The Lawyers Weekly - November 12, 2010

DONALEE MOULTON

The Canadian Human Rights Tribunal has ruled that the Canada Border Services Agency (CBSA) discriminated against an employee whose rotating and irregular shift-work schedule prevented her from getting and keeping childcare services.

“This is a groundbreaking
decision,” said Ikram Warsame,
legal counsel at the Canadian
Human Rights Commission.
“The tribunal applied a broad
and liberal definition of ‘family
status’ as a ground of discrimina-
tion in accordance with section 2
of the Canadian Human Rights
Act, and held that the CBSA dis-
criminated against Mrs. John-
stone by failing to accommodate
her family status obligations.”
“The concept of family status is
not particularly new, nor is accom-
modating childcare needs,” noted
Danny Bernstein, an associate with
Oglivy Renault LLP’s labour and
employment group in Ottawa.

The decision, however, he said,
“is significant in that it is a very
broad approach to the concept.
There were divergent approaches
as to what family status meant.”
“We take the view that the tribu-
nal’s decision is the correct
approach and meets the Supreme
Court of Canada’s approach in dis-
crimination cases,” said Andrew
Raven, a senior partner with Raven,
Cameron, Ballantyne & Yazbeck
LLP/s.r.l. in Ottawa, who repre-
sented the complainant.

Specifically, the tribunal found
that, “CBSA engaged in a dis-
criminatory practice by establish-
ing and pursuing an unwritten
policy communicated to and fol-
lowed by management that affected
Ms. Johnstone’s employment
opportunities including, but not
limited to promotion, training,
transfer, and benefits on the pro-
hibited ground of family status.

“

The tribunal rejected the employer’s position that discrimination on the basis of family status should only be found where there is a ‘serious interference’ with a ‘substantial parental obligation’...

The decision, said Warsame,
“confirmed that the threshold for
demonstrating discrimination in a
family status case should be no dif-
ferent than for any other ground of
discrimination under the Can-
adian Human Rights Act.”
It also confirmed, she noted,
“that employers have an obligation
‘to make all reasonable efforts and
afford employees all reasonable
opportunities’ and ‘not to fall back
on impressionistic views’ to refuse
a request for accommodation on
the basis of family status.”
Employers will want to pay
particular attention to the find-
ings in Fiona Ann Johnstone v.
Canada Border Services. “Employ-
ers need to be aware they have a
duty to accommodate if there is a
need,” said Bernstein. “That’s
always the grey area. They need to
consider each request on a case-
by-case basis.”
There is no one-size-fits-all
approach, noted Warsame. “In
treating accommodation requests
on the basis of family status,
employers have to assess employee
situations, such as Ms. Johnstone’s,
on an individual basis and to work
together in creating a workable
solution that balances an employ-
ee’s parental obligations with an
employee’s work opportunities,
short of undue hardship.

Reasons: Fiona Ann Johnstone v. Canada Border Services, [2010] C.H.R.D. No. 20.

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Involving children results in less parental conflict

Children
Continued From Page 11

“ 3. have a say in the manner in which they participate so that they may do so in a way that works effectively for them;

“ 4. have their views considered
in a substantive way; and
“ 5. be informed of both the
result reached and the way in
which their views have been taken
into account.”
There are good reasons to
involve children. Many are listed
in the decision. There are also
several studies published on the
federal Department of Justice
website, including a June 2009
literature review on the subject
for ADR processes. This report
concludes, in part, “children and
their parents have better relation-
ships and there is less…conflict
between the parents when chil-
dren are part of the process.”
But there are risks as well,
which may be in danger of being
lost or under-appreciated. The
report also cautions that outcomes
still depend on the training of the
professionals involved and the
parents’ abilities to use the child’s
information constructively.

David Dundee is a lawyer and family law mediator with Paul & Company, in Kamloops, B.C.

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