Canadian Lawyer

August 2023

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that their family status was a factor in the adverse impact. Alberta and Manitoba – Moore rules the day Prior to 2021, the law in Alberta was incon- sistent with respect to the test for family status discrimination. Some adjudicators adopted Johnstone while others applied an analysis closer to Moore. In a 2021 decision, 5 the Court of Appeal of Alberta confirmed the appropriate test was Moore: ... the nature of human rights and the rule of law, require one uniform and consis- tent test for determining prima facie dis- crimination in all cases. That test was laid down by the Supreme Court of Canada in Moore. There is no legal justification for the imposition in Johnstone of an addi- Priya Sarin and Matthew Badrov are lawyers with Sherrard Kuzz LLP, one of Canada's leading employment and labour law firms, representing employers. Priya and Matthew can be reached at 416.603.0700 (Main), 416.420.0738 (24-hour), or by visiting tional, burdensome element of proof of family status claimants at the prima facie discrimination stage. Imposing a more onerous self-accommodation burden in this manner perpetuates rather than ameliorates human rights inequality… 6 More recently, the Manitoba Court of King's Bench followed suit, 7 stating that, in Manitoba, "a complainant must establish the criteria set out in Moore to demonstrate a prima facie case of family status discrimination under the Code." Ontario – the Misetich test While some Ontario decision-makers have applied Johnstone, most have followed the reasons of the Human Rights Tribunal of Ontario in the 2016 decision, Misetich v. Value Village Stores Inc. In Misetich, the Tribunal recognized that "not every negative impact on a family obligation, or conflict between a family and work obligation, is discriminatory," and to establish family status discrimination, an employee must establish a negative impact on a family need that results in "real disadvantage" to the parent/child relationship and the responsibilities that flow from that relationship. The assessment of impact is contextual and may include consideration of "other supports" available to the employee, like in Johnstone. However, unlike in Johnstone this does not require an employee to exhaust all attempts to find a solution to the work/family conflict prior to an accommodation request The role of "reasonable options" As we now know, in some jurisdictions, whether an employee has a reasonable option for childcare or eldercare is not rel- evant to the question of whether there is a prima facie case of discrimination. By contrast, the availability of reasonable care options is almost always relevant to the question of accommodation. In other words, even in jurisdictions that strictly apply Moore, care options continue to be relevant to the issue of accommodation. This is because accommodation is frequently described as a "multi-party" obligation and an employee has a duty to look for solutions and options that may reduce the work/ family conflict. The availability of reasonable care options is therefore an appropriate consideration at the right time and place. To learn more and for assistance, contact the human rights leaders at Sherrard Kuzz LLP. 11 1 2012 SCC 61 ("Moore"). 2 2014 FCA 110 ("Johnstone"). 3 2004 BCCA 260 ("Campbell River"). 4 British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168. 5 United Nurses of Alberta v. Alberta Health Service, 2021 ABCA 194. 6 Leave to appeal to the Supreme Court of Canada denied. 7 Desai v. North Ridge Development Corporation, 2023 SKKB 3.

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