• Requirement to Accommodate Childcare Obligations
  • May 15, 2014 | Author: Caitlin Russell
  • Law Firm: Cassels Brock & Blackwell LLP - Toronto Office
  • In a decision released May 2, 2014, Canada (Attorney General) v. Johnstone 2014 FCA 110, the Federal Court of Appeal has unanimously upheld the Federal Court’s findings regarding an employer's obligation to accommodate an employee's childcare obligations. The decision clarifies both the meaning of “family status” protection in human rights legislation and sets out a new test for determining whether a claimant has established a prima facie case of discrimination on the basis of “family status.”


    Fiona Johnstone was employed by the Canada Border Services Agency (CBSA). As a full time employee, Ms. Johnstone worked a variable shift schedule that rotated between six start times over the course of day, evening and night shifts. Ms. Johnstone’s husband also worked for the CBSA on a variable shift schedule. Upon returning to work following her maternity leave, Ms. Johnstone requested that she be placed on a fixed full-time schedule to allow her to arrange for childcare and maintain full-time status. She suggested an arrangement that would allow her to work 13 hour shifts, 3 days a week. The CBSA refused.

    In 2004, Ms. Johnstone filed a human rights complaint alleging the CBSA's conduct was discriminatory on the basis of family status. The Canadian Human Rights Tribunal found in favour of Ms. Johnstone and held that the “family status” protections in the Canadian Human Rights Act included parental obligations like childcare. The Tribunal further found that Ms. Johnstone had established a prima facie case of discrimination and that accommodation would not have caused undue hardship to the CBSA. The CBSA sought judicial review of the decision. The Federal Court upheld the Tribunal's decision and the CBSA appealed again to the Federal Court of Appeal.

    Federal Court of Appeal

    With respect to the content of the “family status” protection, the Federal Court of Appeal (“the court”) confirmed that family status includes parental obligations that engage a parent’s legal responsibility for the child, such as childcare, but does not include parental choices, such as voluntary family trips and extracurricular activities.

    The court then considered the proper test to determine whether or not a case of discrimination had been made out. The court established a new four-part test requiring an individual seeking accommodation to show:

    a. that a child is under his or her care or supervision;
    b. that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
    c. that he or she has made reasonable but unsuccessful efforts to meet those childcare obligations through reasonable alternative solutions; and
    d. that the workplace rule interferes with the fulfillment of the childcare obligations in a manner that is more than trivial or insubstantial.

    Applying this new test to Ms. Johnstone’s claim, the court found no reviewable error and upheld the Tribunal’s prior award of lost wages and benefits from 2004 ($15,000 for pain and suffering and $20,000 in special compensation) based on the CBSA’s wilful and reckless behaviour. In addition, the CBSA was ordered to consult with the Canadian Human Rights Commission to develop a plan to prevent future incidents of family status discrimination.

    Implications for Employers

    The Johnstone decision has the following important implications for employers:

    1. The law is now clear that “family status” includes not only the status of being a parent, but also parental obligations such as childcare. Employers can find some solace in the court’s effort to stress that parental choices, such as voluntary family activities, will not trigger similar claims of discrimination on the basis of family status.
    2. Accommodation goes both ways. The test enunciated by the Federal Court of Appeal places a clear obligation on employees to seriously pursue alternative childcare arrangements in an attempt to resolve an accommodation conflict.
    3. Each case is highly fact-specific. In this case, the fact that Ms. Johnstone’s husband also worked an unpredictable shift schedule made it more difficult for her to coordinate childcare. Accordingly, employers should consider each accommodation request on its own merits and conduct a good faith analysis of the true burden of accommodation. The fact that the requested accommodation is inconvenient will not be sufficient to constitute undue hardship.
    4. The decision confirms an expected shift towards providing a broader level of protection for employees with childcare obligations. Accordingly, employers should ensure their accommodation policies incorporate “family status” in a manner that includes a reasonable consideration of childcare needs.