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Employers must accommodate employees with family obligations. Last week, in a case called Canada (Attorney General) v. 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 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 has given a strong signal in a clear and carefully written judgment that people with family obligations have significant protection under human rights law. Those rights need to be carefully considered 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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