Salmond v. City of Surrey, 2026 BCHRT 52
Date Issued: February 24, 2026
File(s): CS-005677
Indexed as: Salmond v. City of Surrey, 2026 BCHRT 52
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Sarah Salmond
COMPLAINANT
AND:
City of Surrey
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Jonathan Chapnick
On her own behalf: Sarah Salmond
Counsel for the Respondent: James Kondopulos and Jaime Hoopes
I INTRODUCTION
[1] Sarah Salmond alleges that the City of Surrey [City] discriminated against her in employment based on her sex. She says that, on the two occasions when she became pregnant and went on maternity/parental leave, the City took away her remaining annual paid vacation and did not pay it out, and she did not accrue additional paid vacation while on leave.
[2] The City denies discriminating and applies to dismiss the complaint without a hearing on the basis that it has no reasonable prospect of success. The City admits to prorating the paid portion of Ms. Salmond’s annual vacation for the calendar years in which she was on leave. It says that in doing so, it was following its policies, which provide that annual paid vacation is an earned benefit that is based on hours worked in a calendar year. The City argues that its approach to paid vacation is consistent with prevailing legal authorities regarding employment compensation (e.g., salary, wages, benefits) that is paid in exchange for the performance of work. In this decision, I will refer to this type of employment compensation as work-based compensation.
[3] Citing Ontario Nurses’ Assn. v. Orillia Soldiers Memorial Hospital, [1999] O.J. No. 44 (Ont. C.A.) (QL), leave to appeal ref’d [1999] S.C.C.A. No. 118 [Orillia] and other cases, the City argues that when an employee is not working, it is not, in itself, discrimination not to pay them work-based compensation, even if their absence is connected to a protected characteristic. Given this jurisprudence, the City says Ms. Salmond’s complaint cannot succeed.
[4] I acknowledge that Ms. Salmond experienced what happened to her as being shocking and unfair. I appreciate her bringing these issues to the Tribunal and seeking to establish a precedent for others who may share her experience. However, for the reasons that follow, on the whole of the evidence before me, and considering the discrimination analysis under the Code as it would be applied at a hearing, I am satisfied that her complaint has no reasonable prospect of success because the City is reasonably certain to establish a justification defence against her claim. The complaint is therefore dismissed.
[5] To make my decision, I have considered all the arguments and evidence filed. In my reasons, however, I only refer to what is necessary to explain what I decided. I make no findings of fact.
II BACKGROUND
[6] The following information is drawn from the materials before me and is set out here as background. It is not meant to be exhaustive.
[7] Ms. Salmond has worked for the City since 2015. She started as an auxiliary, unionized employee. When she filed the complaint, she was a regular, full-time (37.5 hours per week) “exempt” (i.e., non-unionized) employee. Ms. Salmond’s employment contract [Contract] indicates that she started her exempt position in April 2016. The Contract also stipulates that the City’s policies apply to her. Two such policies are relevant to her complaint, namely the Vacation Leave Entitlement policy [Vacation Policy] and the Maternity/Parental Leave – Exempt policy [Leave Policy]. I will refer to the Vacation Policy and Leave Policy, collectively, as the Policies.
A. Contract and Policies
[8] Ms. Salmond’s annual vacation entitlements are set out in the Contract and the Policies. The language used by the City to describe those entitlements varies somewhat across the documents.
[9] The Contract refers to “3 weeks of vacation” in each of 2016 and 2017 – but prorated in 2016 given Ms. Salmond’s April start date in her exempt position. The Vacation Policy sets out an “Annual Vacation Leave Entitlement Grid” [Grid]. The Grid provides that an employee’s “Days of Vacation” increase with their years of employment. Before reaching six years of employment, an employee’s full annual entitlement is “15 days” (i.e., three weeks). Upon reaching six years, their full annual entitlement increases to “20 days” (i.e., four weeks).
[10] Immediately below the Grid, the Vacation Policy states:
Note: Vacation entitlement for a specific year is earned based on hours worked in a year. If an employee … goes on a leave of absence, etc., vacation entitlement is pro-rated for that year. Employees who have taken more vacation then [sic] earned at the time of termination are required to repay the over payment to the City.
[11] According to the Vacation Policy, an employee’s “vacation hour entitlement (in hours)” is set out in their pay stub and can be accessed online through the City’s employee self-service portal.
[12] Finally, the Leave Policy also includes provisions regarding vacation. Specifically, the Leave Policy provides that, for “vacation entitlement” and benefits purposes, maternity/ parental leave is counted as “service” (i.e., time worked). The policy states that, as long as the employee returns to work immediately following their leave, they “receive their full vacation entitlement for the year, with the paid portion pro-rated to reflect the pro-rated wages.” The Leave Policy goes on to provide that, if they wish, the employee “may elect not to take that portion of their vacation that is unpaid.”
B. Ms. Salmond’s leaves
[13] Ms. Salmond’s first leave was from September 10, 2018 to November 17, 2019 [First Leave]. Her second leave was from August 31, 2021 to August 31, 2022 [Second Leave]. I will refer to the First Leave and Second Leave, collectively, as the Leaves. Before each of the Leaves, Ms. Salmond exchanged email correspondence with the City’s pension and benefits manager [Benefits Manager] and other City representatives, in which she inquired about her vacation and other leaves.
[14] Before the First Leave, in an August 7, 2018 email, the Benefits Manager confirmed that when an employee goes on maternity/parental leave, their “vacation” is “prorated based on time worked.” Ms. Salmond responded that, based on her understanding of the Employment Standards Act [ESA], going on leave should have no bearing on her “annual vacation entitlement.”
[15] In an email on August 30, a City representative said they had looked into Ms. Salmond’s inquiries, and advised that she was “eligible to receive 3 weeks’ time off whether or not you’ve worked a full year.” The representative added, however, that “the matter of paid vacation time is separate as that is based on your earnings for the year” (underlining in original). The representative stated that this “does not put [the City] into conflict with the ESA.”
[16] The City repeated this advice before the Second Leave. In a June 23, 2021 email to Ms. Salmond, a City representative stated:
You are currently entitled to 4 weeks vacation per year (i.e. time off work). In accordance with the Employment Standards Act (ESA), you are eligible to receive this amount of time off whether you have worked a full year or not. During a leave, an employer is responsible for continuing to calculate annual vacation.
Paid vacation time is separate as this is based on your earnings for the year. A leave of absence reduces the amount of vacation pay an employee will receive (i.e. paid vacation time for the year).
[17] Ms. Salmond disagreed with the City representative. In an August 3, 2021 reply email, she relayed advice she had received regarding her entitlements, which indicated that her “paid vacation time should not be affected” by her leave, and that if it does “not accrue in the normal course” while she is on leave, she could have grounds for a human rights complaint.
[18] On December 5, 2021, Ms. Salmond filed her complaint with the Tribunal.
III Preliminary issue
[19] The City raises a preliminary issue regarding the ESA and the Contract. Citing K v. District of L and another, 2013 BCHRT 233 at para. 38 [District of L], it asserts that, “to the extent that [Ms. Salmond] relies on the [ESA] or requires the Tribunal to address the proper interpretation or application of that legislation or an alleged violation of it, the Tribunal is, respectfully, without jurisdiction to make such determinations.” It asserts that if Ms. Salmond relies “on any such interpretation, application or alleged violation to ground or advance the complaint … [the City] reserves the right to make substantive submissions on the Tribunal’s jurisdiction concerning the same.”
[20] The City reiterates and expands upon these assertions in its reply. It says any interpretation, application, or alleged violation of the ESA or the Contract “identified by [Ms. Salmond] to try and ground or advance the complaint should, with respect, not be considered by the Tribunal.” The City adds that, “to the extent a contrary and unprecedented approach is taken, [the City] should be provided with the opportunity to make substantive submissions regarding the Tribunal’s jurisdiction under section 27(1)(a) of the Code.”
[21] I find I am able to deal with the City’s preliminary issue without addressing Ms. Salmond’s response submissions.
[22] First, the complaint has already gone through the Tribunal’s Case Path Pilot. If the City wanted to make submissions under s. 27(1)(a), it could have filed an application requesting to do so based on new information or circumstances: Case Path Pilot Practice Direction at 2. There is no such application before me.
[23] Second, the submissions schedule for a dismissal application involves a response and a reply: Tribunal’s Rules of Practice and Procedure [Rules], Rule 28(1) and(2). There is no provision for a party to reserve the right to make additional submissions. Unless it allows an application for further submissions, the Tribunal will not consider submissions other than those permitted in the submissions schedule: Rule 28(4) and (5). There is no application for further submissions before me.
[24] Finally, I appreciate that this Tribunal is not the proper forum for determining or enforcing an entitlement to vacation pay under the ESA: see District of L at para. 38; Poirer v. WCB and others, 2006 BCHRT 236 at para. 16. The Tribunal is also not the place to enforce an employment contract: see District of L at para. 38. The decision in the District of L, however, does not provide support for the broad assertions put forward by the City. The Tribunal routinely interprets and applies legislation related to the issues before it: see, e.g., Briggs v. Provincial Health Services Authority, 2025 BCHRT 257 (Employment Standards Regulation); Radheshwar v. New Westminster Police Board and another, 2025 BCHRT 196 (Police Act); RR v. Fraser Health Authority and others, 2024 BCHRT 193 (Health Professions Act). The Tribunal also interprets and applies relevant employment contracts and other agreements as necessary to make its decisions: see, e.g., Briggs; Ghane v. Lush Cosmetics and Bowers, 2009 BCHRT 13.
[25] I will consider the ESA and the Contract as necessary to decide the City’s dismissal application.
IV DECISION
[26] The City applies to dismiss the complaint under s. 27(1)(c) of the Code. Under s. 27(1)(c), the Tribunal can dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing. This is part of the Tribunal’s gatekeeping function. The Tribunal’s task under s. 27(1)(c) is to look at the evidence provided to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The onus is on the City to establish that Ms. Salmond’s complaint should be dismissed. The City must persuade the Tribunal that either Ms. Salmond has no reasonable prospect of making her case, or the City is reasonably certain to establish a defence: Lado v. Hardbite Chips and others, 2019 BCHRT 134 at para. 25.
A. Ms. Salmond’s case
[27] To succeed at a hearing, Ms. Salmond would need to prove the three elements of her case, namely that (1) she had a protected characteristic (in this case, sex), (2) she experienced an adverse impact in employment, and (3) her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. This analysis is sometimes referred to as “the test for prima facie discrimination”: Stewart v. Elk Valley Coal Corp., 2017 SCC 30at paras. 23-24 [Elk Valley].
[28] Under the Code, sex discrimination encompasses discrimination on the basis of pregnancy and related circumstances: Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; see, e.g., Poirier v. British Columbia (Ministry of Municipal Affairs, Recreation and Housing), 1997 CanLII 24819 (BC HRT); Tilsley v. Subway Sandwiches & Salads, 2001 BCHRT 2; Parry v. Vanwest College Ltd., 2005 BCHRT 310. It is not disputed that Ms. Salmond was pregnant and her complaint engages the ground of sex. The prima facie issue in the present application is whether, on the whole of the evidence provided, she has no reasonable prospect of proving a pregnancy-related adverse impact in employment.
[29] Ms. Salmond alleges that her “vacation entitlement was … adversely impacted” by the City’s conduct and policies, and this would not have happened “but for [her] pregnancies.” Her evidence is that she inquired about using some or all of her remaining paid vacation days before the First Leave started in 2018, and the City told her there were none to use because her entitlement would be prorated based on her upcoming absence. She says that, at that time, her “vacation entitlement hours were still showing” on her pay stub. However, subsequently, the hours “were zeroed out.” Ms. Salmond’s evidence is that, when she returned to work in 2019, her “full vacation entitlement” appeared on her initial pay stub, but was subsequently reduced based on her return date. She says similar events also unfolded before and after the Second Leave. The documentary evidence before the Tribunal tells a similar story:
a. In the weeks leading up to each of the Leaves, emails show Ms. Salmond inquiring about her vacation entitlement.
b. Just before the First Leave, an August 31, 2018 paystub shows 40.75 vacation hours remaining for 2018. However, just after the First Leave started, a September 14, 2018 paystub shows zero vacation hours remaining.
c. Upon Ms. Salmond’s return to work from the First Leave, a December 6, 2019 paystub shows a full 112.5 vacation hours remaining for 2019. However, the next paystub, on December 20, 2019, shows only 15 vacation hours remaining.
d. Just before the Second Leave, an August 27, 2021 paystub shows 98.75 vacation hours remaining for 2021. However, just after the Second Leave started, a September 10, 2021 paystub shows only five vacation hours remaining.
e. Upon Ms. Salmond’s return to work from the Second Leave, a September 9, 2022 paystub shows a full 150 vacation hours remaining for 2022. However, the next paystub, on September 23, 2022, shows only 46.25 hours remaining.
[30] Based on the evidence, Ms. Salmond asserts that she was denied her vacation entitlements because she “was on a protected leave of absence, which is unlawful and discriminatory.” She describes the events in question as follows:
Ahead of each [of the Leaves], the [City] failed to allow me to take remaining annual vacation time and be paid for it or to pay me out of my remaining annual vacation pay.
Further they failed to accrue my vacation time and pay while I was on leave, thereby reducing my available annual vacation time and pay once I returned from protected leave.
[31] Ms. Salmond argues that the Policies, themselves, are discriminatory. She says the “Tribunal has repeatedly ruled that policies resulting in adverse impacts on employees due to pregnancy-related leaves constitute prima facie discrimination.”
[32] While the City does not dispute the relevant documentary evidence, it takes issue with Ms. Salmond’s description of its conduct and policies, and puts forward evidence from the Benefits Manager to explain how the City interprets the Policies and applied them to Ms. Salmond at the relevant times.
[33] The Benefits Manager goes through some of the language of the Policies in her first affidavit. Relying on the explanatory note immediately following the Grid, her evidence is that, under the express terms of the Vacation Policy, when an exempt employee is on a leave of absence and not working, vacation pay does not accrue. The Benefits Manager also highlights “similar language concerning vacation pay entitlement” in the Leave Policy. That language refers to the “paid portion” of an employee’s vacation entitlement being “pro-rated” when the employee returns from maternity/parental leave.
[34] In her second affidavit, the Benefits Manager gives evidence regarding the general application of the Policies, and their application to Ms. Salmond specifically. Her evidence is that, on the first day of the calendar year, the City’s “payroll system automatically front loads full vacation entitlements” on the paystubs of every regular employee, “based on the assumption that the employee will be working the entire calendar year.” After that, payroll staff adjust “the vacation entitlements of regular employees based on the leaves they take throughout the year,” including making adjustments after an employee returns from leave.
[35] I pause here to note that it is not disputed that the vacation hour balances shown on Ms. Salmond’s paystubs reflect paid hours.
[36] Regarding the Leaves, the Benefits Manager’s evidence is as follows:
a. Because of the front loading practice, just before the First Leave, Ms. Salmond’s paystub showed her total annual entitlement for 2018 in full (112.5 hours), less the vacation hours she had taken in 2018 to that point (71.75 hours), with a remaining balance of 40.75 hours. After the First Leave started, payroll staff adjusted the total annual entitlement in Ms. Salmond’s paystub, prorating it down to 75 hours to account for her leave for the remainder of the calendar year. [1]
b. Because of the front loading practice, upon Ms. Salmond’s return to work from the First Leave, the paystub showed her total annual entitlement for 2019 in full (112.5 hours), less the vacation hours she had taken in 2019 to that point (zero hours), with a remaining balance of 112.5 hours. After Ms. Salmond returned, payroll staff adjusted the total annual entitlement in her next paystub, prorating it down to 15 hours to account for her leave up to that point in the calendar year. [2]
c. Because of the front loading practice, just before the Second Leave, Ms. Salmond’s paystub showed her total annual entitlement for 2021 in full (150 hours), less the vacation hours she had taken in 2021 to that point (51.25 hours), with a remaining balance of 98.75 hours. After the Second Leave started, payroll staff adjusted the total annual entitlement in Ms. Salmon’s paystub, prorating it down to 101.25 hours to account for her leave for the remainder of the calendar year. [3]
d. Because of the front loading practice, upon Ms. Salmond’s return to work from the Second Leave, the paystub showed her total annual entitlement for 2022 in full (150 hours), less the vacation hours she had taken in 2022 to that point (zero hours), with a remaining balance of 150 hours. After Ms. Salmond returned, payroll staff adjusted the total annual entitlement in her next paystub, prorating it down to 48.75 hours to account for her leave up to that point in the calendar year. [4]
[37] The City says the Benefits Manager’s evidence shows that it adjusted Ms. Salmond’s vacation appropriately based on the amount of time worked in the given calendar year. It argues that nothing in the relevant paystubs is inconsistent with the Policies, which stipulate that annual paid vacation is an earned benefit that is based on hours worked in a calendar year. It says this approach to paid vacation is consistent with prevailing legal authorities, citing, for example: Orillia; Fernandes v. IKEA Canada (No. 2), 2007 BCHRT 259; Toivanen v. Electronic Arts (Canada), 2006 BCHRT 396; Jardine v. Costco Wholesale Canada Ltd., 2014 BCHRT 214; Messier-Dowty Inc. and International Assn. of Machinists and Aerospace Workers, Local 905, [1999] O.L.A.A. No. 170 (QL); Canada Safety Ltd. and U.F.C.W., Loc. 401 (Re), 2000 CanLII 50260 (AB GAA); Okanagan College Faculty Association, 2012 CanLII 150964 (BC LA); and Board of Education of School District No. 35 (Langley) v. Canadian Union of Public Employees, Local 1260-00, 2018 CanLII 26057 (BC LA). Given this jurisprudence and based on the evidence provided, the City says Ms. Salmond has no reasonable prospect of establishing an adverse impact with a discriminatory nexus to her pregnancy.
[38] I am persuaded that the evidence overwhelmingly supports the City’s explanation for its impugned conduct. The plain language of the Policies and the views expressed by City representatives in emails to Ms. Salmond align with the Benefits Manager’s evidence regarding the City’s interpretation and application of the Policies. While the vacation language in the Contract itself is vague, it is supplemented by the clear provisions of the Policies, which – according to the express terms of the Contract – apply to Ms. Salmond. On the whole of the evidence before me, I am satisfied that the City is reasonably certain to prove at a hearing that it interpreted the Contract and the Policies, together, as stipulating that paid vacation is earned based on hours worked, and applied those documents accordingly to Ms. Salmond’s circumstances. Moreover, in my view, the language of the Contract and the Policies, taken together, reasonably supports the City’s stated interpretation. I note that there is no evidence before me to support Ms. Salmond’s claim that the City prorated all aspects of her vacation entitlement – i.e., not just the portion of her overall time off for which she would be paid, but also the length of the overall time off entitlement itself. Based on the materials filed, I am satisfied that she has no reasonable prospect of proving this claim.
[39] I am also satisfied that the evidence does not support – nor does Ms. Salmond argue for – a finding or reasonable inference that her pregnancy factored into how the City interpreted and applied the provisions of the Contract and the Policies. There is no suggestion in the materials provided that the City’s interpretation or application of those documents was influenced by her protected characteristics.
[40] All of this does not mean, however, that Ms. Salmond has no reasonable prospect of making her case. To establish a pregnancy-related adverse impact in employment, Ms. Salmond does not need to prove that the City intended to discriminate: Code, s. 2. Nor is an inference of discrimination necessary to shift the burden to the City to justify its conduct and policies. Properly applied, the test for prima facie discrimination is focused on impacts: Elk Valley at para. 45.
[41] Further, the “comparator group” approach utilized in some of the cases cited by the City is not, on its own, determinative of the question that would be before the Tribunal at a hearing. Despite past decisions of this Tribunal and others, a comparator group approach is not a substitute for – nor necessarily always helpful to – the prima facie discrimination analysis: see Moore at paras. 23-33. To rebut Ms. Salmond’s claim of pregnancy-related adverse impacts, it is not enough for the City to show that it treated other groups of employees (e.g., employees on long-term disability) comparably.
[42] It is not disputed that Ms. Salmond’s paid vacation entitlement was reduced based on the Leaves, which were connected to her pregnancies. The evidence before me could reasonably support findings of these connections at a hearing. In my view – subject to the City’s likelihood of establishing a defence – this is enough to permit Ms. Salmond’s discrimination claim to proceed forward. I am not satisfied that Ms. Salmond has no reasonable prospect of proving an adverse impact in her employment (reduced paid vacation) with a nexus to her pregnancies.
B. The City’s defence
[43] The City has not established that Ms. Salmond has no reasonable prospect of making her case at a hearing. As a result, to succeed in its present application, it must show that it is reasonably certain to establish a defence.
[44] Given my determinations above, at a hearing, the City would need to defend the vacation rules it applied to Ms. Salmond, which are set out in the Contract and the Policies. While Ms. Salmond may take issue with the City’s interpretation of those rules, the parties’ differing interpretations of the terms and conditions of Ms. Salmond’s employment amount to a contractual dispute. If Ms. Salmond believes the City breached the Contract, she may seek a remedy elsewhere, subject to applicable limitation periods. Similarly, if she believes the City violated the ESA in applying its vacation rules, her recourse is to submit a complaint to the Director of Employment Standards: ESA, s. 74.
[45] The impugned vacation rules provide that the paid portion of an employee’s annual vacation entitlement is earned based on hours worked in the calendar year. When an employee goes on maternity/parental leave, the paid portion of their annual entitlement for that calendar year is prorated based on the length of their absence in the year. While the employee is on maternity/parental leave and not working, they do not earn paid vacation. When the employee returns to work immediately following their leave, they get their full annual entitlement for that calendar year, but the paid portion is prorated based on the length of their absence in the year. The Leave Policy indicates, and the evidence before me supports, that these rules do not affect the employee’s progression in the Grid.
[46] If Ms. Salmond succeeds in making her case at a hearing, the burden will shift to the City to justify these vacation rules: Moore at para. 33. In this regard, the Code provides a justification defence against a complaint of discrimination in employment where workplace rules adversely impact an employee in connection to a protected characteristic. Under s. 13(4), even if a complainant makes their case, there is no discrimination if what happened was “based on a bona fide occupational requirement” [BFOR]. To establish its defence in the present complaint, the City would need to show that the vacation rules were adopted for a purpose rationally connected to the performance of Ms. Salmond’s job and in an honest and good faith belief that they were necessary to fulfil that purpose. The City would also need to show that the vacation rules were reasonably necessary to accomplish their purpose, which involves consideration of the concept of accommodation to the point of undue hardship: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 at para. 60 [Meiorin].
[47] Ms. Salmond’s submissions regarding justification are brief. She simply asserts that the City is unlikely to establish a BFOR to justify its policies based on Meiorin. The City disagrees with this assertion. It argues that, at a hearing, it is reasonably certain to establish that: paid vacation is work-based compensation; rules requiring employees to earn paid vacation by working are adopted in good faith and are rationally connected to the performance of the job; and such rules are reasonably necessary to accomplish their purpose. I do not need to determine whether the entirety of the City’s logic would hold in all cases involving work-based compensation. The question before me is whether the City is reasonably certain to establish its justification defence in the specific case presently before the Tribunal. For the following reasons, I am satisfied that it is.
[48] First, in my view, on the evidence provided, the City is reasonably certain to establish that the general purpose of the impugned vacation rules is economic in nature – that is, the City’s aim is to compensate employees (with paid vacation) for when they work, but not for when they do not work. I am satisfied that the Tribunal is reasonably certain to accept the City’s characterization of paid vacation under the Policies as being work-based compensation.
[49] Second, the “the essence of the contract of employment … [is] the employee’s duty to perform work in exchange for remuneration”: Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 15 [Hydro-Québec]. Accordingly, I am satisfied that the City is reasonably certain to establish that the goal of remunerating Ms. Salmond is rationally connected to the performance of her job.
[50] Third, I find that the City is reasonably certain to establish the subjective, “honest and good faith belief” element of its justification defence. I acknowledge Ms. Salmond’s assertion that there were administrative reasons for the City’s policy of prorating exempt employees’ paid vacation based on time worked. She says the City wanted “to make it easier to administratively process such matters” by aligning its rules for exempt employees with its approach to unionized staff, who make up the majority of the City’s workforce. Even accepting that this was the case, there is no evidence before me to suggest that the City’s “imposition of the standard [i.e., the vacation rules] was not thought to be reasonably necessary or was motivated by discriminatory animus”: Meiorin at para. 60.
[51] Finally, there is the “third and final hurdle” in the justification defence analysis: Meiorin at para. 62. At a hearing, the City would need to prove that the vacation rules were reasonably necessary to accomplish their economic purpose of compensating Ms. Salmond (with paid vacation) for when she worked, but not for when she did not work. This part of the analysis involves consideration of the concept of accommodation to the point of undue hardship, which is about doing what is reasonable and practical to avoid the negative impact related to the affected employee’s protected characteristics: Meiorin at para. 38. In my view, the City is reasonably certain to clear this final hurdle at a hearing.
[52] The economic purpose of compensating an employee for working, but not for not working, can only be accomplished by paying the employee for when they work, and denying them pay for when they do not. As a result, the City is reasonably certain to establish that its vacation rules – which provide that the paid portion of Ms. Salmond’s annual vacation entitlement is earned based on hours worked in the calendar year – were reasonably necessary to accomplish their purpose. Further, on the evidence before me, I am satisfied that the City is reasonably certain to establish that, short of not applying its vacation rules to Ms. Salmond, there was nothing it could do to avoid the pregnancy-related reduction of her paid vacation. In my view, making an exception for Ms. Salmond, such that the vacation rules do not apply to her, is the type of fundamental change to the employment relationship that is not encompassed by an employer’s duty to accommodate: Hydro-Québec at para. 15. The duty to accommodate does not extend to replacing work-based compensation that an employee would have received for doing work that they would have done “but for” their maternity/parental leave of absence: see Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario), 2009 CanLII 15418 (ON GSB) at para. 49; Sleigh v. Stream Global Services, 2010 BCHRT 24 at para. 80; see also Orillia at paras. 53-58.
[53] In sum, then, the City has not shown that Ms. Salmond has no reasonable prospect of making her case at a hearing. However, for all of the above reasons, I am satisfied that the City is reasonably certain to establish its justification defence. As a result, I am persuaded that Ms. Salmond’s complaint has no reasonable prospect of success.
V CONCLUSION
[54] The complaint is dismissed: Code, s. 27(1)(c).
Jonathan Chapnick
Tribunal Member
[1] For clarity, the paystub shows a total annual entitlement of 75 hours, less the vacation hours taken in 2018 to that point (75 hours, including 3.25 hours taken that pay period), with a remaining balance of zero hours.
[2] For clarity, the paystub shows a total annual entitlement of 15 hours, less the vacation hours taken in 2019 to that point (zero hours), with a remaining balance of 15 hours.
[3] For clarity, the paystub shows a total annual entitlement of 101.25 hours, less the vacation hours taken in 2021 to that point (96.25 hours, including 45 hours taken that pay period), with a remaining balance of five hours.
[4] For clarity, the paystub shows a total annual entitlement of 48.75 hours, less the vacation hours taken in 2019 to that point (2.5 hours, taken that pay period), with a remaining balance of 46.25 hours.