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The rights of lawyers to maternity and paternity leave in the common law provinces in Canada

This article was written by Michael Dew, a Vancouver lawyer who practices civil litigation. Click here for contact information and further details about Michael’s practice. This article provides only information, not legal advice. If you require legal advice you should consult a lawyer.

 

Summary
This article considers the rights of lawyers and articled students in the common law provinces in Canada to unpaid maternity and paternity leave. The employment standards statutes, and related regulations, in those provinces are considered and compared.
 
The article concludes that lawyers and articled students in British Columbia, and Newfoundland and Labrador, are not, on the plain wording of the legislation and regulations, entitled to unpaid maternity and paternity leave. The right to such leave for lawyers and articled students in the other common law provinces is guaranteed by legislation. The absence of statutory protection in British Columbia, and Newfoundland and Labrador, means that unpaid leave provisions should be negotiated into individual employment contracts by the lawyers in those provinces. There is precedent supporting a challenge to the legislation in those provinces. The likelihood of success would be reasonable for women, but less so for men.  
 
Section 92(13) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3. (U.K.) states that the provinces have jurisdiction over “Property and Civil Rights in the Province”. Relying on this power, the legislatures of all nine of the common law provinces in Canada have enacted employment legislation to set minimum standards for employment in their provinces:
 
o       Employment Standards Code, R.S.A. 2000, c. E-9 (the “Alberta Code”).
o       Employment Standards Act, R.S.B.C. 1996, c. 113 (the “BC Act”).
o       Employment Standards Code, SM 1998, c. 29 (the “Manitoba Code”).
o       Employment Standards Act, S.N.B. 1982, c. E-7.2 (the “New Brunswick Act”).
o       Labour Standards Act, R.S.N.L.1990, c. L-2 (the “Newfoundland and Labrador Act”).
o       Labour Standards Code, R.S.N.S. 1989, c. 246 (the “Nova Scotia Code”).
o       Employment Standards Act, S.O. 2000, c. 41 (the “Ontario Act”).
o       Employment Standards Act, R.S.P.E.I. c. E-6.2 (the “PEI Act”).
o       Labour Standards Act, R.S.S. 1978, c. L-1 (the “Saskatchewan Act”).
 
These statutes provide employees with the right to get maternity and parental leave. Most of them also provide for other types of leave, such as family responsibility leave, compassionate care leave, etc.
 
Since employment standards legislation is designed to guarantee minimum standards of employment, one might expect that those standards applied equally to all employees in the particular province. However, lawyers, and law students in particular, may be surprised to know that in some provinces the rights of lawyers and articled students to certain types of unpaid leave is excluded by the statutes, or regulations, that confer those rights on most other employees.  
 
This article reviews the availability of maternity and paternity leave for lawyers in each of the common law provinces in Canada.
To obtain maternity and paternity leave provided for under statute, employees must generally give notice in writing to their employer. For example, under the BC Act, such notice must given to the employer at least 4 weeks before the employee proposes to begin leave [s. 50(4) for pregnancy leave, s. 50(3) for parental leave].
 
Typically, employees must have worked for some time to gain entitlement to such unpaid leave. Although there is no such requirement under the BC Act, there is a 13 week requirement under the Ontario Act, and a 52 week requirement under the Alberta Code.  
 
Employment standards statutes secure the right of employees to maternity and paternity leave by prohibiting employers from dismissing, or from otherwise unilaterally changing the terms of employment of, employees who apply for such leave. Furthermore, when the leave ends, the employers are required to place returning employees in the positions they were in before taking the leave, or in comparable positions. See for example s. 54(1) of the BC Act
 
However, although an employer cannot dismiss an employee because they apply for maternity or paternity leave, they can still dismiss the employee upon reasonable notice, unless the employment contract, including possible a collective bargaining agreement, states that the employee cannot be dismissed without cause – but this is extremely unlikely for lawyers or articled students.
Most employment standards legislation, or the regulations under them, exclude certain types of employees from the application of some or all of the legislation. The exclusions generally cover a variety of employees, but typically focus on professional employees:
o          Accountants
o          Architects
o          Chiropractors
o          Dentists
o          Engineers
o          Foresters
o          Geologists
o          Insurance agents
o          Land surveyors
o          Lawyers
o          Medical doctors
o          Optometrists
o          Pharmacists
o          Podiatrists
o          Psychologists
o          Real estate agents
o          Veterinarians
 
To determine the exclusions in a particular province, check the applicable legislation.
 
In most cases, the groups of employees excluded are listed in the regulations enacted under the statutes, and not in the statutes themselves.
 
In most cases, the regulations list the specific groups that are excluded from the application of the legislation e.g. British Columbia. However, in some cases (e.g. Manitoba) the exclusion does not enumerate specific groups as excluded, but simply excludes all professionals, and students in training, governed under an Act of the provincial legislature. This means that all professionals, and students in training, of regulated professions will be excluded.
 
Where the excluded professions are individually listed, the list may distinguish between professions in which students in training are excluded, and other professions in which students in training are not excluded. For example, the Employment Standards Regulation, B.C. Reg. 396/95 excludes lawyers and articled students under the Legal Profession Act, and also excludes persons licensed under the Real Estate Services Act, but does not exclude students in training to become real estate agents. These regulations are interpreted literally on this point and only students in training specifically listed as being excluded, will be excluded:
 
[T]here may well be good policy reasons for excluding trainees in some occupations and not others. It is not my place to question the wisdom behind these regulatory pronouncements … Section 31(m) of the Regulation has clearly been interpreted narrowly by the courts and by this Tribunal…
Specialist Real Estate Ltd. (Re), [2005] B.C.E.S.T.D. No. 27 at para. 19 (QL) citing Schulz v. N.R.S. Block Bros. Realty Ltd. (1994), 92 B.C.L.R. (2d) 109 aff’d (1996), 26 B.C.L.R. (3d) 114 (C.A.)
 
In most cases the regulations set out which parts or provisions of the statute are excluded from applying to the excluded groups, and then the remainder the statute still applies to that group. In this way, professionals in those provinces still have some employment standards protection. In other cases (e.g. British Columbia) the regulations exclude the entire statute from applying to the listed groups.
Although most provinces exclude the application of certain parts of employment standards legislation to lawyers (most often the overtime and vacation provisions), the maternity and paternity provisions are generally not excluded. The right to maternity and paternity leave applies to lawyers, and articled students, in all provinces except British Columbia and Newfoundland and Labrador.
 
The following summarises the relevant maternity and paternity statutory provisions and exclusions in each of the common law provinces in Canada. 
 
Alberta
Division 7 - Maternity Leave and Parental Leave, of the Employment Standards Code, R.S.A. 2000, c. E-9, confers the right to unpaid maternity and paternity leave.
 
Section 2(2) of the Employment Standards Regulation, Alberta Reg. 14/1997 excludes a long list of professionals, including active members or students-at-law under Legal Profession Act, from the provisions of the Alberta Code. However, the exclusion only applies to s. 14(1)(a) (relating to keeping of employment records for regular and overtime hours of work), and Part 2, Divisions 3 and 4 (relating to hours of work, overtime, and overtime pay) of the Alberta Code. Division 7 is not covered by the exclusion and therefore lawyers, and articled students, in Alberta are entitled to unpaid maternity and parental leave.  
 
British Columbia
Part 6 - Leaves and Jury Duty, of the Employment Standards Act, R.S.B.C. 1996, c. 113 confers the right to maternity, paternity, and other leaves. 
 
Section 31 of the Employment Standards Regulation, B.C. Reg. 396/95 excludes the entire BC Act from application to a various persons, including “a member of the Law Society of British Columbia under the Legal Profession Act or a person enrolled as an articled student under that Act”.
 
Therefore, lawyers in British Columbia are not entitled to unpaid maternity or paternity leave.
 
Manitoba
Division 9 – Maternity leave, parental leave, and compassionate care leave, of the Employment Standards Code, S.M. 1998, c. 29 confers various leave rights on employees in Manitoba.
 
Section 5 of the Manitoba Employment Standards Regulation 6/2007, which comes into force on April 30, 2007, excludes all professionals, and students in training, governed under an Act of the Manitoba Legislature from the entire Manitoba Code except for certain parts. Divisions 5 (annual vacations and vacation allowances), 9 (unpaid leaves) and 13 (equal wages) and subdivisions 1 and 3 of Division 10 (termination of employment), are not excluded. Therefore, professionals in Manitoba have the right to unpaid maternity and paternity leave.
 
New Brunswick
Sections 42-44 of the Employment Standards Act, S.N.B. 1982, c. E-7.2 deal with special leaves.
 
Section 3(1) of Regulation 85-179 to the New Brunswick Act states that s.18 -22 (inclusive) of the New Brunswick Act, which deal with vacation pay, do not apply to persons working in the listed professions. The list includes the usual suspects, including lawyers, and a few surprises, such as automobile and mobile home salesmen. Thus, lawyers, and articled students, in New Brunswick are entitled to unpaid maternity and paternity leave.
 
Newfoundland and Labrador
Section 2(b) of the Labour Standards Act, R.S.N.L.1990, c. L-2 defines what a “contract of service” is, and excludes contracts entered into by employees employee qualified in, or training for qualification in, certain professions, including law. The unpaid leave conferring provisions are stated to apply to persons who have entered into a “contract of service”, and so exclude the professions listed in s. 2(b). 
 
Therefore, lawyers in Newfoundland and Labrador are not entitled to unpaid maternity or paternity leave.
 
Nova Scotia
Section 59 of the Labour Standards Code, R.S.N.S. 1989, c. 246 provides entitlement to pregnancy and parental leave.
 
Section 2(2) of the General Labour Standards Code Regulations, N.S. Reg. 298/90 states that qualified practitioners of the listed professions (which includes lawyers), or students while engaged in training for those professions, are exempted from the application of subsection 40(4), Sections 61 to 67, and Section 71 of the Code.  
 
Since s. 59 is not exempted, lawyers and articled students in Nova Scotia are entitled to unpaid pregnancy and parental leave.
 
Ontario
Sections 46-50 of Part XIV the Employment Standards Act, S.O. 2000, c. 41 deal with unpaid leaves, including pregnancy and parental leaves.
 
Section 2(1) of Exemptions, special rules and establishment of minimum wage, 2000 Ont. Reg. 85/01 states that Parts VII, VIII, IX, X and XI of the Ontario Act do not apply to persons employed as practitioners of the listed professions, and students in training for the listed professions. The list includes the usual suspects, including lawyers. 
 
Since Part XIV of the Ontario Act is not excluded by s. 2(1) of the regulations, lawyers in Ontario are entitled to unpaid pregnancy and parental leave.
 
Prince Edward Island
Sections 18-23 of the Employment Standards Act, R.S.P.E.I. c. E-6.2 deal with unpaid leave. Section 2 of the Act states that except as otherwise expressly provided, the Act applies to all employees. Neither the other parts of the PEI Act, nor any regulations, exclude lawyers from the provisions of the statute. Therefore, lawyers and articled students in Prince Edward Island are entitled to unpaid pregnancy and parental leave.
 
Saskatchewan
Parts IV and IV.I of the Labour Standards Act, R.S.S. 1978, c. L-1 deal with unpaid leave.
 
Section 7(1) of the Labour Standards Regulations, 1995, c. L-1 Reg. 5 states that sections 6 and 12 (which both relate to overtime pay) of the Saskatchewan Act do not apply to professional practitioners registered under statute, or students in training for such professions.
 
Since parts IV and IV.I of the Saskatchewan Act are not excluded by the regulations, lawyers in Saskatchewan are entitled to unpaid pregnancy and parental leave.
 
Because employment standards legislation is designed to guarantee minimum standards of employment, and protect employees from employers who often have significantly more bargaining power, most statutes state that employers cannot contract out of the provisions of the legislation. For example, s.5 of the Ontario Act says the following:
 
Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.  
 
Thus lawyers and articled students in all common law provinces in Canada, apart from British Columbia and Newfoundland and Labrador, are assured of entitlement to maternity and paternity leave.
 
Employers and employees can always agree, by contract, to employee rights that are greater than those guaranteed by the legislation: University of British Columbia v. Wong, 2005 BCSC 1286 at para. 37. Therefore, lawyers or articled students in British Columbia, and Newfoundland and Labrador, who are concerned about being able to take unpaid leave when having children should negotiate the right to maternity and paternity leave into their employment contracts.
 
It is possible that the regulations excluding lawyers and articled students in British Columbia, and Newfoundland and Labrador, from application of the legislation could be challenged. The Canadian Charter of Rights and Freedoms does not apply to private employers (see s. 32), but it can be used to attack legislation, or regulations under legislation. Therefore the regulations which exclude lawyers and articled students from the protection of the employment standards legislation could be attacked. However, one would have to identify a prohibited ground of discrimination under the Charter. Women could argue discrimination based on sex because men can have children without taking leave, but women cannot. A Charter challenge for men would be more difficult. 
 
One could also use provincial legislation to attack the exclusions. Unlike the Manitoba Code, in which s. 3(4) states that the Manitoba Code prevails over other legislation in the case of a conflict, the British Columbia, and Newfoundland and Labrador, statutes do not have paramountcy clauses. Therefore, it is possible that the regulations excluding lawyers and articled students from the maternity and paternity protections of the applicable statutes could be struck down as conflicting with the provisions of some other statute. Section 13(1) of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 [the “BC Code”] may be used for an attack on the exclusion in British Columbia:
 
Discrimination in employment
A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the …family status…[or]…sex … of that person.
 
The BC Code applies to employers in the public and private sector, and if there is any discrepancy between the Code and other provincial legislation, the Code prevails unless the other enactment expressly overrides the Code: Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at 157-158.
 
Women lawyers would have a strong argument under the BC Code because they could rely on the case of Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 which dealt with a similar issue. In that case, Safeway's employee insurance plan excluded pregnant women from receiving medical benefits while pregnant. The policy was successfully attacked by Manitoba employees using The Human Rights Act, S.M. 1974, c. 65. The Supreme Court of Canada said that pregnancy discrimination is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant. The provinces would likely argue that the legislation does not discriminate against women, but in fact treats all excluded men and women equally i.e. neither of them are entitled to leave. However, this argument would most likely fail because the effect of the exclusion is more severe on women than it is on men. Therefore, the case for women under the BC Code is strong. The case for men is less certain, it would have to be established that they are being discriminated against on the basis of family status.
 
This would include a determination of the scope of family status in the context of the regulations which exclude lawyers and articled students from paternity leave: see Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260 for a general discussion on the scope of family status.  
 
While a challenge to the legislation may succeed, suing ones employer is not conducive to a positive work relationship, and so is not a practical alternative for most lawyers or articled students, especially when they can generally be dismissed upon reasonable notice anyway. Therefore, although on the face of the legislation, there appears to be a significant difference between the situations in British Columbia, and Newfoundland and Labrador, and the other Canadian common law provinces, in reality, the ability of a lawyer to retain their job while having children probably depends more on the quality of their work than it does on whether the legislation says they are entitled to unpaid leave. If a lawyer’s work is poor, they will likely be given notice and dismissed without cause. On the other hand, if they are a valuable employee, the employer may well be prepared to agree to unpaid leave in the hope that the employee will return to do more good work after their time off.
In all common law provinces except British Columbia and Newfoundland and Labrador, lawyers and articled students are entitled to unpaid maternity and paternity leave. This prevents lawyers from dismissing employees because they apply for unpaid leave. However, because lawyers’ employment contracts seldom, if ever, bar dismissal without cause, lawyers are always at risk of being dismissed upon reasonable notice. 
 
Lawyers and articled students in British Columbia, and Newfoundland and Labrador, can negotiate terms for unpaid leave into their employment contracts. Therefore, the practical effect of the differences in the legislation across the common law provinces may not be all that significant. Nevertheless, having to negotiate for unpaid maternity and paternity leave will certainly make employment negotiations for lawyers and articled students in British Columbia, and Newfoundland and Labrador, more stressful than for those in the other common law provinces where lawyers and students can ignore the issue of unpaid leave during employment interviews, knowing that they can rely on their statutory rights if need be.
 
 
 
Research articles :