The Johnstone Case Provides Important Guidance on Family Accommodation :: Association of Justice Counsel News
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June 26th, 2014
June 26th, 2014
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The Johnstone Case Provides Important Guidance on Family Accommodation

It remains to be seen on how this case will be applied in the context of elderly care obligations as well, as our population ages

In recent years, courts and tribunals have seen an ever increasing trend in discrimination complaints based on family status.  This multiplicity of complaints before various fora leads to different legal tests developing alongside each other, often providing for vastly different outcomes.  This leads to confusion and uncertainty amongst employees, employers and the legal community.

On May 2nd 2014, the Federal Court of Appeal (FCA) rendered an important decision in Canada (Attorney General) v. Johnstone that will assist employers and employees alike in determining their respective obligations under the Canadian Human Rights Act (CHRA) when the question of accommodation based on family status in the context of childcare arises.  

Mrs. Johnstone and her husband were both Canadian Border Service Agency (CBSA) employees.  Prior to returning to work following her first pregnancy, Mrs. Johnstone asked the CBSA for an accommodation to her work schedule since the varying and unpredictable nature of both her and her husband's shift work did not allow them to find childcare.  

CBSA eventually denied Mrs. Johnstone's request, at which point she, with the support of her union, filed a complaint with the Canadian Human Rights Commission when such complaints could be brought before the Commission even though the grievance process under the collective agreement was still available.  In her complaint, she alleged discrimination on the basis of family status contrary to ss. 3, 7 and 10 of the Canadian Human Rights Act.

The FCA's May 2nd ruling confirmed the CHRT and the Federal Court decisions confirming discrimination.   The FCA made it clear that there can be no hierarchies of human rights.  The test applied to a finding of prima facie discrimination should substantially be the same for all enumerated grounds of discrimination, including family status.  

The FCA proceeded to enumerate the steps in the test to be applied in order to make out a prima facie case of discrimination in the workplace when family status is involved:

i. That a child is under his or her employee's care and supervision;
ii. That the childcare obligation at issue engages the individual employee's legal responsibility for that child, as opposed to a personal choice;
iii. That the employee 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 employee's childcare obligation.

While uncertainty remains in this field and the decision may very well be appealed, the FCA decision, for the time being, will provide stability and some predictability to Canadian employers and employees in the short to medium term governed by the CHRA.   It remains to be seen on how this case will be applied in the context of elderly care obligations as well, as our population ages.

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