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:

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.

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Stephen Torscher
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