Canada: Accommodating Family Status

Last Updated: May 8 2014
Article by Stephen Torscher

The Federal Court of Appeal has ruled that bona fide childcare obligations are included under family status as protected grounds in the Canadian Human Rights Act. In two companion decisions released last week, Attorney General of Canada v. Fiona Johnstone and Canadian Human Rights Commission [2014 FCA 110] and Canadian National Railway v. Denise Seeley and Canadian Human Rights Commission [2014 FCA 111], the Court ruled that employers must accommodate to the point of undue hardship where a workplace rule interferes with the fulfillment of a childcare obligation.

Johnstone [2014 FCA 110]

In the first appeal, Johnstone, the complainant was an employee of the Canada Border Services Agency ("CBSA"). She filed a complaint to the Canadian Human Rights Commission ("CHRC") after her request was denied to alter her shift schedule to coincide with available childcare arrangements in order to remain a fulltime employee. You can read more about the earlier decisions prior to the Federal Court of Appeal here: http://www.millerthomson.com/en/publications/communiques-and-updates/labour-and-employment-communique/february-13-2013

Refined Definition of Family Status

The Court rejected the argument from the Attorney General of Canada that family status should be limited only to the personal characteristic of whether or not one is part of a family or has a particular family relationship, and does not include any substantive parental obligations such as childcare obligations. The Court determined that prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic. Human rights protection should not be trivialized by extending to personal family choices such as participation in sports, dance classes, and volunteer activities. Parental obligations at issue are those which engage the parent's legal responsibility for the child, such as childcare obligations, as opposed to personal choices.

Test for Discrimination on Prohibited Ground of Family Status

Earlier in the proceedings, a point of controversy was whether the court should endorse the "Campbell River test" which requires the complainant to show that the workplace rule results in a serious interference with a substantial parental or other family duty or obligation of the employee. The Human Rights Tribunal and the Federal Court rejected this test and stated that the question to be asked is whether the employment rule interferes with an employee's ability to fulfill her substantial parental obligations in any realistic way.

The Court confirmed that the test to determine whether there is discrimination on the prohibited ground of family status is comprised of two parts: 1) a prima facie case of discrimination must be made out by the complainant; 2) the onus is then on the employer to show that the policy or practice is a bona fide occupational requirement, and that accommodation would amount to undue hardship for the employer.

After reviewing the criticism of the Campbell River test in the proceedings below, the Court determined that the first part of the test regarding whether a prima facie violation of the complainant's family status occurs includes four parts. The complainant must show: (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. The analysis, especially for the third and fourth parts of the test, are contextual and highly fact specific.

In light of these refinements to the approach to family status, the Court analyzed Ms. Johnstone's situation and found that she had in fact made out a prima facie case for discrimination. Since the appellant had not asserted a bona fide occupational requirement or advanced an undue hardship defence, the analysis of the Court then turned to the issue of remedy.

The Court altered part of the award for loss of wages to exclude a period of time where Ms. Johnstone took unpaid leave to accompany her husband in Ottawa. The Court also varied the judgment of the Federal Court to require CBSA to develop polices with respect to accommodating family status in consultation with the CHRC rather than developing policies satisfactory to Ms. Johnstone and the CHRC as originally ordered.

Seeley [2014 FCA 111]

In the companion case to Johnstone, Seeley [2014 FCA 111], the Court applied the principles and tests developed in Johnstone. Seeley and her husband were both employees of Canadian National Railway ("CN"). They lived near Jasper, Alberta where Seeley's husband worked. In 1997, Seeley was laid off but remained on a recall list. In 2005, CN experienced a labour shortage and sought to recall Seeley to Vancouver. Seeley sought accommodation on the basis that it would be difficult for her to meet her childcare obligations if she accepted the position in Vancouver and it would not be feasible to leave the children with her husband as he faced the same childcare challenges that she did. Seeley's seniority rights were forfeited and she was terminated after refusing the recall. At this point, Seeley filed a complaint with the CHRC.

The Tribunal rejected the Campbell River test preferring the approach in the earlier decisions in Johnstone. CN had not considered family status matters involving parental obligations and responsibilities as a protected ground of discrimination that necessitates accommodation. Thus, the Tribunal found that CN had refused to seriously consider Ms. Seeley's situation and failed to meet the procedural component of the duty to accommodate. CN's application for judicial review of the Tribunal's decision was dismissed by the Federal Court.

On appeal, CN argued that Seeley was seeking to enforce her preferred childcare option and had not made reasonable efforts to explore childcare options in her own town, surrounding areas, or in Vancouver. The Court rejected this submission in large part because CN did not provide Seeley with information about her recall to Vancouver that she would have needed in order to make childcare arrangements in any event; she was simply told that she would have to report to the Vancouver terminal in two weeks. The Court further found that CN had failed to provide evidence that it had accommodated Seeley to the point of undue hardship and upheld the lower court's decision.

Implications for Employers

Family status is a developing area of human rights law. Courts across the country have varied in their approach to defining family status and developing an appropriate test to determine when a prima facie case of discrimination has been made out.

Johnstone and Seeley are the latest decisions to address these issues. Employers must be aware that workplace rules and policies that result in a true childcare problem for employees are protected by human rights legislation and must be accommodated to the point of undue hardship. Employers would be well advised to review their policies and ensure that they have a process in place to comply with this legal obligation.

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 Mondaq.com.

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

Authors
Stephen Torscher
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
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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