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Johnstone was able to meet the high test in part because of the nature of both her and her husband's employment, which required them to work rotating shifts. The tribunal accepted the Johnstones could not afford to hire a live-in nanny because this would require the family to purchase a larger home. The tribunal also accepted that extended family members could not be expected to care for the children because of the unpredictability of the Johnstones' work schedules. Furthermore, an expert witness testified that the unpredictability of the Johnstones' rotating shifts made childcare arrangements next to impossible. Without the presence of such specific facts it is unlikely an employee would be able to prove they are unable to fulfil their parental obligations in "any realistic way." For example, if Johnstone had worked a fixed day shift, the decision of the tribunal and the Federal Court would likely have been different, because Johnstone would have been able to handle childcare arrangements. An important factor working against the CBSA was its willingness to accommodate other employees with disabilities and religious beliefs. The tribunal found the CBSA conducted individual assessments of employees who sought to avoid rotating shifts for either medical reasons or on religious grounds, and allowed these employees to maintain full time hours while working fixed shifts. In this way, the CBSA was found to have given preferential treatment to employees with certain characteristics protected by the Canadian Human Rights Act, while denying the same treatment to employees with other protected characteristics, namely family status. Once this was established it was impossible for the CBSA to prove that rotating shifts were a bona fide occupational requirement for full-time employees, or that accommodating Johnstone would cause the CBSA to suffer undue hardship. There are two important lessons to be learned from the Johnstone case. First, while the Federal Court affirms employers have an obligation to accommodate the childcare needs of its employees, from a practical standpoint that obligation will arise in limited circumstances. The abil- ity to establish such a claim will likely be limited to those employees who work shifts at a time when day care is unavailable; have no extended family; or live in a geographic area with limited daycare options. Second, employers need to remember there is no "hierarchy of rights" under human rights legislation. If an employee with a disability can be accommodated at work through, for example, a flexible work hours arrangement, an employer will have a very hard time convincing a human rights tribunal such an arrangement cannot be provided to another employee seeking accommodation on the ground of family status. IH Malcolm MacKillop and Todd Weisberg practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. SPECIALIZATION IN BUSINESS LAW Part-time, Executive LLM program for corporate counsel and practising lawyers U of T (GPLLM) 1/2 island Taught by U of T Faculty of Law professors, together with top international faculty from MIT-Sloan School of Management and expert practitioners. TIME: EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E LLM_IH_Apr_13.indd 1 june 2013 • 15 13-02-26 4:07 PM

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