Human Rights legislation across Canada prohibits discrimination on the basis of family status.  But what does that mean?  What does “family status” actually include?  Two recent decisions of the Federal Court of Appeal provide some helpful guidance.  From these cases, it seems clear that family status encompasses the need for an employer to accommodate child care issues that an employee may face.

I reviewed the Federal Court decision of AG Canada v. Johnstone in this blog.  The Federal Court of Appeal (FCA) has now upheld that decision and provided a review of the law relating to family status and child care responsibilities.  This is the decision I would like to address, since the other decision is simply a further example of an application of the Johnstone decision by the FCA.

This article is not a recap of the facts, some of which are described in the previous blog article.  Rather this blog sets out the key rulings of the FCA.  The full text of the decision can be found here.

The Court made a number of key determinations.  First of all, it defined childcare obligations that are included under “family status”:

When is Family Status Engaged?

“The child care obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.  As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.”

The FCA expressly noted that voluntary obligations such as “family activities…extracurricular sports events, etc.,…” are not included.  In other words, according to the FCA, if a person faces “legal obligations” as opposed to “personal choices,” that is when protection on the grounds of family status will be engaged.    This may well be an overly restrictive definition.  A person may feel compelled to take care of a child (or a parent) in certain circumstances where the “legal requirement” is murky.  This contrasts with the manner in which other types of discrimination are engaged, according to the Supreme Court.  For example, to request accommodation of a religious practice, a person is not required to prove that he or she is obligated to perform the particular practice, only that the religious practice is being observed in good faith.  This is the decision of the Supreme Court of Canada in Amselem.

The FCA has defined included childcare obligations in a much narrower fashion for purposes of family status than some of the other rights that are protected, including religion and gender.  Nevertheless, it has likely done so in an effort to restrict the number and types of claims that might be made if family status were to be defined more broadly.

Steps in Claiming Family Status Discrimination

In its decision, the FCA then proceeds to review the specific requirements for making a claim of family status accommodation.

The person must show that the issue is one of “substance and the complainant must have tried to reconcile family obligations with work obligations.”  The employee must be able to show that she or he has “sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill her or his parental obligations.”  That is the first hurdle – demonstrating “prima facie” discrimination.

The FCA then sets out a test to be applied to determine if there has been discrimination.  It involves four factors:

a.  The child must be under the care and supervision of the parent;  (In most cases, this will be automatically proven by the very status of the parents as parents, according to the court);

b.  The childcare obligation engages legal responsibility as opposed to personal choice;  This means that the age of the child is taken into account as well as the type of activity at issue.  As the court mentioned – going on a class trip would not be covered.  Being at home to look after a toddler would.

c.  The parent has made reasonable efforts to meet those obligations but has not been able to come up with an alternative solution;  The complainant must show that neither parent can meet their enforceable obligations while working and that there is no accessible solution.  In other words, the complainant must demonstrate a “bona fide childcare problem.”

d.  The workplace rule that is being questioned interferes with the parent’s obligations in a way that is more than “trivial or insubstantial.”

Johnstone Conclusion

In the Johnstone case, the FCA went on to conclude that each of these factors had been demonstrated and that discrimination on the basis of child care status had been demonstrated.

Most of the orders of the Tribunal were upheld, including a significant award of $15,000 for “pain and suffering.”

Conclusion

This is the type of case that the Supreme Court of Canada may well choose to hear if leave to appeal is sought.  That is not to say that the Supreme Court will substantially alter the decision.  That seems unlikely.  However, the Supreme Court may well determine that it would be appropriate for it to set out its own test for reviewing and assessing family status discrimination cases.  As well, it may view it as an opportunity to review the definition adopted by the FCA and consider whether access to family status protection should be broader.

Alternatively, the Supreme Court may simply choose not to grant leave (i.e. not to hear the case), which would give this FCA decision even greater weight as a Canadian legal precedent.

For now, and quite possibly, for good, it is clear that “family status” under Canadian human rights law includes child care obligations.  Employers are required to take requests for accommodation very seriously and to make significant efforts to work with employees who require accommodations to deal with childcare challenges.