Navigating the Complex Landscape of Family Status Discrimination in Canadian Law
Before delving into the legal intricacies of family status discrimination in Canada, it's crucial to understand what this term means. Ontario’s Human Rights Code defines "family status" as "being in a parent and child relationship." This definition is broad, encompassing not only relationships based on blood or adoption but also those formed through care, responsibility, and commitment. This includes traditional parenting roles, as well as situations like caring for aging parents, relatives with disabilities, or families led by LGBTQ+ individuals.
Understanding this broad definition is essential as we navigate through the varying legal tests and cases across Canada that address family status discrimination, particularly in the workplace.
Understanding the Duty to Accommodate in Relation to Family Status
Ontario’s Human Rights Code (the “Code”) discussed the significant duty on employers, unions, landlords, and service providers to accommodate individuals based on their family status. This duty is central to ensuring equality in various aspects of daily life, from employment to housing and services. The Code clearly outlines the expectations and responsibilities in this regard:
"Under the Code, employers, unions, landlords and service providers all have a legal duty to accommodate based on a person’s family status. The goal is to allow employees, tenants, customers and clients equal benefit from and participation in the workplace, housing, facilities and services, to the point of undue hardship. This is a legal test and the employer, union, landlord or service provider would need to prove that the accommodation is too expensive, or that it creates serious health and safety hazards.
Accommodation is a shared responsibility. Everyone involved should share relevant information and explore solutions together. There is no set formula. Accommodations can benefit many people, but individual needs must be considered each time.
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As a person with family status needs: Tell your employer, union, landlord, or service provider what your family status-related needs are, with supporting information as needed, and help explore possible solutions.
As an employer, union, landlord or service provider: Accept requests for accommodation in good faith. Ask only for needed information, and keep this information confidential. Find a solution as quickly as possible, and in many situations, - cover the costs, including any expert opinion or documents needed."
This duty to accommodate is foundational in the fight against family status discrimination, ensuring that individuals are not disadvantaged due to their family responsibilities.
Family status discrimination is a complex and evolving area of law in Canada. It's essential to understand how different jurisdictions address these issues, especially when it comes to workplace discrimination based on family responsibilities. Let's explore the recent developments in British Columbia, the Federal Court of Appeal, and Ontario.
British Columbia's Campbell River Test (2004)
Case: Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260
Requirements:
Employer's unilateral change in a term or condition of employment.
This change seriously interferes with a substantial parental or family obligation.
Federal Court of Appeal's Johnstone Test (2014)
Case: Canada (Attorney General) v. Johnstone, 2014 FCA 110
Requirements:
Child under the employee’s care and supervision.
Childcare obligation engages the employee’s legal responsibility, not just personal choice.
Employee made reasonable efforts to meet childcare obligations but found no reasonable alternative.
Workplace rule significantly interferes with fulfilling the childcare obligation.
Ontario's Misetich Approach
Case: Misetich v. Value Village Stores Inc., 2016 HRTO 1229
Focus: A contextual assessment of whether the impact of work requirements causes a real disadvantage to the parent/child relationship.
The Dilemma of Diverse Approaches Each jurisdiction in Canada has a unique approach, creating inconsistencies and confusion. The British Columbia Court of Appeal’s recent decision in Gibraltar Mines and the cases of LaFleche v. NLFD and Kendrick v. Canadian Air Specialists Incorporated highlight the need for a unified approach.
Discrimination in Practice: A Case Study Consider the case of LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, where the applicant was discriminated against on pregnancy and family status grounds. The hostile work environment and significant changes to her role post-maternity leave led to profound personal impacts, including a loss of income and a divorce.
