2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
The Beginning of the End of a Different Legal Test for Family Status Discrimination?
Misetich v Value Village Stores Inc., 2016 HRTO 1229 (“Misetich”), a recent decision from the Human Rights Tribunal of Ontario (the “Tribunal”) that considered an employee’s eldercare responsibilities, casts doubt on the correct legal test to be applied in cases of family status discrimination.
The applicant worked at Value Village’s Niagara Falls store (the “Employer”) since 2006. She initially commenced her employment as a part-time sales clerk, working at the front of the store on days, evenings and on-call. In 2010 she moved to a production position in the back of the store and worked straight days from Monday to Friday. In January of 2013, the applicant developed a repetitive strain injury to her left hand and arm that required accommodation. The store manager offered the applicant temporary modified duties to fit her physical restrictions which were confirmed by a functional abilities form completed by the applicant’s physician. She was also notified that as a result, her shifts and hours might vary and could include days, nights and weekend shifts. The applicant denied the offer of modified duties because she said that the hours would place a hardship on her as she prepared evening meals for her elderly mother.
The Employer wrote to the applicant (in June 2013), regarding the applicant’s failure to provide medical evidence to support her ongoing absence from work and to support her request for accommodation as a result of her eldercare responsibilities. The applicant took the position that she would not share her mother’s confidential and private medical information and was angry about the Employer’s request to provide evidence that she took all reasonable steps to self-accommodate. After a series of exchanges between the applicant and the Employer, the applicant was advised that failure to return to work the modified duties, and/or failure to provide acceptable evidence to support her request to be accommodated for her family responsibilities would result in termination due to job abandonment. Ultimately, the applicant’s employment was terminated on October 1, 2013. On the same date, the applicant attempted to provide a medical note that confirmed that she was her mother’s caregiver. The note was not accepted by the Employer.
Before considering if there was discrimination on the ground of family status, Adjudicator Scott clarified that in her view, there should not be a different legal test applied in cases of family status discrimination as compared to discrimination on other prohibited grounds. The adjudicator declined to apply the four-part test for family status discrimination confirmed by the Federal Court of Appeal in Canada (Attorney General) v Johnstone, 2014 FCA 110 (“Johnstone”), which addressed family status discrimination in the context of an employee’s childcare obligations. The Johnstone test for prima facie discrimination, which has been accepted in several jurisdictions as the proper test to be applied in family status discrimination cases, is as follows:
- the child is under the care and supervision of the employee;
- the childcare obligation engages the employee’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations through alternative solutions, and no such alternative solution is reasonably accessible, and,
- the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
After acknowledging that a specific test was developed in the first place for family status discrimination out of concern that not every negative impact on family obligations was discriminatory, to which the adjudicator agreed, she concluded that there should not be a different test for family status discrimination. She reasoned as follows:
- There is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination alleged;
- Different tests for family status discrimination have resulted in inconsistency and uncertainty in the law;
- The test for family status discrimination has become, perhaps inadvertently, higher than other kinds of discrimination – there may be reasons not emanating from legal responsibilities that are essential to the parent/child relationship;
- The test of legal responsibility is difficult to apply in the context of eldercare – there may be a higher test for eldercare responsibilities since an adult child’s responsibility to provide care for elderly parents is not as clear as the responsibility to care for children; and
- Some cases have conflated the test for discrimination and accommodation.
Applying the test for discrimination generally, that: (1) the applicant can establish that she is a member of a protected group; (2) has experienced adverse treatment; and (3) the ground of discrimination was a factor in the adverse treatment, the adjudicator concluded that there was no discrimination in this case. Adjudicator Scott found that the applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends since she could have worked these shifts and provided evening meals for her mother, when required, the same way she was able to provide meals at other points during the day. She found that over a 10 month period, the Employer requested medical evidence regarding her mother’s care while, in response, the applicant baldly asserted that the change in her work schedule was discriminatory on the basis of her family status because she provided evening meals to her mother. The applicant provided no further information to the Employer about the nature of her eldercare responsibility. Interestingly, the applicant produced additional evidence in this regard at the hearing. Accordingly, the adjudicator commented that had this information been provided to the Employer, the applicant may have been able to establish that the proposed change in work hours constituted adverse treatment on the basis of family status.
What Does This Decision Mean for Employers?
From Campbell River to … Johnstone to … Misetich
This decision adds to the uncertainty as to which legal test will be applied in cases of family status discrimination. Some readers may recall the decision of the BC Court of Appeal in Health Sciences Association of British Columbia v Campbell River et al., 2004 BCCA 260 (“Campbell River”), cited by the adjudicator in this case, which set out the “serious interference” test for family status discrimination. As confirmed in Campbell River, a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. The Campbell River test, which imposed a higher threshold to establish family status discrimination compared to other grounds, was later rejected in Johnstone.
The Human Rights Tribunal of Ontario in this decision, has now rejected the test in Johnstone, which appeared to be emerging as the seminal decision on family status discrimination in Canada since its release in May 2014. Should the reasoning in this decision be followed, employees will not have to demonstrate that their childcare or eldercare obligations engage a legal responsibility in order to prove family status discrimination. The adjudicator commented that “the employee will have to do more than simply establish a negative impact on a family need”, adding that “the negative impact must result in a real disadvantage to the parent/child relationship and responsibilities that flow from that relationship and/or the employee’s work”.
It will be interesting to see if the reasoning in Misetich is applied in other family status discrimination cases and if so, if it will apply to decisions dealing with childcare obligations. For now, it appears to open the door to an increase in family status discrimination complaints by employees in this area of unsettled human rights law.
Click below for the full decision:
Misetich v Value Village Stores Inc., 2016 HRTO 1229