A Status Update on Family Status
A Status Update on Family Status, Ontario Bar Association, January 19, 2016.
In this article published by the Constitutional, Civil Liberties and Human Rights Law Section of the Ontario Bar Association, Fiona Campbell and Macduy Ngo look at recent decisions clarifying the scope of family status as a ground of discrimination, the legal test for establishing prima facie discrimination on the basis of family status, and the evidentiary burden of potential claimants.
Human rights cases involving discrimination on the grounds of family status often attract a great deal of attention, both within and beyond the legal community. This may well be because the issues involved in these cases seem particularly relevant today, when many in the workforce are attempting to balance child care responsibilities and, increasingly, elder care responsibilities with the demands of their jobs.
When the Federal Court of Appeal released its decision in Johnstone v. Attorney General of Canada (2014 FCA 110), it was seen by many as an important decision in that it dealt with how to interpret and approach the ground of family status in a comprehensive way. However, as with any landmark decision, Johnstone still left some areas of uncertainty, including to what extent it would apply in other jurisdictions.
It has been close to two years since the release of Johnstone and there have now been a number of decisions that have further clarified issues such as the scope of family status, the legal test for establishing prima facie discrimination on the basis of family status, and the evidentiary burden of potential claimants. This article surveys a few notable decisions which should be considered by human rights practitioners and interested observers.
By way of background, the Johnstone case involved a full-time employee of the Canadian Border Services Agency (CBSA), who was subject to an unpredictable “Variable Shift Scheduling Agreement.” In order to fulfill her childcare obligations Fiona Johnstone requested a fixed shift, which could accommodate her schedule. Although the CBSA permitted employees to work fixed shifts, they could only do so on a part-time basis. Ms. Johnstone filed a complaint with the Canadian Human Rights Commission which ultimately came before the FCA.
In reaching its final decision, the Court reaffirmed existing jurisprudence, which has found that family status includes parental and childcare obligations. Although family status may capture childcare obligations, the scope of obligations, which will attract human rights protections is not unlimited. In order to prevent “trivialization” of human rights legislation, “personal family choices” (such as transporting children to extracurricular activities) cannot ground a discrimination claim.
Much like other protected grounds, which generally involve an element of immutability, the FCA held that childcare obligations are covered under family status when the obligations have immutable or constructively immutable characteristics. The court clarified by stating “the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability”. This line of reasoning is intended to draw a clear distinction between parental choice and true obligations.
In an attempt to avoid an unduly burdensome test, the Court of Appeal articulated the following elements of a prima facie case of family status discrimination:
- that a child is under his or her care and supervision;
- that the childcare obligation at issue engages the individual’s legal responsibility for that child;
- 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
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligations.
Interestingly, at least one court subsequent to Johnstone has preferred a less onerous test for prima facie discrimination. The Alberta Queen’s Bench in SMS Equipment Inc. v. CEP, Local 707 (2015 ABQB 162) applied the test in Moore v. British Columbia (Ministry of Education) (2012 SCC 61) when faced with a discrimination claim based on family status. The Moore test is typically applied when other protected grounds are at issue, and requires that a claimant show (1) a protected characteristic; (2) an adverse impact; and (3) a link between the protected characteristic and the impact. Although the Queen’s Bench acknowledged the Johnstone holding, the court commented that “a flexible and contextual application of the Moore test does not justify the application of an entirely different test of prima facie discrimination”.
Establishing a relationship of “care and supervision” under part one of the Johnstone test is typically uncontroversial. However, the decision in Ontario Public Service Employees Union (Bharti) v. Ontario (Natural Resources and Forestry) (2015 CanLII 19330 (ON GSB)) dealt with the care of elder parents as opposed to children, which presented unique challenges.
Although it is presumed that a child under 16 is under the care and supervision of their parent, a similar presumption does not arise between an adult child and an elderly parent. An obligation of supervision arises where the parent is (1) under an individual’s charge; (2) unable to withdraw themselves from this charge due to detention, age, illness, mental disorder or other cause; and (3) unable to provide themselves with the necessities of life. Based on the Grievance Settlement Board’s decision, it appears as if the presence of financial dependency is sufficient to support a finding that a parent is under the charge of an adult child. (para. 28)
Differentiating between legal obligations and personal choices will be another challenge for Courts post-Johnstone. In Flatt v. Canada (Attorney General) (2015 FCA 250, affirming 2014 PSLREB 02), the Federal Court of Appeal once again explored the limits of family status discrimination. The claimant in Flatt requested a number of accommodations, which would allow her to continue to breastfeed her child following her one-year maternity leave while working from home. After her requests were denied, she filed a human rights complaint on the basis of sex and family status.
In applying part two of the prima facie test articulated in Johnstone, the Court found that the claimant’s breastfeeding needs were more akin to a choice as opposed to an obligation or legal responsibility. The Court’s holding is case-specific, and Justice Trudel’s decision does not preclude protection for breastfeeding in future family status cases. Evidence may be adduced to show that a child’s medical condition requires breastfeeding, or that a claimant must continue breastfeeding without expressing milk. According to the Court, “[t]he purpose of such evidence would be to establish that returning to work at the workplace is incompatible with breastfeeding” .
The requirement that a claimant make reasonable efforts to secure alternative childcare arrangements, and the requirement that an interference be “more than trivial” (parts three and four of the Johnstone test) have been explored by Ontario courts. Partridge v. Botony Dental Corporation (2015 ONSC 343, affirmed in 2015 ONCA 836) involved a claimant who suffered reprisals following her return from maternity leave. These reprisals included a change in hours, which purposefully conflicted with daycare arrangements.
Under this new schedule, the claimant was able to provide care to her child through a “complex” arrangement, which enlisted extended family and a neighbour. It was held that this arrangement was unsustainable and did not constitute an alternative solution, which was reasonably accessible. The court found the interference created by the new schedule more than trivial. The claimant’s arrangement inconvenienced family members and would also lead to fees for late daycare pick up. Compensatory damages of $20,000 was awarded under the Ontario Human Rights Code, based on the employer’s deliberate actions and injury to the claimant’s dignity and economic security.
The legal landscape surrounding family status discrimination is continually evolving, and gaps will be filled as courts grapple with the Johnstone framework. The cases which have been outlined offer some insight into the parameters of family status, the test for prima facie discrimination, and the evidentiary challenges which claimants may face. A study of these cases also reveals the difficulty that decision-makers have when dealing with family issues, which are often highly personal and private.
ABOUT THE AUTHOR
Fiona Campbell is a partner in the Ottawa office of Goldblatt Partners LLP. Her practice encompasses human rights, employment, labour, pension and benefits, disability and constitutional and administrative law. Macduy Ngo is the articling student in the Ottawa office of Goldblatt Partners LLP.