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LEGAL REPORT/Labour & employment and employers," says Percival, who heads up the labour and employment practice group at Pallett Valo LLP. "It's become an increasingly common issue both in human rights cases and in civil cases involving wrongful dismissal claims." According to Percival, the decisions could have consequences for accommodation beyond childcare cases, to include elder care matters, leaving employers particularly exposed to claims from employees in the so-called "sandwich generation." Last year, in Devaney v. ZRV Holdings Ltd., the Ontario Human Rights Tribunal found an employer had discriminated against a fired employee who was dismissed for leaving work early to take care of his sick mother. He was awarded $15,000 damages for injury to dignity. "More and more people are struggling with the burden, not only of being a parent, but also of looking after their own elderly parents who need care. They're unable to make both their work life and personal life meet," says Percival. But if employers fear an opening of the floodgates, Jennifer Birrell of Ottawa's Emond Harnden LLP says they should take comfort from Mandamin's qualification that prima facie discrimination will only be found where there is interference with the employee's "substantial parental obligations." Although it's not clear exactly what circumstances will trigger a duty to accommodate, "it is clear that not every single conflict between childcare and work will," says Birrell. Rudner agrees, saying, "this is not carte blanche for people with children to decide their hours of operation." Andrew Zabrovsky, of employment firm Hicks Morley Hamilton Stewart Storie LLP, says some employees and unions may get the wrong idea about family status discrimination because of the extreme fact situations in Seeley, and particularly Johnstone. "It was a bit of a perfect storm, where the employ- Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com 52 November/December 2013 www.CANADIAN L a w ye r m a g . c o m ee couldn't care for the child, and the employer had taken the position that they weren't going to provide accommodation, even though they were doing it for people in other situations, which was not a good situation for the employer," he says. "The real test is going to be how it plays out in situations where there's not the same sort of shift scheduling or family dynamic." He says a good way for employers to think about which requests will trigger the duty to accommodate is by dividing them into "wants" and "needs." "I think there is an obligation on the employee to take steps to help themselves or self-accommodate, and demonstrate a legitimate need for a particular schedule . . . if they're looking for preferences, like they don't want to pay for childcare, or they want straight night shifts so they can spend time with their kids in the day, those aren't the type of case that the act is meant to remedy," says Zabrovsky. "At the end of the day, it's about CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL MORE THAN 6,145 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. ORDER# 804218-62303 $365 804218-62303 2 volume looseleaf supplements per year Supplements invoiced separately 0-88804-218-3 CD-ROM or Internet version available separately Prices start at $4 AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.ca .c Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK®

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