Canadian Employment Law Today

CELT August 21 2013:celt 467.qxd 13-09-16 9:50 AM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: ACCOMMODATION Employer didn't share information about child care in new location ...continued from page 4 to live in a location with few child care options, and require her employer to accommodate her child care needs until such time as she chose to move elsewhere," said CN. The court noted "there are many situations that may arise with respect to family status and employment, some which would not constitute grounds for a finding of discrimination on the basis of family status on a prima facie basis, some of which would." As such, it was important to examine the "individual's circumstances" which can affect whether there is discrimination on a basis of reasonableness, said the court. The court also noted the Canadian Human Rights Act, while including family status as a protected ground, does not specifically define the term, though the Supreme Court had held that human rights legislation "must be interpreted in a large and liberal manner in order to attain the objects of the legislation." Parental obligations central to family status: Court The court found the parental relationship was central to the notion of family status, and "if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so." When the tribunal interpreted family status has including childcare obligations, it was "within the scope of the ordinary meaning of the words" and was a liberal interpretation in accordance with the act and Parliament's intent, said the court. Though CN had facilities in Vancouver that could be available to assist in childcare needs, neither Seeley nor her husband had knowledge of them and CN did nothing to inform them, said the court. When Seeley informed CN of her childcare issues and requested to be relieved on a compassionate basis, CN didn't respond. The railway only told her it needed her answer by June 30, 2005 and that it had accommodated her need for more time to make child care arrangements. The railway also emphasized to Seeley that she had an "obligation to CN to manage these personal obligations in such a way that you are also able to fulfill your employment and collective agreement obligations." "In my view, CN's choice of language in its letter and its failure to respond to Ms. Seeley's letters and telephone call and her request for consideration under the collective agreement on the basis of childcare, is indicative of CN's unwavering view that childcare was not a part of what was captured by the act's prohibition against discrimination in the workplace on the basis of family status," said the court. The court also noted the choice of Seeley and her husband to live outside of Jasper had not been an issue previously. It found Seeley had inquired about childcare options nearby but CN didn't provide any information regarding childcare options in Vancouver. Though Seeley didn't inquire into those options, it was CN who had the information and should have shared it when Seeley informed it of her difficulties, said the court. "CN, by its failure to respond to Ms. Seeley, denied her the opportunity to realistically explore and consider options for childcare in responding to the shortage or accessing accommodation if available under CN policy or the collective agreement," said the court. The court found the tribunal's decision that CN discriminated against Seeley based on her family status – namely, her childcare obligations – was reasonable. The tribunal was also aware of Seeley's specific parental obligations and the discrimination under family status wasn't related to "general undefined family responsibilities," said the court. Though Seeley didn't take steps to inform herself of the situation in Vancouver, CN had the information and its failure to engage discussions and respond to her requests was a failure to meet its duty to accommodate, said the court. In addition, Seeley requested consideration under the collective agreement for exemption for a satisfactory reason. CN didn't respond to this request either. The court agreed with the tribunal's application of the three-part test for whether discrimination was allowed: CN met the first part in that it had a legitimate purpose for calling up employees to meet the shortage; and the second part, in that the standard was adopted in good faith. However, CN failed the third part of the test in that it couldn't prove the Seeley couldn't be accommodated without undue hardship or being able to accomplish its purpose. The court upheld the tribunal's finding that parental childcare obligations fall within family status and CN discriminated against Seeley based upon that status. The awards were also upheld and CN's appeal was dismissed. CELT Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include overzealous policy enforcement, employee theft, vague contract wording and suspicious sick days. You can view the blog on www.employmentlawtoday.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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