Family status accommodation at centre of case
The Law Times reports on a recent wrongful dismissal decision of the Ontario Superior Court of Justice which raised an issue of discrimination on the basis of family status.
The case involved an employee whose position required her to be at work by 8:30 a.m. The employer had been somewhat lax in enforcing this requirement in the past. However, when the employee sought to return to work following a maternity leave, the employer advised her that there had been changes in the company’s operations which meant that she was now required to consistently be at work by 8:30 a.m.
The employee was unable to arrange before-school child care for two older children, and therefore never returned to work. She sued the employer for wrongful dismissal and breach of the Employment Standards Act, 2000. She also alleged that the employer had discriminated against her, contrary to the Ontario Human Rights Code, by refusing to accommodate her childcare needs by allowing her to begin her workday at 10:00 a.m.
The Court dismissed the action. On the issue of accommodation, it reviewed the approaches in competing case law. It ultimately rejected the employee’s claim of discrimination on the basis that, whatever approach was taken, the employee had failed to provide the employer with key information about her child care needs; the efforts she had made to secure before school care; and the dates she was required to pay for daycare or risk losing her spots. The court concluded that, by failing to disclose this information, she frustrated any efforts that might have been made by the employer to accommodate her.
In reviewing the case, the Law Times spoke to Heather Ann McConnell:
The decision shows how “the court is still grappling, to some degree, with how to analyze and apply the duty to accommodate family status in Ontario,” says Heather Ann McConnell, a partner at Goldblatt Partners LLP in Toronto.
McConnell says the question of what the right test is “hasn’t been fully settled by the court in this case.”