The case involved a border services officer, Fiona Johnstone, who was working at Pearson Airport for the Canadian Border Services Agency (“CBSA”).  She had been working on rotating shifts.  After the birth of her children, she requested that she be able to work regular, fixed day shifts to accommodate her child care needs.  She claimed that she could not make child care arrangements that would support the rotating work schedule that she had been on and that her employer should accommodate her requirements by providing her with regular full-time day shifts.  The CBSA refused to accommodate her and she filed a human rights complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status.

In August 2010, the Canadian Human Rights Tribunal allowed Ms Johnstone’s human rights complaint.  It held that the CBSA had discriminated against Ms Johnstone on the basis of family status and that she was entitled to accommodation.  One of the key findings was that the definition of “family status” under the Canadian Human Rights Act includes parental child care responsibilities.  It ordered the CBSA to establish policies that would address family status accommodation issues and to accommodate Ms Johnstone.  It also ordered monetary damages of $35,000 for pain and suffering and for the fact that the CBSA had deliberately denied protection to those seeking family status accommodation.

The CBSA brought an application for judicial review in the Federal Court of Canada.

In its decision released on January 31, 2013, the Federal Court upheld the Tribunal ruling.  It determined that “family status” under human rights legislation – the Canadian Human Rights Act, in particular, includes child care responsibilities.  The Federal Court noted that many border services officers face difficulties with their work-life balance as a result of working for a 24-7 operation that requires employees to work rotating shifts.  However, the Court held that the CBSA was still required to consider Ms Johnstone’s particular situation and accommodate her.  The CBSA made no attempt to do so.  The Federal Court therefore upheld the Tribunal’s decision, including the award of damages to Ms Johnstone.

In many respects, the Federal Court’s decision is not surprising.  Employers have been required, under Canadian human rights law, to accommodate employees for religious reasons, including for example, the right to Sabbath observance or the right not to work on religious holidays.  Employers have also been required to accommodate employees to the point of “undue hardship” with respect to disability issues.   So it makes sense that Courts and Tribunals would find an obligation of accommodation for other human rights categories.

Defining “family status” to include child care obligations is not without its challenges.  Employers may have numerous employees, at any given time, who are struggling with child care arrangements.  It may be that some employers will be able to provide evidence of “undue hardship” by demonstrating that they require employees to work rotating shifts – even on some kind of alternating basis and they cannot accommodate all of the requests for full-time day shifts.  Tribunals and Courts will need to look at the size of the workplace, the ability of the employer to accommodate its employees and other relevant issues.  Employees will also be expected to make some efforts to address their employers’ concerns.

The Federal Court decision does not stand for the proposition that any employee with child care needs can automatically insist on working a full-time day shift while all of the other employees at that workplace are working rotating shifts at all hours.  However, the case does require employers to consider these requests and to try to come up with a way of addressing them.  The CBSA in this case had rejected the idea that it had any obligation to accommodate its employees’ child care needs and that was found to be a violation of the Canadian Human Rights Act.

Many employers across Canada have already implemented policies that provide for reasonable accommodation of employees with child care challenges.  Employers who have not done so may be required t reexamine their policies so that they are meeting their obligations under human rights legislation.

This type of accommodation may not be limited to child care but may also include people with elderly-care responsibilities or employees who must care for infirm or challenged family members.

Linda Fraser had worked for UBS for more than 20 years.  She became ill after a holiday and was off work for six months on short term disability leave.  She tried to return to work but was unable to do so due to her illness, which had become more severe.  She went off again on short term disability leave for another six months.  After her second leave, Ms Fraser was off for a two year period on long term disability leave.

Most LTD policies change after two years.  For the first two years, Ms Fraser was required to show that she could not perform the duties of her employment, meaning the specific job that she had with UBS.  After two years, she was required to show that she could not perform the duties of any gainful occupation.  The insurer cut Ms Fraser off benefits when the definition changed and Ms Fraser sued the insurer to challenge that decision.  The lawsuit was totally separate from her wrongful dismissal case.

From UBS’ perspective, Ms Fraser’s disability coverage ended even though she was suing the insurer.  She was off work and no longer in receipt of benefits for a period of five months.  She did not keep UBS informed about her status.  After five months, UBS wrote to Ms Fraser and stated that her employment was being terminated.  It paid her out 8 weeks’ notice pay and 22 weeks’ severance pay under the Ontario Employment Standards Act and continued her extended health benefits for three more months.  Ms Fraser did not accept this decision and sued for wrongful dismissal.

At trial Justice Wein of the Ontario Superior Court reviewed the law of “frustration” and concluded that it applied in this case.  Ms Fraser was found to be “permanently disabled.”  The Court held that she is “totally disabled and her disability is permanent such that she will never be able to work again.”  As a result, the employment contract had ended and UBS was not required to provide any further payments.  The wrongful dismissal lawsuit was dismissed.

For employees in Ontario, the case is a reminder that employees have an obligation to keep their employers updated as to their status when they are off on a sick leave.  If disability benefits are cut off, they must provide information to their employers about their proposed actions.  If it becomes clear that the employee will not be able to return to work again, the employer may be able to conclude that the employment relationship has ended.  This will not necessarily lead to a viable wrongful dismissal lawsuit.

For employers, this type of decision is rare.  If the employee can show that he or she simply required more time to recover and kept the employer informed, the employer will not necessarily be able to rely on “frustration.”  The situation may also be different where the employee continues to receive LTD benefits.  Employers looking to rely on “frustration” will need to be reasonably sure that the employee will not be able to return to work for the foreseeable future.