In Johnstone and Seeley, the complainants were both federal employees (one with the Canadian Border Services Agency ("CBSA"), and the other employed by the Canadian National Railway ("CNR")) who sought and were denied accommodation for their childcare needs after returning from pregnancy leave. While CNR had argued that it had offered accommodation to the point of undue hardship (by extending the date for Ms. Seeley to return to work after being recalled to the Vancouver terminal), the CBSA had simply refused Ms. Johnstone’s proposed accommodation on the basis that it had no legal obligation to accommodate her parental obligations (relying on the test in Campbell River). Both complainants were successful at the Canadian Human Rights Tribunal and on judicial review to the Federal Court. At the Federal Court of Appeal, argument centred on exactly what was protected by “family status”, and what test should be applied in determining whether the employer had discriminated against an employee on this ground.
The Federal Court of Appeal upheld the decisions below (which had rejected the Campbell River test for prima facie discrimination), finding that there was no principled basis for imposing stricter conditions on a claimant seeking protection due to their family status than would apply under any other protected ground. In the Court’s opinion, the test in Campbell River effectively narrowed “family status” to the point where very few individuals could ever make out a prima facie case. This was not consistent with the remedial purpose of human rights legislation, which is to be interpreted broadly and generously to ensure that rights do not become illusory. At the same time, however, the Court was prepared to take a more contextual approach to the issue of proving family status discrimination. Matters of personal choice, such as children’s extracurricular activities, would not be counted among parental obligations requiring accommodation. At paragraph 71, the Court stated:
The childcare obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child. As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.However, the Court was not prepared to only protect employees from “serious interference” with “substantial” parental duties.
Instead, the Federal Court of Appeal established the following test for a claimant to establish a prima facie case of discrimination on the basis of family status:
(i) that a child is under his or her care and supervision;
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(iii) that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
If the employee can establish these four factors, then it falls to the employer to establish that it made all reasonable efforts and is unable to accommodate the employee’s needs without incurring “undue hardship” (on the basis of the so-called Meiorin test).
While the decisions in Johnstone and Seeley do move away from the narrow test applied by the B.C. Court of Appeal in Campbell River (and followed by many labour arbitrators and tribunals), the Federal Court of Appeal has steered a course that appears to balance legitimate parental duties against the employee’s responsibility to pursue available alternatives before requesting modification of workplace rules or policies. Only where this balancing favours the family obligation is the employer’s duty engaged.
This decision emanates from the federal jurisdiction, so it remains to be seen whether it will be applied to claims under the Ontario Human Rights Code. However, given the confusion in the case law from various boards, tribunals and courts across the country, there seems a strong likelihood that it could become the governing approach on this issue. Only time will tell.
Do you have family status issues in your workplace? Need advice and guidance? Feel free to contact Lance Ceaser for assistance.