March 24, 2015
In a recent decision of the Ontario Superior Court of Justice (“Superior Court”), the test with respect to family status accommodation pronounced by the 2014 Federal Court of Appeal (“FCA”) in Attorney General of Canada v. Johnstone (“Johnstone”) was applied to a like claim made pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
In this Superior Court case, the employee was employed for approximately seven (7) years. The Superior Court found that the employee was initially hired as a Dental Hygienist but spent the last four years of her employment in the position of Office Manager. As the Office Manger the employee enjoyed a flexible work schedule that allowed her to tend to her childcare needs.
Prior to the end of the employee’s second maternity leave, the employer advised her that when she returned to work she would resume her role as a Dental Hygienist and not the position of Office Manager, although the position was still available. The employee reminded the employer of her statutory right pursuant to section 53 of the Employment Standards Act, 2000 (“ESA”) to be reinstated to her former position. As a result of the employee demanding that she be reinstated to her position as Office Manager, the employer changed the employee’s hours of work, knowingly causing a conflict with the employee’s childcare responsibilities. The employee was terminated for cause shortly after the end of her maternity leave.
The employee sued and was awarded the sum of $42,517.44 as damages for wrongful dismissal and $20,000 for discrimination based on family status accommodation under the Ontario Human Rights Code.
Debatably, the Superior Court’s decision could have been restricted to a finding that the employee was wrongfully dismissed as an act of reprisal because she exercised her section 53 rights. However, the reasons for judgment, which were delivered after a written endorsement, opted to examine the full scope of the employer’s infringement and found that the employer’s actions also amounted to discrimination based on family status. In so doing, the Superior Court applied the FCA test articulated in Johnstone.
The test for determining discrimination on the basis of family status with respect to childcare responsibilities requires the employee to show:
- 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, as opposed to a personal choice;
- 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 obligation.
If the employee makes out a prima facie case of discrimination, the employer can refute the employee’s case by showing that the applicable workplace rule is a bona fide occupational requirement.
Although the facts, as set out in the Superior Court’s reasons for awarding the employee’s family status claim are limited, the decision remains a critical one for the simple fact that the FCA test has broad reaching application to provincial human rights legislation and signifies the court’s commitment to hold all employers accountable for recognizing the importance of family status accommodation.
This latest decision of the Superior Court should serve as a reminder to both federally and provincially regulated employers about their duty to properly investigate and evaluate an employee’s request for family status accommodation. As well, the decision stands as a sharp reminder about an employee’s rights under section 53 of the ESA.
Partridge v. Botony Dental Corporation, 2015 ONSC 343