The notion that an employer could or should be responsible for
ensuring that parents can access childcare is likely a daunting
proposition for many companies. Yet, a recent Federal Court
of Appeal ruling, Canada (Attorney General) v.
Johnstone 2014 FCA 110, suggests that in certain
circumstances employers will be faced with the responsibility of
helping employees access childcare, at least up to the point where
it would constitute an undue hardship to the employer.
This is a case that has wound its way through the federal
system, beginning with a 2007 decision of the Canadian Human Rights
Tribunal. CCPartners has followed this case through the
judicial process throughout, with the last decision of the Federal
Court discussed in our
Blog entry from February 21, 2013. For reference, both
Johnstone and her husband worked at Pearson International Airport
on rotating shift schedules. After having a child, Johnstone
struggled to find childcare because of the unpredictability of her
shift work. She asked for an accommodation to a fixed schedule.
Pearson International Airport refused, taking the position that
they had no obligation to accommodate such a request.
However, earlier this month the Federal Court of Appeal
confirmed that Pearson International Airport in fact did have a
duty to accommodate triggered by the protected ground of
"family status" under the Canadian Human Rights
Act (the "Act").
This does not mean that employers are faced with this duty to
accommodate every time an employee has a child. Rather, the
Court has said that "family status" protections under the
Act will be subject to the same standard as all other grounds of
discrimination. This means that first the employee will have
an obligation to demonstrate that his or her childcare needs are an
immutable, or a constructively immutable, characteristic.
In other words, employers are obligated to accommodate
specific child care needs but they are not obligated to adapt to
The Court recognized that human rights legislation should not be
trivialized and therefore that family status protections will not
extend to "personal family choices such as participation of
children in dance classes, sports events like hockey tournaments,
and similar voluntary activities". Rather, the Court
expressed the intent that this ground of protection be used to
ensure that employees are able to continue to participate in the
workforce without discrimination, provided they demonstrate that
there are no other reasonable options available for them to fulfill
their legitimate childcare obligations.
This decision places family status discrimination claims on an
equal level as other human rights grounds. The onus is on the
employee to prove that there is an unworkable situation as a result
of their conflicting work/family obligations, and the employer is
then required to accommodate to the point of undue hardship.
Criticism of early "family status" decisions often
focused on what appeared to be a different test – at least in
some jurisdictions – for family status compared to other
grounds of protection; this decision of the Federal Court of Appeal
expressly addresses that concern.
The Court also set out the following test for determining if
there is a legitimate claim for accommodation:
that a child is under his or her care and 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 efforts to meet those
childcare obligations through reasonable alternative solutions, and
that no such alternative solution is reasonably accessible;
that the impugned workplace rule interferes in a manner that is
more than trivial or insubstantial with the fulfillment of the
While this decision is not necessarily universally applicable
across all Canadian jurisdictions, it is a significant one.
When faced with a request for accommodation based on family
arrangements, employers must analyze each case on its particular
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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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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