In what could prove to be a landmark decision, the Federal Court
recently upheld a Canadian Human Rights Tribunal decision which
held that the Canada Border Services Agency (CBSA) discriminated
against an employee on the basis of family status when she was
denied her request for regular hours in order to make child care
Fiona Johnstone had been working full-time as a border services
officer on irregular rotating shifts. The constantly changing and
unpredictable work hours made it impossible for Johnstone to
arrange childcare. She twice requested full-time employment with
fixed day shifts that would allow her to arrange childcare for her
two young children and was denied both times. The only available
fixed shifts offered by the CBSA were part-time. Johnstone,
however, wished to maintain her full-time employment status in
order to access opportunities for training and advancement, pension
and benefits available for full-time employees.
In denying Johnstone's request, the CBSA took the position
that in order to meet its operational requirements at Pearson
Airport, full-time employees were required to work rotating and
variable shifts under an agreement established with the local
union, titled the Variable Shift Scheduling Agreement (VSSA).
The CBSA did not believe that childcare or other family
obligations fell within the enumerated ground of "family
status" triggering a duty to accommodate. Instead, it took the
position that the need for accommodation on the basis of family
obligations was merely the result of choices that individuals make,
rather than a legitimate need.
The Court determined that family status should not be limited to
identifying one as a parent or a familial relation of another
person, but rather includes the needs and obligations naturally
flowing from that relationship. The Court framed the test for
establishing a prima facie case of family status discrimination as
one of determining whether the employment rule/practice interferes
with an employee's ability to fulfill "substantial
parental obligations...in any realistic way".
The Court noted that although the CBSA had refused to
accommodate Johnstone's family obligations, it had circumvented
the VSSA in order to accommodate other employees for medical or
religious reasons. It appears that this seemingly arbitrary line
drawn in the sand by the CBSA may have been a factor in the
The CBSA was ordered to pay Johnstone the difference between her
part-time and full-time wages and benefits for the entire period
she was limited to working the reduced hours. Johnstone was also
awarded $15,000 in general damages for pain and suffering and
$20,000 in special damages for the CBSA's willful engagement in
a discriminatory practice. The CBSA has revised its policies to
address requests such as the one made by Johnstone.
The Federal Court's analysis is at odds with the approach of
the British Columbia Court of Appeal in Campbell River and North Island Transition
Society, a leading authority on family status
accommodation. This case held that there must be a serious
interference with the parental/family duty before a prima facie
case of family status discrimination could be made out.
As employers are likely to see a rise in requests to accommodate
childcare arrangements and the care of older relatives in the
future, it will be important for employers to give careful
consideration to the impact of such requests on the workplace and
the steps the employee has taken to try and resolve conflicts
between family and workplace obligations to determine whether the
family obligations can be accommodated short of undue hardship.
The lawyers at CCP can assist employers in the challenging area
of human rights law by drafting/reviewing workplace policies,
evaluating accommodation requests and litigating Human Rights
complaints should it be necessary.
The CBSA has not come to a decision on whether or not to appeal
the Federal Court ruling. CCP will post any updates as they
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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