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given concerns that the "serious interfer- ence" standard set out in Campbell River is too restrictive and imposes an undue burden on people claiming discrimina- tion on the basis of family status. "It's opening the door to different standards of prima facie [proof] varying with the ground," says Andrew Raven, a labour relations lawyer with Raven Cameron Ballantyne & Yazbeck LLP in Ottawa. "That's certainly not the case in any other ground. We don't ask whether this is a serious interference." Raven was making that argument in June before the Canadian Human Rights Tribunal dealing with the long- standing case of Fiona Johnstone ver- sus her employer, the Canada Border Services Agency. It has been mak- ing its way through the legal system for years after the Canadian Human Rights Commission declined to pur- sue Johnstone's claims of discrimina- tion in 2005. Johnstone then requested a judicial review of that move by the Federal Court, which sided with her and ordered the commission to reconsider. The Federal Court of Appeal subse- quently agreed, leading to the current proceedings before the tribunal. At issue is Johnstone's request for a fixed schedule for her full-time customs job at Pearson International Airport in Toronto. After returning from mater- nity leave in 2004, she claimed rotat- ing shifts no longer meshed with her child-care responsibilities, leading her to seek accommodation. But the CBSA responded that fixed schedules were only available on a part-time basis except for medical reasons, a policy that effectively capped her work week at 34 hours. As a result, a commission investigator decided Johnstone did have a case, a recommen- dation the agency nevertheless rejected. In doing so, the commission appeared to be applying the Campbell River test of a serious interference with Johnstone's parental responsibilities, according to Federal Court Justice Robert Barnes. The judge criticized that approach, not- ing that the Canadian Human Rights Tribunal had already established a more liberal take on questions of family status in Hoyt v. Canadian National Railway. "I would also add that to limit family status protection to situations where the employer has changed a term or condi- tion of employment is unduly restrictive because the operative change typically arises within the family and not in the workplace (eg. the birth of a child, a family illness, etc.)," he wrote. "The sug- gestion by the court in Campbell River . . . that prima facie discrimination will only arise where the employer changes the conditions of employment seems to me to be unworkable and, with respect, wrong in law." As a result of that ruling as well as the test set out in Campbell River, people like Carleton University law professor Michael Mac Neil say questions of family status discrimination in the workplace — and employers' duty to accommodate such requests — are murky. "I think there is some conflict," he says. "So we cannot say definitively yet what it is." A balanced approach recognizes that learning is a two-way street. The most productive relationships are born of mutual understanding. That's why we're as committed to learning about a client's business as we are to helping clients understand the intricacies of labour law. Toronto 416.408.3221 I London 519.433.7270 I filion.on.ca www. C ANADIAN Law ye rmag.com A UGUST 2009 39 lion_CL_Feb_09.indd 1 1/20/09 3:48:02 PM