Employer Obligated to Accommodate Employee’s Childcare Obligations: Attorney General of Canada v. Johnstone

May 2014

Article by: Jennifer Devins

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights (CEER) Newsletter.

In Attorney General of Canada v. Johnstone, 2014 FCA 110, the Federal Court of Appeal issued the latest decision in the long-running saga to determine the scope of family status protection under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”).

Ms. Johnstone was an employee of the Canadian Border Services Agency (“CBSA”), as was her husband. They had two young children.

Prior to returning to work from her maternity leave, Ms. Johnstone sought an accommodation with respect to her work schedule, which would have permitted her to retain full-time status, but have a predictable, fixed work schedule. CBSA employees such as Ms. Johnstone and her husband were otherwise scheduled according to a variable, rotating shift schedule. CBSA was prepared to offer Ms. Johnstone static shifts, but not in full-time hours. CBSA did not argue that it could not offer Ms. Johnstone a static, full-time schedule, but rather that the Act did not require it to do so.

Ms. Johnstone alleged that she had been discriminated against on the basis of family status, contrary to the Act. A lengthy procedural history included Ms. Johnstone’s complaint being initially dismissed by the Canadian Human Rights Commission, which decision was subsequently considered by the Federal Court on judicial review (2007 FC 36), and then by the Federal Court of Appeal (2008 FCA 101). Those decisions resulted in the complaint being reconsidered by the Human Rights Commission, which referred the matter to the Canadian Human Rights Tribunal.

The Tribunal held that the failure to grant Ms. Johnstone a static, full-time schedule was discriminatory on the basis of family status (2010 CHRT 20). The Attorney General sought judicial review, which application was dismissed (2013 FC 113), and subsequently appealed to the Federal Court of Appeal.

The primary focus of the Federal Court of Appeal’s decision was on the scope of the protection granted by the family status ground of discrimination in respect of childcare obligations.

The Court of Appeal first considered the type of childcare obligations that would be sufficient to trigger the protection of the Act. In that regard, the Court held:

… Prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic.

It is also important not to trivialize human rights legislation by extending human rights protection to personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities. …

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. …

… Put another way, the parental obligations whose fulfillment is protected by the Canadian Human Rights Act are those whose non-fulfillment engages the parent’s legal responsibility to the child.

The Court of Appeal also considered the applicable test for prima facie discrimination in claims of family status discrimination. The Court firmly rejected the test for family status discrimination set out by the B.C. Court of Appeal in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, 2014 BCCA 260 (“Campbell River”). Under the Campbell River test, prima facie discrimination is made out “when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”.

In Johnstone, the Federal Court of Appeal stated that the test for prima facie discrimination on the basis of family status is the same test as is applicable to other grounds of discrimination under the Act; however, the Court also held that the test is “flexible” and “contextual”. In the context of family status, the Court of Appeal agreed with the lower court that “the childcare obligations arising in discrimination claim[s] based on family status must be one of substance and the complainant must have tried to reconcile family obligations with work obligations”.

The Court concluded that in order to establish prima facie discrimination on the basis of family status, a claimant must show:

… (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 those childcare obligations 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.

Applying the newly-articulated test to Ms. Johnstone, the Court upheld the Tribunal’s conclusion that she had made out a case of prima facie discrimination on the basis of family status. The Attorney General did not argue that it would have been undue hardship to accommodate her with a full-time static schedule.

Notes for Employers

The Johnstone decision represents yet another approach to family status discrimination, falling somewhere between the Campbell River test that continues to apply to B.C. family status discrimination claims arising in the employment context and the traditional test for prima facie discrimination applicable to other grounds of discrimination.

It is an area that may continue to evolve as adjudicators seek to balance, on the other hand, the desire not to have a hierarchy of human rights where certain grounds of discrimination are more protected than others against, on the other hand, the recognition that employers cannot accommodate all family choices and preferences.

It also remains to be seen how the test articulated by the Court of Appeal in Johnstone may apply to other familial responsibilities, such as eldercare. The Court in Johnstone restricted the protected scope of childcare obligations to the legal obligations of the parent. The legal requirements to provide care for minor children of course exceed the legal requirements to care for parents or other older relatives. In light of the threshold set by the Court, it may be difficult for claimants to establish prima facie discrimination in respect of eldercare obligations in all but the most rare of circumstances where a legal obligation to provide such care can be demonstrated.

When faced with a request to accommodate on the basis of family status, an employer should treat that request with the same seriousness and diligence as a request for accommodation based on disability. Employers would be well-served to inquire into requests for accommodation and obtain more information where necessary prior to granting or rejecting an accommodation request. Employers are entitled to sufficient information to assess an accommodation request, which may include information such as the nature of the family obligation and the efforts made by the employee to reconcile the family obligation against his or her workplace obligations.