Canada: Canadian Employers Must Navigate A Patchwork Of Family Status Accommodation Requirements

Members of the Baby Boom generation often remained in one job throughout their working lives. It is now more common for employers to receive résumés from millennials (born between 1981 – 1996) who have had numerous jobs spanning two years or less. It appears that millennials are not hesitant to change jobs, and one thing is clear: they want their jobs to fit with their lives and the lives of their family members. Since millennials are now the demographic that makes up most of Canada's workforce, it is important for employers to adapt to their needs. Family-friendly employers will be better able to attract and retain employees. Moreover, we are seeing a trend to modernize Canadian employment legislation, including the inclusion in some statutes of the right to request flexible work arrangements. Employers that demonstrate a desire to meet the family demands of their employees demonstrate that they are in sync with this legislative trend.

When employees complain that they have been discriminated against by their employer on the basis of their family status, the employer's image may be tainted as family-unfriendly, even when the complaint is unfounded. Although human rights statutes in all jurisdictions in Canada prohibit discrimination on the basis of family status,¹ family status complaints are made infrequently when compared to complaints made on other grounds of discrimination. Most family status complaints relate to discrimination in employment, but even these complaints are uncommon. Nonetheless, employers in Canada should be familiar with the unsettled legal approach to family status discrimination. Adjudicators utilize different tests to analyze whether an employer has a duty to accommodate family status; the standard is more stringent in some jurisdictions than in others and the outcome may differ based on the test applied. Although it is clear which tests apply to federally regulated employers and employers in British Columbia and Alberta, there is significant confusion in other jurisdictions where in recent years new tests have emerged creating a "family status" landscape filled with inconsistencies. This uncertainty leaves employers, especially those that have operations in multiple Canadian jurisdictions, facing a confusing landscape.

Below we will set out the various tests that are currently being used to establish family status discrimination in Canada. This will be followed by recommendations for policies and programs that employers that wish to be perceived as family-friendly can put in place for employees that need accommodations due to parental or other family obligations.

What Tests are used to Establish "Family Status" Discrimination in Canada?

British Columbia: The Campbell River Test

In the spring, the British Columbia Court of Appeal in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (Suen), refused to reconsider the high burden test for establishing family status discrimination set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (Campbell River), and applied that test to the case at hand. On August 8, 2019, the Supreme Court of Canada dismissed an application for leave to appeal from the judgment of the British Columbia Court of Appeal in Suen,² confirming that the Campbell River test remains good law in British Columbia.

The Campbell River test provides that a prima facie case of discrimination on the basis of family status is made when:

1. There is a change in a term or condition of employment imposed by an employer; and

2. The change results in a serious interference with a substantial parental or other family duty or obligation of the employee. [Emphasis added]

In Suen, the employee was dismissed for cause when he refused an assignment to manage a project in Manitoba for between 8 to 10 weeks because he wanted to stay close to home to assist his wife in caring for their four-month-old baby. The Court of Appeal concluded that the employee could not satisfy the restrictive second step of the Campbell River test, as "he is no different from the vast majority of parents" and there was nothing in his materials to suggest that his child would not be well cared for in his absence.

In contrast, the employee in Campbell River was able to establish a prima facie case of discrimination on the basis of family status. Her son had specific needs due to severe behavioral issues and when her employer changed her work shift she could not care for him after school. The court viewed this as a serious interference with a substantial parental obligation.

The contrast between the outcomes in Suen and Campbell River suggests that in British Columbia, employees must demonstrate that a change in the terms or conditions of employment seriously interferes with a parental or other family duty that is more substantial than regular duties faced by the vast majority of others in their position, and that this interference may result in the child or other family member being made vulnerable in their absence. In British Columbia, it is not enough for the employee to have a desire to perform the parental or other family duty, there must be a need to perform the duty and no one else available to perform it.

Federal Jurisdiction and Other Jurisdictions Outside British Columbia and Alberta: The Johnstone Test

A four-part test for establishing a prima facie case of family status discrimination in the workplace, set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (Johnstone), is applied consistently in the federal jurisdiction, and often in jurisdictions outside British Columbia and Alberta.

Ms. Johnstone and her husband were both full-time employees working unpredictable rotating shift schedules for at least 37.5 hours per week. Prior to returning from her first maternity leave, Ms. Johnstone requested static shifts on a full-time basis. The employer, however, denied this request, stating it had no legal duty to accommodate her childcare responsibilities. The employer offered Ms. Johnstone static shifts for 34 hours per week, which would result in her being treated as a part-time employee, with fewer employment benefits than an individual who worked at least 37.5 hours per week and was considered a full-time employee, including less pension entitlements and promotion opportunities. Ms. Johnstone filed a complaint alleging discrimination on the basis of family status.

In Johnstone, the Federal Court of Appeal declined to adopt the test set out in Campbell River because the test establishes a higher threshold for a finding of prima facie discrimination on the ground of family status than for other prohibited grounds. Instead, the court established the following four-part test, which is less onerous because it does not require the interference to be "serious" and the parental or other family duty or obligation to be "substantial":

The Federal Court of Appeal applied this test and found that for the following reasons Ms. Johnstone established a prima facie case of family status discrimination:

• She had two toddlers under her care and supervision, a responsibility she shared with her husband;

• Her childcare obligations engaged her legal responsibilities as a parent; they were not a personal choice;

• She made serious but unsuccessful efforts to secure reasonable alternative childcare arrangements that would allow her to continue to work her rotating and irregular work schedule; and

• Her regular work schedule interfered in a manner that was more than trivial or insubstantial with the fulfillment of her childcare obligations.

Ontario: Johnstone and Misetich Tests

In Ontario, a new approach has emerged for establishing a prima facie case of family status discrimination in the workplace. In Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (Misetich), the Human Rights Tribunal of Ontario (HRTO) rejected the Federal Court of Appeal's test for establishing family status discrimination in Johnstone, when an employee alleged that a proposed change to her work schedule discriminated against her due to her eldercare responsibilities.

The employee was originally hired as a retail sales clerk but then moved to a role in production at the back of the store. The role in production caused the employee to develop a repetitive strain injury. When her family doctor provided a Functional Abilities Form outlining the employee's restrictions, the employee was offered temporary, modified duties. She was advised, however, that her shifts and hours might vary and could include days, nights and weekend shifts. She declined the offer, stating the hours would place a hardship on her because she prepared evening meals for her elderly mother. When asked to provide information relating to her mother's health needs, the employee refused, stating that her employer was not entitled to private information about her mother. The employer terminated her employment for job abandonment when she did not attend work for her scheduled shifts.

The HRTO rejected the Johnstone test and other tests for establishing family status discrimination on the basis that the test for this form of discrimination should not be different from the test for other forms of discrimination. It noted that the various tests applied by different courts and arbitrators result in inconsistency and uncertainty, with some more stringent than others, and "perhaps inadvertently" creating a test for family status discrimination that is more stringent than the tests used for other kinds of discrimination. The HRTO also emphasized that the test of legal responsibility is difficult to apply in the context of eldercare, as "[a]n adult child's legal responsibility to provide care for his or her elderly parent is not as clear as a parent's legal responsibility to care for his or her minor child." Finally, the HRTO criticized some of the cases for conflating the test for discrimination and accommodation, stating that applicants should not have to establish that they could not "self-accommodate the adverse impact caused by a workplace rule."

In Misetich, the HRTO set out the following test for establishing family status discrimination in the context of employment:

• The employee must establish a negative impact on a family need that results in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee's work;

• An assessment of the impact of the impugned rule must be conducted contextually and may include consideration of other supports available to the employee; and

• Once discrimination is established, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship. It is at this point that the question whether the employee cooperated in the accommodation process is considered. This obligation to cooperate includes providing the employer with sufficient information relating to the family-related needs and working with the employer in identifying possible solutions to resolve the family/work conflict.

The HRTO noted that the employer heard about the full scope of the employee's eldercare responsibilities for the first time during the hearing, and that prior to that, the employee told the employer only that she prepared evening meals for her mother. The Tribunal emphasized that it was required to decide the case on the basis of the information provided by the employee at the time of the alleged discrimination rather than on the basis of the information provided at the hearing.

The HRTO concluded that the employee could have worked days, evenings and weekends and still have provided evening meals for her mother. As the employee failed to establish that the modified shifts proposed by the employer discriminated against her on the basis of her family status, the HRTO dismissed the application.

It is unclear whether the Johnstone test or Misetich test is considered the correct test to be applied in Ontario for establishing a prima facie case of family status discrimination in the workplace. In a recent family status discrimination decision of the HRTO, Simpson v. Pranjeen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10, the adjudicator seemed unsure and did not make any pronouncements about which test applied. Instead, he noted, "Whether I apply the test of the Federal Court of Appeal in Johnstone, or the test as set out in Misetich, I come to the same conclusion." Adding to the confusion, one month later in Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273, a different adjudicator at the HRTO stated that he agreed with the conclusion in Misetich, "...that the test for discrimination on the basis of family status is no different, and, in particular, no higher than for other grounds under the Code." He made no mention of the Johnstone test.

Alberta: SMS Equipment Test

A new approach for establishing a prima facie case of family status discrimination in the workplace emerged in Alberta in SMS Equipment Inc v. Communications, Energy and Paperworks Union, Local 707, 2015 ABQB 162 (SMS Equipment). The SMS Equipment test is a more lenient test than the Johnstone test; it rejects all but the first two factors in Johnstone.

The case involved a single mother of two children under the age of six who was a welder on rotating night and day shifts. The children's fathers did not provide childcare and the employee had no other family residing in the area. On the weeks when she was required to work nights, the employee cared for her children herself because she could not afford childcare, and therefore got little sleep. When the employer refused to accommodate the employee's request to work day shifts exclusively, the union filed a grievance on her behalf, claiming that the employer violated the prohibition against discrimination on the basis of family status pursuant to the Collective Agreement and the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).

The Court of Queen's Bench of Alberta judicially reviewed the Arbitrator's finding that the employee had established a prima facie case of discrimination on the basis of family status. In its decision, the court indicated that the correct test for establishing a prima facie case of family status discrimination is the three-part test that applies to other enumerated grounds of discrimination, reaffirmed by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 (Moore):

1. Does the complainant have a characteristic that is protected from discrimination?

2. Has the complainant experienced an adverse impact?

3. Has the complainant demonstrated that the protected characteristic was a factor in the adverse impact?

The court emphasized that the Moore test should be applied flexibly and contextually, demonstrating that family status is a factor in the adverse impact, and noted that this would require a demonstration of the first two factors in the Johnstone test:

In applying the test, the court relied on the factual findings of the Arbitrator who had concluded:

• The employee, as a single mother of two children under the age of six who require childcare, had a characteristic protected from discrimination. Her claim clearly related to childcare obligations, and not to personal choices;

• The employee experienced an adverse impact from the employer's requirement that she work night shifts:

• The employee demonstrated that the protected characteristic of "family status" was a factor in the adverse impact:

The court concluded that a prima facie case of discrimination on the basis of family status had been established. It upheld the decision of the Arbitrator and dismissed the application for judicial review.

In a subsequent decision of the Alberta Court of Queen's Bench, United Nurses of Alberta v. Alberta Health Services, 2019 ABQB 255, the court left no doubt as to what it considered the correct test in a prima facie case of discrimination on the basis of family status when it stated that the arbitrator in SMS Equipment, "intended to and did provide the 'correct' articulation of the prima facie discrimination test to provide guidance on an important jurisprudential dispute." (para 52)

Bottom Line for Employers

As noted in our introduction, when an employee launches a complaint that an employer has discriminated against them on the basis of their family status, the employer may develop a reputation for being family unfriendly, regardless of whether the claim has merit. Employers that develop reputations for being unwilling to accommodate their employees' family obligations may encounter difficulty attracting and retaining the most sought-after employees. This is especially true of millennial employees as this demographic, the largest in Canada's workforce, will not hesitate to leave jobs that do not meet their family demands for jobs that do.

Although federally regulated employers and those located exclusively in British Columbia and Alberta have clarity with regard to what family status discrimination test their complaining employees will be expected to satisfy, elsewhere employers are faced with an unsettled landscape. In these uncertain environments, employers may face adjudicators that apply a more lenient test, and others that apply a more stringent test, with the possibility that the outcome will differ based on the test applied.

Employers that have operations in multiple Canadian jurisdictions face a unique scenario of being held to different standards in different jurisdictions. If they accommodate the family obligations of employees in jurisdictions where the test is more lenient, but refuse to do so in jurisdictions where the test is more stringent, employee resentments are likely to develop.

In view of these issues, we recommend that employers in Canada:

• Develop company-wide accommodation policies that take a reasonable approach to legitimate childcare and eldercare obligations, erring on the side of flexibility rather than rigidity in establishing schedules and other arrangements;

• When asked to accommodate an employee's childcare or eldercare obligations, have an open dialogue with the employee as soon as possible to ensure the employee's accommodation needs are accurately understood;

• Analyze each employee request for accommodation of childcare or eldercare obligations in a reasonable manner, taking into sincere consideration whether the request will actually cause difficulty for the employer;

• Upon receiving the employee's consent, open a dialogue with relevant employees to determine if they are prepared to assist in facilitating the requested accommodation;

• If appropriate, arrange for a temporary accommodation to allow the employee to put satisfactory childcare or eldercare in place; and

• Offer the employee an employee assistance program that can assist in identifying satisfactory childcare or eldercare support.

Footnotes

1 Quebec uses the term "civil status", which includes "family status." Northwest Territories uses the terms "family status" and "family affiliation."

2 2019 CarswellBC 2315 (S.C.C.).

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.