In a decision released May 2, 2014, Canada (Attorney
General) v. Johnstone 2014 FCA 110, the Federal Court of
Appeal has unanimously upheld the Federal Court's findings
regarding an employer's obligation to accommodate an
employee's childcare obligations. The decision clarifies both
the meaning of "family status" protection in human rights
legislation and sets out a new test for determining whether a
claimant has established a prima facie case of
discrimination on the basis of "family status."
Fiona Johnstone was employed by the Canada Border Services
Agency (CBSA). As a full time employee, Ms. Johnstone worked a
variable shift schedule that rotated between six start times over
the course of day, evening and night shifts. Ms. Johnstone's
husband also worked for the CBSA on a variable shift schedule. Upon
returning to work following her maternity leave, Ms. Johnstone
requested that she be placed on a fixed full-time schedule to allow
her to arrange for childcare and maintain full-time status. She
suggested an arrangement that would allow her to work 13 hour
shifts, 3 days a week. The CBSA refused.
In 2004, Ms. Johnstone filed a human rights complaint alleging
the CBSA's conduct was discriminatory on the basis of family
status. The Canadian Human Rights Tribunal found in favour of Ms.
Johnstone and held that the "family status" protections
in the Canadian Human Rights Act included parental
obligations like childcare. The Tribunal further found that Ms.
Johnstone had established a prima facie case of
discrimination and that accommodation would not have caused undue
hardship to the CBSA. The CBSA sought judicial review of the
decision. The Federal Court upheld the Tribunal's decision and
the CBSA appealed again to the Federal Court of Appeal.
Federal Court of Appeal
With respect to the content of the "family status"
protection, the Federal Court of Appeal ("the court")
confirmed that family status includes parental obligations that
engage a parent's legal responsibility for the child, such as
childcare, but does not include parental choices, such as
voluntary family trips and extracurricular activities.
The court then considered the proper test to determine whether
or not a case of discrimination had been made out. The court
established a new four-part test requiring an individual seeking
accommodation to show:
that a child is under his or her care or supervision;
that the childcare obligation at issue engages the
individual's legal responsibility for that child, as opposed to
a personal choice;
that he or she has made reasonable but unsuccessful efforts to
meet those childcare obligations through reasonable alternative
that the workplace rule interferes with the fulfillment of the
childcare obligations in a manner that is more than trivial or
Applying this new test to Ms. Johnstone's claim, the court
found no reviewable error and upheld the Tribunal's prior award
of lost wages and benefits from 2004 ($15,000 for pain and
suffering and $20,000 in special compensation) based on the
CBSA's wilful and reckless behaviour. In addition, the CBSA was
ordered to consult with the Canadian Human Rights Commission to
develop a plan to prevent future incidents of family status
Implications for Employers
The Johnstone decision has the following important implications
The law is now clear that "family status" includes
not only the status of being a parent, but also parental
obligations such as childcare. Employers can find some solace in
the court's effort to stress that parental choices,
such as voluntary family activities, will not trigger similar
claims of discrimination on the basis of family status.
Accommodation goes both ways. The test enunciated by the
Federal Court of Appeal places a clear obligation on employees to
seriously pursue alternative childcare arrangements in an attempt
to resolve an accommodation conflict.
Each case is highly fact-specific. In this case, the fact that
Ms. Johnstone's husband also worked an unpredictable shift
schedule made it more difficult for her to coordinate childcare.
Accordingly, employers should consider each accommodation request
on its own merits and conduct a good faith analysis of the true
burden of accommodation. The fact that the requested accommodation
is inconvenient will not be sufficient to constitute undue
The decision confirms an expected shift towards providing a
broader level of protection for employees with childcare
obligations. Accordingly, employers should ensure their
accommodation policies incorporate "family status" in a
manner that includes a reasonable consideration of childcare
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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