The recent decision of United Nurses of Alberta v. Alberta Health Services 2021 ABCA 194 ("UNA"),  affirmed that the Moore test for prima facie  discrimination, as set down by the Supreme Court of Canada in Moore v. British Columbia (Education) 2012 SCC 61 ("Moore"), is the appropriate test for determining family status discrimination cases in Alberta.

In our previous post  on the issue of family status discrimination, we highlighted that there remains considerable divergence between Canadian jurisdictions on the appropriate legal test to be applied to claims of family status discrimination. While the Supreme Court of Canada ("SCC") had the opportunity to establish a uniform test for family status discrimination in Envirocon Environmental Services, ULC v. Suen2019 BCCA 46leave to appeal to SCC refused, 38580 ("Suen"), it declined to grant leave to appeal. As a result, there continues to be no unified test for family status discrimination and the applicable test depends on the jurisdiction where the discriminatory conduct is alleged to have occurred.

The recent UNA decision affirms the applicable test in Alberta and emphasizes the province's divergence from the federal test.

Facts and Summary of Previous Decisions

The complainant in UNA  was a registered nurse, working for Alberta Health Services ("AHS"). AHS changed the complainant's work schedule, resulting in the complainant alleging an interference with her childcare obligations. The complainant's union grieved the schedule change and alleged that it had failed to accommodate her family status. The labour arbitration board ("Board") dismissed the grievance. The Board applied the Johnstone  test, as set out by the Federal Court of Appeal in Johnstone v. Canada (Border Services Agency)2014 FCA 110 ("Johnstone"). Based on the Johnstone  test, the Board concluded that the complainant had failed to establish prima facie discrimination because she had not exhausted all options for alternative childcare and had not discharged her duty of self-accommodation. The majority of the Board noted that the comments in the Alberta decision of SMS Equipment Inc. v. CEP, Local 7072015 ABQB 162 ("SMS"), regarding the proper test for prima facie discrimination were obiter, and therefore not binding on them, leaving them free to prefer and apply the Johnstone test.

The union was successful on judicial review and the Alberta Court of Queen's Bench ("ABQB") directed the matter be sent back for rehearing. The ABQB agreed that the comments in SMS were obiter but noted that not all obiter  may simply be disregarded. In particular, the ABQB noted that "although Justice Ross' articulation of the proper test is obiter dicta, it was a considered opinion about a fractious area of law, obviously intended for guidance." The ABQB noted that the employee's duty of self-accommodation was improperly considered by the Board as being part of the first stage of the prima facie test for discrimination and as the basis for the dismissal of the grievance. The ABQB directed a rehearing given that the Board had failed to properly consider SMS and had failed to reconcile the Johnstone test with other binding precedent. The ABQB concluded that the Board's "disregard of jurisprudence, both from this Court and from the Supreme Court of Canada, was not explained and so cannot be said to be transparent." AHS appealed the ABQB's decision to the Alberta Court of Appeal ("ABCA").

ABCA Decision

The ABCA dismissed AHS' appeal and confirmed that the test in Alberta for establishing prima facie  family status discrimination is the test laid out by the SCC in Moore  and re-affirmed in SMS. The Moore  test requires a complainant to prove that:

  1. they have a characteristic protected by human rights legislation (e.g., family status);
  2. they experienced an adverse impact (e.g., termination, discipline, decision to not be hired); and
  3. their protected characteristic was a factor in the adverse impact (e.g., their family status factored into the employer's decision to not hire them).

With respect to the first criterion, as set out in SMS, the claimant will be required to demonstrate that a child is under their care and supervision and that a childcare obligation engages the individual's legal responsibility for that child.

With respect to the second and third criteria, the claimant's self-accommodation efforts should not be assessed as part of the test of establishing prima facie discrimination. Instead, if a claimant is successful on all three steps of the Moore  test thereby establishing prima facie discrimination, then self-accommodation will become relevant during the justification stage, when considering questions of bona fide occupational requirements and the employer's duty to accommodate to the point of undue hardship.

Key Takeaways

As the province of Alberta, and other jurisdictions, emerge from COVID-19 restrictions, employees that have been working remotely will start to be recalled to the workplace. It seems likely that employers will be faced with increased requests for work schedule accommodations based on family status arising from alternative childcare arrangements that were implemented by employees to cope with the challenges of COVID-19.

In order to properly address issues surrounding family status, employers should keep in mind the applicable test for assessing family status discrimination in their jurisdiction. As noted in our previous post, though family status is a prohibited ground of discrimination in all Canadian jurisdictions, the test for discrimination based on family status continues to vary between jurisdictions. Responses to requests for accommodation based on family status should meet the requirements of each jurisdiction where the employee is located, or alternatively, comply with the broadest protections to ensure compliance with applicable human rights legislation.

The specific takeaway for Alberta employers is that family status claimants should not face a separate and higher burden of proof with respect to establishing prima facie discrimination than claims based on other protected grounds. Notwithstanding the foregoing, the UNA decisions still acknowledge concerns that workplace disruptions could occur if every conflict between work and family obligations is treated as discriminatory. Accordingly, an employee's self-accommodation efforts remain a relevant consideration in the overall analysis where family status discrimination has been alleged.

While the SCC chose not to grant leave in the Suen appeal and develop a uniform test for family status discrimination, it does not mean it will not do so in the future, especially if family status discrimination claims become more prevalent in the aftermath of the pandemic. This is an area of law that continues to evolve and we will keep you updated on further developments as they occur.

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.