Family Status is an enumerated ground in the Ontario Human Rights Code (the Code) and includes both eldercare and childcare. Members have raised questions about how far the University must go to accommodate childcare or eldercare. What if a teaching schedule conflicts with a child’s extracurricular activities? What if a parent is hospitalized and requires family assistance in recovery? Like most things legal, these two situations might entitle you to family status accommodation or they might not, depending on the circumstances.
The test was established in 2014 at the Federal Court level in Canada (Attorney General) v. Johnstone. It required the following [paragraphs 94-97, paraphrasing is mine].
The claimant must demonstrate
- that a child is actually under his or her care and supervision;
- that an obligation exists which engages the individual’s legal responsibility for the child;
- that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible; and,
- that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
In 2016, Vice-chair Jennifer Scott of the Ontario Human Rights Tribunal modified the test in Misetech v. Value Village because, in her view, the Johnstone test was more onerous than for discrimination under other protected grounds as it required engagement of legal liability of the claimant. It also does not easily lend itself to application for eldercare to which the protection has expanded. Finally, she points out that some decisions have erroneously used it to conflate discrimination and accommodation.
Vice-chair Scott first describes the general test for Code-based discrimination which is
- the person is a member of a protected group
- the person has experienced adverse treatment
- discrimination was a factor in the adverse treatment, taking account of social, political, economic, and historical factors concerning the protected group
She goes on to say that family status discrimination is more than simply a negative impact on a family need; rather, that the negative impact must result in real disadvantage to the caregiving relationship and the responsibilities that flow from it, and/or to the employee’s work, in a significant way. Context, such as available supports, is also important to assessing the impact of an impugned rule.
In addressing the issue of self-accommodation that seemed implied in earlier decisions, Vice-Chair Scott explains that the employee should not bear the onus of finding solutions in order to prove discrimination, rather that consideration should be given to “the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination.”
Only after the employee has proven discrimination is the employer’s requirement to provide Code-related workplace accommodation triggered.
Unlike a ruling from the Federal Court which has the legal weight of precedent, a ruling from a human rights tribunal does not and its arguments are considered potentially persuasive only. Misetech has been cited in subsequent decisions at the BC Human Rights Tribunal and the Ontario Human Rights Tribunal, so it seems that litigants are using it to further their positions. It remains to be seen whether a court will adopt any of Vice-chair Scott’s argument; the Ontario Human Rights Tribunal does have some gravitas within the legal world.
All parties – employer, employee, union if it exists – have an obligation to cooperate and provide sufficient information during the process to aid in figuring out a reasonable and appropriate accommodation. Accommodation rights are not absolute. Once triggered, the employer must accommodate to the point of undue hardship considering cost, health, and safety. It is important to note that your employer is Queen’s University, not your department or faculty.
The law on family status has not been litigated enough for certainty on the definition or tests, but it is clear that simply having to juggle your life because of childcare or eldercare obligations is insufficient to establish discrimination based on human rights grounds and does not trigger legal workplace accommodation.
October 23, 2017
 Canada (Attorney General) v. Johnstone, 2014 FCA 110
 Misetich v. Value Village Stores Inc., 2016 HRTO 1229