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10 www.canadianlawyermag.com FAMILY STATUS SPECIAL PROMOTIONAL FEATURE The duty to accommodate family status WHILE HUMAN rights legislation is to be interpreted in a consistent manner, the test to establish a prima facie case of discrimi- nation on the grounds of family status varies across Canada. This can create uncertainty for employers and their counsel. We will look at the tests applied in various Canadian jurisdictions, in the contexts of childcare and eldercare – two of the most common requests for accommodation Canadian employers receive. The test for a prima facie case of discrimination In the 2012 decision, Moore v. British Columbia (Education), 1 the Supreme Court of Canada held that, to establish a prima facie case of discrimination under human rights legislation, an employee must demon- strate three things: 1. They have a characteristic protected from discrimination. 2. They experienced an adverse impact. 3. The protected characteristic was a factor in the adverse impact. While some jurisdictions follow Moore, others have established their own, more nuanced tests to establish family status discrimination. These tests reflect the view that only a conflic t be tween a workplace requirement and family status obligation that results in a significant disadvantage is afforded protection under human rights legislation. Federal – the Johnstone decision Two years after Moore, the Federal Court of Appeal in Canada (Attorney General) v. Johnstone 2 established the test for prima facie family status discrimination, in the context of childcare, as follows: 1. A child must be under the employee's care and supervision. 2. The childcare obligation must engage the employee's legal responsibility for the child and not a personal choice. 3. The employee must have made reason- able efforts to meet those childcare obli- gations through reasonable alternative solutions, and there must be no such solution reasonably accessible. 4. The impugned workplace rule must interfere with the fulfillment of the child- care obligation in a non-trivial manner. This decision has been consistently applied to federally regulated employers and expanded to include eldercare obligations. However, in some Canadian jurisdictions, Johnstone has been criticized for being inconsistent with Moore, specifically as it requires an employee to exhaust alternative childcare options before seeking accommodation from the employer. British Columbia – Campbell River 1 & 2 In the 2004 decision, Health Science Association of BC v. Campbell River and North Island Transition Society, 3 the Court of Appeal for British Columbia held that, typically, a prima facie case of family sta- tus discrimination is established "… when a change in a term or condition of employ- ment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee" [emphasis added]. As with Johnstone, Campbell River has been criti- cized for having established a higher thresh- old for family status discrimination than for other protected grounds. Recently, the Court of Appeal for British Columbia clarified its decision, 4 noting that an employee need not establish a change in a term or condition of employment to make out a prima facie case. However, an employee must still demonstrate a serious interference with a substantial parental or other family duty or obligation to trigger any duty to accommodate. The court stated this was consistent with the Moore analysis: … To put this test in terms of Moore, to establish prima facie adverse impact discrimination as a result of a conflict between work requirements and family obligations, an applicant must estab- lish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of employment, and Brought to you by Priya Sarin and Matthew Badrov The test to establish prima facie discrimination varies across Canada