In a recently released decision, the Human Rights Tribunal of Ontario (the “Tribunal”) appears to have rejected the Federal Court of Appeal’s test for family status discrimination in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (“Johnstone”) (discussed in one of our previous posts). Instead, the Tribunal adopted a test that more closely resembles the one already applied to claims based on other prohibited grounds of discrimination.

In Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (“Misetich”), a former employee alleged discrimination on the basis of family status after she was terminated due to her refusal to accept a scheduling change aimed at accommodating her physical restrictions. The applicant had declined the employer’s offer of modified duties, and asserted that the scheduling change would change the terms of her employment. In addition, she asserted that her family status was such that she could not work evenings, weekends or on-call shifts. The applicant refused to return to work.

The employer requested information from the applicant regarding whether she was the primary caregiver, whether her parent was unable to safely perform certain duties, whether there was nobody other than the applicant who could care for her mother, and whether the applicant had taken all reasonable steps to self-accommodate and/or resolve the conflict created by her family obligations. The applicant perceived this request for information as being insulting and offensive, and refused to provide any medical information with respect to her mother’s need for care. The employer reiterated its request for information a number of times, warning the applicant that her refusal to provide information and to return to work could put her employment in jeopardy. The applicant eventually provided the employer with two brief notes from her doctor (who also happened to be her mother’s physician). The physician’s cursory notes were not accepted by the employer, and the employee was eventually terminated for failing to comply with the employer’s directives and return to work her shifts.

Subsequent to her termination, the employee filed an application with the Tribunal, alleging she was discriminated on the basis of her family status. The Ontario Human Rights Commission intervened, setting out its position on the appropriate test for family status discrimination.

The Tribunal noted at the outset of its decision that the case law on family status is unsettled, and that it is not bound by decisions of other administrative decision-makers and courts outside of Ontario. These comments set the stage for the Tribunal’s reconsideration of the test for family status discrimination in Ontario.

After reviewing some of the key arbitral and court decisions on family status discrimination, the Tribunal distanced itself from these decisions (and in particular from the Federal Court of Appeal’s decision in Johnstone), holding that these cases had attempted to narrow the ambit of the ground of family status by developing specific tests. The Tribunal noted that the different tests had resulted in inconsistency and uncertainty, and that the test for family status discrimination had become higher than for other kinds of discrimination.

The test for discrimination, the Tribunal found, is the same for all cases. The test requires an applicant to establish that (i) he or she is a member of a protected group, (ii) has experienced adverse treatment, and (iii) the ground of discrimination was a factor in the adverse treatment. The focus of the inquiry is on the actual impact of the treatment, taking into account social, political, economic and historical factors concerning the protected group.

In order to prove discrimination in employment based on family status, the applicant must establish not only that there was a negative impact on a family need, but that the impact results in “real disadvantage to the parent/child relationship and responsibilities”. This is arguably a much more permissive test than the one set out in Johnstone, a childcare case where the Federal Court of Appeal restricted the ambit of family status discrimination to obligations a parent cannot neglect without engaging his or her legal liability.

The Tribunal criticized decisions it perceived as conflating issues pertaining to accommodation with the determination of whether discrimination exists. The Tribunal noted that, although consideration of the impact of the impugned workplace rule may also include consideration of the other supports available to an applicant, this is different from considering whether an applicant can self-accommodate. It is only at the undue hardship stage, the Tribunal found, that one considers whether the applicant cooperated in the accommodation process, including whether the applicant provided the employer with sufficient information relating to his or her family-related needs and worked with the employer to identify possible solutions.

As the applicant in Misetich had provided no information to the respondent employer regarding the nature of her eldercare responsibilities, other than asserting that she needed to prepare meals for her mother, and as the applicant’s ability to prepare meals was not adversely affected by the requirement that the applicant work days, evenings and weekends, the application was dismissed. Crucial to the dismissal was also the fact that, although the applicant had provided the Tribunal with information that could have possibly allowed her to establish an adverse impact, she never provided this information to the employer. In addition, the Tribunal found that the information provided by the physician, which was not accepted by the employer, was insufficient. Having failed to provide sufficient information to the employer and having not attended work since 2013, the Tribunal found that the applicant had both abandoned her position and failed to substantiate her eldercare responsibilities.

Misetich is a new development in family status law in Ontario, signaling a possible shift from the more employer-friendly tests set out in previous court and arbitral decisions. At this time, it is not known whether this decision will be subject to reconsideration or appeal; as such, the long-term impact of the decision is difficult to predict.

Misetich is a reminder to employers that proper documentation and follow-up of accommodation requests can be key to establishing a solid evidentiary record that may be relied on before the Tribunal. Misetich is also a warning to employees that simply asserting family status will not suffice to establish discrimination. As stated by the Tribunal, accommodation is a joint process, and employees are expected to provide their employer with sufficient information as well as to work with their employer to identify possible solutions to family/work conflicts.