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Federally Regulated Employers: Accommodation of Child Care Obligations
February 21, 2013

Federally regulated employers will want to be aware of a recent decision of the Federal Court upholding a Canadian Human Rights Tribunal decision on accommodation of child care obligations. The Tribunal determined that family status captures an employee’s child care obligations and that the duty to accommodate is triggered when an employee requests for alternative work hours in order to make child care arrangements.

A Canada Border Services Officer was employed with Canada Border Services Agency (CBSA) at Pearson International Airport for twelve years in a position which required her to work irregular rotating shifts and unexpected overtime. With two young children, the complainant’s family responsibilities made it difficult for her to work the schedule associated with her job. Upon returning to work from each of her maternity leaves, she asked CBSA to accommodate her child care arrangements, but was denied both times. Specifically, she sought a three day work week of fixed day shifts of thirteen hours per day.

CBSA had an unwritten policy that any employee seeking accommodation for child care responsibilities could be provided with fixed daytime shifts but only on a part time basis. Under the terms of the parties’ collective agreement, part time status applied to persons who worked less than 37.5 hours per week. Part time status entailed lower income, lower pensionable earnings, fewer promotional opportunities and fewer benefits. Of particular interest to the Court was the fact that the employer did accommodate employees with fixed full-time shifts for medical or religious reasons.

CBSA appealed the Tribunal’s decision, arguing in part that the Tribunal erred in rejecting the test for prima facie discrimination on the basis of family status as set out by the BC Court of Appeal in Campbell River and North Island Transition Society.  That test requires a change in a term or condition of employment which results in a serious interference with a substantial parental obligation in order to engage the protection of human rights legislation on the basis of family status.

In upholding the Tribunal’s decision, the Court expressly rejected the Campbell River “higher threshold” test requiring a serious interference with a family obligation. The Court noted that child care obligations giving rise to the protection of human rights legislation must be obligations of substance, and that the complainant must have attempted to reconcile family obligations with his or her obligations to the employer. The question to be asked is whether the employer’s rule or practice interferes with an employee’s ability to fulfil his or her substantial parental obligations in any realistic way.

As noted above, this decision applies to federally regulated employers, who must consider the Federal Court’s view of the duty to accommodate the child care obligations of their employees. In British Columbia, provincially regulated employers continue to be governed by the BC Court of Appeal test in Campbell River,unless or until that decision is overturned by the Supreme Court of Canada. However, all employers should be aware of this development and the criticism courts in other jurisdictions have levied against the test articulated by the BC Court of Appeal. Of note, the BC Human Rights Tribunal recently issued a decision dealing with discrimination on the basis of family status.

Attorney General of Canada v. Fiona Ann Johnstone and Canadian Human Rights Commission, 2013 FC 113.

If you have any questions regarding the information in this article, please contact Lindsie Thomson.