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Recent Developments in Family Status Accommodation: A Three-Headed Monster of Approaches?
Workwise

Recent cases dealing with the protected human rights ground of “family status” provide employers with some additional guidance (and confusion) regarding the scope of their obligations, as courts, arbitrators and tribunals continue to try to balance the childcare obligations of working parents and the legitimate business needs of employers.

In the case of Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10 (“Simpson”), the Ontario Human Rights Tribunal examined the situation of an employee named Jessica Simpson who was married with two young children, ages 2 and 5. Ms. Simpson’s eldest child had autism and it was essential that a caregiver meet this child at the family’s home where the school bus delivered him each weekday.1

At one point during her employment, Ms. Simpson’s employer began discussing moving her from her usual 7:00 a.m. - 3:00 p.m. day shift to the later afternoon shift of 3:00 p.m. – 11:00 p.m.2 Ms. Simpson wrote to management to explain that she was unable to work the later shift because of her children’s schedule, and due to problems she was having finding flexible daycare.3 Soon thereafter, a midnight shift became available which Ms. Simpson expressed interest in, as it would work better for her than the late afternoon shift (3:00 p.m. – 11:00 p.m.) in terms of her family obligations.4 Following a discussion with her manager, she was advised that she would be able to work the midnight shift instead of the late afternoon shift, starting in about 2 months’ time.5

However, just over a month later, Ms. Simpson was told that she would not be receiving the midnight shift because she had called in sick without giving sufficient notice. To no avail, Ms. Simpson protested that she could not control or predict when she fell ill.Following her refusal to work the late afternoon shift on Fridays and Saturdays, the company terminated Ms. Simpson’s employment citing a number of reasons she did not understand, including: “attendance”; “failure to follow instructions”; “conduct”; “creating disturbance”; “performance”; and “work quality”.7

The Ontario Human Rights Tribunal (“Tribunal”) concluded that the company’s stated reasons for the termination were not based in fact.8 Rather, the Tribunal found “that at least one of the real reasons for the termination, if not the only reason, was [Ms. Simpson’s] unavailability for certain shifts caused by her need to provide care to her children.”9 The Tribunal also found that the midnight shift could have easily been given to accommodate Ms. Simpson’s childcare schedule.

In its analysis, the Tribunal reviewed the Federal Court of Appeal’s decision in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (“Johnstone”), a decision we previously reported in Workwise, and a previous Ontario Human Rights Tribunal decision named Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (“Misetich”). These cases highlight a divergence in approaches used by adjudicators in Canada when dealing with family status complaints.

Briefly, on one hand, the Johnstone line of cases (generally considered to be more useful and favourable for employers) requires a complainant to take reasonable “self-accommodation” steps before there is a finding of prima facie discrimination. On the other hand, the approach adopted in the Misetich case (and by the Alberta Court of Queen’s Bench10) is arguably somewhat more restrictive, analyzing steps that the complainant has taken to “self-accommodate” only after there is a finding of prima facie discrimination following the traditional three-part test for discrimination set out by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII). We also note that there exists a third line of case law which was recently espoused by the British Columbia Court of Appeal in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46, which follows a previous decision of that court in Campbell River.11 Under this third line of authority, a complainant must meet a significantly more restrictive test in establishing there has been a change in a term or condition of their employment that resulted in a serious interference with a substantial parental or other family duty or obligation.

In our view, employers outside British Columbia should be wary of following the approach from Envirocon and Campbell River, as the Supreme Court of Canada has already signalled in other human-rights related decisions that in assessing whether a prima facie case of discrimination can be established, a complainant need only demonstrate that their protected characteristic was "a factor" in the adverse treatment.  Nonetheless, we expect the Supreme Court of Canada will be called upon to deal with these divergent approaches in the coming years.

Returning to the Simpson case, the Tribunal held that it arrived at the same conclusion regardless of the approach it used: Ms. Simpson had been discriminated against on the basis of her family status. In the circumstances, the Tribunal awarded Ms. Simpson $30,000 in compensation for injury to dignity, feelings and self-respect.

The Simpson case offers a concrete set of facts which may give rise to a finding of discrimination on the basis of family status. This case may be particularly helpful for employers who have around-the-clock shifts.

However, as highlighted by yet another recent case dealing with the protected ground of family status, an employee seeking accommodation for family status will in any event be required to show more than the mere existence of child care costs or child-care responsibilities. In Edmonton (Police Service) v Edmonton Police Association, 2019 CanLII 9456 (AB GAA) the arbitrator took care to specify that the threshold is higher:

The mere fact that one has child-care responsibilities is not sufficient to constitute an obligation for an employer to provide accommodation. There must be something more about the fact of having a family in order to constitute discrimination requiring accommodation. Otherwise, the burden of providing child care would fall on employers in every case. That cannot be the purpose of subsection 7(1) of the Alberta Human Rights Act.

Because the Supreme Court of Canada has yet to weigh in on family status discrimination specifically in light of these various approaches to and clarify which exact legal test is the correct one to follow, employers will want to consider these decisions carefully and ideally seek legal assistance when dealing with employee requests for accommodation based on child-care and similar family-related responsibilities. Field Law’s Labour and Employment Group can help employers determine how to deal with such requests.

 

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10 SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162; see also : United Nurses of Alberta v Alberta Health Services, 2019 ABQB 255 (CanLII).
12 Heath Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (CanLII).