is not
required. 32 The emphasis is on discriminatory effects and this is entirely in
keeping with the broad purpose of the codes to eliminate discrimination.
[The] main approach, however, is not to punish the discriminator, but rather
to provide relief for the victims of discrimination. It is the result or the effect
of the action complained of which is significant…. If its effect is to impose on
one person or group of persons obligations, penalties, or restrictive conditions
not imposed on other members of the community, it is discriminatory.33
Based on the conclusion that pregnant persons were the subject of dis-
criminatory treatment by the provisions of Canada Safeway’s benefits plan,
the question remains whether such discrimination was discrimination on
the basis of sex.
IV. Does the Canada Safeway Plan Discriminate Because of Sex?
A. Not All Group Members Affected
The primary reason of the Manitoba Court of Appeal for holding that
the exclusion of Brooks, Allen and Dixon from disability benefits was not
discrimination based on sex seems to be –
at least to the extent that it can
be gleaned by tracing back through the reasons of the Manitoba Court of
Queen’s Bench to those of the adjudicator 34 –
that the impugned provisions
32See, e.g., O’Malley, supra, note 27; Bhinderv. Canadian NationalRailways, [1985] 2 S.C.R.
561,23 D.L.R. (4th) 481, 63 N.R. 185, 9 C.C.E.L. 135, 17 Admin. L.R. 111,86 C.L.L.C. 17,003,
7 C.H.R.R. D/3093; and Action Travail des Femmes v. Canadian National Railways, [1987]
1 S.C.R. 1114, 40 D.L.R. (4th) 193, 76 N.R. 161, 87 C.L.L.C. 17,022.
330’Malley, supra, note 27 at 547.
34An examination of the case ofJanzen & Govereau v. Platy Enterprises Ltd, [1986] 2 W.W.R.
273, 38 Man. R. (2d) 20 (sub nom. Janzen and Govereau v. Pharos Restaurant (Q.B.)); reversed,
[1987] 1 W.W.R. 385, 43 Man. R. (2d) 293 (C.A.) [hereinafter Janzen cited to 43 Man. R. (2d)
(C.A.)], helps to shed light on Brooks, Allen & Dixon v. Canada Safeway Ltd. The decision in
Janzen was given by Twaddle and Huband JJ.A., both of whom participated in the Brooks
case. The reasons for judgement span more than two paragraphs and the assumptions that
inform their reasoning are much more apparent. In the following discussion of Brooks reference
will be made to the Janzen case to support the inferences drawn about the reasoning in Brooks.
In Janzen two complainants filed human rights complaints alleging sexual harrassment by their
employer. They claimed that such harrassment constituted discrimination on the basis of sex,
contrary to the Act. Both the adjudicator and the Court of Queen’s Bench found that sexual
harrassment was discrimination on the basis of sex, but the Manitoba Court of Appeal disa-
greed. They found that not all women were harrassed, but only those with certain attributes
were and thus this could not be discrimination on the basis of sex. They also held that because
“discriminating” was analogous to “making a selection”, and “harrassing” was analogous to
“assaulting”, harrassing could not be discriminating.
1989]
COMMENTS
“apply to women, [but have] no application to women who are not pregnant
and [have] no application, of course, to men. ’35 The underlying reasoning
here is that because not all women are affected at one time by the provisions,
such provisions cannot be described as discriminating between men and
women 36 but only as discriminating between pregnant people and non-
pregnant people or between two classes of women, neither of which is a
prohibited ground. This demonstrates further that the Manitoba Court of
Appeal’s decision is premised on an understanding of the concept of dis-
crimination that has been overtaken by recent Supreme Court rulings and
is not in line with the purpose of the human rights codes that have been
enacted across the country.
It is not necessary that a whole class be adversely affected by the of-
fending provisions before discrimination within the meaning of the codes
can be found. 37 In R. v. Drybones,38 the Supreme Court of Canada found
discriminatory treatment where the facts disclosed that only some Indians,
namely those who were drunk and off the reserve, were treated more harshly
than whites. More recent Supreme Court authority supporting this position
can be found in O’Malley39 (although this case was cited at the hearing,
there is no indication in their decision that O’Sullivan, Huband and Twaddle
JJ.A. considered that authority to be relevant).
A rule or practice is discriminatory if it affects “a person or a group of
persons”‘ 40 adversely because of some special characteristic of the group of
which they are a member. The provisions in the Canada Safeway disability
benefits package have a discriminatory effect upon a group of people (preg-
nant persons) because of the special characteristic (the ability to become
pregnant) of the group (women) to which they belong.
In this case, Canada Safeway’s benefit package discriminates on the
basis of sex. Brooks, Allen and Dixon were treated more harshly than other
employees of Canada Safeway, and this harsher treatment flowed entirely
from their pregnant condition, a condition unique to women. Thus, it is
only women who are subject to the employment losses associated with this
provision. Only women can become pregnant and this is the most significant
35Brooks, Allen & Dixon v. Canada Safeway Ltd, supra, note 18 at D/3188 (citing Ritchie
J. in Bliss, supra, note 2 at 183, citing Pratte J. in Re A.G. Canada and Bliss, [1978] 1 EC.
208, 77 D.L.R. (3d) 609 at 613 (C.A.)).
36Similar reasoning can be seen in the Janzen case, supra, note 34.
37Tarnopolsky, supra, note 24.
38[1970] S.C.R. 282, 9 D.LR. (3d) 473, 71 W.W.R. 161, [1970] 3 C.C.C. 355, 10 C.R.N.S.
384.
39Supra, note 27.
4Ibid. at 547 (emphasis added).
REVUE DE DROIT DE McGILL
[Vol. 34
difference between men and women. To ignore this is to avoid the key issue.41
As stated by Wright J. in Canada Safeway Ltd v. Manitoba Food and Com-
mercial Workers Union:
[T]he fact is discrimination can occur when one sex is given an advantage over
the other due to some particular characteristic common to one sex but not to
the other. The adjective “unique”‘ is often used in this context.
Pregnancy is an example. A rule [affecting] pregnant women … affects all
women, not just some women. It affects their right to be pregnant. It applies
only to women and places women in a less advantageous, or potentially less
advantageous, position in relation to employment than men. The essential
reason a woman is in that position is because of her sex. Since there is no rule
of like kind –
that applies to men, the result is a rule
that is clearly discriminatory because of sex.42
as there cannot be –
B. The Interpretion of “Sex”
The second reason that the Manitoba Court of Appeal found that the
discrimination against Brooks, Allen and Dixon could not be discrimination
on the basis of sex is that they interpret “sex” as synonymous with “gender”;
this is a very narrow ground.43 They conclude that if there had been any
intent on the part of the legislature to include pregnancy within the meaning
of “sex” then there would have been specific provisions to that effect such
as those that are included in the codes of other jurisdictions. 44 Thus, in the
absence of such a broadening of the term, “sex” should be narrowly con-
strued.45 But human rights codes are not to be narrowly construed. The
Supreme Court of Canada has made this clear in numerous decisions. 46
It is not … a sound approach to say that according to the established rules of
construction no broader meaning can be given to the Code than the narrowest
interpretation of the words employed. The accepted rules of construction are
flexible enough to enable a Court to recognize in the construction of a human
rights code the special nature and purpose of the enactment … and to give it
an interpretation which will advance its broad purposes. Legislation of this
41Tellier-Cohen v. Treasury Board, supra, note 10.
42(1984), 5 C.H.R.R. D/2133 at D/2137 (Q.B.).
43In Janzen, supra, note 34 at 303, the Court refers to Re University of Saskatchewan &
Saskatchewan Human Rights Commission (1976), 66 D.L.R. (3d) 561, [1976] 3 W.W.R. 385
(Q.B.) [hereinafter cited to D.L.R.], stating that “sex” in the Code means the male or female
gender of a person.
44See supra, note 13.
45Supra, note 18 at D/3188.
46See, e.g., Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145,
137 D.L.R. (3d) 219, 43 N.R. 168, [1982] 1 I.L.R.1-1555; Winnipeg School Division No. 1 v.
Craton, [1985] 2 S.C.R. 150, [1985] 6 W.W.R. 166, 61 N.R. 241, 21 D.L.R. (4th) 1, 38 Man.
R. (2d) I; and O’Malley, supra, note 27.
1989]
CHRONIQUE DE JURISPRUDENCE
type is of a special nature, not quite constitutional but certainly more than
and it is for the courts to seek out its purpose and give it effect. 47
ordinary –
The purpose of the codes in prohibiting discrimination is to eliminate
broad assumptions about classes of people and to require decisions to be
made on the basis of relevant, objective reasons and on the basis of indi-
vidual capabilities. 48 To narrow the definition of sex to the simple question
of the possession or not of the Y chromosome, and to ignore all the other
attributes associated with the possession of that chromosome, is to fail to
promote the purpose of the code in listing sex as a prohibited ground.
Women have long been discriminated against. One of the major justifica-
tions for this was that women were different because of their ability to bear
children. Women may well be different, but this “differentness” should be
of no relevance in this employment context.
A pregnant woman who is obliged to take time away from work is no
different from any other employee who is temporarily disabled. Both suffer
a loss of income arising from their inability to work. The insurance plan
exists to help alleviate the economic burden caused by loss of income and
incurrence of medical expenses. 49 And yet these similarly situated individ-
uals may be treated differently to the detriment of one, according to the
Manitoba Court of Appeal.
Even if a narrow “sex equals gender” view is taken, as was the case in
Re University of Saskatchewan & Saskatchewan Human Rights Commis-
sion,50 gender still comprises an “immutable sex characteristic.” 51 The abil-
ity to get pregnant is an immutable sex characteristic –
it is beyond the
power of the individual to change it. The choice to get pregnant, to have
children, is a personal one which should not be premised on extrinsic,
employment related factors, but which should rather be a protected choice
of a nature similar to religion.
C. “Voluntariness” not a Consideration
The third reason supporting the Court’s holding that pregnant women
are not the victims of discrimination on the basis of sex, is that pregnancy
is a condition that a woman voluntarily assumes. This is untenable for
several reasons. First, “voluntariness” is an irrelevant basis for making
decisions about who is eligible for coverage. The plan covers numerous
other temporary disabilities that are equally as “voluntary” as pregnancy.
470’Malley, supra, note 27 at 546-47.
4BGiouvanoudis v. Golden Fleece Restaurant, supra, note 10.
49Ibid.
5OSupra, note 43.
5″Ibid. at 565.
McGILL LAW JOURNAL
[Vol. 34
These include elective surgery, accidents incurred in sporting activities and
alcohol related illnesses.
Second, although most pregnancies are voluntary, some are not. Many
factors that influence whether a woman becomes pregnant are beyond her
control. Even assuming the woman actually has intercourse voluntarily,52
no birth control method is one hundred percent effective, and should it fail,
there may be no possibility of free choice as to whether or not to continue
the pregnancy.53 Furthermore, even if contraception were one hundred per-
cent effective, the dictates of a woman’s religion might prohibit its use.
Lastly, voluntary or not, pregnancy, as part of procreation, is necessary
for the perpetuation of humanity. Discriminatory rules and practices which
make women’s two roles (i.e. worker and childbearer) incompatible risk
causing one of the roles to fall by the wayside. There is social value in both
roles and women should not be forced to sacrifice one for the sake of the
other.
In summary, it would appear that, in light of recent Supreme Court
authority, the Manitoba Court of Appeal may have misinterpreted the pro-
vision in the Manitoba Code prohibiting discrimination on the basis of sex.
V. Conclusion
A decision such as this one of the Manitoba Court of Appeal is symp-
tomatic of the attitudes of our predomoninantly middle-class male judiciary
to the issue of gender equality.54 Underlying this decision is undoubtedly
the stereotypic belief that a woman’s role is primarily that of childbearer
and caregiver, and only secondarily, that of a full-fledged member of the
work force. Sex roles are deeply ingrained in our society. This may make it
difficult for a male judge to understand the struggles of a woman who is
seeking a different role in life than one which was so “gratefully accepted
by his grandmother, mother, and wife. ‘ ’55
The prevailing attitude seems to be that “when childbearing and work
conflict the woman as a worker has no claim to protection because she chose
which of these two mutually exclusive routes to take.”‘ 56 The idea that
women have the right to have a career and children (just as men do) is a
521.e., excluding rape.
53See M.E. Gold, “Equality Before the Law in the Supreme Court of Canada: A Case Study”
(1980) 18 Osgoode Hall L.J. 337.
5For extensive discussion of this topic, see K.E. Mahoney & S.L. Martin, supra, note 1.
55KIT. Bartlett, “Pregnancy and the Constitution: The Uniqueness Trap” (1974) 62 Calif. L.
Rev. 1532 at 1564.
56D. R6aume, “Women and the Law: Equality Claims Before Courts and Tribunals” (1979)
5 Queen’s L.J. 3 at 21.
1989]
COMMENTS
new one, 57 and many people, including judges, have not yet realized that
childbearing and rearing is not of benefit only to women but also to men
and to society as a whole.58
I submit that the Manitoba Court of Appeal was mistaken in its con-
clusion in this case. Ms. Brooks, Ms. Allen and Ms. Dixon were not covered
by their group insurance plan because they are women. This case demon-
strates the challenge for the judiciary to look at this issue from a broad
perspective, leaving behind the cultural baggage that has traditionally dic-
tated that a woman’s primary role in our society is that of wife and mother.
This means realizing that a “like for like” comparison is not one between
a pregnant woman and a man who can never be pregnant, but rather is one
between a man who is experiencing a temporary disability which prevents
him from working and a woman who is similarly prevented from working. 59
It also requires recognition that gender and pregnancy are inextricably linked
and that it is illogical to hold otherwise. Only with such an understanding
will it be possible to overcome the remaining inequalities for women. As
stated in the preface to Equality and Judicial Neutrality,60 “as social attitudes
and conditions change, judges must also change. If not, the societally in-
duced values they hold may operate to prevent groups and individuals from
achieving equality.”
In conclusion, this decision cannot be supported in light of recent Su-
preme Court of Canada human rights pronouncements like O’Malley.61 The
Manitoba Court of Appeal has not promoted the purposes of the Code by
giving it a broad and generous interpretation. Instead, the Court has emas-
culated (or should we say “effeminated”?) the Code’s protection against sex
discrimination. It is anticipated that the Supreme Court of Canada will
correct this, and will use the opportunity to undo the harm which was
wrought by the decision in Bliss in 1978. Until this wrong is righted, how-
ever, it appears that women may only expect equality as long as they behave
like men and do not venture into those activities (childbearing being the
most obvious) “that make them, well –
somehow – different. ’62
57See Giouvanoudis v. Golden Fleece Restaurant, supra, note 10.
58D. RMaume, supra, note 56.
59Turley v. Allders Department Stores Ltd., supra, note 6.
6Supra, note 1.
61Supra, note 27.
62K.T. Bartlett, supra, note 55 at 1566.
