2014 FCA 110, 2014 FCA 110

A-89-13 2014 FCA 110 Attorney General of Canada ( Appellant ) v. Fiona Ann Johnstone and Canadian Human Rights Commission ( Respondents ) and Women’s Legal Education and Action Fund Inc. ( Intervener ) Indexed as: Canada (Attorney General) v. Johnstone Federal Court of Appeal, Pelletier, Mainville and Scott JJ.A.—Toronto, March 11; Ottawa, May 2, 2014. Human Rights — Appeal from Federal Court decision dismissing judicial review of Canadian Human Rights Tribunal (Tribunal) decision that Canada Border Services Agency (CBSA) discriminating against respondent Johnstone (respondent) on ground of family status contrary to Canadian Human Rights Act , s. 10 — Work

schedule of full-time employees of CBSA occupying positions similar to that of respondent, husband, built around rotating shift plan — CBSA having unwritten policy allowing employee with childcare obligations to work fixed schedules, but only insofar as employee agreeing to be treated as having part-time status — CBSA denying respondent’s request for static shifts on full-time basis in order to accommodate childcare needs — Respondent filing complaint with Canadian Human Rights Commission — Tribunal holding that, inter alia, prohibited ground of discrimination on family status including family, parental obligations such as childcare obligations, respondent making out case of prima facie discrimination — Federal Court dismissing judicial review but remitting matter back to Tribunal as to award of loss wages, benefits for period during which respondent opting for unpaid leave — Respondent also excluded as party to be consulted with respect to development of written remedial policy by CBSA — Principal issues whether Tribunal erring in concluding that family status including childcare obligations; in identifying legal test for finding prima facie case of discrimination on ground of family status; in finding that prima facie case of discrimination on ground of family status made out; with respect to remedial orders — Childcare obligations contemplated under family status in Act those having immutable or constructively immutable characteristics, e.g. those forming integral component of legal relationship between parent, child — Individual advancing claim having to show (

i) child under his or her care, supervision; (ii) childcare obligation at issue engaging individual’s legal responsibility for that child; (iii) reasonable efforts made to meet those childcare obligations but no alternative solution reasonably accessible; (iv) impugned workplace rule interfering in more than trivial or insubstantial manner with fulfillment of childcare obligation — Respondent clearly making out prima facie case of discrimination on ground of family status resulting from childcare obligations; Tribunal committing no reviewable error in so finding — As to remedies, Federal Court judgment varied slightly with respect to award for lost wages, consultation regarding remedial policies — Appeal allowed in part.

Administrative Law — Judicial Review — Standard of Review — Federal Court dismissing judicial review of Canadian Human Rights Tribunal decision that Canada Border Services Agency discriminating against respondent Johnstone on ground of family status contrary to Canadian Human Rights Act , s. 10 — Presumption of reasonableness rebutted — Standard of correctness applied with respect to meaning, scope of “family status”, to legal test under which finding of prima facie discrimination may be made under prohibited ground.

This was an appeal from a judgment of the Federal Court dismissing the judicial review application of the appellant challenging a decision of the Canadian Human Rights Tribunal (Tribunal) that the Canada Border Services Agency (CBSA) discriminated against the respondent Johnstone (respondent) on the ground of family status by refusing to accommodate her childcare needs through work scheduling arrangements, contrary to

section 10 of the Canadian Human Rights Act (Act). The work

schedule of full-time employees of the Canada Border Services Agency (CBSA) occupying positions similar to that of the respondent and her husband, is built around a rotating shift plan. Any individual who worked less than 37.5 hours a week was considered a part-time employee. Part-time employees had fewer employment benefits than full-time employees, notably with regard to pension entitlements and promotion opportunities. The CBSA refused to provide an accommodation to employees with childcare obligations on the ground that it had no legal duty to do so.

Instead, the CBSA had an unwritten policy allowing an employee with childcare obligations to work fixed schedules, but only insofar as the employee agreed to be treated as having a part-time status with a maximum work

schedule of 34 hours per week. Prior to returning from maternity leave, the respondent asked the CBSA to provide her with static shifts on a full-time basis in order to accommodate her childcare needs. In light of its unwritten policy, the CBSA only offered her static shifts for 34 hours per week resulting in her being treated as a part-time employee. The respondent thus filed a complaint with the Canadian Human Rights Commission, alleging discrimination on the basis of family status contrary to sections 7 and 10 of the Act .

The Tribunal held that the prohibited ground of discrimination on family status includes family and parental obligations such as childcare obligations; the respondent had made out a case of prima facie discrimination in that the CBSA engaged in a discriminatory practice by establishing and pursuing an unwritten policy that affected the respondent’s employment opportunities; the CBSA had not established a defence based on a bona fide occupational requirement that would justify its refusal of the work

schedule accommodation sought by the respondent, nor had it developed a sufficient undue hardship argument to discharge it from its duty of accommodation. The Tribunal, therefore, ordered the CBSA to cease its discriminatory practice against employees who seek accommodation on the basis of family status for purposes of childcare responsibilities, and to consult with the Canadian Human Rights Commission to develop a plan to prevent further incidents of discrimination based on family status in the future.

It further ordered the CBSA to establish written policies satisfactory to the respondent and the Canadian Human Rights Commission. Finally, the Tribunal ordered the CBSA to compensate the respondent for her lost wages and benefits, awarded her $15 000 for pain and suffering pursuant to paragraph 53(2) (

e) of

the Act , and further awarded her $20 000 for special compensation pursuant to subsection 53(3) of the Act, as a result of its finding that the CBSA had engaged in the discriminatory practice wilfully and recklessly. The Federal Court dismissed the judicial review application of the Tribunal’s decision, holding that the Tribunal had reasonably concluded that family status includes childcare responsibilities; and that the test used by the Tribunal for finding a prima facie case of discrimination was reasonable, specifically discarding the “serious interference” test used in Health Sciences Assoc. of B.C. v.

Campbell River and North Island Transition Society . With respect to the remedies, the Federal Court could not discern the basis on which the Tribunal awarded full wages to the respondent for her unpaid leave from August 2007 to August 2008. That issue was therefore referred back to the Tribunal for reconsideration. The Federal Court also concluded that the Tribunal exceeded its jurisdiction when it ordered the CBSA to establish written remedial policies satisfactory to the respondent.

The principal issues herein were whether the Tribunal erred in concluding that family status includes childcare obligations; in identifying the legal test for finding a prima facie case of discrimination on the ground of family status; in finding that a prima facie case of discrimination on the ground of family status had been made out in this case; and with respect to its remedial orders. Held , the appeal should be allowed in part.

On the issue of the applicable standard of review, the presumption of reasonableness was rebutted and a standard of correctness was to be applied with respect to the two legal issues, namely (

a) the meaning and scope of “family status” as a prohibited ground of discrimination, and (

b) the applicable legal test under which a finding of prima facie discrimination may be made under that prohibited ground. The appellant proposed a literal

interpretation of the expression “family status” that excludes childcare obligations, but cited no judicial authority supporting such a restrictive

interpretation. In fact, judges and adjudicators have been almost unanimous in finding that family status incorporates parental obligations such as childcare obligations. A broad, purposive and liberal approach applied in this case. Such an approach favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities.

The childcare obligations that are contemplated under family status in the Act are those that have immutable or constructively immutable characteristics, e.g. those that form an integral component of the legal relationship between a parent and a child, as opposed to personal choices (such as family trips, participation in extracurricular sports events, etc.). As a result, the childcare obligations at issue were those that a parent cannot neglect without engaging his or her legal liability for the child.

The specific types of evidence and information that may be applied to establish a prima facie case of discrimination largely depend on the nature of the prohibited ground of discrimination at issue.

As the Federal Court concluded, “the childcare obligations arising in discrimination claims based on family status must be one of substance and the complainant must have tried to reconcile family obligations with work obligations … [T]his requirement does not constitute creating a higher threshold test for serious interference.” In order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (

i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

In the case at bar, the respondent clearly made out a prima facie case of discrimination on the ground of family status resulting from childcare obligations, and the Tribunal committed no reviewable error in so finding. Since the appellant was not asserting any bona fide occupational requirement or an undue burden in providing the respondent fixed shifts on a full-time basis, the Tribunal’s ruling that her complaint under the Act was substantiated was to be upheld.

With respect to remedies, since the respondent did not appeal from the judgment referring back to the Tribunal its award of full-time lost wages for the period of August 2007 to August 2008 when the respondent opted for unpaid leave to accompany her husband to Ottawa, the same conclusion applied to the period of August 2008 to August 2010 during which the respondent continued to remain on leave in Ottawa. The judgment of the Federal Court was thus varied accordingly.

Its judgment was also varied so as to require the CBSA to develop the remedial policies, ordered by the Tribunal, in consultation with the Canadian Human Rights Commission. Finally, as to the award of special damages, the Tribunal’s conclusion of wilful or reckless practice was largely founded on the CBSA’s disregard for the prior decision of the Tribunal in Brown v. Canada (Department of National Revenue) . The Tribunal concluded that in Brown it had ordered the organization to which the CBSA succeeded to prevent similar events from recurring through recognition and policies that would acknowledge family status.

This was a reasonable

interpretation of Brown by the Tribunal and a reasonable finding as to the CBSA’s failure to follow that prior decision. As a result, the Tribunal acted reasonably in concluding that wilful and reckless conduct had occurred in this case. STATUTES AND REGULATIONS CITED Alberta Human Rights Act , R.S.A. 2000, c. A-25.5, s. 3(1). Canadian Human Rights Act , R.S.C., 1985, c. H-6, ss. 2, 3 , 7 , 10 , 53(2) ( a ),( c ),( d ),( e ), (3) . Charter of Human Rights and Freedoms , R.S.Q., c. C-12. Civil Code of Québec , S.Q. 1991, c. 64, Art. 599. Criminal Code , R.S.C., 1985, c. C-46, s. 215(1). Human Rights Act , R.S.N.S. 1989, c. 214, s. 5(1)( r ).

Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. 13. Human Rights Act, R.S.Y. 1986 (Supp.), c. 11. Human Rights Act, S.B.C. 1984, c. 22. Human Rights Act, S.N.L. 2010, c. H-13.1, s. 9(1). Human Rights Code, R.S.B.C. 1996, c. 210, ss. 7(1), 13(1). Human Rights Code, R.S.O. 1990, c. H.19, s. 1. The Human Rights Code, C.C.S.M., c. H175, s. 9(2). Saskatchewan Human Rights Code (The), S.S. 1979, c. S-24.1, s. 2(1)(m.01). CASES CITED followed: Canada (Attorney General) v. Mossop, (SCC), [1993] 1 S.C.R. 554, (1993), 100 D.L.R. (4th) 658. applied: Rogers Communications Inc. v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283;Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Ontario Human Rights Commission and O’Malley v. Simpsons-SearsLtd. et al., (SCC), [1985] 2 S.C.R. 536, (1985), 23 D.L.R. (4th) 321; B v. Ontario (Human Rights Commission), 2002SCC 66, [2002] 3 S.C.R. 403; Canada (Attorney General) v. Canada (Canadian Human Rights Commission), 2005 FCA 154, 55C.H.R.R. D/1, sub nom. Morris v. Canada (Canadian Armed Forces). considered: Johnstone v.

Canada (Attorney General), 2007 FC 36, [2007] CLLC 230-030, affd 2008 FCA 101, [2008] CLLC 230-031; HealthSciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, 240 D.L.R. (4th) 479; Hoyt v.Canadian National Railway, 2006 CHRT 33, 57 C.H.R.R. D/437; Brown v. Canada (Department of National Revenue), (C.H.R.T.); Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471;University of British Columbia v. Berg, (SCC), [1993] 2 S.C.R. 353 (1993), 102 D.L.R. (4th) 665; Gould v.

Yukon Orderof Pioneers, (SCC), [1996] 1 S.C.R. 571, (1996), 133 D.L.R. (4th) 449; Syndicat Northcrest v. Amselem, 2004 SCC 47,[2004] 2 S.C.R. 551; Alberta (Solicitor General) v. Alberta Union of Provincial Employees, , 192 L.A.C. (4th) 97(Alta.); Ontario Public Service Employees Union (Thompson) v. Ontario (Liquor Control Board of Ontario), (Ont.G.S.B.); Alliance Employees Union, Unit 15 v. Customs and Immigration Union, , 205 L.A.C (4th) 343 (Ont. L.R.B.). referred to: Keith v. Correctional Service of Canada, 2012 FCA 117, 40 Admin. L.R. (5th) 1; Yu v.

Canada (Attorney General), 2011 FCA 42, 414N.R. 283; Telfer v. Canada (Revenue Agency), 2009 FCA 23, [2009] 4 C.T.C. 123; Agraira v. Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23;Kandola v. Canada (Citizenship and Immigration), 2014 FCA 85, [2015] 1 F.C.R. 549; Mugesera v. Canada (Minister of Citizenshipand Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19,[2003] 1 S.C.R. 226; Prairie Acid Rain Coalition v.

Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610;Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; McLean v.British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Sketchley v. Canada (Attorney General), 2005 FCA 404,[2006] 3 F.C.R. 392; Insurance Corporation of British Columbia v. Heerspink et al., (SCC), [1982] 2 S.C.R. 145,(1982), 137 D.L.R. (3d) 219; Dickason v.

University of Alberta, (SCC), [1992] 2 S.C.R. 1103, (1992), 127 A.R. 241;Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68, [2003] 3 S.C.R. 228;Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; New Brunswick (Human Rights Commission) v. PotashCorporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Woiden v.Lynn, (C.H.R.T.); Closs v. Fulton Forwarders Incorporated and Stephen Fulton, 2012 CHRT 30, 76 C.H.R.R. D/246;Richards v.

Canadian National Railway, 2010 CHRT 24, [2011] CLLC 230-006; Whyte v. Canadian National Railway, 2010 CHRT 22,71 C.H.R.R. D/316; Seeley v. Canadian National Railway, 2010 CHRT 23; Patterson v. Canada (Revenue Agency), 2011 FC 1398,[2012] CLLC 230-006; Devaney v. ZRV Holdings Limited and Zeidler Partnership Architects, 2012 HRTO 1590, 75 C.H.R.R. D/142;Callaghan v. 1059711 Ontario Inc., 2012 HRTO 233; McDonald v. Mid-Huron Roofing, 2009 HRTO 1306, 68 C.H.R.R. D/1; C.D. v.Wal-Mart Canada Corp., 2009 HRTO 801; Canada Post Corp. v. Canadian Union of Postal Workers (Sommerville Grievance, CUPW790-08-000008, Arb.

Lanyon) (2006), 156 L.A.C. (4th) 109; Ontario Public Service Employees Union v. Ontario Public Service StaffUnion (DeFreitas Grievance), [2005] O.L.A.A. No. 396 (QL); Canadian National Railway Co. v. Canada (Canadian Human RightsCommission), (SCC), [1987] 1 S.C.R. 1114; Canadian Odeon Theatres Ltd. v. Human Rights Commission (Sask.) andHuck, , 18 D.L.R. (4th) 93 (Sask. C.A.); Quebec (Commission des droits de la personne et des droits de la jeunesse) v.Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1S.C.R. 665; R. v.

Peterson, , 201 C.C.C. (3d) 220 (Ont. C.A.); R. v. Popen (1981), (ON CA), 60C.C.C. (2d) 232 (Ont. C.A.); International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc. (Bender Grievance)(2009), 186 L.A.C. (4th) 180 (Ont.); Wight v. Ontario (Office of the Legislative Assembly) (1998), (ON HRT), 33C.H.R.R. D/191 (Ont. Bd. Of Inq.). AUTHORS CITED

Le Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la langue française . Paris: Dictionnaires Le Robert, 2006, “ état ”, “ situation ”. Sullivan, Ruth. Sullivan on the Construction of Statutes , 5th ed. Markham, Ont.: LexisNexis Canada, 2008. APPEAL from a decision of the Federal Court ( 2013 FC 113 , [2014] 3 F.C.R. 170) dismissing the appellant’s judicial review application from a decision of the Canadian Human Rights Tribunal ( 2010 CHRT 20 , [2010] CLLC 230-026) holding that the Canada Border Services Agency discriminated against the respondent Johnstone on the ground of family status contrary to

section 10 of the Canadian Human Rights Act . Appeal allowed in part. APPEARANCES Christine Mohr and Susan Keenan for appellant. Andrew Raven and Andrew Astritis for respondent Fiona Ann Johnstone. Sheila Osborne-Brown , Daniel Poulin and Erin Collins for respondent Canadian Human Rights Commission. Kate A. Hughes , Danielle Bisnar and Kim Stanton for intervener. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Raven, Cameron, Ballantyne & Yazbeck LLP , Ottawa, for respondent Fiona Ann Johnstone. Canadian Human Rights Commission , Ottawa, for respondent Canadian Human Rights Commission.

Cavalluzzo Shilton McIntyre & Cornish LLP , Toronto, for intervener. The following are the reasons for judgment rendered in English by [ 1 ] Mainville J.A. : This is an appeal from a judgment reported as 2013 FC 113 , [2014] 3 F.C.R. 170 of Mandamin J. of the Federal Court (Federal Court Judge) dismissing the judicial review application of the Attorney General of Canada challenging a decision of the Canadian Human Rights Tribunal (Tribunal) reported as 2010 CHRT 20 , [2010] CLLC 230-026. [ 2 ] The Tribunal held that the Canada Border Services Agency (CBSA) had discriminated within the meaning of

section 10 of the Canadian Human Rights Act , R.S.C., 1985, c. H-6 against the respondent Fiona Ann Johnstone on the ground of family status by refusing to accommodate her childcare needs through work scheduling arrangements. [ 3 ] For the reasons set out below, I would allow the appeal in part to vary the judgment of the Federal Court Judge on the subject of two remedial measures flowing from the Tribunal’s decision, and in all other respects I would dismiss the appeal with costs in favour of Ms. Johnstone.

Background and context [ 4 ] The full background to this litigation is extensively set out in the Tribunal’s decision and need not be repeated here. It is sufficient for the purposes of this appeal to simply point out some of the salient facts. [ 5 ] Ms. Johnstone is an employee of the CBSA since 1998. Her husband also works for the CBSA as a supervisor. They have two children. After the eldest was born in January 2003, Ms. Johnstone returned to work from her maternity leave on January 4, 2004. The second child was then born in December 2004, and Ms.

Johnstone returned to work on December 26, 2005. [ 6 ] Prior to returning to work from her first maternity leave, Ms. Johnstone asked the CBSA for an accommodation to her work

schedule at the Pearson International Airport in Toronto. [ 7 ] The work

schedule for full-time CBSA employees occupying positions similar to that of Ms. Johnstone is built around a rotating shift plan referred to as a Variable Shift Scheduling Agreement or VSSA. At the pertinent time, full-time employees rotated through 6 different start times over the course of days, afternoons, and evenings with no predictable pattern, and they worked different days of the week throughout the duration of the schedule. The

schedule was based on a 56-day pattern, and employees were given 15 days notice of each new shift schedule, subject to the employer’s discretion to change the

schedule on 5 days’ notice. [ 8 ] Full-time employees such as Ms. Johnstone were required to work 37.5 scheduled hours per week under the VSSA on the basis of an 8-hour day that included a one half hour meal break. Any individual who worked less than 37.5 hours a week was considered a part- time employee. Part-time employees had fewer employment benefits than full-time employees, notably with regard to pension entitlements and promotion opportunities. [ 9 ] It is useful to note that Ms. Johnstone’s husband also worked on a variable shift

schedule as a customs superintendent. Their work schedules overlapped 60 percent of the time but were not coordinated. The Tribunal concluded that Ms. Johnstone’s husband was facing the same work scheduling problems, and that neither could provide the necessary childcare on a reliable basis. [ 10 ] In the past, the CBSA had accommodated some employees who had medical issues by providing them with a fixed work

schedule (static shift) on a full-time basis. The CBSA also accommodated employee work schedules with respect to constraints resulting from religious beliefs. However, the CBSA refused to provide an accommodation to employees with childcare obligations on the ground that it had no legal duty to do so. Instead, the CBSA had an unwritten policy allowing an employee with childcare obligations to work

fixed schedules, but only insofar as the employee agreed to be treated as having a part-time status with a maximum work

schedule of 34 hours per week. [ 11 ] Prior to returning from her first maternity leave, Ms. Johnstone asked the CBSA to provide her with static shifts on a full-time basis. She wished to work 3 days per week for 13 hours a day (including one half-hour meal break) so that she could remain full-time. She requested this

schedule since she only had access to child care arrangements with family members for the 3 days in question, and was unable to make other childcare arrangements on a reasonable basis. In light of its unwritten policy, the CBSA only offered her static shifts for 34 hours per week resulting in her being treated as a part-time employee. [ 12 ] It is useful to note that the CBSA did not refuse to provide static shifts to Ms. Johnstone on a full-time basis on the ground that this would cause it undue hardship. Rather, it refused the proposed

schedule on the ground that it had no legal duty to accommodate Ms. Johnstone’s childcare responsibilities. [ 13 ] Ms. Johnstone was not satisfied with the CBSA’s unwritten policy that required her to accept part-time employment in return for obtaining static shifts. As a result, she filed a complaint with the Canadian Human Rights Commission on April 24, 2004, alleging discrimination on the basis of family status contrary to sections 7 and 10 of the Canadian Human Rights Act . [ 14 ] The provisions of the Canadian Human Rights Act that are particularly pertinent for the purposes of Ms. Johnstone’s complaint are subsection 3(1) , paragraph 7 (

b) and

section 10 , which read as follows: Prohibited grounds of discrimination 3.

(1) For all purposes of this Act , the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status , disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. [Emphasis added.] … Employment 7. It is a discriminatory practice, directly or indirectly, … (

b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. … Discriminatory policy or practice 10 . It is a discriminatory practice for an employer, employee organization or employer organization (

a) to establish or pursue a policy or practice, or (

b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. Procedural history (

a) Proceedings before the Canadian Human Rights Commission and related proceedings in the Federal Courts [ 15 ] The investigator who examined the complaint recommended that it be referred to the Tribunal. However, the Canadian Human Rights Commission did not follow this recommendation and instead dismissed the complaint. The Commission found that the CBSA had offered Ms. Johnstone accommodation in the form of a 34-hour a week part-time fixed work schedule. The Commission was not convinced that this policy constituted a serious interference with Ms.

Johnstone’s duties as a parent or that it had a discriminatory impact on the basis of family status. [ 16 ] Ms. Johnstone sought judicial review of this refusal before the Federal Court. In Johnstone v. Canada (Attorney General) , 2007 FC 36 , [2007] CLLC 230-030, Barnes J. allowed the judicial review application and remitted the matter back to the Commission for a new determination. [ 17 ] Applying a standard of correctness to the legal issue before him, Barnes J. rejected the test for prima facie discrimination taken from the British Columbia Court of Appeal’s decision in Health Sciences Assoc. of B.C. v.

Campbell River and North Island Transition Society , 2004 BCCA 260 , 240 D.L.R. (4th) 479 ( Campbell River ) that the Commission had adopted for screening out the complaint. Under the Campbell River test, “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”: Campbell River , at paragraph 39. [ 18 ] On the basis of the discussion of the Tribunal in Hoyt v. Canadian National Railway , 2006 CHRT 33 , 57 C.H.R.R.

D/437 ( Hoyt ), Barnes J. found that (

a) the Campbell River test conflated the threshold issue of prima facie discrimination with the second stage of the analysis relating to discrimination that deals with bona fide occupational requirements, and (

b) the suggestion in Campbell River that prima facie discrimination only arises where the employer changes the conditions of employment was wrong in law. Barnes J. rather concluded that the threshold for prima facie discrimination on the ground of family status should be the same as for any other prohibited ground of discrimination. As a result, the simple fact that Ms. Johnstone had been adversely affected by the CBSA’s unwritten policy was sufficient to establish a prima facie ground of discrimination. The matter was, therefore, remitted to the Commission for reconsideration on that basis.

[19] The appeal from Barnes J.’s decision was dismissed by this Court in Canada (Attorney General) v. Johnstone, 2008 FCA 101,[2008] CLLC 230-031 with no opinion being expressed as to whether the appropriate legal test for prima facie discrimination in this caseshould be based on Campbell River or on Hoyt. [20] The Commission subsequently referred the complaint to the Tribunal. (

b) The decision of the Tribunal [21] Following an extensive review of the case law, the Tribunal held that the prohibited ground of discrimination on family statusincludes family and parental obligations such as childcare obligations. It consequently rejected the appellant’s definition of family statusthat limited its scope to the status of being in a family relationship. In this regard, the Tribunal noted the following at paragraph 233 of itsdecision: This Tribunal finds that the freedom to choose to become a parent is so vital that it should not be constrained by the fear ofdiscriminatory consequences.

As a society, Canada should recognize this fundamental freedom and support that choice whereverpossible. For the employer, this means assessing situations such as Ms. Johnstone’s on an individual basis and working together with herto create a workable solution that balances her parental obligations with her work opportunities, short of undue hardship. [22] With respect to the prima facie case of discrimination on the ground of family status, the Tribunal rejected the test set out inCampbell River. It rather followed the test propounded in Hoyt and approved by Barnes J.

Under this approach, “an individual should nothave to tolerate some amount of discrimination to a certain unknown level before being afforded the protection of the [Canadian HumanRights] Act”: Tribunal’s decision, at paragraph 238. [23] As a result, the Tribunal held that Ms. Johnstone had made out a case of prima facie discrimination in that the “CBSA engaged ina discriminatory practice by establishing and pursuing an unwritten policy communicated to and followed by management that affectedMs.

Johnstone’s employment opportunities including, but not limited to promotion, training, transfer, and benefits on the prohibitedground of family status”: Tribunal decision, at paragraph 242. [24] The Tribunal further held that the CBSA had not established a defence based on a bona fide occupational requirement that wouldjustify its refusal of the work

schedule accommodation sought by Ms. Johnstone, nor had it developed a sufficient undue hardshipargument to discharge it from its duty of accommodation. The Tribunal noted, at paragraphs 359 and 362 of its decision, that the positionadvanced on behalf of the CBSA throughout the proceedings was that it had no legal duty to accommodate Ms.

Johnstone, rather thanwhether such an accommodation would lead to undue hardship. [25] The Tribunal, therefore, ordered the CBSA to cease its discriminatory practice against employees who seek accommodation onthe basis of family status for purposes of childcare responsibilities, and to consult with the Canadian Human Rights Commission todevelop a plan to prevent further incidents of discrimination based on family status in the future: Tribunal’s decision, at paragraph 366. Itfurther ordered the CBSA to establish written policies satisfactory to Ms.

Johnstone and the Canadian Human Rights Commission thatwould implement a mechanism where family status accommodation requests would be addressed within 6 months, and include a processfor individualized assessments of those making such requests: Tribunal’s decision, at paragraph 367. [26] The Tribunal also ordered the CBSA to compensate Ms. Johnstone for her lost wages and benefits from January 4, 2004, whenshe first commenced part-time employment, until the date of its decision. It awarded Ms. Johnstone $15 000 for pain and sufferingpursuant to paragraph 53(2)(

e) of the Canadian Human Rights Act. [27] The Tribunal further awarded the maximum amount of $20 000 for special compensation pursuant to subsection 53(3) of theCanadian Human Rights Act, as a result of its finding that the CBSA had engaged in the discriminatory practice wilfully and recklessly.This award was largely based on the Tribunal’s conclusion that the CBSA had failed to follow Brown v.

Canada (Department ofNational Revenue), (C.H.R.T.) (Brown), a prior decision of the Tribunal dealing with the issue of discrimination basedon sex (pregnancy) and family status. [28] In Brown, the Tribunal had “ordered the Respondent to prevent similar events from recurring through recognition and policiesthat would acknowledge family status to be interpreted as involving ‘a parent’s rights and duty to strike a balance [between workobligations and child rearing] coupled with a clear duty on the part of any employer to facilitate and accommodate that balance’”:Tribunal’s decision, at paragraph 57.

In the Tribunal’s view, this prior order had been ignored by the CBSA, thus justifying in this casean award of special compensation under subsection 53(3): Tribunal’s decision, at paragraphs 381 and 382. (

c) Judicial Review before the Federal Court [29] The Attorney General of Canada sought judicial review of the Tribunal’s decision. The Federal Court Judge dismissed theapplication, with the exception of two issues. First, he referred the matter back to the Tribunal so as to allow it to reconsider its award ofloss wages and benefits for the period from August 2007 to August 2008 during which Ms. Johnstone opted for unpaid leave so as toaccompany her spouse to Ottawa, and (

b) he excluded Ms. Johnstone as a party to be consulted with respect to the development of awritten remedial policy by the CBSA. [30] The Federal Court Judge applied the reasonableness standard of review to all of the issues raised before him, including the legaldefinition and scope of the prohibited ground of discrimination on the basis of family status and the legal test for finding a prima faciecase of discrimination on that ground. [31] The Federal Court Judge held that the Tribunal had reasonably concluded that family status includes childcare responsibilities,since that

interpretation was well within the scope of the ordinary meaning of the words, was consistent with the opinions of numeroushuman rights and labour relations adjudicative bodies that have considered the matter, and was consistent with the objectives of theCanadian Human Rights Act.

[32] The Judge also held that the test used by the Tribunal for finding a prima facie case of discrimination was reasonable, as was itsapplication of that test in this case. In so doing, he specifically discarded the “serious interference” test used in Campbell River. [33] However, the Federal Court Judge found fault with the Tribunal’s remedies. He noted that the evidence showed that Ms.Johnstone had sought, and obtained, an unpaid leave from August 2007 to August 2008 to accompany her husband to Ottawa. Since hecould not discern the basis on which the Tribunal awarded full wages to Ms.

Johnstone for that period of time, he referred that issue backto the Tribunal for reconsideration. [34] The Federal Court Judge also concluded that the Tribunal exceeded its jurisdiction when it ordered the CBSA to establish writtenremedial policies satisfactory to Ms. Johnstone. In the Judge’s view, the Canadian Human Rights Act “does not provide that a victimmay have a role or participate in the development of remedial polic[i]es to redress the discriminatory practices”: Federal Court Judge’sreasons, at paragraph 168.

Issues raised in this appeal [35] The issues raised in this appeal may be set out as follows: 1. What is the applicable standard of review? 2. Did the Tribunal commit a reviewable error in concluding that family status includes childcare obligations? 3. Did the Tribunal commit a reviewable error in identifying the legal test for finding a prima facie case of discrimination on theground of family status? 4.

Applying the proper meaning and scope to family status, and using the proper legal test, did the Tribunal commit a reviewableerror in finding that a prima facie case of discrimination on the ground of family status had been made out in this case? 5. Did the Tribunal commit reviewable errors with respect to its remedial orders, notably with respect to: (

a) the award of lost wagesfor the period subsequent to December 2005; (

b) the requirement that the CBSA establish a written policy satisfactory to the CanadianHuman Rights Commission; and (

c) the award of special damages under subsection 53(3) of the Canadian Human Rights Act? The standard of review [36] In an appeal of a judgment concerning a judicial review application, the role of this Court is to determine whether the applicationJudge identified and applied the correct standard of review, and in the event he or she has not, to assess the decision under review in lightof the correct standard: Keith v. Correctional Service of Canada, 2012 FCA 117, 40 Admin. L.R. (5th) 1, at paragraph 41; Yu v. Canada(Attorney General), 2011 FCA 42, 414 N.R. 283, at paragraph 19; Telfer v.

Canada (Revenue Agency), 2009 FCA 23, 386 N.R. 212, atparagraph 18. [37] This means, in effect, that an appellate court’s focus is on the administrative decision; in this case, the decision of the Tribunal:Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraph 46; Merck FrosstCanada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at paragraph 247; Kandola v.

Canada (Citizenship and Immigration),2014 FCA 85, [2015] 1 F.C.R. 549, at paragraph 29. [38] The application Judge’s selection of the appropriate standard of review is itself a question of law subject to review on thestandard of correctness: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, atparagraph 35; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paragraph 43;Prairie Acid Rain Coalition v.

Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610, at paragraph 14. [39] There is no dispute in this appeal that the conclusion of the Tribunal with respect to questions of fact and of mixed fact and laware to be reviewed on a standard of reasonableness. However, there is substantial disagreement as to the standard of review that applies tofindings of law made by the Tribunal, particularly with respect to (

a) the meaning and scope of family status as a prohibited ground ofdiscrimination and (

b) the applicable legal test under which a finding of discrimination may be made with respect to that prohibitedground. [40] The

interpretation by an adjudicative tribunal of its enabling statute or of statutes closely related to its functions are presumed tobe subject to deference on judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC61, [2011] 3 S.C.R. 654, at paragraphs 34, 39 and 41; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3S.C.R. 895, at paragraphs 21, 22 and 33. [41] That presumption may, however, be rebutted if it can be concluded that Parliament’s intent is inconsistent with its application:Rogers Communication Inc. v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283(Rogers Communications), at paragraph 15. Indeed, the determination of the appropriate standard of review is essentially a search forlegislative intent: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), at paragraph 30; Dr. Q v.

College ofPhysicians and Surgeons of British Columbia, above, at paragraph 21. [42] Prior to Dunsmuir, the Supreme Court of Canada had specifically held that the standard of review pertaining to the meaning andscope of family status as a prohibited ground of discrimination was correctness: Canada (Attorney General) v. Mossop, (SCC), [1993] 1 S.C.R. 554 (Mossop), at pages 576–578. Our Court had also held that the standard of review for the test for prima faciediscrimination is correctness: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392.

The question before us hereis whether this is still good law in light of Dunsmuir and the decisions of the Supreme Court of Canada which have followed it. [43] That question was left unanswered by the Supreme Court of Canada in Canada (Canadian Human Rights Commission) v.Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (Mowat). That case concerned the

interpretation by the Tribunal of

paragraphs 53(2)(

c) and (

d) of the Canadian Human Rights Act with respect to its authority to award legal costs. In Mowat, LeBel andCromwell JJ. applied a standard of reasonableness to the Tribunal’s decision to award legal costs, and they concluded that the Tribunal’sdecision in that case was unreasonable. In so doing, they emphasized that a standard of correctness may well apply to decisions of theTribunal dealing with broad human rights principles: Mowat, at paragraph 23. [44] In light of the four factors discussed below, I conclude that, in this case, the presumption of reasonableness is rebutted and astandard of correctness is to be applied with respect to the two legal issues before us, namely (

a) the meaning and scope of “familystatus” as a prohibited ground of discrimination, and (

b) the applicable legal test under which a finding of prima facie discrimination maybe made under that prohibited ground. [45] First, the Supreme Court of Canada has consistently held that fundamental rights set out in human rights legislation, such as theCanadian Human Rights Act, are “quasi-constitutional” rights: see notably Insurance Corporation of British Columbia v. Heerspink etal., (SCC), [1982] 2 S.C.R. 145, at pages 157 and 158; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., (SCC), [1985] 2 S.C.R. 536, at pages 546 and 547; Dickason v.

University of Alberta, (SCC), [1992] 2 S.C.R. 1103, at page 1154; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. MaksteelQuébec Inc., 2003 SCC 68, [2003] 3 S.C.R. 228, at paragraph 43; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R.667, at paragraph 81; New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2S.C.R. 604, at paragraph 19. [46] As noted in Dunsmuir at paragraph 58, and for obvious reasons, constitutional issues are necessarily subject to review on acorrectness standard.

In my view, this approach extends as well to quasi-constitutional issues involving the fundamental human rights setout in Canadian Human Rights Act and provincial human rights legislation. [47] Second, a multiplicity of courts and tribunals are called upon to interpret and apply human rights legislation, including theCanadian Human Rights Act.

As this appeal illustrates, labour arbitration boards, labour relations boards and superior courts throughoutCanada are regularly called upon to adjudicate with respect to the fundamental human rights described in the Canadian Human RightsAct and other human rights legislation.

As a result, courts have been called upon in the past and will be called upon in the future toexamine the same legal issues the Tribunal is required to address in these proceedings. [48] As aptly noted in Rogers Communications, at paragraph 14, it would be inconsistent to review the legal questions at issue here onjudicial review of a decision of the Tribunal on a deferential standard, but adopt a correctness standard on an appeal from a decision of acourt at first instance on the same legal question.

This concurrent jurisdiction of a multiplicity of decisions makers, including theTribunal and the courts, rebuts the presumption of reasonableness with regard to the two questions of law raised in this appeal: RogersCommunications, at paragraph 15. [49] Third, in University of British Columbia v. Berg, (SCC), [1993] 2 S.C.R. 353, at pages 368 and 369, 372 and 373and in Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571, at paragraphs 47 and 48, the Supreme Court ofCanada concluded that the

interpretation of “service customarily available to the public” for the purposes of the British Columbia HumanRights Act, S.B.C. 1984, c. 22 and of “services to the public” in the Yukon Human Rights Act, R.S.Y. 1986 (Supp.), c. 11 were generalquestions of law to be reviewed on a standard of correctness, based on the principle that “in order for the

interpretation of human rightslegislation to be purposive, differences in wording among the various provinces should not be permitted to frustrate the similar purposeunderlying these provisions”: Gould, at paragraph 47; Berg, at pages 372 and 373. [50] Most provinces have adopted human rights legislation that prohibits discrimination on the basis of family status: Human RightsCode, R.S.O. 1990, c. H.19,

section 1; Human Rights Code, R.S.B.C. 1996, c. 210, subsection 7(1); Human Rights Act, R.S.N.S. 1989, c.214, paragraph 5(1)(r); Alberta Human Rights Act, R.S.A. 2000, c. A-25.5, subsection 3(1); The Human Rights Code, C.C.S.M., c. H175,subsection 9(2); The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, paragraph 2(1)(m.01); Human Rights Act, S.N.L. 2010, c.H-13.1, subsection 9(1); Human Rights Act, R.S.P.E.I. 1988, c. H-12,

section 13. [51] The two principal legal issues raised in this appeal concern questions of fundamental rights and principles in a human rightscontext. These are not issues about questions of proof or mere procedure, or about the remedial authority of a human rights tribunal orcommission.

As such, for the sake of consistency between the various human rights statutes in force across the country, the meaning andscope of family status and the legal test to find prima facie discrimination on that prohibited ground are issues of central importance tothe legal system, and beyond the Tribunal’s expertise, which attracts a standard of correctness on judicial review: Dunsmuir, atparagraph 60. [52] Fourth, Dunsmuir also stands for the proposition that when the jurisprudence has already determined in a satisfactory manner thedegree of deference to be accorded with regard to a particular question, the matter should be deemed settled.

As noted above, theSupreme Court of Canada has determined in the past that a correctness standard of review applies to the meaning and scope of familystatus under the Canadian Human Rights Act: Mossop, at pages 576–578. Whether the jurisprudence of the Supreme Court of Canadapost-Dunsmuir has implicitly overruled this prior approach with respect to fundamental human rights is a matter best left for the SupremeCourt itself to decide. Until the Supreme Court of Canada decides otherwise, our Court is bound by Mossop: Canada v. Craig, 2012 SCC43, [2012] 2 S.C.R. 489, at paragraph 21.

The meaning and scope of family status [53] The appellant submits that the ordinary and grammatical meaning of the expression “family status” should prevail, and that thisexpression should therefore be interpreted as defining a legal status, like the ground of marital status.

As a consequence, the prohibitedground of family status would be limited to the personal characteristic of whether or not one is part of a family or has a particular familyrelationship, but it would not include any substantive parental obligations such as childcare obligations. [54] The appellant notably submits that by defining family status broadly to include parental obligations, the Tribunal adopted ameaning that does not align with the other prohibited grounds of discrimination that are all based on immutable or constructivelyimmutable personal characteristics.

In the appellant’s view, a person’s absolute or relative family status is immutable or constructively

immutable, but the same cannot be readily said of childcare obligations. [55] The appellant thus proposes a literal

interpretation of the expression “family status” that excludes childcare obligations.According to this

interpretation, by defining the ground in terms of status, Parliament did not intend to protect childcare responsibilities.Conflicts between these responsibilities and the terms and conditions of employment would not represent a disadvantage that is arbitraryor based on stereotypes concerning a person’s family status. [56] The appellant finds comfort for this

interpretation in the legislative history of the provision, and relies on a statement from theresponsible Minister at the time the ground of family status was incorporated into the Canadian Human Rights Act to the effect thatParliament’s intent was primarily to prevent discrimination based on one’s relative family status. [57] The appellant further submits that by introducing into the Canadian Human Rights Act the notion of discrimination on theground of childcare obligations, the Tribunal modified the Act in a significant way, and that a change of this magnitude raises difficultquestions of social policy that Parliament, rather than the courts, is best placed to address. [58] However, the appellant cites no judicial authority that would directly support this restrictive

interpretation of the expression“family status”. On the contrary, all the decisions of the courts, human rights tribunals and labour adjudicators that have been submittedto us in this appeal, and that have directly considered the matter, have decided the contrary. [59] In fact, judges and adjudicators have been almost unanimous in finding that family status incorporates parental obligations suchas childcare obligations. This has been the position consistently held by: (

a) the Tribunal: Brown, Hoyt, Woiden v. Lynn, (C.H.R.T.); Closs v. Fulton Forwarders Incorporated and StephenFulton, 2012 CHRT 30, 76 C.H.R.R. D/246; Richards v. Canadian National Railway, 2010 CHRT 24, [2011] CLLC 230-006; Whyte v.Canadian National Railway, 2010 CHRT 22, 71 C.H.R.R. D/376; Seeley v. Canadian National Railway, 2010 CHRT 23; (

b) the Federal Court: Johnstone v. Canada (Attorney General), 2007 FC 36, [2007] CLLC 230-030 referred to above; Patterson v.Canada (Revenue Agency), 2011 FC 1398, [2012] CLLC 230-006, at paragraphs 34 and 35; (

c) the British Columbia Court of Appeal: Campbell River, at paragraph 39; (

d) the Human Rights Tribunal of Ontario: Devaney v. ZRV Holdings Limited and Zeidler Partnership Architects, 2012 HRTO 1590,75 C.H.R.R. D/142; Callaghan v. 1059711 Ontario Inc., 2012 HRTO 233; McDonald v. Mid-Huron Roofing, 2009 HRTO 1306, 68C.H.R.R. D/1; C.D. v. Wal-Mart Canada Corp., 2009 HRTO 801; (

e) labour arbitrators: Canada Post Corp. v. Canadian Union of Postal Workers (Sommerville Grievance, CUPW 790-03-00008, Arb.Lanyon) (2006), 156 L.A.C. (4th) 109; Ontario Public Service Employees Union v. Ontario Public Service Staff Union (DeFreitasGrievance), [2005] O.L.A.A. No. 396 (QL). [60] Our Court is not bound by these decisions, but they are difficult to ignore since their logic is compelling and better reflects thelarge and liberal

interpretation that is to be given to human rights legislation. [61] It is generally accepted that human rights legislation must be given a broad

interpretation to ensure that the stated objects andpurposes of such legislation are fulfilled. As a result, a narrow restrictive

interpretation that would defeat the purpose of eliminatingdiscrimination should be avoided: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), (SCC), [1987] 1 S.C.R. 1114, at pages 1137 and 1138 quoting approvingly from Canadian Odeon Theatres Ltd. v. Human RightsCommission (Sask.) and Huck, , 18 D.L.R. (4th) 93 (Sask.

C.A.), at page 735. [62] As also noted in numerous decisions of the Supreme Court of Canada, the key provisions of human rights legislation must beinterpreted in a flexible manner and with an adaptive approach: Quebec (Commission des droits de la personne et des droits de lajeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Boisbriand (City), 2000 SCC27, [2000] 1 S.C.R. 665, at paragraph 76; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexisCanada, 2008), at pages 502 and 503. [63] The proper interpretative rule was set out as follows in B v.

Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R.403, at paragraph 44: More generally, this Court has repeatedly reiterated the view that human rights legislation has a unique quasi-constitutional nature andought to be interpreted in a liberal and purposive manner in order to advance the broad policy considerations underlying it: see, forexample, Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571, at para. 120; University of British Columbiav. Berg, (SCC), [1993] 2 S.C.R. 353, at p. 370; Robichaud v.

Canada (Treasury Board), (SCC), [1987]2 S.C.R. 84, at pp. 89-90; Insurance Corp. of British Columbia v. Heerspink, (SCC), [1982] 2 S.C.R. 145, at pp. 157-158. [64] In that case, the Supreme Court of Canada was called upon to determine whether the expressions “marital status” and “familystatus” in the Ontario Human Rights Code, R.S.O. 1990, c.

H.19, were broad enough to encompass a situation where an adversedistinction is drawn on the particular identity of a complainant’s spouse or family member, or whether the ground was restricted todistinctions based on the mere fact that the complainant has a certain type of marital or family status. Iacobucci and Bastarache JJ. notedthat the broad goal of anti-discrimination statutes is furthered by embracing a more inclusive

interpretation of the expression familystatus: B v. Ontario (Human Rights Commission), above, at paragraph 4. [65] That broad and purposive approach also applies in this case, particularly where due regard is given to the purpose of theCanadian Human Rights Act set out in

section 2:

Purpose2.

The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within thelegislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individualsto make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent withtheir duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatorypractices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status,disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has beenordered. [Emphasis added.] [66] There is no basis for the assertion that requiring accommodation for childcare obligations overshoots the purpose of includingfamily status as a prohibited ground of discrimination.

Indeed, without reasonable accommodation for parents’ childcare obligations,many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish tohave. The broad and liberal

interpretation of human rights legislation requires an approach that favours a broad participation andinclusion in employment opportunities for those parents who wish or need to pursue such opportunities. [67] It is noteworthy that Parliament chose to use two distinct words for the word “status” in the French version of sections 2 and 3 ofthe Canadian Human Rights Act: “l’état matrimonial” for marital status and the much broader “situation de famille” for family status.The French word “situation” is broadly defined in Le Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la languefrançaise [Paris: Dictionnaires Le Robert, 2006] as “[e]nsemble des circonstances dans lesquelles une personne se trouve” (the whole ofthe circumstances in which an individual finds himself).

In contrast, that same common dictionary defines “état” as “[m]anière d’être(d’une personne ou d’une chose) considérée dans ce qu’elle a de durable” (state of being of a person or thing considered in its enduringaspects). The distinction is important, and supports a much broader

interpretation of “family status” that includes family circumstances,such as childcare obligations. [68] That being said, the precise types of childcare activities that are contemplated by the prohibited ground of family status need tobe carefully considered.

Prohibited grounds of discrimination generally address immutable or constructively immutable personalcharacteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have animmutable or constructively immutable characteristic. [69] It is also important not to trivialize human rights legislation by extending human rights protection to personal family choices,such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities.

These types ofactivities would be covered by family status according to one of the counsel who appeared before us, and I disagree with such aninterpretation. [70] The childcare obligations that are contemplated under family status should be those that have immutable or constructivelyimmutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child. As aresult, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.

Thus a parentcannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect,which in extreme examples could even engage subsection 215(1) of the Criminal Code, R.S.C., 1985, c. C-46; R. v. Peterson, (ON CA), [2005] CanLII 37972, 201 C.C.C. (3d) 220 (Ont. C.A.),at paragraph 34; R. v. Popen (1981), (ON CA), 60 C.C.C. (2d) 232 (Ont.

C.A.), at paragraph 18. [71] Even conduct which meets the criminal standard, minimal as it is, does not necessarily meet other legal standards of childcare,such as those found in the child welfare legislation of the various provinces or in

Article 599 of the Civil Code of Québec [S.Q. 1991, c.64]. Put another way, the parental obligations whose fulfillment is protected by the Canadian Human Rights Act are those whose non-fulfillment engages the parent’s legal responsibility to the child. [72] Voluntary family activities, such as family trips, participation in extracurricular sports events, etc. do not have this immutablecharacteristic since they result from parental choices rather than parental obligations.

These activities would not normally trigger a claimto discrimination resulting in some obligation to accommodate by an employer: International Brotherhood of Electrical Workers, Local636 v. Power Stream Inc. (Bender Grievance) (2009), 186 L.A.C. (4th) 180 (Ont.) (Power Stream), at paragraphs 65 and 66. [73] I note that there is no fundamental discrepancy between an

interpretation of family status as including childcare obligations thatengage the parent’s legal responsibility for the child and Parliament’s intent in including that prohibited ground of discrimination in theCanadian Human Rights Act. Protection from discrimination for childcare obligations flows from family status in the same manner thatprotection against discrimination on the basis of pregnancy flows from the sex of the individual.

In both cases, the individual would notrequire accommodation were it not for the underlying ground (family status or sex) on which they were adversely affected. [74] In conclusion, the ground of family status in the Canadian Human Rights Act includes parental obligations which engage theparent’s legal responsibility for the child, such as childcare obligations, as opposed to personal choices. Defining the scope of theprohibited ground in terms of the parent’s legal responsibility (

i) ensures that the protection offered by the legislation addressesimmutable (or constructively immutable) characteristics of the family relationship captured under the concept of family status, (ii) allowsthe right to be defined in terms of clearly understandable legal concepts, and (iii) places the ground of family status in the same categoryas other enumerated prohibited grounds of discrimination such as sex, colour, disability, etc.

The legal test for finding a prima facie case of discrimination on the prohibited ground of family status [75] There is no fundamental dispute between the parties as to many aspects of the legal test that is used to determine whether there isdiscrimination on the prohibited ground of family status. All parties agree that the test comprises two parts. First, a prima facie case ofdiscrimination must be made out by the complainant.

Once that prima facie case has been made out, the analysis moves to a second stagewhere the employer must show that the policy or practice is a bona fide occupational requirement and that those affected cannot beaccommodated without undue hardship. [76] The parties also agree that the first part of the test that concerns a prima facie case requires complainants to show that they have

a characteristic protected from discrimination, that they experienced an adverse impact with respect to employment, and that the protected characteristic was a factor in the adverse impact. [ 77 ] Beyond that however, the parties disagree as to how the prima facie part of the test should be defined and applied.

The appellant submits that an approach similar to the one used by the British Columbia Court of Appeal in Campbell River should be used, while the other parties submit that this would result in imposing a higher prima facie threshold for cases based on discrimination on the ground of family status. [ 78 ] Campbell River concerned an arbitration award under a collective agreement where the legal issue was the meaning and scope of the expression family status found in subsection 13(1) of the British Columbia Human Rights Code , R.S.B.C. 1996, c. 210.

The complainant was the mother of a boy then aged 13 who had severe behavioral problems requiring specific parental and professional attention. Her employer changed her work

schedule from an 8 am to 3 pm shift to an 11:30 am to 6 pm shift. This shift change impeded the complainant from attending to the needs of her son after his school hours. The arbitrator denied the grievance brought by the complainant to challenge the work

schedule change. The arbitrator found that the circumstances involving childcare arrangements did not raise an issue of discrimination based on the prohibited ground of family status. The British Columbia Court of Appeal overturned the arbitrator and remitted the grievance for a new determination. In so doing, the Court made the following conclusions of law (at paragraph 39): Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case.

In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that 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.

I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case. [Emphasis added.] [ 79 ] The requirements of a “serious interference” with a “substantial” duty or obligation are the subjects of the controversy between the parties. The appellant invokes the reasoning in Campbell River as a practical approach, and thus proposes to limit prima facie cases of discrimination to circumstances where (

a) the parental obligation at issue cannot be delegated to a third party, (

b) the claimant has tried unsuccessfully to reconcile the non-delegable parental obligation with the employment duties, and (

c) the non-delegable parental obligation at issue is substantial. [ 80 ] The other parties to this appeal submit that adopting this approach would entail a higher threshold for a finding of prima facie discrimination on the ground of family status than for the other prohibited grounds set out in the Canadian Human Rights Act . In their view, a prima facie case requires only that a person be differentiated adversely on a prohibited ground in the course of employment.

They thus submit that the standard set out in Campbell River is wrong in law and fundamentally flawed in that it conflates the issue of prima facie discrimination—which is determined at the first stage of the test—and that of undue hardship—which is determined at the second stage of the test. They notably rely on the following criticism of Campbell River made by the Tribunal in its Hoyt decision (at paragraphs 119–121 ): A different articulation of the evidence necessary to demonstrate a prima facie case is articulated by the British Columbia Court of Appeal in [ Campbell River ].

The Court of Appeal found that the parameters of family status as a prohibited ground of discrimination in the Human Rights Code of British Columbia must not be drawn too broadly or it would have the potential to cause ‘disruption and great mischief’ in the workplace.

The Court directed that a prima facie case is made out "when a change in a term or condition of employment imposed by an employer results in serious interference with a substantial parental or other family duty or obligation of the employee.” Low, J.A. observed that the prima facie case would be difficult to make out in cases of conflict between work requirements and family obligations. With respect, I do not agree with the Court's analysis. Human rights codes, because of their status as ‘fundamental law,’ must be interpreted liberally so that they may better fulfill their objectives ….

It would, in my view, be inappropriate to select out one prohibited ground of discrimination for a more restrictive definition. In my respectful opinion, the concerns identified by the Court of Appeal, being serious workplace disruption and great mischief, might be proper matters for consideration in the Meiorin analysis and in particular the third branch of the analysis, being reasonable necessity. When evaluating the magnitude of hardship, an accommodation might give rise to matters such as serious disruption in the workplace, and serious impact on employee morale are appropriate considerations ….

Undue hardship is to be proven by the employer on a case by case basis. A mere apprehension that undue hardship would result is not a proper reason, in my respectful opinion, to obviate the analysis. [ 81 ] I agree that the test that should apply to a finding of prima facie discrimination on the prohibited ground of family status should be substantially the same as that which applies to the other enumerated grounds of discrimination. There should be no hierarchies of human rights.

However, though the test should be substantially the same, that test is also necessarily flexible and contextual, as aptly noted by the Canadian Human Rights Commission in its submissions before this Court. [ 82 ] The starting point of the test to establish a prima facie case of discrimination is set out in Ontario Human Rights Commission and O’Malley v.

Simpsons-Sears Ltd. et al. , above, at page 558, where McIntyre J. noted that the complainant in proceedings before a human rights tribunal must show a prima facie case of discrimination, and such a “ prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.” [ 83 ] The test is necessarily flexible and contextual because it is applied in cases with many different factual situations involving various grounds of discrimination.

As noted by Evans J.A. in Canada (Attorney General) v. Canada (Human Rights Commission) , 2005 FCA 154 , 55 C.H.R.R. D/1, sub nom. Morris v. Canada (Canadian Armed Forces) , at paragraph 28, a “flexible legal test of a prima facie case is better able than more precise tests to advance the broad purpose underlying the Canadian Human Rights Act , namely, the

elimination in the federal legislative sphere of discrimination from employment”. [84] As a result, a prima facie case must be determined in a flexible and contextual way, and the specific types of evidence andinformation that may be pertinent or useful to establish a prima facie case of discrimination will largely depend on the prohibited groundof discrimination at issue. [85] As an example, in Syndicat Northcrest v.

Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 (Amselem) the Supreme Court of Canadaconsidered the test for establishing a breach of the guarantee of religious freedom under the Quebec Charter of Human Rights andFreedoms, R.S.Q. c. C-12. In that case, the Court rejected the idea that religious belief must be objectively grounded, and instead heldthat the issue is whether the individual has a sincerely held religious belief.

For that purpose, the Court set out certain factors that canassist in assessing whether a prima facie case of religious discrimination is established taking into account the particular nature of theprohibited ground at issue.

It is useful to review these factors that are set out at paragraphs 56, 57 and 59 to 62 of Amselem: Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim mustshow the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, eitherby being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with thedivine or with the subject or object of an individual's spiritual faith, irrespective of whether a particular practice or belief is required byofficial religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief.

Onlythen will freedom of religion be triggered.

Once an individual has shown that his or her religious freedom is triggered, as outlined above, a court must then ascertain whether therehas been enough of an interference with the exercise of the implicated right so as to constitute an infringement of freedom of religionunder the Quebec (or the Canadian) Charter. … It consequently suffices that a claimant show that the impugned contractual or legislative provision (or conduct) interferes with his or herability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.

The question thenbecomes: what does this mean? At this stage, as a general matter, one can do no more than say that the context of each case must be examined to ascertain whether theinterference is more than trivial or insubstantial. But it is important to observe what examining that context involves. In this respect, it should be emphasized that not every action will become summarily unassailable and receive automatic protection underthe banner of freedom of religion. No right, including freedom of religion, is absolute ….

Freedom of religion, as outlined above, quite appropriately reflects a broad and expansive approach to religious freedom under both theQuebec Charter and the Canadian Charter and should not be prematurely narrowly construed. However, our jurisprudence does notallow individuals to do absolutely anything in the name of that freedom.

Even if individuals demonstrate that they sincerely believe inthe religious essence of an action, for example, that a particular practice will subjectively engender a genuine connection with the divineor with the subject or object of their faith, and even if they successfully demonstrate non-trivial or non-insubstantial interference with thatpractice, they will still have to consider how the exercise of their right impacts upon the rights of others in the context of the competingrights of private individuals.

Conduct which would potentially cause harm to or interference with the rights of others would notautomatically be protected.

The ultimate protection of any particular Charter right must be measured in relation to other rights and with aview to the underlying context in which the apparent conflict arises. [Emphasis in original.] [86] As is readily apparent from these passages of Amselem, the specific types of evidence and information that may be applied toestablish a prima facie case of discrimination largely depend on the nature of the prohibited ground of discrimination at issue. [87] In this case, the Federal Court Judge concluded, at paragraph 121 of his reasons, that “the childcare obligations arising indiscrimination claims based on family status must be one of substance and the complainant must have tried to reconcile familyobligations with work obligations”, adding that “this requirement does not constitute creating a higher threshold test for seriousinterference.” I agree. [88] Normally, parents have various options available to meet their parental obligations.

Therefore, it cannot be said that a childcareobligation has resulted in an employee being unable to meet his or her work obligations unless no reasonable childcare alternative isreasonably available to the employee. It is only if the employee has sought out reasonable alternative childcare arrangementsunsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination will be made out. [89] This principle has been recognized in numerous labour arbitration cases dealing with the issue. As noted in Alberta (SolicitorGeneral) v.

Alberta Union of Provincial Employees, , 192 L.A.C. (4th) 97, at paragraph 64, “[i]n order to work, allparents must take some steps on their own to ensure that they can fulfill both their parental obligations and their work commitments. Partof any examination of whether a prima facie case has been established for family status discrimination must therefore include an analysisof the steps taken by the employee him or herself to balance their family life and workplace responsibilities.” [90] The same principle was applied in Ontario Public Service Employees Union (Thompson) v.

Ontario (Liquor Control Board ofOntario), (Ont. G.S.B.), at paragraph 40: “This test requires an employee seeking accommodation to demonstrate heor she was not able to meet a family obligation by reasonable means other than accommodation in the workplace.” That same principlewas also applied by a Board of Inquiry established under the Ontario Human Rights Code in Wight v. Ontario (Office of the LegislativeAssembly) (1998), (ON HRT), 33 C.H.R.R. D/191 (Ont. Bd.

Of Inq.), at paragraphs 309 to 311, and in Power Steam,at paragraph 62. [91] This approach is not adding an extra burden on complainants in cases involving family status. As aptly noted in AllianceEmployees Union, Unit 15 v. Customs and Immigrations Union, , 205 L.A.C (4th) 343 (Ont. L.R.B.), at paragraph 45,

complainants in disability cases must first establish that they have a disability and have an ongoing obligation to notify the employer of changes in their restriction; it is not more onerous to require a parent to establish the nature of the restrictions he or she faces in meeting both parental and employment obligations. [ 92 ] The Tribunal’s decision in Hoyt also implicitly accepted the significance of the claimant’s efforts in that case to seek childcare arrangements that would allow compliance with both parental and professional obligations.

The Tribunal’s finding of discrimination in that case rested on the claimant having made considerable efforts in this regard: Hoyt , at paragraphs 123 and 124 . [ 93 ] I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (

i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. [ 94 ] The first factor requires the claimant to demonstrate that a child is actually under his or her care and supervision.

This requires the individual claiming prima facie discrimination to show that he or she stands in such a relationship to the child at issue and that his or her failure to meet the child’s needs will engage the individual’s legal responsibility. In the case of parents, this will normally flow from their status as parents.

In the case of de facto caregivers, there will be an obligation to show that, at the relevant time, their relationship with the child is such that they have assumed the legal obligations which a parent would have found. [ 95 ] The second factor requires demonstrating an obligation which engages the individual’s legal responsibility for the child. This notably requires the complainant to show that the child has not reached an age where he or she can reasonably be expected to care for himself or herself during the parent’s work hours.

It also requires demonstrating that the childcare need at issue is one that flows from a legal obligation, as opposed to resulting from personal choices. [ 96 ] The third factor requires the complainant to demonstrate that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible.

A complainant will, therefore, be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternativ

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