Canadian HR Reporter

CANADIAN HR REPORTER JUNE 2019 EMPLOYMENT LAW 9 parent-child relationship and the responsibilities that flow from that relationship, and/or to the employee's work." In evaluating the negative im- pact, the HRTO held that it was appropriate to consider other sup- ports available to the employee. While this sounds a lot like the third step in Johnstone (mean- ing the obligation to try to self- accommodate), the HRTO was clear that this did not mean an employee is required to exhaust self-accommodation. Rather, the availability of other supports should only be considered. Once discrimination is estab- lished, the onus shifts to the em- ployer to reasonably accommo- date the employee. In this context, the HRTO noted an employee's attempts to minimize the work-family con- flict may again be relevant: "It is then that one considers whether the applicant cooper- ated in the accommodation pro- cess. e obligation to cooperate includes providing the respon- dent with sufficient information relating to the family-related needs and working with the re- spondent in identifying possible solutions to resolve the family/ work conflict." In Alberta, adjudicators simi- larly have rejected the Johnstone test on the basis the requirement to self-accommodate sets a higher threshold to establish family sta- tus discrimination than other forms of discrimination. In the 2015 SMS Equipment v. C.E.P. Local 707, the Alberta Court of Queen's Bench stated in obiter: "A flexible and contextual application… does not justify the application of an entirely different test of prima facie discrimination, and, particularly, does not justify including within that test a self- accommodation element that is not required with respect to other prohibited grounds of discrimi- nation. is is unnecessary and contrary to the objects of human rights law." More recently, in the 2019 United Nurses of Alberta v. Al- berta Health Services, the Alberta Court of Queen's Bench affirmed its position that self-accommo- dation plays no role in the test to establish discrimination: "While Justice Ross's com- ments (in SMS Equipment) were, as discussed, obiter and, there- fore, not outright binding on the Board, the Supreme Court of Canada's rulings are binding on the Board… In my view, taken together, the Supreme Court of Canada jurisprudence leaves no room for an articulation of the prima facie discrimination test that imports or adds an addition- al evidentiary requirement on a complainant. e analysis of self- accommodation is not irrelevant — it just belongs elsewhere." us, in Alberta and Ontario, the steps an employee may take to self-accommodate are a relevant consideration — but only when evaluating reasonable accommo- dation — not when determining whether there is discrimination in the first place. British Columbia confirms Johnstone not binding Even prior to Johnstone, adjudica- tors in British Columbia had ad- opted a separate, and more rigor- ous, test to establish family status discrimination. In the 2004 decision of Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, the British Columbia Court of Appeal expressed concern about the potential "mischief " that could result in the workplace if a broad test for family status dis- crimination applied. Instead, the court held dis- crimination should only be found only if there is a change in an employee's existing terms and conditions of employment which results in serious interference with the discharge of a substantial parental obligation. In the 2019 Envirocon Environ- mental Services, ULC v. Suen, the issue before the British Columbia Court of Appeal was whether it was discriminatory to terminate an employee after he refused a temporary assignment out of province for family reasons. The British Columbia Hu- man Rights Tribunal applied the test in Campbell River but it questioned whether it remained "good law." On appeal, Brian Suen argued that the test was too restrictive and a lesser standard should be applied. e Court of Appeal held it was not necessary to address this argument because the court was bound by Campbell River. Suen has sought leave to appeal to the Supreme Court of Canada and the matter is still pending. Tips for employers Unless and until this issue is re- solved by the Supreme Court of Canada, any employer that oper- ates in more than one Canadian jurisdiction may have to comply with differing standards for fami- ly status accommodation depend- ing on the jurisdiction. In British Columbia, the Camp- bell River test applies. For federally regulated employers, the Johnstone test applies, including the require- ment the employee take reason- able steps to self-accommodate before there can be a finding of dis- crimination. In Ontario, the avail- ability of "other supports" may be relevant in assessing whether the employee was adversely impacted by the employer's actions. And in both Ontario and Al- berta, the steps an employee may take to reduce or eliminate the need for accommodation may be considered but only as part of the accommodation analysis — not as part of the analysis of whether there has been discrimination in the first place. Sundeep Gokhale and omas Gor- sky are lawyers at Sherrard Kuzz in Toronto. They can be reached at (416) 603-0700 (main), (416) 420- 0738 (24-hour) or by visiting www. sherrardkuzz.com. Standards differ depending on jurisdiction FAMILY STATUS < pg. 5 In Ontario, the availability of "other supports" may be relevant in assessing whether the employee was adversely impacted by the employer's actions.

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