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Federal Court of Appeal Rules that Family Status Discrimination Includes Failure to Accommodate Childcare Needs

Posted On: January, 23 2015

In an important decision released on May 2, 2014, the Federal Court of Appeal has ruled that the Canada Border Services Agency (CBSA) breached the federal Canadian Human Rights Act, by taking the position that it did not have a duty to accommodate one of its employees who requested changes to her work schedule relating to her childcare obligations.

This case, Canada (Attorney General) v. Johnstone, 2014 FCA 110, sets an important precedent recognizing the obligations of employers to make reasonable accommodations for employees with childcare obligations.

To provide a quick summary of the facts, both Fiona Johnstone and her husband were full-time CBSA employees. The CBSA schedules its full-time employees on 56 day schedules, which are announced 15 days in advance, and subject to change by the employer up to 5 days before the start of the schedule. The schedules are unpredictable and follow no organized pattern, except that they involve 8 hour shifts and 37.5 hour weeks.

This posed a problem for the Johnstone family because both parents worked full-time for the CBSA and could not arrange childcare with such unpredictable schedules. Fiona Johnstone therefore requested that the CBSA put her on a “static” schedule, which would mean predictable shifts. There was evidence before the Court that the CBSA would sometimes put injured or sick workers on “static” schedules as a form of accommodation. Ms. Johnstone requested this same accommodation for her status as an employee with small children.

The best the CBSA would offer Ms. Johnstone was a static schedule if she agreed to drop down to part-time status. Ms. Johnston did not agree to this because it would have meant a reduction in her pension accrual, and a loss of other benefits.

The CBSA took the position that the ground of “family status” in the Canadian Human Rights Act, did not require accommodation of the childcare needs of its employees. Ms. Johnston took the matter to the Canadian Human Rights Tribunal, which agreed with her position that the CBSA’s refusal to accommodate her was a breach of the Act. The Tribunal found that “family status” includes parents with childcare obligations.

The CBSA judicially reviewed the Tribunal’s decision before the Federal Court, but lost, with the Federal Court finding no error with the Tribunal’s conclusion that “family status” includes childcare obligations.

The CBSA further appealed to the Federal Court of Appeal, which again sided with the Human Rights Tribunal, but offered some important clarifications on the issue.

First, to be covered under the ground of “family status” under the Act, the obligations in question must be immutable, or in other words, they must be fundamental and necessary obligations, such as the obligation to not leave young children unsupervised. This obligation is immutable because leaving young children unsupervised is a form of neglect and can event amount to a criminal offence, and is clearly something that our society cannot condone.

Second, the Federal Court of Appeal recognized that it would be unreasonable to require employers to accommodate parents who had other options for childcare, but were unwilling to use them. The Federal Court of Appeal held that it is only if the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination will be made out.

Canada v. Johnstone is the strongest statement yet from our courts that employers have a duty to accommodate employees who have childcare obligations. It stands to reason that a similar duty to accommodate may apply to employees who have an obligation to care for their elderly parents, or for employees with an obligation to care for a relative with a disability.


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