Canadian Employment Law Today

Canadian HR Reporter, 2020 March 11, 2020 | Canadian Employment Law Today show that: • A child is under his or her care and super- vision • The childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice • He or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible • The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. The Federal Court of Appeal applied this test and found that Johnstone estab - lished a prima facie case of family status discrimination because: • She had two toddlers under her care and supervision, a responsibility she shared with her husband • Her childcare obligations engaged her legal responsibilities as a parent; they were not a personal choice • She made serious but unsuccessful efforts to secure reasonable alternative childcare arrangements that would allow her to con - tinue to work her rotating and irregular work schedule • Her regular work schedule interfered in a manner that was more than trivial or insubstantial with the fulfillment of her childcare obligations. Ontario: Johnstone and Misetich tests In Ontario, a new approach has emerged for establishing a prima facie case of family status discrimination in the workplace. In Misetich v. Value Village Stores Inc., the Human Rights Tribunal of Ontario (HRTO) rejected the Fed - eral Court of Appeal's test in Johnstone, when an employee alleged that a proposed change to her work schedule discriminated against her due to her eldercare responsibilities. The employee had a role in production at the back of the employer's store and she de - veloped a repetitive strain injury. When her family doctor provided a Functional Abilities Form outlining the employee's restrictions, the employer offered temporary, modified duties. However, her shifts and hours could vary and include days, nights and weekend shifts. The employee declined the offer, stat - ing the hours would place a hardship on her because she prepared evening meals for her elderly mother. When asked to provide in- formation on her mother's health needs, the employee refused, stating that her employer was not entitled to private information about her mother. The employer terminated her employment for job abandonment when she did not attend work for her scheduled shifts. The HRTO rejected the Johnstone test and other tests for establishing family status discrimination on the basis that the test should not be different from the test for other forms of discrimination. It noted that the various tests applied by different courts and arbitrators result in inconsistency and uncertainty, with some more stringent than others, and "perhaps inadvertently" creating a test for family status discrimination that is more stringent than the tests used for other kinds of discrimination. The HRTO also emphasized that the test of legal responsibility is difficult to apply in the context of eldercare, as "an adult child's legal responsibility to provide care for his or her elderly parent is not as clear as a parent's legal responsibility to care for his or her minor child." Finally, the HRTO criticized some of the cases for conflating the test for discrimination and accommodation, stating that applicants should not have to establish that they could not "self-accommodate the adverse impact caused by a workplace rule." The HRTO set out the following test for es - tablishing family status discrimination in the context of employment: • The employee must establish a negative im- pact on a family need that results in a real disadvantage to the parent/child relation- ship and the responsibilities that flow from that relationship or to the employee's work. • An assessment of the impact of the im- pugned rule must be conducted contextual- ly and may include consideration of other supports available to the employee. • Once discrimination is established, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship. It is at this point that the question of whether the employee co-operated in the accommodation process is considered, including providing the em - ployer with sufficient information relating to the family-related needs and working with the employer in identifying possible solu- tions to resolve the family/work conflict. The HRTO noted that the employer heard about the full scope of the employee's elder- care responsibilities for the first time during the hearing — previously, the employee told the employer only that she prepared evening meals for her mother. The HRTO empha - sized that it was required to decide the case on the basis of the information provided by the employee at the time of the alleged dis- crimination rather than on the basis of the information provided at the hearing. The HRTO concluded that the employee could have worked days, evenings and week - ends and still have provided evening meals for her mother. As the employee failed to establish that the modified shifts proposed by the employer discriminated against her on the basis of her family status, the HRTO dismissed the application. It is unclear whether the Johnstone test or Misetich test is considered the correct test to be applied in Ontario for establishing a prima facie case of family status discrimination. In a recent HRTO decision, Simpson v. Prana - jen Group Ltd. o/a Nimigon Retirement Home, the adjudicator seemed unsure and did not make any pronouncements about which test applied. Instead, it noted, "Whether I apply the test of the Federal Court of Appeal in Johnstone, or the test as set out in Misetich, I come to the same conclusion." Adding to the confusion, one month later, in Linklater v. Essar Steel Algoma Inc., a different adjudica - tor at the HRTO stated that he agreed with the conclusion in Misetich, "that the test for discrimination on the basis of family status is no different, and, in particular, no higher than for other grounds under the Code." He made no mention of the Johnstone test. For more information, see: • Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (B.C. C.A.). • Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (B.C. C.A.). • Canada (Attorney General) v. Johnstone, 2014 FCA 110 (F.C.A.). • Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (Ont. Human Rights Trib.). • Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10 (Ont. Hu - man Rights Trib.). • Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273 (Ont. Human Rights Trib.). In Ontario, there must be a negative impact that causes a disadvantage to the parent/child relationship. ABOUT THE AUTHOR Rhonda B. Levy and Barry Kuretzky Rhonda B. Levy is a knowledge management counsel for Littler LLP in Toronto, monitoring legislative, regulatory and case law developments. She can be reached at (647) 256-4545 or rlevy@littler.com. Barry Kuretzky is a partner with Littler LLP in Toronto, practising workplace law and labour relations. He can be reached at (647) 256-4503 or bkuretzky@littler.com.

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