Canadian Lawyer

"This was the next logical step in the continuing evolution of family status as a protected ground, which we have been experiencing over several decades." Stuart Rudner, Rudner MacDonald LLP and courts realized that some women were discriminated against because they had children or were of child-bearing age," says Rudner. "Now you have to accommodate for childcare needs, and you have to do it in the same way as if you were dealing with someone with disabilities or religious obligations." But Rudner says since few employers are students of human rights legislative and jurisprudential history, the decisions in Canada (Attorney General) v. Johnstone and Canadian National Railway v. Seeley came as something of a shock. "I think it's fair to say that a lot of them didn't appreciate it [family status] was something that they had to take seriously," says Rudner. Fiona Johnstone found that attitude prevailed when she approached her bosses at the Canadian Border Service Agency in 2004 to ask for a fixed fulltime schedule to fit in with the childcare arrangements for her one-year-old child, only to be flatly rejected. She had just returned from maternity leave and found her 56-day rotating variable shift impossible to make work with available childcare. Johnstone was eventually offered a fixed part-time schedule with reduced chances for promotion and poorer pension rights under an unwritten policy that employees on static shifts were only allowed to work a maximum of 34 hours per week. According to Mandamin's Jan. 31 decision, Johnstone's district director explained to the CHRT hearing that the CBSA took the view employees with childcare responsibilities, unlike those with religious or medical issues, did not require accommodation. Such requests "were considered the result of a worker's personal choice for which the employer bears no responsibility." Denise Seeley got a similar response in 2005 from CN after the company recalled her to work following a layoff, in order to cover a staff shortage in Vancouver, 800 kilometres from her base in Jasper, Alta. Seeley asked her supervisor first for an extension to consider her options, and then for an exemption under the collective agreement due to her inability to find suitable childcare for her two young children. CN ignored the request according to Mandamin's Feb. 1 decision, and instead wrote to warn Seeley that "while the Company recognizes that your childcare is an important personal responsibility, you must acknowledge that your obligation to CN is to manage these personal obligations in such a way that you are also able to fulfill your employment and collective agreement obligations." Andrew Raven, who has acted for Johnstone throughout her battle, says employers were traditionally bolstered in their perception of family status as a second-class protected ground under human rights statutes by one of the leading cases in the area. In 2004's Health Sciences Assn. of B.C. v. Campbell River and North Island Transition Society, the British Columbia Court of Appeal set a high bar for establishing prima facie discrimination in family status matters, ruling that a case could not be made without a change in employment terms or conditions that seriously interferes with a family obligation. "It imposes a standard that you don't impose with other protected grounds," says Raven. "In Fiona's case, she would never have met the threshold. Her personal circumstances changed, not her terms and conditions of employment." In his decision, Mandamin agreed www.CANADIAN with Raven, finding the serious interference test outlined in Campbell River was "inappropriate." "It creates a higher threshold to establish a prima facie case on the ground of family status as compared to other grounds. Rather, the question to be asked is whether the employment rule interferes with an employee's ability to fulfill her substantial parental obligations in any realistic way," wrote Mandamin. In addition, the judge rejected arguments by both CN and the CBSA that the term "family status" had been interpreted too broadly by the CHRT in its reading of the Canadian Human Rights Act. "It is difficult to have regard to family without giving thought to children in the family and the relationship between parents and children. The singular most important aspect of that relationship is the parents' care for children. It seems to me that if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so," Mandamin reasoned in Johnstone. With some minor alterations, Mandamin also upheld the CHRT's decision to top up Johnstone's wages and benefits to the full-time level, as well as $35,000 in awards for general damages and special compensation. In Seeley's case, the judge confirmed the reasonableness of the decision to reinstate her and awarded her $35,000 for combined pain and suffering, and punitive damages. Both cases are currently under appeal, but many lawyers say the highprofile nature of Mandamin's decisions have already helped boost family status claims, a trend Mississauga, Ont., lawyer Jeffrey Percival expects to continue. "This is an issue that's here to stay. It's on the radars of employees L a w ye r m a g . c o m November/December 2013 51

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