Canada: Legal Counsel – Summer 2013 Accommodating Family Obligations In Employment

Human rights legislation across Canada prohibits discrimination on the basis of family status. As part of this prohibition, employers are required to accommodate certain family obligations. Family status is an evolving area of human rights law that has recently garnered considerable attention, in part due to the Federal Court's decision in Attorney General of Canada v. Johnstone.i

Defining Family Status

The definition of family status varies across Canada, and has evolved through the decisions of courts, human rights tribunals, and labour arbitrators. One definitional issue is what types of relationships are covered by family status. In Alberta, the Human Rights Act defines family status broadly as "the status of being related to another person by blood, marriage or adoption." In contrast, the Ontario Human Rights Code defines family status more narrowly as "the fact of being in a parent and child relationship." In the Canadian Human Right Act, which applies to federally regulated employees, there is no specific definition of family status and the Canadian Human Rights Tribunal has chosen to apply a broad definition consistent with the importance and objectives of human rights legislation. A second issue is whether family status is limited to the fact of being part of a particular family, or whether it extends to the obligations arising out of an individual's family status. Originally, family status denoted an individual's status in a particular family. More recently however, there is consensus in Canadian court decisions that family status extends to the obligations arising out of an individual's family status.

The Federal Court Decision in Johnstone

The recent Federal Court decision in Johnstone affirms that an individual's substantial childcare obligations are protected. In this case, a mother returning to work at the Canadian Border Services Agency ("CBSA") after the birth of her second child sought to retain her full time employee status and requested accommodation in the form of a fixed day time schedule. The standard schedule for full time employees was a rotating shift schedule which included night shifts. Ms. Johnstone claimed she was unable to complete night shifts due to her childcare responsibilities. The CBSA refused accommodation to Ms. Johnstone who complained to the Canadian Human Rights Commission. The Canadian Human Rights Tribunal found discrimination on the basis of family status. On judicial review, the Federal Court agreed.

The Federal Court found that in order to make out a prima facie case of discrimination on the basis of family status, an employee must show that the job requirements interfere with the employee's ability to fulfill her substantial parental obligations, and that the employee has tried to reconcile family obligations with work obligations. Ms. Johnstone demonstrated that she had searched for but had been unable to find alternate childcare. Ms. Johnstone's husband also worked a rotating shift schedule that overlapped with her schedule and required more night shifts. An expert witness testified that Ms. Johnstone's childcare requirements were some of the most difficult she could imagine. A prima facie case was therefore established.

Where there is interference with a substantial parental obligation, an employer is obligated to accommodate the employee to the point of undue hardship. The Federal Court was not satisfied that the CBSA had demonstrated undue hardship. The evidence demonstrated that the CBSA had accommodated other employees with daytime schedules on the basis of religious requirements or disability, but refused to consider requests arising out of childcare obligations. This refusal was based on the "arbitrary assumption that the need for accommodation on the basis of family obligations was merely the result of choices that individuals make, rather than legitimate need."

Implications for Employers

The decision in Johnstone will have significant implications for employers including the following.

  1. Employers must treat employee requests for accommodation on the basis of family status seriously. It will not be sufficient for employers to apply a blanket policy to such requests. Rather, employers must consider each request on an individual basis. Requests for accommodation on the basis of family status should generally be dealt with in a similar manner to requests for accommodation on the basis of other enumerated grounds such as religion and disability.
  2. Not all conflicts between work and family life will be elevated to the level of human rights concerns requiring accommodation. The decision in Johnstone indicates that it is "substantial obligations" that are protected. A similar view has been expressed in other decisions. In an Alberta grievance arbitration decision, the Jungworth Grievanceii, Arbitrator Ponak stated that family status discrimination "cannot possibly be interpreted as arising in any situation in which a work requirement results in some interference, no matter how minimal, with a parental obligation."
  3. There is a duty on the employee to attempt to find a solution, or to minimize, work-family conflicts. This has been described as a duty of "self-accommodation".iii In Johnstone, there was specific evidence that Ms. Johnstone had unsuccessfully attempted to find childcare. In contrast, in the Jungworth Grievance Arbitrator Ponak found that there was no prima facie case of discrimination because in that case the grievor had workable alternative child-care arrangements.
  4. An employer must accommodate substantial family obligations to the point of undue hardship. Real, not speculative, evidence will be required if an employer wishes to demonstrate that accommodating an employee's family obligations would cause undue hardship. The factors taken into account in determining what constitutes undue hardship were set out by the Supreme Court in Central Alberta Dairy Pool and apply to cases involving discrimination on the basis of family status.iv Those factors include: financial cost, impact on the collective agreement, problems of employee morale, interchangeability of the workforce and facilities, size of the employer's operations and safety.

What's Next?

Family status claims are not limited to those relating to childcare obligations. With an aging population, increasing numbers of employees are struggling with the obligations of eldercare. In one recent case, the Ontario Human Rights Tribunal found that an employer discriminated against an employee whose employment was terminated for excessive absenteeism. Many of the employee's absences resulted from the employee's eldercare obligations and there was no evidence that the employer was unable to accommodate the employee's absences.v We expect to see more such cases relating to eldercare obligations. In addition, in Alberta, the broad definition of family status means that family status claims can be extended beyond the parent/child relationship to other relatives. McLennan Ross lawyers will be monitoring this evolving area of human rights law.


i 2013 FC 113 (CanLII) ["Johnstone"].

ii Alberta (Solicitor General) v. Alberta Union of Provincial Employees (Jungworth Grievance), [2010] AGAA No. 5 ["Jungworth Grievance"]

iii International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc. [2009] O.L.A.A. No. 447 (Jesin).

iv Central Alberta Dairy Pool

v Alberta (Human Rights Commission), 1990 2 SCR 489 ["Central Alberta Dairy Pool"] v Devaney v. ZRV Holdings Limited and Zeidler Partnership Architects, 2012 HRTO 1590 (CanLII)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

21 Nov 2018, Webinar, Calgary, Canada

Changes to the Employment Standards Code this year increased the number of unpaid leaves to which employees are entitled for the purpose of allowing them to deal with family related issues.

Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions