Canadian Human Rights Tribunal Renders Groundbreaking Decision On Family Status

The Canadian Human Rights Tribunal recently released its groundbreaking decision in Johnstone v. Canada Border Services Agency. In its ruling, the Tribunal held that Fiona Johnstone’s employer failed to accommodate her family status obligations and, in particular, her need to provide child care for her children.

Fiona Johnstone, a Border Service Officer with the Canada Border Services Agency (CBSA), requested a fixed shift schedule to allow her to arrange child care for her child. Like her husband, who also works at CBSA, Mrs Johnstone worked an irregular rotating shift schedule – 24 hours a day, seven days a week – which made it impossible to find a child care provider. The employer stated that it would provide a static shift for Mrs Johnstone, but forced her into part-time status.

Mrs Johnstone presented a complaint in 2004 under theCanadian Human Rights Act, which was ultimately referred to the Canadian Human Rights Tribunal for a hearing. Mrs Johnstone was supported throughout this process by her union, the Public Service Alliance of Canada.

In its defence, the employer argued that the test for family status discrimination should be higher than that of other grounds of discrimination. In particular, the employer argued that family status discrimination should only be found where there is a “serious interference” with a “substantial parental obligation.” Mrs Johnstone, with legal representation from our firm, maintained that the threshold for demonstrating discrimination in a family status case should be no different than for any other ground of discrimination. The Tribunal agreed with Mrs Johnstone, stating that “an individual should not have to tolerate some amount of discrimination to a certain unknown level before being afforded the protection of theAct.” The Tribunal found that Mrs Johnstone had established aprima facie case of discrimination.

The Tribunal also rejected the employer’s argument that it would suffer undue hardship if it was required to accommodate Mrs Johnstone. In particular, the Tribunal rejected the employer’s submission that there would be health and safety concerns associated with Mrs Johnstone working 13-hour shifts and also rejected the expert evidence tendered by the employer that providing accommodation to Mrs Johnstone would open the floodgates to other requests for family status accommodation at CBSA. The Tribunal noted that, other than the expert report that was prepared for litigation and expressly rejected by the Tribunal, the employer had undertaken no analysis or consultations concerning the possibility of accommodating Mrs Johnstone’s child care needs.

The Tribunal ruled that CBSA’s conduct was willful and reckless in depriving Mrs Johnstone of her employment opportunities. The Tribunal ordered CBSA to pay Mrs Johnstone for lost wages and pension benefits, as well as damages totalling $35,000.

The full text of the Tribunal’s decision is available here.