The Federal Court of Canada recently released companion
decisions that give some helpful guidance to employers in handling
requests for work accommodations for child care. These cases help
to highlight the unique and challenging issues employees and
employers face in trying to balance employment and family duties
Refusal of fixed full time shifts to accommodate child
In the first case, Canada v. Johnstone 2014 FCA 110 the Federal
Court upheld prior decisions that a border services officer had
been discriminated against on the basis of family status because
her requests for fixed full-time shifts to accommodate her child
care needs were refused. Full time employees were assigned rotating
irregular shifts, with five days on, three days off. The employer
had an unwritten policy that full-time hours would not be provided
to employees requesting accommodation on the basis of child-rearing
responsibilities. Those sorts of accommodations were provided to
employees for medical or religious reasons. As a result, Johnstone
was forced to become a part-time employee, so her pension and
benefits were pro-rated, she missed out on training opportunities,
was not permitted to become an acting superintendent or work on
Special Teams, and her overtime was paid at a lower rate.
The Federal Court agreed that the agency discriminated against
Johnstone on the prohibited ground of family status, contrary to
the Canadian Human Rights Act. The Court said family
status includes certain childcare obligations which a parent cannot
neglect without engaging legal liability. The court easily found a
prima facie case of adverse discrimination based on family
Refusal of transfer due to child care obligations
In the second case, Canadian National Railway v. Seeley 2014 FCA
111 the Federal Court of Appeal unanimously upheld a previous
finding that the Railway discriminated against a female conductor
by firing her for refusing to accept a transfer from Alberta to BC.
She refused due to childcare obligations and because the Railway
would not tell her the estimated duration of transfer, nor the
exact location in which she would be working. The Court commented
that it seemed obvious that the move interfered with the
fulfillment of Seeley's childcare obligations in a manner that
was more than trivial or insubstantial. It is notable that the
Railway did not consider family status matters that involve
parental obligations as a ground of discrimination that
necessitated any form of accommodation whatsoever. The Railway
failed to duly inquire of its employee and could not establish
Differences in the law in BC
We note that the test to engage the duty to accommodate family
status is currently higher in BC than other jurisdictions. The
British Columbia Court of Appeal established a more restrictive
test, which requires proof of "serious interference" with
a substantial parental obligation in the Campbell River case: 2004 BCCA 260.
Although the Federal Court of Appeal in both Johnstone and Seeley
rejected the restrictive "serious interference" test
endorsed in Campbell River, it placed an onus on the parent to
demonstrate that the interference in question is more than trivial
or insubstantial, and that they have made significant efforts to
What are substantial parenting duties and obligations?
In Johnstone and Seeley, the Federal Court has provided some
useful discussion of the nature of the family obligations that may
attract protection under human rights legislation. The Court
distinguished activities that result from "personal family
choices, such as participation of children in dance classes, sports
events like hockey tournaments, and similar voluntary
activities" from those that arise from parental obligations,
whose fulfillment or non-fulfillment engages the parent's legal
responsibility to the child. In these cases, child care obligations
engaged the parent's legal responsibility to the child.
The decisions highlight the challenges for employers in
determining whether an accommodation is appropriate and its extent.
Employers may have to inquire about the need for accommodation,
what sort of other options may be available and whether they have
been explored. Employees will not be entitled to accommodation for
every activity, nor will they be entitled to a perfect
accommodation. Johnstone and Seeley are cautionary tales of
employers who did not seriously consider the need for accommodation
and the balance between parental duties and employment duties.
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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