Johnstone - Federal Court of Appeal Decision

The decision of Johnstone, where the Canadian Human Rights Tribunal found discrimination on the ground of family status, by the employer, the Canada Border Services Agency was appealed to the Federal Court for judicial review in 2013. The Federal Court upheld the CHRT decision, and the matter was further appealed to the Federal Court of Appeal who rendered a decision earlier this month. This decision provides further insight into what will trigger the protection of family status under human rights law.
 
The childcare obligations that are contemplated under family status should be those that have absolute or constructively indisputable characteristics, such as those that form an integral component of the legal relationship between a parent and a child. As a result, the childcare obligations at issue are those, which a parent cannot neglect without engaging his or her legal liability. Thus a parent cannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect, which in extreme examples could even engage ss. 215(1) of the Criminal Code.
 
Distinguishing activities that result from "personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities" from those that arise from parental obligations, whose "fulfillment is protected by the Canadian Human Rights Act and whose non-fulfillment engages the parent's legal responsibility to the child," the Court ruled that only the latter kind of childcare obligation is included under the ground of family status under the Code. Justice Mainville explained this distinction further, stating:
 
Voluntary family activities, such as family trips, participation in extracurricular sports events, etc. do not have this immutable characteristic since they result from parental choices rather than parental obligations. These activities would not normally trigger a claim to discrimination resulting in some obligation to accommodate by an employer.
 
Legal Test to Establish a Case:
 
 (a) Whether the complainant has demonstrated a prima facie case of discrimination, which requires him or her to show that he or she has a characteristic that is protected from discrimination, that he or she experienced an adverse impact with respect to employment, and that the protected characteristic was a factor in the adverse impact, and
 
(b) Once that is made out, a consideration of whether the employer can show that the policy or practice is a bona fide occupational requirement, and that those affected cannot be accommodated without undue hardship.
 
There was a question regarding whether there should be a different test for family status cases vs. that used in the other enumerated grounds under the Human Rights Code. The Court determined the test is the same as there should be no hierarchies within human rights. It did, however, outline that the test must be contextual and applied case by case, including the following criteria being met:
 
In order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must satisfy four tests. To quote Justice Mainville:
 
I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show
 
i.That a child is under his or her care and supervision;
 
ii.That the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice
 
iii.That he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and
 
iv.That the impugned workplace rule interferes, in a manner that is more than trivial or insubstantial, with the fulfillment of the childcare obligation
 
 
However, the Court did place a number of limitations on the circumstances in which employees can seek accommodation for childcare obligations with respect to family status discrimination.
 
Therefore, although employers may be required to modify employees' duties in some cases where childcare obligations cannot be balanced with workplace obligations, this decision makes it clear that the parental obligations in question have to engage the employee's legal responsibility and have an "immutable or constructively immutable characteristic," and that employees seeking accommodation on the basis of family status will have to demonstrate that the interference in question is more than trivial or insubstantial, and that they have made significant efforts to self-accommodate. Accommodation is thus restricted to childcare needs, the failure to provide which can attract legal liability, and excludes childcare preferences and voluntary activities.
 
It appears as though the Court has attempted to strike a balance between the needs of employers and those of parents who wish to "fully participate in the work force so as to make for themselves the lives they are able and wish to have.

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