Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER June 16, 2014 June 16, 2014 6 NEWS NEWS obligations overshoots the purpose of including family status as a prohibited ground of discrim- ination. Indeed, without reason- able accommodation for parents' childcare obligations, many par- ents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have," said Justice Robert Mainville. However, human rights legisla- tion should not be "trivialized" by extending protection to personal choices such as kids participating in dance classes or sports tourna- ments, he said. " e childcare obligations that are contemplated under family status should be those that have immutable or constructively im- mutable characteristics, such as those that form an integral com- ponent of the legal relationship between a parent and a child." 4-part test As a result, said Mainville, an in- dividual advancing such a claim must show: • a child is under his care and su- pervision • the childcare obligation engages his legal responsibility for that child, as opposed to personal choice • he has made reasonable eff orts to meet childcare obligations through reasonable alternative solutions and no such alternative solution is reasonably accessible • the impugned workplace rule interferes with the fulfi llment of the childcare obligation in a way that is more than trivial or insub- stantial. e Federal Court of Appeal provides some very clear guide- lines, said Lisa Addario, legal counsel to the Public Service Alli- ance of Canada (PSAC) in Ottawa. " e courts have made it clear that parental obligations flow from family status as a prohibited ground of discrimination. And if workers have made reasonable ef- forts to obtain childcare for their legal obligations and haven't been able to do so, they are entitled to accommodation from their employers to the point of undue hardship." The case is really helpful to people who practise in this area, said Stephen Torscher, an associ- ate at law fi rm Miller omson in Calgary. " ere's now a pretty clear four- step test about how we're going to apply this new formulation of the protection for family status and some more clarity about what family status obligations, child- care obligations are going to be protected." But the onus is on parents to show they've tried to fi nd alterna- tive solutions, he said. " at, along with the clarifi ca- tion from the courts about what kind of family obligations are go- ing to be protected, can give em- ployers at least a little bit of com- fort," said Torscher. "It's going to be incumbent on employers to have that dialogue with employees and fi gure out the extent of what kind of accommodations might be required and what steps the em- ployees have themselves already taken to meet those obligations." While this decision may scare employers — in that every con- ceivable parental or familial obli- gation is suddenly to be protected and served by an employer — the court has set restrictions, said David Law, a partner at law fi rm Gowlings in Ottawa. " ey limit it to basically the feeding of, the physical security of, the monetary attendance to family members that you're le- gally responsible for. Which I think, for employers who are worried about this, is fairly help- ful language in that it identifi es the range of things that we have to be concerned about if we are HR pro- fessionals or employers trying to accommodate." From childcare to elder care? While Johnstone provides insights into family status obligations for childcare, it might also have impli- cations for elder care. It's probably just a matter of time before that argument bubbles up through the courts, said Torscher. "Someone's going to claim that they've got an obligation to take care of a parent or a grandparent, and their workplace rules and re- quirements are running in confl ict with that obligation." e Federal Court of Appeal actually cites an elder care case "to recognize that family status incorporates parental obligations such as childcare," said Addario, who also served as co-counsel to Johnstone at the Canadian Hu- man Rights Tribunal. The court also recognized "there are statutory obligations between an adult and their elderly parent," she said, and it quoted a section of the Criminal Code that "speaks to the duty to provide the necessaries to not only a child but also to a spouse or an elderly per- son," said Addario. " e facts, as is the case with childcare obligations… will de- termine how the law evolves, but certainly the Federal Court of Ap- peal provided a positive context for consideration of elder care obligations." But the case doesn't quite clarify the parental care issue, said Law. "What I don't know is: Will the courts talk about legal obli- gations? Will it limit elder care accommodation because the ob- ligations we have to our parents are diff erent than those for our children? It might, and so that's to be tested." It's a very interesting aspect of the case that is not yet clear, he said. " e question will come down to whether the courts rule that we have a legal obligation to take care of our parents." That actually might be the weakness of the ruling, said Law. "We have t his gigantic, societal problem that this ruling, in eff ect, might eff ectively exclude from ac- commodation. at tells me that we will hear about it again and I expect that employers will make that argument about the elder care issue where, in fact, elder care has been accommodated in some past cases." Implications for elder care? Implications for elder care? CHILDCARE < pg. 1

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