The evolution of the family status protections #2

In our previous blog on the evolution of the family status protections, we discussed the latest test enunciated by the Human Rights Tribunal of Ontario (“the Tribunal”) in Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII) and the evolution of the law from the previous test set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII).

More recently, the Tribunal had the opportunity to revisit the test in Simpson v. Pranajen Group Ltd. o/a Nimigon Retirement Home, 2019 HRTO 10 (CanLII). In this matter, the employer chose not to participate in the hearing nor did it provide a Response to the allegations. As such, the Tribunal took the stance that the employer agreed with the allegations made against them.

Interestingly, the Tribunal did not apply the Misetich test nor the Johnstone test. In fact, the Tribunal declined to apply a particular test, leaving the law to appear somewhat unsettled on the test for discrimination on the basis of family status. The Tribunal reasoned that regardless of whether they applied the Misetich test or the Johnstone test, they would come to the same conclusion.

The Tribunal’s conclusions

“[31]  Whether I apply the test of the Federal Court of Appeal in Johnstone, above, or the test as set out in Misetich, above, I come to the same conclusion.” 

“[32] The applicant was in a parent and child relationship, thus invoking her membership in the group identified by family status. The applicant experienced adverse treatment when she lost her job, and one of the reasons for the termination, if not the sole reason, was that she was unavailable for afternoon shifts because of her childcare requirements. As noted above, the reasons provided to the applicant for her termination were a pretext and not based in fact. The respondent arbitrarily, unfairly and unreasonably withdrew its offer to accommodate the applicant’s childcare needs with the midnight shift and then subsequently terminated her employment. There was no evidence that accommodating the applicant’s family status would have been undue hardship for the respondent. Consistent with Misetich, above, I conclude that the respondent discriminated against the applicant because it failed in its duty to accommodate the applicant’s needs arising from her family status.”

“[33] Even if the Tribunal would be wrong to apply a test different from Johnstone, above, I find that the applicant also met the Johnstone test in establishing discrimination because she tried to “self-accommodate” by trying to access full-day childcare so that her children would be looked after while the applicant and her husband worked. She maintained her name on various daycare lists, including the regional government’s list which covers many daycares. She also used her parents-in-law for childcare as much as they were able to provide childcare. I find that the applicant, both mother and guardian of her children, had the legal responsibility to provide childcare for them, and, despite reasonable efforts to find an alternative, no alternative to herself caring for her children in the late afternoon was reasonably accessible. I find that the respondent’s expectation that the applicant work in the late afternoon interfered in a manner that is more than trivial or insubstantial with the fulfillment of the applicant’s childcare obligation.” 

“[34] The respondent’s rejection of the applicant’s need for certain shifts to allow her to care for her children was at least a factor in the termination of her employment, if not the only factor. Consequently, the respondent discriminated against the applicant because of her family status when it terminated her employment.”

As a result of this case, it appears there is no clear direction from the Tribunal with respect to the legal test they will rely upon going forward. Nonetheless, this case sends a clear message that employers should take requests for accommodation on the basis of family status due to child care obligations in good faith and make reasonable efforts to accommodate the employee. With the exception of small employers, only rarely will an employer be able to demonstrate the accommodation causes undue hardship.