A look at the tests for accommodation in British Columbia and Ontario
The nature of family status accommodation is frequently evolving in Canada and it may be difficult to keep track of what elements employers are obligated to accommodate. This is the first in a two-part series exploring the various tests being used to establish family status discrimination in Canada and what employers must understand. First, we look at the tests established in British Columbia and Ontario. Next issue, the evolution of family status accommodation in Alberta and the bottom line for employers will be discussed.
Millennials are now the demographic that makes up most of Canada’s workforce, and many want their jobs to fit with their lives and the lives of their family members. It is important for employers to adapt to their needs, and family-friendly employers will be better able to attract and retain employees. Moreover, we are seeing a trend to modernize Canadian employment legislation, including the inclusion in some statutes of the right to request flexible work arrangements. Employers that demonstrate a desire to meet the family demands of their employees demonstrate that they are in sync with this legislative trend.
When employees complain that they have been discriminated against by their employer on the basis of their family status, the employer’s image may be tainted as being family unfriendly, even when the complaint is unfounded. Although human rights statutes across Canada prohibit family status discrimination, there are generally fewer family status complaints when compared to other grounds of discrimination. Most family status complaints relate to discrimination in employment, but even these complaints are uncommon. Nonetheless, employers in Canada should be familiar with the unsettled legal approach to family status discrimination. Adjudicators use different tests to analyze whether an employer has a duty to accommodate family status and the standard is more stringent in some jurisdictions than in others.
Although it is clear which tests apply to federally regulated employers and employers in British Columbia and Alberta, there is significant confusion in other jurisdictions where new tests have emerged creating a “family status” landscape filled with inconsistencies. This uncertainty leaves employers, especially those that have operations in multiple Canadian jurisdictions, facing a confusing landscape.
British Columbia: The Campbell River test
In the spring of 2019, the B.C. Court of Appeal applied the high burden test for establishing family status discrimination — set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society — in its decision Envirocon Environmental Services ULC v. Suen. The Supreme Court of Canada later dismissed an application for leave to appeal from the decision, confirming that the Campbell River test remains good law in British Columbia.
The Campbell River test sets out that a prima facie case of discrimination on the basis of family status is made when:
• There is a change in a term or condition of employment imposed by an employer
• The change results in a serious interference with a substantial parental or other family duty or obligation of the employee.
In Suen, the employee was dismissed for cause when he refused an assignment to manage a project in Manitoba for between eight and 10 weeks because he wanted to stay close to home to assist his wife in caring for their four-month-old baby. The Court of Appeal concluded that the employee could not satisfy the restrictive second step of the Campbell River test, as “he is no different from the vast majority of parents” and there was nothing in his materials to suggest that his child would not be well cared for in his absence.
In contrast, the employee in Campbell River was able to establish a prima facie case of discrimination on the basis of family status. Her son had specific needs due to severe behavioral issues, and when her employer changed her work shift, she could not care for him after school. The court viewed this as a serious interference with a substantial parental obligation.
The contrast between the outcomes in Suen and Campbell River suggests that, in British Columbia, employees must demonstrate that a change in the terms or conditions of employment seriously interferes with a parental or other family duty that is more substantial than regular duties faced by the vast majority of others in their position, and that this interference may result in the child or other family member being made vulnerable in their absence. In British Columbia, it is not enough for the employee to have a desire to perform the parental or other family duty, there must be a need to perform the duty and no one else available to perform it.
Federal and others outside B.C. and Alberta: The Johnstone test
A four-part test for establishing a prima facie case of family status discrimination in the workplace, set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, is applied consistently in the federal jurisdiction and often in jurisdictions outside British Columbia and Alberta.
The employee, Johnstone, and her husband were both full-time employees working unpredictable rotating shift schedules. Prior to returning from her first maternity leave, Johnstone requested static shifts on a full-time basis. The employer, however, denied this request, stating it had no legal duty to accommodate her childcare responsibilities. The employer offered Johnstone static shifts for 34 hours per week, which would result in her being treated as a part-time employee with fewer employment benefits and pension entitlements than a full-time employee. Johnstone filed a complaint alleging discrimination on the basis of family status.
The Federal Court of Appeal declined to adopt the test set out in Campbell River because that test establishes a higher threshold for a finding of prima facie discrimination on the ground of family status than for other prohibited grounds. Instead, the court established the following four-part test, which is less onerous because it does not require the interference to be “serious” and the parental or other family duty or obligation to be “substantial.”
The individual advancing the claim must show that:
• A child is under his or her care and supervision
• The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice
• 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
• The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The Federal Court of Appeal applied this test and found that Johnstone established a prima facie case of family status discrimination because:
• She had two toddlers under her care and supervision, a responsibility she shared with her husband
• Her childcare obligations engaged her legal responsibilities as a parent; they were not a personal choice
• She made serious but unsuccessful efforts to secure reasonable alternative childcare arrangements that would allow her to continue to work her rotating and irregular work schedule
• Her regular work schedule interfered in a manner that was more than trivial or insubstantial with the fulfillment of her childcare obligations.
Ontario: Johnstone and Misetich tests
In Ontario, a new approach has emerged for establishing a prima facie case of family status discrimination in the workplace. In Misetich v. Value Village Stores Inc., the Human Rights Tribunal of Ontario (HRTO) rejected the Federal Court of Appeal’s test in Johnstone, when an employee alleged that a proposed change to her work schedule discriminated against her due to her eldercare responsibilities.
The employee had a role in production at the back of the employer’s store and she developed a repetitive strain injury. When her family doctor provided a Functional Abilities Form outlining the employee’s restrictions, the employer offered temporary, modified duties. However, her shifts and hours could vary and include days, nights and weekend shifts. The employee declined the offer, stating the hours would place a hardship on her because she prepared evening meals for her elderly mother. When asked to provide information on her mother’s health needs, the employee refused, stating that her employer was not entitled to private information about her mother. The employer terminated her employment for job abandonment when she did not attend work for her scheduled shifts.
The HRTO rejected the Johnstone test and other tests for establishing family status discrimination on the basis that the test should not be different from the test for other forms of discrimination. It noted that the various tests applied by different courts and arbitrators result in inconsistency and uncertainty, with some more stringent than others, and “perhaps inadvertently” creating a test for family status discrimination that is more stringent than the tests used for other kinds of discrimination. The HRTO also emphasized that the test of legal responsibility is difficult to apply in the context of eldercare, as “an adult child’s legal responsibility to provide care for his or her elderly parent is not as clear as a parent’s legal responsibility to care for his or her minor child.” Finally, the HRTO criticized some of the cases for conflating the test for discrimination and accommodation, stating that applicants should not have to establish that they could not “self-accommodate the adverse impact caused by a workplace rule.”
The HRTO set out the following test for establishing family status discrimination in the context of employment:
• The employee must establish a negative impact on a family need that results in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship or to the employee’s work.
• An assessment of the impact of the impugned rule must be conducted contextually and may include consideration of other supports available to the employee.
• Once discrimination is established, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship. It is at this point that the question of whether the employee co-operated in the accommodation process is considered, including providing the employer with sufficient information relating to the family-related needs and working with the employer in identifying possible solutions to resolve the family/work conflict.
The HRTO noted that the employer heard about the full scope of the employee’s eldercare responsibilities for the first time during the hearing — previously, the employee told the employer only that she prepared evening meals for her mother. The HRTO emphasized that it was required to decide the case on the basis of the information provided by the employee at the time of the alleged discrimination rather than on the basis of the information provided at the hearing.
The HRTO concluded that the employee could have worked days, evenings and weekends and still have provided evening meals for her mother. As the employee failed to establish that the modified shifts proposed by the employer discriminated against her on the basis of her family status, the HRTO dismissed the application.
It is unclear whether the Johnstone test or Misetich test is considered the correct test to be applied in Ontario for establishing a prima facie case of family status discrimination. In a recent HRTO decision, Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, the adjudicator seemed unsure and did not make any pronouncements about which test applied. Instead, it noted, “Whether I apply the test of the Federal Court of Appeal in Johnstone, or the test as set out in Misetich, I come to the same conclusion.” Adding to the confusion, one month later, in Linklater v. Essar Steel Algoma Inc., a different adjudicator at the HRTO stated that he agreed with the conclusion in Misetich, “that the test for discrimination on the basis of family status is no different, and, in particular, no higher than for other grounds under the Code.” He made no mention of the Johnstone test.
For more information, see:
• Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (B.C. C.A.).
• Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (B.C. C.A.).
• Canada (Attorney General) v. Johnstone, 2014 FCA 110 (F.C.A.).
• Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (Ont. Human Rights Trib.).
• Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10 (Ont. Human Rights Trib.).
• Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273 (Ont. Human Rights Trib.).
ABOUT THE AUTHOR
Rhonda B. Levy is a knowledge management counsel for Littler LLP in Toronto, monitoring legislative, regulatory and case law developments. She can be reached at (647) 256-4545 or [email protected]
Barry Kuretzky is a partner with Littler LLP in Toronto, practising workplace law and labour relations. He can be reached at (647) 256-4503 or [email protected]