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Employers must accommodate employees with family obligations, and unions share these obligations.

In a recent case called Canada (Attorney General) v. Johnstone (‘Johnstone’) the Federal Court of Appeal gave us a clear set of rules to decide when employees have a right to that accommodation and just how far employers must go.

The Johnstone case has bounced around the Canadian Human Rights Tribunal (CHRT) and Federal Courts for over ten years. Fiona Ann Johstone is an employee with Canadian Border Services Agency (CBSA). She asked for an accommodation after returning from maternity leave to allow her to care for her child. The problem was shift work that she and her husband (who also worked at CBSA) were assigned. The employer offered to give her a fixed schedule, but only if she agreed to drop her hours to part-time.

The employer said at first that there was no duty to accommodate her. All levels of tribunal and the courts rejected this. The employer then said it had done all it needed to do- it said the Court should use a test that applies in British Columbia. In a case called Campbell River, the BC Court of Appeal decided about a decade ago that accommodation for family status is limited to employer decisions that cause a “serious interference with a substantial parental or other family duty or obligation”.

The Federal Court of Appeal rejected that limited duty to accommodate.

Instead, the Court said there is a four-part test to decide if there is a failure to accommodate a person’s family status under the Canadian Human Rights Act: the individual advancing the claim must show that:

  1. a child is under his or her care and supervision;
  2. the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice (as an example, this might be the difference between all-day-care and missing a child’s soccer game);
  3. he or she has made reasonable efforts to meet those childcare obligations through alternative solutions, and no reasonable alternative solution is reasonably accessible. (A complainant will have to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. This is referred to as a “bona fide childcare problem”.)
  4. the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

If an employee can show each of these elements, then an employer can only refuse to accommodate if it would cause undue hardship. 

In the Johnstone case, the Court found that there was discrimination, and the parties have been left to work out some of the details of the solution.

The Federal Court of Appeal released Canadian National Railway v. Seeley (‘Seeley’) at the same time as Johnstone, and addressed the issue of family status in the context of a unionized environment. Denise Seeley, a freight train conductor from Alberta, filed a human rights complaint against Canadian National Railway (‘CN’) for failing to accommodate her childcare obligations and terminating her employment. CN recalled Ms. Seeley from layoff and required her to report to CN’s terminal in Vancouver. She requested additional time to report in order to explore childcare options. She then asked to be relieved from the assignment on a compassionate basis. This accommodation was requested under provisions of her collective agreement, however discussions were only held between CN and her union after Ms. Seeley’s termination.

The Court found that the CHRT’s finding – that CN had not met its duty to accommodate Ms. Seeley – was reasonable. The Court noted that unions can be held jointly liable with employers for human rights violations, and must be actively involved in negotiations related to employee accommodations. It was however, CN’s obligation to involve the union when it received Ms. Seeley’s accommodation request. Its failure to do so resulted in the question of her accommodation never being considered under the collective agreement prior to her termination. While there is scope for collective bargaining to clarify both procedural and substantive rights in relation to accommodation requests, both employers and unions must be alert to collective agreement provisions that might be discriminatory, and impede an employee’s request for accommodation on the grounds of family status or otherwise.

The Federal Court of Appeal has given a strong signal in clear and carefully written judgments that people with family obligations have significant protection under human rights law through both the Johnstone case and the Seeley case. Those rights need to be carefully considered by both employers and unions, and in appropriate cases, employees must be accommodated.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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