The Human Rights Tribunal of Ontario (the “Tribunal”) recently issued a significant decision with respect to family status discrimination. In Misetich v Value Village Stores Inc. (“Misetich”), the Applicant alleged that a proposed change to her work schedule in order to accommodate her physical restrictions discriminated against her on the basis of her eldercare responsibilities – specifically, that she needed to be home in order to prepare dinner for her elderly mother. The Tribunal indicated its intention to depart from the test for family status discrimination outlined in Canada (Attorney General) v Johnstone (“Johnstone”) and Canadian National Railway v Seeley (“Seeley”).
In Johnstone, the Federal Court of Appeal developed the following test an applicant had to meet in order to establish family status discrimination, with respect to childcare obligations:
- The child is under his or her care and supervision;
- The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;
- The individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The Tribunal previously adopted the Johnstone test in Wing v Niagara Falls Hydro, in a decision relating to childcare obligations, but it had not previously commented on the application of the Johnstone test in an eldercare case.
In Misetich, the Tribunal held that the analysis for establishing discrimination on the basis of family status is no different than the analysis to be used when evaluating discrimination claims based on other protected grounds under the Human Rights Code. The Tribunal reviewed and rejected the caselaw to date that had applied differing tests for family status discrimination, including the Johnstone decision. Vice Chair Jennifer Scott made the following five statements critical of the current ‘tests’ for family status discrimination:
- The test for discrimination is the same in all cases – the applicant must establish that he or she is a member of a protected group, has experienced adverse treatment and the ground of discrimination was a factor in the adverse treatment;
- Different tests for family status discrimination result in inconsistency and uncertainty in the law;
- The test for family status discrimination has been higher than for other kinds of discrimination (citing the reasoning in Johnstone, which determined that the childcare obligation at issue must engage the individual’s legal responsibility for the child);
- The test of legal responsibility is difficult to apply in the context of eldercare and may result in a higher test than that applied for childcare; and
- Some cases conflate the test for discrimination and accommodation. Vice Chair Scott specifically states that an applicant need not establish that they could not self-accommodate in order to prove discrimination.
Misetich is one of the few decisions from the Tribunal considering family status discrimination, specifically with respect to eldercare obligations. The Tribunal issued its decision on the merits in Devaney v ZRV Holdings Ltd in 2012, prior to both Johnstone and Seeley. Devaney established that ‘family status’ encompassed eldercare obligations and the Tribunal ultimately determined that the applicant had experienced family status discrimination. Unlike in Misetich however, Devaney provided medical evidence to establish that his mother required his care. The Applicant in Misetich refused to provide any information with respect to her mother’s needs, considering such a request offensive and inappropriate.
The Tribunal disagreed, dismissing the application as a result of the Applicant’s failure to provide appropriate documentation to establish her eldercare responsibilities. The Tribunal outlined the following analysis for establishing family status discrimination in employment:
- The employee must establish more than a negative impact on a family need: “the negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.”
- Assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the applicant. However, this is fundamentally different from considering whether an applicant can “self-accommodate”, since the self-accommodation approach imposes an onus on the applicant to find a solution to the family/work conflict.
- Once the applicant proves discrimination, the onus shifts to the employer to establish that the applicant cannot be accommodated to the point of undue hardship. At this stage, the employee’s co-operation – including providing the employer with supporting information regarding the family-related needs and collaborating on solutions to resolve the family/work conflict – is considered.
While this decision purports to ‘clarify’ the appropriate test for family status discrimination, it raises significant concerns regarding the inconsistency with which various courts and jurisdictions across Canada have considered family status discrimination. With differing pronouncements arising from the Federal Court of Appeal in the Johnstone and Seeley decisions and the Human Rights Tribunal of Ontario, the issue of family status discrimination is far from settled and continues to be an important area of human rights law to monitor.
About the Author
Lydia Bay is a labour and employment lawyer in Hicks Morley’s Waterloo office. She provides advice and representation to employers and management on a wide range of human resources matters.