This past year has seen an unsettling of the law surrounding family status discrimination under the Ontario Human Rights Code (the “Code”).
Family status has long been a protected ground of discrimination under the Code and other human rights legislation across Canada. However, courts and administrative decision-makers historically have struggled to consistently approach both the contents of the protection afforded under the ground of family status and the appropriate test individuals must satisfy in order to establish a prima facie case of family status discrimination.
The Johnstone Test
In its 2014 decision in Canada (Attorney General) v. Johnstone (“Johnstone”), the Federal Court of Appeal provided the most authoritative ruling to date on those issues. You can read our blog post about Johnstone here. There, in upholding a Canadian Border Services Agency worker’s claim based on a work schedule that conflicted with her childcare obligations, the Federal Court of Appeal determined that to establish discrimination on a prima facie basis on the ground of family status in relation to childcare, it would be necessary for an individual to show that:
- a child is under the employee’s care and supervision;
- the childcare obligation at issue engaged the employee’s legal responsibility for that child, as opposed to a personal choice;
- 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,
- the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
Establishing a prima facie case of discrimination indicates that the employee’s allegations could amount to discrimination. This is the first step in the analysis by the Human Rights Tribunal of Ontario (the “Tribunal”) to determine whether the employer in fact discriminated against the claimant. Once the employee has established prima facie discrimination, the employer then has the opportunity to prove that it did not discriminate against the claimant, such as by demonstrating that the employer would experience undue hardship if it were to provide the employee with the accommodation sought.
The Johnstone test has since been applied several times in family status cases across Canada, including in Ontario courts and the Tribunal, in situations involving both childcare and eldercare. As such, until recently, it appeared that the Johnstone test would be consistently followed going forward. Two recent Tribunal decisions, however, suggest that it is refining its approach to adjudicating cases of family status discrimination.
First, in Miraka v. A.C.D. Wholesale Meats Ltd. (“Miraka”), the Tribunal considered the case of a delivery truck driver whose employment was terminated after he missed work for two days due to an illness suffered by his wife, their children’s primary caregiver, which rendered her unable to look after them during those days. The Tribunal applied Johnstone, but distinguished the case from Johnstone in a significant material aspect. Whereas the reasoning in Johnstone requires applicants to make reasonable efforts to make alternate arrangements for their childcare needs before an accommodation must be provided by the employer, the Vice-Chair stated that she was “not convinced that the requirement to demonstrate reasonable efforts to make alternative childcare arrangements applies in cases like this, where there is only an infrequent, sporadic or unexpected need to miss work to take care of one’s children.”
The Tribunal then took the Johnstone test to task in its recent award in Misetich v. Value Village Stores Inc. (“Misetich”). There, in response to a repetitive strain injury, a worker was placed on modified duties and advised she may need to work variable hours when performing those duties. The worker refused that accommodation on the grounds that she cared for an elderly parent and that her family status therefore restricted her from working the accommodated schedule that was offered. The employer sought information in line with the Johnstone test, but the most the worker would provide was a medical letter stating that she was her mother’s primary caregiver and that “the hours worked for the past several years… suit her elderly mother’s needs.” The employer terminated the worker’s employment on the grounds that she abandoned her job.
In examining the case law on family status, the Tribunal took issue with the existence of a different test for family discrimination (the Johnstone test) than the test for discrimination on the basis of other protected grounds. The Tribunal stated that there should only be one test, that is, that applicants must establish:
- that they are part of a protected group;
- that they experienced adverse treatment; and
- that the status of being in that protected group was a factor in the adverse treatment.
The Tribunal saw no principled reason for having different tests that result in inconsistent outcomes and effectively place a higher burden on family status applicants than those that experience discrimination with respect to other protected grounds.
The Tribunal found that the Johnstone test, which in the 2015 labour arbitration decision Ontario Public Service Employees Union (Bharti) v. Ontario (Natural Resources and Forestry) was applied in the context of eldercare, “imposes an unduly onerous burden on applicants” by requiring them to show that their legal responsibility for their children (or parents, in the case of eldercare) is impacted by the impugned workplace rule.
The Tribunal in Misetich created a new procedure for an employee to establish that he or she has been discriminated against on the basis of family status with respect to either childcare or eldercare obligations, which is considered to be in line with the general test for all forms of discrimination:
- The employee must show that the workplace rule results in “a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work”, rather than simply showing a mere negative impact on a family need. However, the employee’s legal responsibility in relation to his or her child or parent need not be impacted.
- The employee is not required to “self-accommodate”; however, the impact of the impugned workplace rule must be assessed contextually and the assessment may include consideration of other supports for family-related needs available to the employee.
- Once the employee has established (prima facie) discrimination, the employer then has the onus to show that the employee cannot be accommodated short of undue hardship.
Despite the Tribunal’s critique of the Johnstone test, it found that the worker had not been discriminated against. The Tribunal found that the applicant baldly asserted her family status without providing her employer with enough information to substantiate her eldercare responsibilities. Although the applicant attempted to rely on such information during the hearing, the Tribunal determined that the applicant could, and should, have provided that information to the employer earlier, and that she therefore had not established that the modified shifts offered to her amounted to discrimination.
The Tribunal’s decisions in Miraka and Misetich are significant for employers because they appear to broaden the field of circumstances where workers may demonstrate that they experienced a prima facie case of discrimination on the basis of family status. Under Johnstone, it was accepted that workers would have to show that their childcare obligations engaged their legal responsibilities towards a child, and that they had made reasonable attempts to secure alternate arrangements to fulfill those responsibilities. In Miraka, however, the Tribunal reasoned that “infrequent, sporadic or unexpected absences” would not require the same sort of efforts at finding reasonable alternate arrangements. The Tribunal went a step further in Misetich by outlining the several difficulties it had with the Johnstone test and suggesting its preferred, less onerous approach, to adjudicating claims of family status discrimination.
In Misetich, the Tribunal found that the law of family status remains unsettled. Although Johnstone was certainly authoritative, the Tribunal took care to note that it was not bound by the decision as it emanated from the Federal Court of Appeal before setting out what it considers to be the correct test for family status discrimination. The Tribunal’s critique of persuasive authorities on the law of family status accommodations may be a bellwether of employers’ expanding accommodation obligations. Until clear guidance is received, employers should act carefully and ensure that they understand the specific needs of their employees when confronted with a request for family status accommodation.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.