Canada: Johnstone v. Canada Border Services Agency: Federal Court Of Appeal Unanimously Upholds Family Status Accommodation Obligations

On May 2, 2014, the Federal Court of Appeal released the much anticipated decision of Johnstone v. Canada Border Services Agency on family status accommodation.  


In 2010, Ms. Johnstone appeared in front of the Canadian Human Rights Tribunal (CHRT) and argued that her employer, Canada Border Services Agency (CBSA), had discriminated against her on the ground of family status by failing to accommodate her childcare obligations.  Ms. Johnstone was a Canada Border Services Officer and had rotating, irregular and unpredictable shifts which were assigned on 15 days' notice.  The employer could change the schedule on 5 days' notice.   Ms. Johnstone's husband also worked for the CBSA as a supervisor, and was subject to the same rotating shift policies.  When Ms. Johnstone returned from maternity leave, she asked to have regular static shifts on 3 adjacent days per week with enough hours to maintain her full time status.  This would allow her to reasonably arrange for child care, but not affect her pension, benefits, or employment opportunities.  CBSA had an unwritten policy whereby this request was refused.

The CHRT found that 1) Ms. Johnstone was adversely differentiated against on the ground of family status, 2) CBSA had established and pursued policies and practices that deprived Ms. Johnstone of employment opportunities, and 3) CBSA had failed to establish a bona fide occupational requirement, or otherwise justify the policies in question.

The matter was appealed to the Federal Court for judicial review in 2013.  The Federal Court upheld the CHRT decision, garnering much attention given the relative novelty of the issue.  The Federal Court confirmed that Ms. Johnstone had been discriminated against on the basis of family status, which included child care obligations.  The Court confirmed that CBSA's conduct, policies and practices adversely impacted Ms. Johnstone based on a personal characteristic, in this case family status, which is recognized as a prohibited ground of discrimination.  The Federal Court also confirmed that the threshold to show prima facie discrimination for family status was no higher than for all other grounds of discrimination.  To find otherwise would create a hierarchy of discriminatory grounds.

Federal Court of Appeal Decision

The matter was further appealed to the Federal Court of Appeal and on May 2, 2014 the eagerly awaited decision was released, confirming the findings and principles outlined in the lower courts. 

In the decision, the Federal Court of Appeal provided further insight into what will trigger the protection of family status under human rights law.  Justice Mainville, delivering the decision for the Court, elaborated on some of the several findings in the lower decisions:

Family Status

Justice Mainville spent some time outlining the scope of protection under the ground of family status.  He said that, like other grounds of discrimination, family status should only protect an individual's "immutable and constructively immutable characteristics".  To this end, the parental obligations that are protected by the Canadian Human Rights Act are those whose non-fulfilment engages the parent's legal responsibility to the child under, for example, child welfare or criminal legislation.  Hence, a parent cannot leave a small child unattended in order to attend work, as this would be considered neglect.  On the other hand, voluntary childcare obligations amounting to personal family choices, such as participation in dance classes or sports, will not fall within the scope of family status. 

Justice Mainville also provided that "protection from discrimination for childcare obligations flows from family status in the same manner that protection against discrimination on the basis of pregnancy flows from the sex of the individual.  In both cases, the individual would not require accommodation were it not for the underlying ground (family status or sex) on which they were adversely affected."

Prima Facie Threshold

CBSA once again argued that the threshold to show prima facie discrimination for family status should require a "serious interference" with a "substantial" parental duty or obligation.  The Federal Court of Appeal, like the Federal Court, disagreed, finding that the test for discrimination based on family status should be substantially the same as for other ground of discrimination: "[t]here should be no hierarchy of human rights."  However, the Court said that the test must also be necessarily flexible and contextual since the facts which will support discrimination based on one prohibited ground may differ from facts which will support another.  Therefore, an analysis must be conducted on a case by case basis.

The Federal Court of Appeal varied the Federal Court's judgement with respect to remedies, but upheld the decision otherwise and dismissed the appeal, awarding costs to Ms. Johnstone.

Take Home Messages for Employers

This appellate level decision is the new leading authority on the protected ground of family status with respect to child care obligations.  While it does provide further guidance on what will and will not qualify as a child care or parental obligation that falls within the protection of family status, it remains to be seen how this test will be interpreted by the courts.  For now, there remains some uncertainty as to any "grey area" obligations that might fall between a legal obligation, and soccer practice. 

For this reason, when approached by an employee for accommodation, employers may want to start by considering whether the parental obligation amounts to a parent's legal obligation to a child.   If the obligation could fall within the scope of family status, employers should then consider whether accommodation of the employee will amount to undue hardship for the employer.   Because of the contextual approach to these types of cases, the best strategy for employers at this stage is to engage in a dialogue with the employee, and make a significant effort in considering accommodation options.  If it is determined that the employee cannot be accommodated, at least the employer can show the reasons the request was denied if the decision is challenged. 

If you have any questions or require any assistance with respect to your policies regarding family status accommodation, please do not hesitate to contact our knowledgeable team. 

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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