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Bulletin | The HR Space

A Mixed Bag: Tests for Family Status Discrimination Still Vary Across Canada

Fasken
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Overview

Labour, Employment & Humans Rights Law Bulletin | HR Space

Legal tests for family status discrimination vary throughout Canada. In 2019, the British Columbia Court of Appeal upheld the applicability of the “Campbell River” test, which is often criticized as being more stringent than tests that are used in other jurisdictions. In federally regulated workplaces,  Federal Courts apply the Johnstone test set out in Johnstone v. Canada (Border Services Agency), 2014 FCA 110, which is also referred to as involving a more stringent test than other protected grounds. In Ontario, Courts have applied both the Johnstone test, as well as the test set out by Ontario’s Human Rights Tribunal in Misetich v. Value Village Stores Inc., 2016 HRTO 1229. In Alberta, Courts have applied a test set out in SMS Equipment Inc. v. CEP, Local 707, 2015 ABQB 162.

Under the Campbell River and Johnstone tests, employees are generally required to take proactive steps to attempt to secure childcare arrangements in order to perform their work obligations or schedules. The Ontario Human Rights Tribunal and Alberta Court of Queen’s Bench Alberta have expressly rejected this approach.

To add additional complexity, adjudicators and commentators have wondered how the test for prima facie discrimination set out by the Supreme Court of Canada applies. In Moore v British Columbia (Education), 2012 SCC 6 ("Moore") the Supreme Court of Canada determined that a prima facie case of discrimination is established when:

  1. the complainant possesses a protected characteristic;
  2. the complainant experiences an adverse impact with respect to his or her employment;
  3. the protected characteristic is a factor in the adverse impact.

The Moore test was rejected by the BC Court of Appeal in Envirocon when overturning a decision of the BC Human Rights Tribunal which had applied the Moore test to a complaint about family status discrimination.

The saga continues, and a recent decision of the Alberta Court of Appeal expressly rejected the approach taken by the BC Court of Appeal and the Federal Court of Appeal.

Facts

In United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 a unionized employee filed a grievance. It was alleged that her employer engaged in discrimination by refusing to modify a newly implemented work schedule. The employee alleged that the schedule conflicted with childcare needs.

The grievance was adjudicated by a Labour Arbitration Board. The Board found that the employee had not engaged in self-accommodation or self-help with respect to child-care obligations, and thus did not demonstrate prima facie discrimination. The grievance was dismissed.

Alberta’s Court of Queen’s Bench overturned the decision and found that the Arbitration Board applied the wrong test in Alberta. The employer appealed to Alberta’s Court of Appeal.

The Decision

Alberta’s Court of Appeal reviewed the varying tests applied in various Canadian jurisdictions and asserted its intention to “clarify” the law as it should apply in Alberta. In doing so, the Court expressly rejected the Johnstone and Campbell River tests set out by the Federal Court of Appeal and BC Court of Appeal, as being inconsistent with Moore.

The Court concluded that Moore does not require a claimant to prove self-accommodation to establish prima facie discrimination. The Court did not assert that self-help was irrelevant, but that this should only be considered when determining whether the rule or policy is a bona fide occupational requirement and/or whether the employer would suffer undue hardship by accommodating the employee.

The Court additionally raised a concern that the requirement to prove self-help to demonstrate prima facie discrimination could enable employers “to continue ostensibly discriminatory ways, with impunity.”

Interestingly, the BC Court of Appeal took a different approach when justifying the Campbell River test, stating that it was intended to avoid “disruption and great mischief” by employees.

The employer has sought leave to appeal to the Supreme Court of Canada. We shall see if the Supreme Court provides a single, unified test for family status discrimination complaints going forward.

Takeaways for Employers

Tests for family status discrimination differ throughout Canada. Employers should be aware of this, especially when operating in multiple jurisdictions. Each issue should be considered on a case by case basis and in light of the law in the specific province or jurisdiction.  Blanket policies or rules spanning multiple jurisdictions should be avoided, until or unless a unified approach is developed.

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