Workplace Accommodation for Childcare Obligations Upheld by the Federal Court of Appeal

May 14, 2014

The recent unanimous decision of the Federal Court of Appeal in Attorney General of Canada v. Johnstone[1], makes it clear that family status within the Canadian Human Rights Act (the “CHRA”) includes parental childcare obligations, which requires accommodation by employers.  This decision serves to illustrate the need for flexible and inclusive work environments for employees with restrictive childcare obligations.

Fiona Ann Johnstone (“Johnstone”) alleged that she was discriminated against by her employer, the Canadian Border Services Agency (“CBSA”), on the basis of family status, specifically due to her parental obligations.  Johnstone was employed as a border services officer and worked rotating shifts.  However, in order to allow Johnstone to arrange childcare for her young children, she requested full-time employment which would afford her fixed day shifts.  In 2010, the Canadian Human Rights Tribunal (the “Tribunal”) found that Johnstone had proven a prima facie case of discrimination on the basis of family status and furthermore, that the CBSA failed to prove that accommodating Johnstone’s request would create undue hardship.

The Attorney General of Canada applied for judicial review of the Tribunal decision on the following issues:  (a) whether “family status” includes parental childcare obligations; (b) whether the Tribunal applied an incorrect test for finding prima facie discrimination based on family status; and, (c) whether the remedial orders of the Tribunal were appropriate.

On judicial review, the Federal Court found in favour of Johnstone and dismissed the application with only a slight variation to the remedy granted.  On appeal by the Attorney General, the Federal Court of Appeal (the “FCA”) considered whether the Tribunal committed a reviewable error in concluding that family status includes childcare obligations.  In addition, the FCA considered whether there was a reviewable error in: (a) identifying the legal test for finding a prima face case of discrimination on the ground of family status, (b) finding a prima facie case of discrimination on the basis of family status was made out in this case; and, (c) in respect to its remedial orders.

In a unanimous decision of the three judge panel of the FCA, written by Mainville J.A., the Court found that
“[p]rotection from discrimination for childcare obligations flows from family status in the same manner that protection against discrimination on the basis of pregnancy flows from the sex of the individual.”[2]  The FCA rejected a more narrow interpretation advocated for by the appellant, stating that human rights legislation must be interpreted broadly to ensure that the objects and purposes of the legislation are fulfilled.[3]  However, the FCA made it clear that not all childcare responsibilities are to be accommodated under the CHRA.  The FCA stated that the childcare obligations that are contemplated under the category of family status in the CHRA “should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.”[4]  A parent cannot leave a child at home without supervision in order to attend at work; accordingly, this would have an immutable characteristic.  This is to be contrasted with personal family choices such as “participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities.”[5]  The FCA notes that human rights legislation should not be trivialized to extend protections to personal family choices such as these and as such, they would “not normally trigger a claim to discrimination resulting in some obligation to accommodate by an employer.”[6]

The FCA noted that the prima facie discrimination test is the correct legal test to be applied, stressing that the test should not be defined in more precise terms as it must be sufficiently flexible to advance the broad purpose of the CHRA and is to be applied in a contextual way.

After analyzing the relevant jurisprudence, the FCA noted the following factors that an individual advancing a claim under family status must establish, as follows:

1. 1. that a child is under his/her care and supervision;
   2. that the childcare obligation engages the individual’s legal responsibility for that child, as opposed to a personal choice;
   3. that he/she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
   4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.[7]

The FCA found that there was no reviewable error in the Tribunal’s determination that Johnstone had made out a prima facie case of discrimination on the basis of family status.  As the appellant had not asserted any bona fide occupational requirement or an undue burden in providing Johnstone with fixed shifts, the Tribunal’s ruling was upheld.[8]  The FCA made two slight variations on the remedial award; however, Johnstone was largely successful on the appeal.

The Johnstone case should serve as a warning to employers that all requests for accommodation, including those for family status, must be properly considered and responded to.  In evaluating requests for accommodation on family status, employers should consider the factors set out by the FCA, and respond in accordance with their obligations under the CHRA.  Failure to do so may result in liability to employers.

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