Canadian Lawyer InHouse

13 canadianlawyermag.com/inhouse august 2014 By Malcolm MacKillop and stephanie Brown Workplace Solutions T he Federal Court of Appeal in Johnstone v. Canada (Border Services Agency) has clarified the test applicable to discrimina- tion on the ground of family status under the Canadian Human Rights Act. While the test set out by the Federal Court of Appeal applies to discrimination in the federal context, the decision may provide guidance in determining claims of discrimina- tion on the ground of family status under the Ontario Human Rights Code. In the Johnstone case, Fiona Johnstone and her hus- band worked as employees of the Canadian Border Services Agency. As full-time employees, the John- stones worked rotating shift schedules; their schedules changed every 56 days and they were assigned day, afternoon, and evening shifts. As a result of their un- predictable schedules, the Johnstones could not provide reliable care to their two young children. Accordingly, Johnstone requested the CBSA provide her with a fixed shift schedule. The CBSA agreed to pro- vide her with a fixed shift schedule, but only if Johnstone agreed to work fewer hours and accept part-time status. Johnstone brought a complaint to the Canadian Hu- man Rights Tribunal, claiming discrimination on the ground of family status. The tribunal agreed that the CBSA had discriminated against Johnstone and the CBSA appealed the decision all the way to the Federal Court of Appeal. The Federal Court of Appeal also agreed the CBSA had discriminated against Johnstone. In reaching this decision, the Federal Court of Appeal clarified the meaning of "family status" under the act. Family sta- tus includes only those obligations which engage a parent's legal responsibility for a child. Personal par- enting choices, such as family trips or extracurricular activities, are not included. As childcare obligations cannot be neglected without engaging a parent's legal responsibility, childcare obligations are included under the ground of family status. In addition, other decisions have held that elder care responsibilities may also be included under the ground of family status (see Hicks v. Human Resources and Skills Development Canada). The Federal Court of Appeal also provided clarity on the test applicable to claims of discrimination on the ground of family status. To establish a prima facie case of discrimination, an applicant must prove: (i) a child is under the applicant's care or supervision, (ii) the childcare obligation at issue engages the applicant's legal responsibility for a child, as opposed to the ap- plicant's personal parenting choice, (iii) the applicant made reasonable efforts to meet those childcare obli- gations through reasonable alternative solutions, and that no such alternative is available, (iv) the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child- care obligation. Once a prime facie case is established, the respondent must show that accommodating the ap- plicant would be an undue hardship. The Federal Court of Appeal found that Johnstone had met these requirements and stated that Johnstone had made reasonable efforts to find alternate childcare by searching for childcare providers that provided ser- vices outside of her working hours and by asking family members to provide childcare. While hiring a live-in caregiver was raised as a reasonable alternative by the CBSA, the Federal Court of Appeal did not agree, as the Johnstones would have had to purchase a larger house to accommodate the live-in caregiver. The decision in Communications, Energy and Pa- perworkers Union, Local 707 v. SMS Equipment Inc. also provides clarity regarding reasonable alternative childcare solutions. In that case, the applicant had two young children and worked seven days on followed by seven days off, rotating between day and night shift. The applicant requested to be scheduled for day shift only, so that she would not be required to pay for child- care during both the day and night while she worked night shift. It was held that the applicant had experi- enced discrimination in being denied her request. It was further held that the applicant was not required to "self-accommodate" by driving a less expensive truck or pursuing financial remedies against her children's fa- thers in order to pay for childcare. The Federal Court of Appeal in Johnstone provided much-needed clarity regarding the test to be applied to find discrimination. Notably, the test will only re- sult in a finding of discrimination when an applicant can demonstrate that there are no reasonable childcare alternatives available. As a result of this requirement, instances of discrimination will arise only in limited circumstances. IH Malcolm MacKillop and Stephanie Brown practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. Landmark decision clarifies test Federal Court of appeal clarifies test for discrimination on ground of family status.

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