Legal Update

Johnstone v. Canada (Attorney General)

A Canada Border Services officer working at a land crossing. PHOTO: Canada Border Services AgencyA Canada Border Services officer working at a land crossing. PHOTO: Canada Border Services Agency

Fiona Johnstone worked for the Canada Border Services Agency (CBSA). She requested that the CBSA allow her to work full-time hours over a three-day week so that she could balance her work with her caregiving responsibilities. Her situation was further complicated by the fact that her husband also worked irregular shifts and often travelled for business. 

The CBSA refused to accommodate her request. Ms. Johnstone filed a discrimination complaint with the Canadian Human Rights Commission. She alleged the CBSA was discriminating against her on the basis of family status. 

In 2010, the Canadian Human Rights Tribunal ruled that the CBSA had discriminated against Ms. Johnstone. 

In January 2013, the Federal Court dismissed the Attorney General’s application for judicial review of the case. The Court confirmed that parental childcare obligations fall within the scope and meaning of the ground “family status” in the Canadian Human Rights Act.  

At the time of writing, the Attorney General was appealing the Federal Court’s decision to the Federal Court of Appeal.

“…it is difficult to have regard to family without giving thought to children in the family and the relationship between parents and children. The singular most important aspect of that relationship is the parents’ care for children. It seems to me that if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so.”

Honourable Mr. Justice Mandamin, dismissing the Attorney General’s application for judicial review in Canada v. Johnstone, January 31, 2013

 

Seeley v. Canadian National Railway 

Transportation Safety Board of CanadaPHOTO: Transportation Safety Board of Canada

Denise Seeley is a former employee of the Canadian National Railway (CN). In 2005, she was called back to work after being laid off years prior. She was asked to report to work 1,000 kilometres away from her home.

Ms. Seeley had two young children, and her husband worked long shifts. The family needed time to figure out how they were going to find care for their kids given the new circumstances.  

Ms. Seeley eventually asked to be excused from the assignment because she had still not found suitable childcare. CN refused her request. When Ms. Seeley did not report to work, CN fired her. She filed a complaint with the Canadian Human Rights Commission, alleging CN had discriminated against her based on the ground of family status. 

In 2010, the Canadian Human Rights Tribunal found that CN had discriminated against Ms. Seeley. 

In February 2013, the Federal Court dismissed CN’s application for judicial review of the Tribunal’s 2010 ruling. 

At the time of writing, CN was appealing the Federal Court’s decision to the Federal Court of Appeal. 

 

Hicks v. Human Resources and Skills Development Canada

Leslie Hicks worked for the Coal Mining Safety Commission in Nova Scotia. When he was asked to relocate to Ottawa in another public service job, his wife stayed behind to care for her ailing mother. Her mother depended on her both physically and emotionally, and was not well enough to travel to Ottawa. 

This meant that Mr. Hicks and his wife had to maintain dual residences. Mr. Hicks applied for an expense claim under the federal government’s relocation directive. His new employer, Human Resources and Skills Development Canada (HRSDC), denied the claim. It argued that Mr. Hicks was not eligible to receive the benefit because his mother-in-law lived in an assisted-living apartment rather than the family’s home. 

Leslie Hicks filed a complaint with the CHRC on the ground of family status. His case was referred to the Canadian Human Rights Tribunal in 2011.

In September 2013, the Tribunal found that the HRSDC had discriminated against Mr. Hicks based on the ground of family status. 

At the time of writing, the Attorney General of Canada was seeking judicial review of the Tribunal decision in this case.

“…just as the jurisprudence recognizes family status as protecting the childcare obligations of a parent towards a child, the reciprocal eldercare responsibilities of a child towards their parent should also be recognized in the same fashion.”

Réjean Bélanger, Member of the Canadian Human Rights Tribunal, September 18, 2013

 

Cruden v. Canadian International Development Agency and Health Canada

Sergeant Matthew McGregor, Canadian Forces Combat Camera, © 2011 DND-MDN CanadaSergeant Matthew McGregor, Canadian Forces Combat Camera, © 2011 DND-MDN Canada

Bronwyn Cruden, an employee of the Canadian International Development Agency (CIDA), applied for a posting to Afghanistan. CIDA refused because it would not have been able to provide Ms. Cruden with the medical support required for her type 1 diabetes. Ms. Cruden filed a discrimination complaint with the Canadian Human Rights Commission on the ground of disability. 

The Canadian Human Rights Tribunal found that CIDA had not attempted to accommodate Ms. Cruden’s needs sufficiently even though posting Ms. Cruden to Afghanistan would have caused CIDA undue hardship

The Attorney General filed for judicial review of the Tribunal decision.

In May 2013, the Federal Court ordered that the Tribunal decision, and all remedies, be set aside. The Court found that discrimination had not taken place in Ms. Cruden’s case because posting her to Afghanistan would have caused CIDA undue hardship.

At the time of writing, the CHRC was appealing the Federal Court’s decision.

What is undue hardship?

While employers have a duty to accommodate their employees, sometimes accommodation is not possible because it would cause undue hardship.

Under the Canadian Human Rights Act, an employer or service provider can claim undue hardship when changes to a policy, practice, by-law or building would be too costly, or would create risks to health or safety. To prove undue hardship, evidence must show the nature and extent of the hardship. There is no precise legal definition of undue hardship nor a standard formula for determining it.

35th My Canada includes everyone. | 35ième Mon Canada inclut tout le monde.