Federal Court Makes Strong Stand Regarding Family Status

The Federal Court of Appeal recently confirmed a Canadian Human Rights Tribunal decision of 2010 regarding an employer’s obligation to accommodate based on family status in Attorney General of Canada v. Fiona Ann Johnstone and Canadian Human Rights Commission, 2013 FC 113.

Fiona Johnstone, a Canada Border Services Agency (“CBSA”) Officer and mother of two, had requested accommodation from her employer to help facilitate childcare arrangements. As a full-time CBSA Officer, her shifts were built around a rotating shift plan, as prescribed by the governing Collective Agreement. Full-time employees were rotated through 24/7 cycles with six different shift start times, on different days of the week, with no predictable scheduling pattern.

The accommodation came in the form of requests for static full-time shifts, working three days a week. Ms. Johnstone had been able to secure childcare on these three days from family members; her search for third party childcare had been unsuccessful on the basis that no providers were willing to provide care due to the variability of her shifts.

While similar accommodation requests for religious or medical reasons had been granted by the CBSA, Ms. Johnstone’s request based on family status was denied. As such, her only option was to reduce her status to part-time, thereby compromising her pension entitlements, promotional opportunities, and income. The CBSA had applied an “unwritten policy” to their denial of her request. The Tribunal, and the Federal Court, found this policy had been applied in an uneven, and ultimately discriminatory, fashion.

The Tribunal had spent some time referring to a 1993 Tribunal case involving similar principles: Brown v. National Revenue (the Respondent being the CBSA’s predecessor). Brown had concluded that family status included the fact of being a Parent, as well as the duties and obligations associated with that in today’s society. Employees must balance their duties and obligations both as a parent and an employee, and the employer has a duty to facilitate and accommodate that balance. Brown was relevant not simply because it echoed the same key issues; it also demonstrated that the CBSA had had ample opportunity, and even had been directed, to produce and implement policies addressing the need for appropriate accommodation with respect to family status.

The Federal Court affirmed the Tribunal’s decision that childcare obligations came within the scope of the family status ground and held that the Tribunal had rightly concluded that the CBSA had therefore discriminated against Ms. Johnstone in violation of the Canadian Human Rights Act. The variable shift schedule was not considered a bona fide occupational requirement, and exercising scheduling flexibility on the basis of Ms. Johnstone’s childcare needs was not considered an unreasonable or impracticable burden for the CBSA.

The case is noteworthy for a number of reasons. It clearly affirms, and extends, the responsibility of employers with respect to family status accommodation. Further, there is the possibility that the scope of the ‘family status’ ground could extend beyond childcare responsibilities, to areas like elder care, or to care of family members with special needs. It will be interesting to see the impact this significant decision has on workplaces and human rights case law at the provincial level.