Worker claimed employer 'took away' remaining annual paid vacation when she became pregnant and went on maternity/parental leave
The British Columbia Human Rights Tribunal has dismissed a complaint by a City of Surrey employee who alleged sex discrimination after her vacation pay was reduced during maternity and parental leaves.
In Salmond v. City of Surrey,Tribunal Member Jonathan Chapnick found that while the City’s approach to paid vacation reduced the complainant’s paid time off in years when she was on leave, the municipality was “reasonably certain to establish a justification defence” and the complaint had “no reasonable prospect of success.”
The non‑union “exempt” employee who has worked for the City since 2015 alleged that on both occasions when she became pregnant and went on maternity/parental leave, the City “took away” her remaining annual paid vacation, did not pay it out, and did not allow her to accrue additional paid vacation while on leave. She argued that her “vacation entitlement was … adversely impacted” and that this would not have happened “but for [her] pregnancies.”
The City denied discrimination and applied to have the complaint dismissed without a hearing under s. 27(1)(c) of the Human Rights Code, which allows the Tribunal to dismiss complaints that have no reasonable prospect of success. The City admitted that it prorated the paid portion of the worker’s annual vacation in the calendar years when she was on leave, but said it was following its policies, which treat annual paid vacation as an earned benefit based on hours worked.
Policies and front‑loaded vacation
Evidence before the Tribunal showed that the City “front loads” regular employees’ full annual vacation hours at the start of each calendar year on their pay stubs, on the assumption they will work the full year, and then later adjusts the paid portion when an employee goes on or returns from leave. This approach is set out in its Vacation Leave Entitlement policy and Maternity/Parental Leave – Exempt policy.
In this case, the worker's pay stubs showed significant drops in remaining vacation hours shortly after each leave began and again when she returned mid‑year. The City’s benefits manager testified that these adjustments reflected the proration of the paid portion of her annual vacation entitlement to account for the time in the year when she was not working.
Chapnick accepted the City’s, finding that “the language of the Contract and the Policies, taken together, reasonably supports the City’s stated interpretation” that paid vacation under those instruments is earned based on hours worked. He concluded he was satisfied the City was reasonably certain to prove at a hearing that it applied that interpretation to Salmond.
In 2025, Starbucks Canada expanded its parental leave program to boost retention.
Employee’s experience
Although the B.C. tribunal ultimately dismissed the complaint, Chapnick expressly recognised the impact on the worker.
“I acknowledge that [she] 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,” he wrote.
At the same time, he found the evidence could support a finding that the worker’s paid vacation entitlement was reduced because of her maternity and parental leaves, which were connected to pregnancy, a protected characteristic under the ground of sex. He therefore was not prepared to find that she had no reasonable prospect of proving an adverse impact in employment with a connection to her pregnancies.
Justification of vacation rules
The case turned on whether the City could justify its vacation rules as a bona fide occupational requirement under s. 13(4) of the Code. That provision says there is no discrimination where a workplace rule that has an adverse impact is based on a bona fide occupational requirement.
Chapnick found the general purpose of the City’s vacation rules was economic – “to compensate employees (with paid vacation) for when they work, but not for when they do not work” – and that this purpose was rationally connected to the performance of the job. He referred to the “essence of the contract of employment” as the exchange of work for remuneration, and held there was no evidence that the rules were adopted or applied in bad faith or with discriminatory intent.
Chapnick concluded that the City was reasonably certain to show its approach to paid vacation was necessary to achieve its economic purpose. He wrote that the goal “can only be accomplished by paying the employee for when they work, and denying them pay for when they do not.”
He further found that exempting the worker from the vacation rules so that she would receive paid vacation for periods when she was not working “is the type of fundamental change to the employment relationship that is not encompassed by an employer’s duty to accommodate.”
Previously, Ontario's Superior Court of Justice dealt with an employment law matter involving constructive dismissal following an extended maternity leave. The case centred on whether an employer's attempt to demote and reduce an employee's salary upon her return from maternity leave constituted wrongful termination.
ESA, contracts and Tribunal jurisdiction
The B.C. tribunal also addressed the scope of its jurisdiction in relation to the Employment Standards Act (ESA) and the worker’s contract. The City had argued the Tribunal could not interpret or apply the ESA or the contract at all, citing prior case law.
Chapnick rejected that broad position. He agreed the Tribunal is “not the proper forum for determining or enforcing an entitlement to vacation pay under the ESA” and “also not the place to enforce an employment contract”.
However, he stated that the Tribunal “routinely interprets and applies” related legislation and contracts as necessary to decide human rights issues.
He noted that if the worker believed the City breached her employment contract, she could seek a remedy in another forum, and if she believed it violated the ESA in applying its vacation rules, her recourse would be to file a complaint with the Director of Employment Standards.
A Canada Border Services Agency (CBSA) dog handler experienced workplace harassment after challenging the agency’s restrictive maternity leave policy, according to a previous CBC report.
