A recent Human Rights Tribunal of Ontario decision confirms that
family status protection may require employers to accommodate
employees' sporadic or unexpected absences to fulfill childcare
In Miraka v A.C.D. Wholesale Meats
Ltd., Mr. Miraka was terminated from his employment
after being absent from work for three consecutive days. He missed
two days to take care of his children when his wife, who was the
primary caregiver, fell ill. When he returned to work the following
day, he suffered a workplace injury at the beginning of his shift
and asked to leave early. The employer responded by terminating his
With respect to family status claim, the Tribunal determined
that the employee had been discriminated against contrary to the
Human Rights Code. The starting point for the
Tribunal's analysis was the Federal Court of Appeal decision in
Johnstone v Canada (Border Services)
("Johnstone"). Johnstone set out the
following test for family status discrimination:
the child is under the claimant's
care and supervision;
the childcare obligation at issue
engages the claimant's legal responsibility for that child, as
opposed to a personal choice;
the claimant has made reasonable
efforts to meet those childcare obligations through reasonable
alternative solutions, and that no such alternative solution is
reasonably accessible; and
the impugned workplace condition or
rule interferes in a manner that is more than trivial or
insubstantial with the fulfillment of the childcare
The Tribunal accepted the applicant's uncontradicted
evidence that his wife suffered from an anxiety disorder that
rendered her unable to care for their children on the days the
applicant was absent from work. The Tribunal reasoned that to leave
the children home alone with their mother, who could not provide
adequate care, would be inconsistent with the applicant's
substantive obligations as a parent as outlined in
On the issue of whether the applicant made reasonable efforts to
find alternative childcare, the Tribunal distinguished between
cases of long-term accommodation needs, like that found in
Johnstone, and short-term accommodation needs. The
Tribunal held where there is an infrequent, sporadic or unexpected
need to miss work in order to fulfill children obligations, the
requirement to demonstrate reasonable efforts to find alternative
childcare does not apply.
The Tribunal found that it would be unrealistic for the employee
to be expected to have a babysitter "on call" for when
his wife fell ill. It also rejected the employer's argument
that the employee ought to seek out alternative childcare on
Craigslist or Kijiji, which the Tribunal stated could in itself be
inconsistent with a parent's legal obligation to ensure the
safety of their children. Despite its conclusions regarding the
legal test, the Tribunal did state that if close family members or
friends were available, a person may be expected to attempt to make
arrangements. However, in this case it accepted the applicant's
evidence that no family members or friends were available.
The Tribunal also found that the applicant had been
discriminated against on the basis of disability because he was
terminated after suffering an injury. It awarded him $10,000 for
injury to his dignity, feelings and self-respect. He did not
receive an award for lost income as the Tribunal determined he
would not have been able to work during the relevant time period on
account of his disability.
The case law in relation to family status claims continues to
develop. Although the Tribunal determined that an employee does not
need to demonstrate self-help prior to seeking accommodation on
family status grounds for unexpected absences, employers can and
should make inquiries into the reasons for the need in order to
establish that the Code protection has been triggered. This
includes, for instance, any relevant information and documentation
substantiating the need. Further, if a short-term need develops
into a long-term need, the employer should ensure the employee has
demonstrated reasonable efforts to find alternative childcare
By contrast, in Flatt v Attorney General of
Canada, a recent decision of the Federal Court of
Appeal, family status discrimination was not found. The court
determined that the employer's denial of an employee's
request to telecommute in order to continue breastfeeding was not
discriminatory. It was held that the employee's desire to
continue breastfeeding was a personal choice, not a legal
obligation. However, the Court did state that in other
circumstances, for instances where there is medical evidence that
the child requires breastfeeding, family status protection may be
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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