Canadian HR Reporter

CANADIAN HR REPORTER JUNE 2019 EMPLOYMENT LAW 5 Family status accommodation: Where do we stand? Following the 2014 Federal Court of Appeal decision in Johnstone v Canada, employ- ers across Canada were optimistic there would be some certainty regarding the appropriate test to establish family status discrimination. Unfortunately, any such certainty was short-lived, as adjudicators in Ontario, Alberta and Brit- ish Columbia have rejected the Johnstone approach. e result was — and remains — inconsis- tency among the various Cana- dian jurisdictions, despite state- ments from the Supreme Court of Canada that human rights ju- risprudence is to be interpreted consistently. So, where do we stand on the issue of family status accommo- dation? Let's recap. e Johnstone test In Johnstone, the employer was asked to accommodate schedule changes associated with an em- ployee's childcare responsibili- ties. e Federal Court of Appeal held that in order to successfully claim discrimination on the basis of family status, an employee had to demonstrate four things: • e child was under the employ- ee's care and supervision. • The childcare obligation en- gaged a legal responsibility for the child, as opposed to a per- sonal choice. • The employee had f i rst made reasonable efforts to self-accommodate. • e impugned workplace rule interfered with the fulfillment of the childcare obligation in a way that was more than trivial or insubstantial. ereafter, the employer must determine if it is able to reason- ably accommodate the employ- ee's family status needs, to the point of undue hardship to the employer. Ontario and Alberta reject Johnstone On Sept. 20, 2016, the Human Rights Tribunal of Ontario (HRTO) released its decision in Misetich v Value Village Stores Inc. in which an employee who requested accommodation for el- dercare was dismissed for refus- ing to work her scheduled shifts. The HRTO disagreed with the third prong of the Johnstone test, namely that the employee must take reasonable steps to "self-accommodate." According to the tribunal, requiring self-accommodation "conflated the test for discrimi- nation and accommodation." In other words, discrimination, if it exists, does so regardless of whether the employee can rea- sonably self-accommodate. As such, the HRTO held that to establish discrimination on the basis of family status, an em- ployee must only establish three things: • membership in a protected group • adverse treatment • the protected ground of dis- crimination was a factor in the adverse treatment. Significantly, the HRTO ac- knowledged that not all adverse treatment constitutes discrimi- nation and, in the context of family status and employment, "the negative impact must re- sult in real disadvantage to the Sundeep Gokhale and omas Gorsky Legal View Ontario, British Columbia and Alberta have rejected the Johnstone approach. STANDARDS > pg.9 Notable cases Durikova v. BC Ministry of Justice, 2018 BCHRT 258 (B.C. Human Rights Trib.): Jana Durikova was a store clerk at the B.C. Liquor Distribution Branch (LDB) with a collective agreement that allowed extended childcare leave after parental leave. She went on maternity and parental leave for one year, then took extended childcare leave for another six months. Durikova applied for additional unpaid leave to take care of her daughter and teach her about her Slovakian heritage and language. The LDB determined this wasn't sufficiently family-related and denied the request. The union claimed discrimination on the basis of family status. The tribunal found none of Durikova's reasons qualified as special circumstances versus personal choice, and the LDB's objection didn't cause any disadvantage or adverse impact on her parental responsibilities. The complaint was dismissed. Guilbault c. Conseil du Trésor (Ministere de la Défense nationale), 2017 PSLREB 1 (Can. Pub. Service Lab. Rel. & Emp. Bd.): Pascal Guilbault, a Department of National Defence (DND) employee, asked for accommodation to take care of his family — two of his children had developmental difficulties — by taking two 15-minute breaks at the end of the day so he could leave early. However, he refused other options such as a compressed workweek, variable schedule or starting earlier. The manager said he couldn't take the breaks at the end of the day as the collective agreement considered them rest periods for occupational health and safety reasons. The two parties eventually agreed to move his lunch break to the end of the day and leave 30 minutes early. However, this solution wasn't initially adopted and led to months of acrimony. The board found the reason for Guilbault's request wasn't necessarily childcare, but rather his spouse's health issues, and there was no evidence he looked at the idea of outside help. DND's initial refusal to grant Guilbault's request didn't hinder his ability to meet his legal obligations toward his family so the board said there was no discrimination. JOINT VENTURE BY: Credit: Gouraud Studio (Shutterstock) 64 per cent of parents or guardians reported they had no difficulty finding an early learning and child care arrangement. daycare centre 52 % family 26 % home daycare 20 % Types of child care 9% of parents changed their work schedule because they had difficulty finding child care 7% worked fewer hours 6% postponed their return to work Source: Statistics Canada, 2019 Accommodating children up to 5 years old sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz Workplace issues never sleep. That's why our 24 hour line is answered by a Sherrard Kuzz lawyer every hour of every day, even on holidays. Whatever the issue. Whatever the time. Our 24 hour line means our clients sleep well at night even if we sometimes don't. If you're an employer, we're the only call you need to make. 24 HOUR 416.420.0738

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