(Canada) Attorney General v. Johnstone and Canadian Human Rights Commission

June 3rd, 2013 by

This blog is written by our law summer student, Michelle Farb

An employer’s failing to accommodate an employee’s childcare needs constitutes “family status” discrimination under the Canadian Human Rights Act.

Fiona Johnstone, along with her husband, were both employed by the Canada Border Services Agency as border services officers at Toronto’s Pearson Airport since 1998. Fiona and her husband were both required to work rotating shifts. When Fiona returned to work after her maternity leave in January 2003, she was unable to secure childcare that would allow her to work her rotating shift schedule. She requested an accommodation in the form of three 13-hour fixed shifts per week. Her request was denied by the agency on the basis that they would not provide full-time employees with fixed shifts for child-rearing responsibilities, but they would provide them for medical or religious reasons. Due to her denial, she was given part-time hours, with less pay for overtime hours and a pro-rated pension and pro-rated benefits. After the birth of her second child in 2005, she made the same request, and was denied again.

In April 2004, Fiona filed a complaint with the Canadian Human Rights Commission, on the basis that the agency discriminated against her on the prohibited ground of family status, contrary to s. 7(b) and 10 of the Canadian Human Rights Act. The Canadian Human Rights Tribunal agreed with Fiona and ruled that refusing to accommodate child-care obligations constituted discrimination on the basis of family status. In response, the federal government then filed an application for judicial review of the Tribunal’s decision.

(Canada) Attorney General v. Johnstone and Canadian Human Rights Commission
The Court ultimately dismissed the government’s request for judicial review, and upheld the Tribunal’s determination that the ground of “family status” includes child-rearing and parental obligations. The Tribunal’s conclusion was reasonable due to Fiona’s evidence of her unsuccessful attempts to find appropriate childcare, her failure to be accommodated by the agency, and the agency’s failure to demonstrate they would experience undue hardship if they accommodated her. Federal Court Judge Leonard Mandamin emphasized that the legislation should be given a liberal interpretation in order to fulfill its purpose, but noted that “not every tension that arises in the context of work-life balance can or should be addressed by human rights jurisprudence.” The judge rejected the “serious interference” test adopted in the B.C. case of Campbell River, which stated that childcare obligations arising out of discrimination claims based on family status have to be of substance and the complaint must have tried to be accommodated, and must have tried to be reconciled with family and work obligations. In this case, the judge endorsed a broader approach, and defined the test as “[A]ny significant interference with a substantial parental obligation is serious. Parental obligations to the child may be met in a number of different ways. It is when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that the case for prima facie discrimination based on family status is made out.” He emphasized that family status discrimination should be governed by the same broad criteria as other alleged grounds of discrimination.

Full link to decision: www.canlii.org.

If you have any questions about whether this applies to you, please contact one of the employment law lawyers at Devry Smith Frank LLP. For more information on the ongoing development of family status within the case law, or childcare obligations, as well as other dependency relationships which exist within families in relation to what the law says about developing &implementing policies, such as eldercare obligations, contact us to learn more about good faith obligations of both the employer and employee.

The law offices of Devry Smith Frank LLP are located in the Lawrence and Don Mills location of Toronto and we have a lot of free parking.

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