Canada: Family Status

Last Updated: July 24 2018
Article by BC Human Rights Clinic

Many BC parents will be familiar with the difficulties of accessing quality, affordable childcare in this province. Wait lists are long, costs are high, and there are simply not enough spaces for all the kids who need them.

The lack of meaningful childcare options affects many families, and hurts women the most. As the women's rights organization West Coast LEAF has pointed out, women continue to perform the majority of unpaid caregiving in our society. As they try to balance caregiving and other aspects of their lives, a lack of affordable childcare creates significant barriers to working outside the home, creating financial security, and securing independence. West Coast LEAF also points out that while international human rights agreements that Canada has signed, including the Convention on the Elimination of all forms of Discrimination Against Women and the International Covenant on Economic, Social and Cultural Rights do speak to a need for government investment in childcare, inadequate and unaffordable childcare is seldom identified as a legal human rights violation.

So it is interesting to look at a recent BC Human Rights Tribunal decision where the lack of childcare options was squarely at issue in a human rights dispute. In Ziegler v Pacific Blue Cross, 2018 BCHRT 151, the complainant was forced to quit a job she'd worked at for 11 years because of the impossibility of arranging suitable childcare for her one year-old child.

For a number of years, Ms. Ziegler had worked an 8am-3:30pm shift, which allowed her to travel from her workplace to her son's daycare to pick him up before the daycare closed at 6pm. However, in early January 2017, the employer advised its employees that it would be moving to a new scheduling system at the end of the month. Employees would no longer be guaranteed set shifts, and could be required to start work any time between 7:30am and 9:30am.

Ms. Ziegler told her employer that she could not work the 9:30am-5pm shift and still arrive at the daycare before it closed at 6pm. She raised the difficulty of making new childcare arrangements with only a month's notice. The evidence indicated that Ms. Ziegler was her son's sole caregiver and did not have support from other family members.

The employer told Ms. Ziegler its scheduling hours and practice were well within reason and that it was not in a position to accommodate "employee preferences." She was told that if the employer provided her with a shift accommodation based on her family status, other employees in the department might think it was providing her with preferential treatment. 

The employer agreed to give her an additional four weeks to "sort out her childcare arrangements," following which there would be no exceptions or accommodations.

Ms. Ziegler called numerous childcare providers over the next several weeks and none had space for her son. Ms. Ziegler felt she had no choice but to resign her employment. She filed a human rights complaint alleging discrimination on the basis of family status. The employer applied to have the complaint dismissed.

Since the BC Court of Appeal's decision in Health Sciences Association of BC v Campbell River and North Island Transition Society, 2004 BCCA 260 ("Campbell River"), a complainant alleging discrimination on the basis of family status in BC must show:

  1. The employer imposed a change in a term or condition of employment, and
  2. The change resulted in a serious interference with a substantial parental or other family duty or obligation.

Under these requirements, ordinary parental responsibilities will not be sufficient to prove the case. The parent will have to demonstrate extraordinary conditions.  The Court in Campbell River was concerned about opening the floodgates to potential discrimination cases every time work came in conflict with parental responsibilities. It intended this test to be very difficult and rarely passed.

The Campbell River test has been criticized for imposing a higher standard on complainants alleging discrimination based on family status compared with complainants alleging discrimination based on other protected characteristics. In the leading case describing what a complainant has to show to prove discrimination, the Supreme Court of Canada said that complaints must simply show that they have a protected characteristic (such as family status); that they experienced an adverse impact regarding employment; and that their family status was a factor in the adverse impact (Moore v British Columbia, 2012 SCC 61).

Is it fair to require complainants in family status cases to do more than this, by requiring them to show a serious interference with a substantial parental or other family obligation?

A couple of recent decisions from the Tribunal suggest that it is not: see Suen v Envirocon Environmental Services (No. 2), 2017 BCHRT 226 and Adair v Forensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147. These decisions suggest that the Campbell River test may no longer be good law. However, because Campbell River is a BC Court of Appeal decision that has not yet been clearly overturned, the Tribunal continues to apply it.

(Note that many other Canadian jurisdictions apply a different test, set out in Canada (Attorney-General) v Johnstone 2014 FCA 110, where the court rejected Campbell River and adopted a different and more liberal approach. In Alberta, the test is different still; see SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162.)

In Ms. Ziegler's case, the Tribunal denied the respondent's application to dismiss her complaint. The Tribunal held that there was a reasonable chance that she would be able to prove that the company's change to its scheduling practices interfered with a substantial parental obligation – the care of her one year-old child – and met the Campbell River test. The fact that her child did not have any special care needs and her situation was not particularly unique was not, the Tribunal said, a reason to dismiss her claim. The case will now be set for a full hearing.

Another case where the respondents tried to have a family status complaint dismissed on the basis, among other things, that the complainant's situation was common and not particularly unique, and therefore did not warrant a hearing, was Suen. In Suen, the employer wanted the father of a newborn infant to relocate to Manitoba full-time for two-and-a-half months. One of the employer's arguments was that Mr. Suen's wife was the primary caregiver, was on maternity leave, and that his role was "limited to assisting his wife." They argued that Mr. Suen "does not have any special skill or ability which renders him indispensable in the care of his daughter."

The Tribunal forcefully rejected this premise, and allowed the complaint to proceed (the Tribunal's decision is under judicial review and a decision is pending). The Member stated that this line of reasoning "fundamentally reinforces stereotypical views of the respective roles of mothers and fathers in both the public and private spheres – views that are harmful to both men and women in entrenching expectations and patterns of behaviour." The Tribunal continued:

Women's struggles to escape stereotypical notions of their roles and responsibilities respecting public and private life are well documented and well litigated. But there is a companion stereotype applied to men that has served to limit their ability to participate in the private sphere, particularly in respect of childcare and men's inclusion in dialogue surrounding how to balance the responsibilities of work and family. ... The outcome of such stereotypes is not only harmful to women in their ability to participate free of impediment in social and economic life at the workplace, but also to men and their ability to participate in social and cultural life at home.

Childcare is not just women's responsibility. It's a family responsibility and, under international human rights law, a collective responsibility requiring government investment. Many advocacy groups have been calling for this increased government investment for years. As employers' duty to accommodate their employees' childcare obligations under human rights law butts up against the lack of realistic options currently available for many families, perhaps more employers will add their voices to these calls.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
McCarthy Tétrault LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
McCarthy Tétrault LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions