Blast from the Past – An episode from Lillian Boctor, Alyssa Clutterbuck, and Garrett Zehr!
Canada’s Federal Court has recently issued two decisions finding a lack of consideration towards workers’ childare issues discrimination on the basis of ‘family status’. Both decisions were penned by The Honourable Leonard S. Mandamin.
First, on January 31, 2013, the Federal Court released Canada (Attorney General) v. Johnstone, 2013 FC 113 (CanLII). Here, Ms. Fiona Johnstone complains of human rights discrimination at work due to family status. Johnstone argued that her employer, the Canadian Border Services Agency, “engaged in a discriminatory employment practice with respect to family status, specifically, in relation to her parental childcare obligations.” Johnstone had been working rotating shifts and requested full-time, fixed day shifts to accommodate childcare for her kids. The Employer’s policy prohibited fixed day shifts. Johnstone was therefore ineligible for benefits available to full-time employees.
The Court reasons, at paras 125-128:
 Simply stated, any significant interference with a substantial parental obligation is serious. Parental obligations to the child may be met in a number of different ways. It is when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that the case for prima faciediscrimination based on family status is made out.
 In Amselem the Supreme Court of Canada ruled that a person’s freedom of religion is interfered with where the person demonstrates that he or she has a sincere religious belief and a third party interfered, in a manner that is non-trivial or not insubstantial, with that person’s ability to act in accordance with the belief.
 The phrase “a substantial parental duty or obligation”equates with and establishes the same threshold as a sincere religious belief. Amselem.
 In my view, the serious interference test as proposed by the Applicant is not an appropriate test for discrimination on the ground of family status. It creates a higher threshold to establish a prima faciecase on the ground of family status as compared to other grounds. Rather, the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.
This decision is cited and further bolstered by a second decision on the same topic, released February 1, 2013. In Canadian National Railway v. Seeley, 2013 FC 117 (CanLII) , the Federal Court dismisses an appeal against finding of discrimination on the basis of family status. Denise Seeley was employed by CN as a freight train conductor. She was on lay-off and was recalled to report to a temporary work assignment to cover a major shortage in Vancouver, British Columbia. She advised she could not report to Vancouver because of childcare issues, as Vancouver was far away from her home in Jasper, Alberta. CN gave Ms. Seeley additional time, however, she did not report for work; as a result, CN terminated her employment.
The Canadian Human Rights Tribunal reinstated her employment, amongst other remedies, and CN appealed the decision. An important component of the decision is at para 78 where Mandamin suggests the following test in assessing whether there is discrimination on the basis of family status:
 In trying to distil the principles the above cases represent, I would venture to suggest there are underlying questions one or the other has either raised or addressed:
a. does the employee have a substantial obligation to provide childcare for the child or children; in this regard, is the parent the sole or primary care giver, is the obligation substantial and one that goes beyond personal choice;
b. are there realistic alternatives available for the employee to provide for childcare: has the employee had the opportunity to explore and has explored available options; and is there a workplace arrangement, process, or collective agreement available to the employee that may accommodate an employee’s childcare obligations and workplace obligations;
c. does the employer conduct, practice or rule put the employee in the difficult position of choosing between her (or his) childcare duties or the workplace obligations?
The Federal Court dismissed the appeal, ruling that “the Tribunal’s finding that parental childcare obligations comes within the term “family status” in the Act.” Moreover, the finding “was reasonable in keeping with the Supreme Court of Canada guidance in Dunsmuir,Khosa and Mowat.”