In another recent case dealing with family status accommodation, the Human Rights Tribunal of Ontario (“HRTO” or the “Tribunal”) has confirmed its departure from the test outlined in Canada (Attorney General) v Johnstone [“Johnstone”] in favour of the approach adopted in Devaney v ZRV Holdings Limited [“Devaney”]. The HRTO indicated a willingness to apply the Devaney test and endorsed the findings Misetich v Value Village Stores Inc. [“Misetich”], which we wrote about in our blog here. In Misetich, the Tribunal rejected the following legal test for establishing family status discrimination known as the Johnstone test:
- 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.
The Tribunal in Misetich criticized the Johnstone test for treating family status differently from other protected grounds without any principled reason for doing so and proposed the following modified test:
- 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.
New Developments
Until recently, it had been unclear whether the Tribunal would follow the course set in Misetich, but the decision in Ananda v Humber College Institute of Technology & Advanced Learning [“Ananda”] confirms that the Tribunal is intent on using the Misetich test for claims of discrimination on the prohibited ground of family status.
Ananda was a case involving allegations of discrimination under the Ontario Human Rights Code in services by a nursing student who was enrolled in a four (4) year joint program at Humber College Institute of Technology & Advanced Learning (“Humber”) and the University of New Brunswick (“UNB”). Rohan Ananda, the Applicant, experienced difficulties with meeting the requirements of his program, which resulted in the Applicant failing to complete the program within the mandated timeframe and being required to withdraw from the program. The Applicant unsuccessfully appealed his grades in the program and sought an extension to complete the program on the basis that his poor performance was the result of the stress of being a primary caregiver for his elderly mother. Thereafter, he filed a human rights application alleging racial and gender discrimination, later amending the complaint to include age discrimination and family status discrimination.
After addressing the Applicant’s other allegations of discrimination, the Vice Chair addressed Mr. Ananda’s complaint of family status discrimination and in doing so, the Vice Chair revisited the question of what is the appropriate test for assessing family status discrimination.
The Vice Chair stated that, “in [his] view, the correct approach to an allegation of a failure to accommodate on the basis of family status is as set out in [the] decision in Devaney […] which requires demonstration by the Applicant that a rule or requirement had an adverse effect on her or him because of requirements or needs relating to or arising out of the parent-child relationship.” The Tribunal went on to fully endorse the decision in Misetich and the principle that, “in order to constitute a ‘need’ or ‘requirement’ relating to or arising out of the parent-child relationship, it is not sufficient that there just be any negative impact, but that the negative impact must result in real disadvantage to the applicant, arising from the parent-child relationship and the responsibilities that flow from that relationship.”
In concluding that Mr. Ananda had not suffered any family status based discrimination, the Vice Chair found that the Applicant had failed to establish that the needs of his elderly mother and the obligations associated with her care were sufficient to create, “any real disadvantage to the applicant.” Specifically, the Applicant’s primary caregiving responsibilities of taking his mother to appointments, waking her up at night to assist her, bringing her tea and assisting her while she was awaiting cataract surgery were not of a sufficient extent to create any real disadvantage to the Applicant as a result of caring for her, which would give rise to the obligation to accommodate.
The Takeaway
While this case involved discrimination in the provision of services, the principles enunciated by the Tribunal are important for any employer whose employee makes a family status related accommodation request.
When faced with such a request, employers should identify the responsibility arising out of the employee’s parent/child relationship and the burden imposed in the event that the need is not accommodated. As with other requests for accommodation, employers should accept the request in good faith and make the necessary inquiries before determining whether accommodation is necessary. As such, part of the identification process will involve discussing with the employee the request in order to understand the need or requirement, as well as the impact on the parent/child relationship.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.
