Canada: Shift-Shopping Endorsement Upheld By Alberta Court

Last Updated: April 1 2015
Article by Stringer LLP

The Alberta Court of Queen's bench recently reviewed the arbitrator's decision in SMS Equipment, a case on which we have written before (see our update on the decision here), and one of the first in the current wave of cases concerning the entitlement of employees to accommodation for child care obligations under human rights legislation.

The decision involved a single mother working in the Alberta oilpatch who had recently started a job with a rotating night and day schedule. That schedule, it was alleged, made it prohibitively expensive and difficult for her to seek out childcare for her two young children.

The arbitrator found that the scheduling discriminated against the employee because of her family status, in that it adversely affected the employee due to her status as a mother to two young children.

Even though SMS Equipment was decided before the landmark decision of the Federal Court of Appeal in Johnstone, the Alberta Court upheld the decision of the arbitrator which found discrimination by the employer, and rejected all of the employer's arguments on judicial review.

In so doing, the Court found that the arbitrator's decision was consistent with Johnstone, now the leading case in the area of family status discrimination and childcare (see our post on the Johnstone decision here).

The decision of the Alberta Court is particularly important with regards to three points:

1. The Johnstone test is here to stay

The employer pointed out that the human rights legislation in the federal jurisdiction is differently worded than that in Alberta and most other provinces. The employer argued that as a result the Court should not simply apply Johnstone and should instead craft its own analysis.

In responding to this argument, the Court found that that the arbitrator's application of the Johnstone test was not only reasonable, but correct.This marks the first reported decision where a provincial appellate Court has endorsed Johnstone.As a result, future challenges to the Johnstone test will likely be much more difficult.

Although Johnstone has not been tested at the Supreme Court of Canada level, the decisions of the Ontario Superior Court in Partridge and this decision appear to have endorsed the view that Johnstone should be applied across the country. This would be subject to the outcome of the Human Rights Commission of Ontario's challenge to the Johnstone test that we noted in a recent update.

2. The Floodgate Argument Will Not Work

The Court endorsed a passage from the arbitration decision that rejected the argument that the incorporation of financial childcare considerations into the human rights landscape would lead to a flood of accommodation requests. The Court did not canvas whether there was any basis for this concern or not, rather dismissing it entirely as irrelevant to the question of whether there was discrimination.

Employers need to know that this continues a trend of consistent rejection of the floodgate argument against recognizing childcare obligations under human rights legislation. As such, notwithstanding any logistical issues, employers will be subject to the same duty to accommodate regardless of the potential for large amounts of accommodation claims, unless they can show that such accommodation cannot be accomplished without undue hardship.

3. Employers cannot rely on failures in employee self-accommodation to protect against findings of discrimination

At the initial hearing of this matter, the employer did not adduce any evidence as to the reason for its scheduling practices. Given this lack of evidence of the employer's accommodation efforts, the Arbitrator did not find relevant the employer's argument that the employee did not satisfy her obligations to self-accommodate by exploring other options for childcare, including the availability of government subsidies.

The Court's decision makes clear that employers require affirmative evidence illustrating their attempts to accommodate the employee to the point of undue hardship instead of simply relying on the insufficiency of an employee's self-help efforts.

Unfortunately, the decision did not touch on the most alarming part of the arbitration decision for employers, which was the conscious decision of the employee to transfer into a position the responsibilities of which were known to be incompatible with the employee's childcare obligations. It appears that the failure of the employer to provide positive evidence justifying their scheduling practices rendered the employee's conduct moot in the eyes of the Court.

What employers should know

The outcome of the judicial review application in SMS Equipment entrenches the Johnstone test. The Court said that many of the operational concerns noted by employers, notably the large pool of potential claimants and the difficulty of assessing employee self-accommodation, are simply not relevant to the Court's analysis.

Employers must be vigilant to canvas fully and completely any requests for accommodation, and be prepared to justify their policies and procedures when they may conflict with an employee's childcare obligations. As SMS Equipment shows, failure to do so may result in a finding of discrimination, regardless of any failures of the employee in the accommodation process.

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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