The Federal Court of Appeal recently released its decisions in Canada (Attorney General) v. Johnstone (Johnstone) and Canadian National Railway v. Seeley (Seeley), bringing much needed clarity to the scope of the protected ground of “family status” under the Canadian Human Rights Act (the Act) as it relates to childcare obligations and the legal test to establish child care-related discrimination under the Act. 

Background

As previously discussed, both the Johnstone and Seeley cases involve female claimants that brought human rights complaints against the Canadian Border Services Agency (CBSA) and Canadian National Railway (CNR) respectively under the ground of “family status” for failing to accommodate childcare obligations. 

The Canadian Human Rights Tribunal, and subsequently the Federal Court upon judicial review, ultimately agreed with Ms. Johnstone and Ms. Seeley and in doing so, confirmed that “family status” under the Canadian Human Rights Act includes childcare responsibilities (as opposed to mere status as a parent) provided that such obligations are “of substance” and an employee has attempted to reconcile family obligations with work obligations. Notably, both the Canadian Human Rights Tribunal and the Federal Court rejected the more stringent approach to determining family status discrimination as established by the British Columbia Court of Appeal, which held that there was no discrimination unless there had been “a serious interference with a substantial parental or other family duty.” The CBSA and CNR later appealed the Federal Court’s decisions to the Federal Court of Appeal.

Federal Court of Appeal

Although the Court of Appeal (the Court) slightly modified the remedies awarded to both Ms. Johnstone and Ms. Seeley, on the whole it agreed with the decisions of the Federal Court, holding that the broad interpretation to be accorded to human rights legislation favours the inclusion of childcare obligations under the ground of family status.  In particular, the Court held that, “without reasonable accommodations for parents’ childcare obligations, many parents will be impeded from fully participating in the workforce so as to make for themselves the lives they are able and wish to have.” The Court did confirm, however, that not all childcare obligations require accommodation.  Those obligations requiring accommodation are those which a parent “cannot neglect without engaging his or legal liability.”  As an example, the Court noted that a parent cannot leave a young child unsupervised at home in the pursuit of work, as this would constitute neglect. Voluntary family activities such as family trips and extracurricular activities, however, would not normally be protected because they result from “personal choices rather than parental obligations.”

Beyond confirming that childcare obligations can trigger accommodation obligations under the Act, the Court also set out the conditions that must be met in order to establish a prima facie case of childcare-related family status discrimination.  In particular, a claimant must show:

  1. that a child is under their care or supervision (and in the case of claimants who are caregivers, that at the relevant time their relationship with the child is such that they have assumed legal obligations which a parent would have);
  2. that the childcare obligation at issue engages the individual’s legal responsibility for that child as opposed to a personal choice (which also requires that the claimant show that the child has not reached an age where he or she can reasonably be expected to care for himself or herself during the parent’s work hours);
  3. that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible; and
  4. the workplace rule at issue interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. 

With respect to the application of this test, the Court stated that the test must be sufficiently flexible to advance the broad purpose of the Act, namely “the principle that individuals should have the opportunity equal with other individuals to make for themselves the lives they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on family status.”

Our views

Certainly insofar as the Act and federally-regulated employers are concerned, the Court’s decisions in Johnstone and Seeley provide an unequivocal affirmation that childcare-related obligations can require accommodation.  Moreover, the four (4) part test as set out above should provide a clear framework by which both claimants and respondent employers can better understand when childcare-related discrimination will be established under the Act.

It ultimately remains to be seen how persuasive the Court’s commentary on these issues will be on provincial human rights tribunals, which govern provincially-regulated employers.  However, as an appellate level court, the Court’s decisions in Johnstone and Seeley will likely be accorded some deference.  We will keep you posted in this regard, as well as with respect to whether the Court’s decisions are appealed to the Supreme Court of Canada.