DAVID ARNOT, CHIEF COMMISSIONER OF THE SASKATCHEWAN HUMAN RIGHTS COMMISSION APPLICANT - v. -, 2023 SKKB 3

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 3 Date: 20 23 01 05 Docket: QBG-SA-00724-2021 Judicial Centre: Saskatoon IN THE MATTER OF A COMPLAINT FILED UNDER THE SASKATCHEWAN HUMAN RIGHTS CODE, 2018 BETWEEN: DAVID ARNOT, CHIEF COMMISSIONER OF THE SASKATCHEWAN HUMAN RIGHTS COMMISSION APPLICANT - and - HEENA DESAI COMPLAINANT - and - NORTH RIDGE DEVELOPMENT CORPORATION RESPONDENT Counsel: Adam R. North and Jon W. Danyliw for the applicant Heena Desai self-represented complainant Steven J. Seiferling for the respondent JUDGMENT KILBACK J. January 5, 2023 I.

INTRODUCTION [ 1 ] Heena Desai [Heena] filed a complaint with the Saskatchewan Human Rights Commission [HRC] alleging her former employer, North Ridge Development Corporation [NRDC], discriminated against her on the basis of family status by failing to

accommodate and refusing to continue to employ her, contrary to s. 16 of The Saskatchewan Human Rights Code, 2018 , SS 2018, c S- 24.2 [ Code ]. [ 2 ] The complaint is based on two grounds: (

i) NRDC’s alleged failure to allow Heena time off work to care for her ailing mother; and (ii) delivery of a letter which Heena submits amounted to discriminatory discipline. [ 3 ] Heena argues these actions are discriminatory because NRDC required her to return to work instead of allowing her to care for her mother, which left her with no alternative but to resign. [ 4 ] For the reasons which follow, the complaint is dismissed. II.

FACTS The Parties [ 5 ] NRDC is involved in the business of residential and commercial real estate development in Saskatchewan. [ 6 ] Heena was employed in NRDC’s finance department in Saskatoon from January 2008 to February 2019. She held the position of senior accountant until 2012, when her title changed to assistant controller. Heena regularly worked 37 and a half hours per week, from Monday to Friday. Most of the time, there were six people in the finance department, including Heena.

Heena testified NRDC was a good place to work and that it felt like a family. [ 7 ] NRDC employs a controller, assistant controllers, and accountants to perform work for approximately 100 subsidiary and affiliated corporations. The busiest time of year for the finance department is the first quarter of the year, when annual year- end tasks are due. Absences in Fall 2018 [ 8 ] Heena’s mother, Pushpaben Desai [Pushpaben], was diagnosed with advanced breast cancer in the summer of 2018. At that time, Pushpaben was 84 years of age and was living in Saskatoon with Heena and her husband.

Pushpaben underwent surgery in September 2018, and subsequently began a postoperative course of radiation therapy. [ 9 ] Heena was distraught by Pushpaben’s cancer diagnosis. She took a medical leave of absence from NRDC from November 10 to December 4, 2018 because she was feeling stressed and weak, and felt she needed time off work in order to cope with the situation. [ 10 ] Heena qualified for and received benefits under NRDC’s short-term disability plan during her leave of absence, though she also continued to work reduced hours during her leave.

Heena returned to work full time on December 7, 2018. [ 11 ] Pushpaben completed her last radiation treatment in early December 2018, after which she was doing well. [ 12 ] Throughout 2018, NRDC allowed Heena to work flexible hours and worked with her to ensure she could take Pushpaben to her medical appointments. Heena testified NRDC had a history of working well with her whenever she required time off, and that the company was flexible with everyone.

Absence in January 2019 [ 13 ] The NRDC offices were closed from December 24, 2018 to January 2, 2019 for the holiday season, so Heena decided to take Pushpaben to Calgary for a family visit. [ 14 ] On December 24, 2018, Heena and Pushpaben travelled from Saskatoon to Calgary on a one-way flight to join Heena’s husband and their son, Kevin Desai [Kevin], who was a student living in Calgary.

Heena’s husband had driven to Calgary from Saskatoon earlier in December to visit Kevin. [ 15 ] Heena initially planned to return to Saskatoon by car with her husband and Pushpaben on January 1, 2019, as she was scheduled to return to work on January 2. However, Pushpaben was enjoying her time in Calgary and asked to stay there longer.

Heena testified Pushpaben found Calgary to be less cold than Saskatoon, and that she felt less cold in Kevin’s apartment than she did in Heena’s house. [ 16 ] Since Pushpaben was doing well and seemed healthy after her last radiation treatment in early December, Heena agreed that Pushpaben could stay in Calgary with Kevin.

Heena did not return to Saskatoon on January 1 as initially planned, and instead stayed in Calgary for a few more days to help make arrangements for Pushpaben’s meals and other needs. [ 17 ] On January 1, Heena sent an email to her supervisor, Ben Quon [Ben], advising that she was still in Calgary. In this email, Heena did not request further time off, but rather stated she would be returning to Saskatoon on January 6 and returning to work on January 7. [ 18 ] NRDC agreed to allow Heena to adjust her return date accordingly. Heena returned to work on January 7, 2019.

Request for Leave of Absence to Travel to India in January 2019

[ 19 ] After completing her last radiation treatment in early December 2018, Pushpaben expressed a strong desire to go to India to visit her siblings. Pushpaben typically travelled to India or to visit Heena’s sister in the United States in alternating years in order to escape Saskatchewan’s harsh winters. However, in 2019 Pushpaben did not want to travel to visit Heena’s sister because of family issues with her in-laws. [ 20 ] On January 14, 2019, following a performance review with Ben, Heena requested a three-month leave of absence to take Pushpaben to India.

Heena explained to Ben that she wanted this leave of absence in order to fulfil her mother’s wishes.

Heena hoped to take Pushpaben to India and to return to Canada in time for Pushpaben’s next medical appointment in the spring. [ 21 ] NRDC was unable to grant this leave of absence immediately because most of the North Ridge companies have a year end in December or January, and the finance department would be busy completing reports which were due in April. [ 22 ] Heena suggested Ben speak with Hazel Lambert [Hazel], who had recently retired from an assistant controller position with NRDC, to see if she might be able to fill in during the leave of absence.

Ben expressed doubts that such an arrangement would work because Hazel would require training on some new software, but he agreed to contact her. [ 23 ] During the discussion, Ben did not deny Heena’s request for a leave of absence. He identified three options to accommodate Heena’s request: (

i) Heena could defer the leave until after the year-end work was completed; (ii) Heena could take early retirement; or (iii) he would work with Heena to put together a

schedule which would allow her to complete her work and also free up additional time for her to spend with her mother. [ 24 ] Heena testified that the third option presented by Ben was not viable. The purpose of the requested leave of absence was to take Pushpaben to India in order to fulfill her wish to visit her siblings, and a flexible

schedule would not provide enough time off to do so. [ 25 ] Heena never followed up or pursued any of these options. Hazel later agreed to assist at NRDC, but only on a part-time basis.

Absence in February 2019 [ 26 ] Following her discussion with Ben, Heena told Pushpaben they could not travel to India immediately because she was unable to get time off and that they could go to India after Pushpaben’s next medical appointment in March. [ 27 ] Sometime during the next two weeks, Kevin told Heena that Pushpaben seemed to be eating less and that she had told him she was feeling depressed. [ 28 ] On January 30, 2019, Heena left work at 3:00 p.m. due to illness.

She testified she was feeling bad that she was unable to take Pushpaben to India, and that she was feeling stressed at work with the year-end deadlines and thought she should go home to relax. Ben allowed Heena to go home early. [ 29 ] The next morning, on January 31, Heena received a call from Kevin asking if she could come to Calgary. Pushpaben was crying, seemed depressed, and was not doing well.

Kevin was busy preparing for a midterm exam that evening. [ 30 ] After receiving this call, Heena immediately started driving to Calgary without requesting time off work or advising NRDC that she was leaving Saskatoon. Heena testified she had never driven to Calgary on her own before and that her priority was getting to Calgary before Kevin’s exam that evening. [ 31 ] Heena did not report for work on January 31, and NRDC attempted to contact her via text message.

During a stop in Rosetown, Heena sent an email to Ben explaining that her mother was not well and that she was rushing to Calgary. [ 32 ] After arriving in Calgary, Heena found Pushpaben was weaker than when they had last been together on January 6. Heena testified she did not think Pushpaben needed medical attention, and she did not take her to see a doctor. She testified Pushpaben seemed depressed, and that her mood improved after Heena arrived. Heena testified her presence in Calgary was the medicine Pushpaben needed.

I interpret this statement to mean Pushpaben benefitted from Heena’s company. [ 33 ] Heena remained in Calgary the following week. In an email exchange between Heena and Ben on February 4 and 5, Ben asked for a timeframe when Heena might return to Saskatoon but Heena was unable to provide one. Ben explained that Hazel had agreed to work part time for the next few months but that they would need to come up with a backup plan if Heena could not confirm she was coming back to work soon. [ 34 ] Heena initially planned to bring Pushpaben back to Saskatoon on Thursday, February 7.

However, Pushpaben wanted to remain in Calgary and Heena wanted to respect her wishes. Kevin was busy preparing for midterm exams, and Heena was not comfortable travelling to Saskatoon with Pushpaben alone because it was very cold out. Heena also testified she felt Pushpaben was not ready to travel, though she had not taken Pushpaben to see a doctor and had not received any medical advice suggesting she was unable to travel by car to Saskatoon. [ 35 ] During the week of February 4 - 8, 2019, Heena and Ben spoke by telephone on several occasions.

During a call on February 6, Heena asked to be allowed to stay in Calgary for an additional week, until Monday, February 18. Heena testified Kevin was on a reading week that week and would be able to drive them back to Saskatoon at that time. [ 36 ] Ben denied Heena’s request for an additional week off, advising that she was needed at work. Heena had already been unexpectedly absent for several days, and Ben would be away on holidays during the week of February 11. This would leave the finance department short staffed during a busy time of year if Heena did not return.

[ 37 ] Heena agreed to return to work on February 11, 2019. Heena testified she agreed to return on February 11 because she had a good relationship with Ben and understood she would be needed when he was away. [ 38 ] The next morning, on February 7, 2019, Ben called Heena to let her know she would be receiving a letter from NRDC’s human resources department. [ 39 ] Later that day, Heena received an email from NRDC’s human resources manager, Cindy Toutloff [Cindy], with an attached letter dated February 7, 2019 (Exhibit J-1 Tab K) [ Letter] . The Letter stated that: (

i) Heena’s absence from work was not approved; (ii) she was expected to return to her full-time duties on February 11, 2019; and (iii) if she failed to return, she would be deemed to have resigned her position with NRDC and her employment would be terminated. [ 40 ] Heena testified she was shocked when she received this Letter, and that she was insulted by it.

She felt the Letter was unnecessary, because she had already voluntarily agreed to return to work on Monday, February 11. [ 41 ] Heena replied to Cindy by email that evening, explaining that she had to rush to Calgary because Kevin was all alone and was worried about her mother’s mental state.

Heena stated her mother’s mental health was at stake, which left her with no choice but to go to Calgary as soon as possible. [ 42 ] Cindy replied to Heena by email on February 8, reiterating the position set out in the Letter and stating that Heena’s unauthorized absence caused undue hardship on her co-workers and the business during one of the busiest times of the year for the finance department. [ 43 ] Heena returned to work on Monday, February 11, 2019, as agreed. Upon arrival, Heena delivered a letter of resignation to Cindy, effective February 22, 2019 (Exhibit J-1 Tab N).

Heena also sent her letter of resignation to the CEO of NRDC. [ 44 ] Heena made the decision to resign shortly before driving back to Saskatoon from Calgary. Heena testified she felt guilty about not taking Pushpaben to India, and by resigning she would be able to spend more time with her. Heena did not bring Pushpaben back to Saskatoon at that time, because she had decided to resign and did not want Pushpaben to travel in the cold. [ 45 ] The Letter had an impact on Heena.

Heena testified she felt NRDC did not value her, and that by sending the Letter NRDC was letting her know that her attendance at work should be her top priority and not her mother’s care.

Heena testified she understood the Letter to mean that NRDC would not accommodate any future holidays or absences from work, and that she could not ask for one more holiday day. [ 46 ] Heena testified that if she had not received this Letter, she would not have resigned and would not have initiated this complaint to the HRC. [ 47 ] Heena did not reconsider or rescind her resignation and worked full time throughout her two-week notice period. Her final day with NRDC was February 22, 2019.

Subsequent Events [ 48 ] Heena returned to Calgary on February 22 and stayed there with Pushpaben until March 17, when they returned to Saskatoon for Pushpaben’s next medical appointment on March 21. [ 49 ] Pushpaben was in Calgary from December 24, 2018 to March 17, 2019. She did not attend any medical appointments in Alberta or Saskatchewan between December 6, 2018 and March 21, 2019. [ 50 ] During the following months, Pushpaben’s health declined as her cancer spread. Heena was actively involved in all aspects of her mother’s care. Pushpaben passed away on May 11, 2019 in Saskatoon. III.

ISSUES [ 51 ] The following issues arise to be determined: 1. Under the Code , does family status include relationships where an adult child has responsibility to care for an ailing parent? 2. What are the criteria for establishing a prima facie case of family status discrimination? 3. Did NRDC discriminate against Heena on the basis of family status? 4. If so, what remedies are appropriate? [ 52 ] Each of these issues are addressed in turn below. IV.

ANALYSIS [ 53 ] The framework for analyzing a complaint under the Code was recently summarized by Klatt J. in Gronvold v Rural Municipality of Baildon No. 131 The Saskatchewan Human Rights Commission, 2022 SKQB 99 [ Gronvold ] at paras 54-55 . First,

the complainant must establish a prima facie case of discrimination. Second, if the complainant establishes a prima facie case ofdiscrimination, the defendant may tender evidence to refute the complaint or advance a defence justifying the discrimination: 54 To begin with, a complainant in these proceedings must establish a prima facie case for the alleged discrimination.

To be precise,the complainant must tender evidence of the allegations that, if believed, is "complete and sufficient to justify a verdict in thecomplainant's favour in the absence of an answer from the respondent-employer": Ontario (Human Rights Commission) v Simpsons-Sears Ltd., (SCC), [1985] 2 SCR 536 at para 28 (WL).

The words "complete and sufficient" require the complainant tomake out the prima facie case on a balance of probabilities: Québec (Commission des droits de la personne et des droits de la jeunesse) vBombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 at para 65, [2015] 2 SCR 789. 55 If a complainant succeeds in establishing a prima facie case of discrimination, then the evidentiary burden shifts to the defendant,who can either tender evidence to refute the complaint of prima facie discrimination, advance a defence justifying the discrimination orboth: Bombardier at para 64.

The practical effect is that if the defendant does neither, then it follows that the complainant will haveproven the allegation of discrimination on a balance of probabilities. [Emphasis added] [54] Before turning to consider whether a prima facie case has been established, there are two preliminary issueswhich must be addressed: (

i) Whether family status protection under the Code applies to elder care situations; and (ii) What criteria must be established to demonstrate a prima facie case of family status discrimination. [55] I will therefore begin by addressing each of these preliminary issues. 1.

Under the Code, does family status include relationships where an adult child has responsibility to care for an ailingparent? [56] Heena alleges NRDC discriminated against her based on family status, which is a prohibited ground ofdiscrimination under s. 2(1) of the Code. [57] A threshold issue raised by NRDC is whether family status protection under the Code applies to elder caresituations, such as the one which is the subject of this complaint.

For the reasons which follow, I conclude it does. [58] Family status is defined in s. 2(1) of the Code as follows: … “family status” means the status of being in a parent and child relationship and, for the purposes of this definition: (a) “child” means son, daughter, stepson, stepdaughter, adopted child and person to whom another person stands in place of a parent; (b) “parent” means father, mother, stepfather, stepmother, adoptive parent and person who stands in place of a parent to another person; … [59] NRDC argues the definition of “child” indicates the legislature intended family status to include onlyrelationships of parental responsibility for a minor child, not relationships where an adult child has responsibility to care for an ailingparent.

NRDC argues this conclusion follows from the words “to whom another person stands in place of a parent” in the definition of“child”, which it says applies to and modifies each of the preceding words in the definition. This is a question of statutory

interpretation. [60] The modern approach to statutory

interpretation was set out by the Supreme Court of Canada in Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21. The words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: 21 … Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. Herecognizes that statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [61] The objects of the Code are set out in s. 3. They are: … (

a) to promote recognition of the inherent dignity and the equal and inalienable rights of all members of the human family; (

b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminatediscrimination. [62] Human rights legislation such as the Code must be interpreted so as to advance the broad policy considerationsunderlying it. A broad, liberal and purposive approach to

interpretation is appropriate. See: B. v Ontario (Human Rights Commission),2002 SCC 66 at para 44, [2002] 3 SCR 403 [B. v Ontario]; University of British Columbia v Berg, (SCC), [1993] 2 SCR353 at 370-371.

[63] With these principles in mind, and reading the words in the definition of “child” in their grammatical andordinary sense in the entire context of the Code, I conclude the definition of family status is not limited to include only relationships ofparental responsibility for a minor child. I come to this conclusion for several reasons. [64] First, there is no reference to age, minor status, or dependence in the words used to define a “child”.

Rather, thewords used (i.e. son, daughter, adopted child, etc.) are descriptive of the person’s relationship to other individuals, not of the person’sage, minor status, or dependence. [65] Second, on a plain reading, the words “to whom another person stands in place of a parent” do not modify eachof the preceding words in the definition of “child”.

Instead, I find the word “person”, which immediately precedes this phrase, is clearlypart of it, such that it should be read “person to whom another person stands in place of a parent.” This phrase captures a person to whomanother person is in loco parentis, for example. [66] If the words “to whom another person stands in place of a parent” apply to and modify each of the precedingwords in the definition of “child” as argued by NRDC, then to be consistent, the words “who stands in place of a parent to anotherperson” in the definition of “parent” would also apply to and modify each of the preceding words in the definition of “parent”.

Thiswould lead to an illogical

interpretation of “parent.” [67] To illustrate the point, if NRDC’s proposed

interpretation of “child” is correct, the word “son” must be read tomean “son … to whom another person stands in place of a parent.” If this logic is applied to the definition of “parent”, the word “father”would have to be read to mean “father … who stands in place of a parent to another person.” [68] Since this would result in an illogical

interpretation of “parent”, it is unlikely the drafters intended theinterpretation of “child” proposed by NRDC as it would violate the presumption of consistent expression in statutory

interpretation. See: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) para 8.32, where the authors observe thatthe legislature is presumed to avoid stylistic variation. [69] Third, the broad goal of anti-discrimination statutes, such as the Code, is furthered by adopting an inclusiveinterpretation of the prohibited grounds: B. v Ontario at para 4. Although the words of

an Act must be given their plain meaning, whenconsidering human rights, courts should not “… search for ways and means to minimize those rights and to enfeeble their properimpact.”: Canadian National Railway Co. v Canada (Canadian Human Rights Commission), (SCC), [1987] 1 SCR1114 at 1134. Instead, human rights statues must be interpreted liberally, so they may better fulfil their objectives: British Columbia(Public Service Employee Relations Commission) v BCGSEU, (SCC), [1999] 3 SCR 3 at para 44. These principlesreinforce the conclusion that a broader

interpretation of family status is correct. [70] Fourth, relationships involving elder care obligations have been recognized as falling within the protectedground of family status in other cases. See for example: Canada (Attorney General) v Hicks, 2015 FC 599 at para 66, 69-71, 480 FTR209; Wing v Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472 at para 53; Kovintharajah v Paragon Linen and LaundryServices Inc., 2021 HRTO 98 at para 47; Grant v Treasury Board (Canada Border Services Agency), 2021 FPSLREB 84 at para 103[Grant].

Elder care obligations have also been implicitly recognized in Killian Properties Inc. v Frail, 2009 NSSC 419 at para 37, 287NSR (2d) 35 and Devaney v ZRV Holdings Ltd, 2012 HRTO 1590 at para 10. [71] Fifth, a consistent

interpretation of provincial human rights statutes is favoured unless it can be seen that thelegislature intends otherwise.

See: Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 at para 141, 463 DLR (4th) 567; Québec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (BombardierAerospace Training Center), 2015 SCC 39 at para 31, [2015] 2 SCR 789 [Bombardier]; New Brunswick (Human Rights Commission) vPotash Corporation of Saskatchewan Inc., 2008 SCC 45 at para 68, [2008] 2 SCR 604; Owens v Post Media Network Inc., 2016 SKQB289 at para 22, [2017] 4 WWR 779 [Owens]. [72] Here, there is nothing in the definition of “family status” in s. 2(1) of the Code to indicate an intention by theSaskatchewan legislature to exclude elder care situations from the protection of the Code. [73] For these reasons, I conclude the definition of family status in s. 2(1) of the Code is not limited to include onlyrelationships of parental responsibility for a minor child.

An elder care obligation, as a characteristic of a parent and child relationship,can fall within family status protection under the Code as a matter of law. 2. What are the criteria for establishing a prima facie case of family status discrimination? [74] As explained above, Heena alleges NRDC discriminated against her on the basis of family status by failing toaccommodate and refusing to continue to employ her, contrary to s. 16(1) of the Code.

The essential elements of this complaint are indispute, as the parties disagree on the criteria a complainant must establish to demonstrate a prima facie case of family statusdiscrimination as a matter of law. [75] NRDC submits the criteria to be applied is unsettled and identifies three decisions which have articulateddifferent criteria: (

a) Health Sciences Assoc. of B.C. v Campbell River and North Island Transition Society, 2004 BCCA 260, 240 DLR (4th) 479[Campbell River]; (

b) Canada (Attorney General) v Johnstone, 2014 FCA 110, 372 DLR (4th) 730 [Johnstone]; and (

c) Moore v British Columbia (Ministry of Education), 2012 SCC 61, [2012] 3 SCR 360 [Moore].

[ 76 ] HRC acknowledges the criteria set out in each of these decisions are different, and cites Fraser v Canada (Attorney General) , 2020 SCC 28 , 450 DLR (4 th ) 1 , where the Supreme Court of Canada observed at para. 118 that “… The question of what constitutes a prima facie case of family status discrimination has been the source of considerable ‘uncertainty and controversy’ in the human rights arena ...” [ 77 ] It is therefore necessary to address the criteria to be considered in determining whether a prima facie case has been demonstrated. [ 78 ] Before explaining my conclusion, and to provide context for the analysis which follows, it is helpful to briefly outline the criteria a complainant must establish to demonstrate a prima facie case of family status discrimination set out in each of Campbell River , Johnstone , and Moore . (

a) The criteria in Campbell River [ 79 ] In Campbell River , the British Columbia Court of Appeal considered an appeal from a decision of an arbitrator appointed under a collective agreement. The appellant had a child with severe behavioural problems requiring specific parental and professional attention and after school care.

The appellant argued the employer refused to employ or otherwise discriminated against her because of her family status by changing her hours of work and failing to accommodate her particular family situation. [ 80 ] The court held that in the employment context, a prima facie case of discrimination under the British Columbia Human Rights Code , RSBC 1996, c 210 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 (para. 39): 39 If the term "family status" is not elusive of definition, the definition lies somewhere between the two extremes urged by the parties.

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] [ 81 ] Under the Campbell River test, a complainant must establish: (

a) a change in a term or condition of employment imposed by an employer; (

b) which results in serious interference with a substantial parental or other family duty or obligation. [ 82 ] A distinguishing feature of the Campbell River test is the requirement for a complainant to establish a change in a term or condition of employment imposed by an employer. (

b) The criteria in Johnstone [ 83 ] In Johnstone , the Federal Court of Appeal considered an appeal from a judgment of the Canadian Human Rights Tribunal.

The Tribunal held that the Canadian Border Services Agency discriminated against the respondent on the basis of family status by not accommodating her childcare needs through work scheduling arrangements (para. 3). [ 84 ] The court set out four criteria to establish a prima facie case of family status discrimination in the employment context (para. 93): 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. [ 85 ] Under the Johnstone test, a complainant must establish: (

a) a child is under the complainant’s care and supervision; (

b) the childcare obligation at issue engages the complainant’s legal responsibility for that child, as opposed to a personal choice; (

c) the complainant has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (

d) the impugned workplace rule interferes with the fulfillment of the childcare obligation in a manner that is more than trivial or insubstantial. [ 86 ] The requirement that a complainant must make reasonable efforts to meet childcare obligations through reasonable

alternative solutions has been described as a form of “self-accommodation.” This is one distinguishing feature of the Johnstone test. [ 87 ] It is also important to note both Johnstone and Campbell River were decided in the context of childcare, not elder care. (

c) The criteria in Moore [ 88 ] In Moore , the Supreme Court of Canada considered an appeal from a decision of a Human Rights Tribunal applying the British Columbia Human Rights Code .

The appellant alleged his son had been discriminated against on the basis of a severe learning disability because the intense remedial instruction he needed was not available in the public school system (para. 1). [ 89 ] The court held that a prima facie case of discrimination is made out when a complainant has a characteristic which is protected from discrimination, they suffer an adverse impact, and the protected characteristic was a factor in that adverse impact (para. 33): 33 As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code ; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact .

Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [Emphasis added] [ 90 ] Under the Moore test, a complainant must establish: (

a) they have a characteristic protected from discrimination under the Code ; (

b) they suffered an adverse impact; and (

c) the protected characteristic was a factor in the adverse impact. [ 91 ] Notably, Moore dealt with a question of discrimination based on disability, not family status. [ 92 ] In this case, HRC and Heena argue Moore should be followed, while NRDC argues Johnstone should be followed. None of the parties argue Campbell River should be followed. (

d) The Moore test should be followed [ 93 ] For the reasons which follow, I conclude a complainant must establish the criteria set out in Moore to demonstrate a prima facie case of family status discrimination under the Code . [ 94 ] As explained below, I come to this conclusion largely for the reasons of the Alberta Court of Appeal in United Nurses of Alberta v Alberta Health Services , 2021 ABCA 194 , 459 DLR (4 th ) 499 [ United Nurses ] .

The central issue in United Nurses was the appropriate test for prima facie discrimination in family status human rights cases. [ 95 ] My reasons are as follows. [ 96 ] First, while the Supreme Court of Canada has not yet specifically applied the Moore test to the protected ground of family status, the test has nevertheless been adopted in Canada as the leading framework for establishing prima facie discrimination.

In United Nurses , the court held that until the Supreme Court expressly alters the test for prima facie discrimination in family status cases, the Moore test governs: United Nurses at para 65 . [ 97 ] Second, one uniform and consistent test for determining prima facie discrimination in all human rights cases is desirable. This was observed in United Nurses at para 7 : 7 In our view, the nature of human rights and the rule of law, require one uniform and consistent test for determining prima facie discrimination in all cases. That test was laid down by the Supreme Court of Canada in Moore .

There is no legal justification for the imposition in Johnstone of an additional, burdensome element of proof on family status claimants at the prima facie discrimination stage. Imposing a more onerous self-accommodation burden in this manner perpetuates rather than ameliorates human rights inequality.

Inequality undermines the rule of law: Fraser v Canada (Attorney General) , 2020 SCC 28 , 450 DLR (4th) 1 . [Emphasis added] [ 98 ] Third, as reflected in this quotation, the self-accommodation requirement set out in Johnstone (the requirement that a complainant must make reasonable efforts to meet care obligations through reasonable alternative solutions) at the prima facie discrimination stage has been criticized as being misplaced and contrary to the objects of human rights legislation such as the Code . [ 99 ] In Johnstone , the self-accommodation requirement was explained at para. 96: 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 alternative arrangement is not reasonably accessible to them so as to meet their work needs. In essence, the complainant must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis in regard to all of the circumstances.

[100] In United Nurses, the court held at para. 71 that requiring a complainant to prove self-accommodation efforts wereunsuccessful at the prima facie discrimination stage leads to a one-sided inquiry into accommodation, and conflates the first stage of thetest (whether there is a prima facie case of discrimination) with the second stage of the test (whether there has been accommodation): 71 In our view, the Board Decision favouring and applying the additional self-accommodation requirement set down in Johnstonewas not only unreasonable, it was incorrect.

At a foundational level, Johnstone substantively departs from the low evidentiary thresholdof the Supreme Court's three-part test in Moore, which does not burden a complainant with proving self-accommodation at the primafacie discrimination stage.

As was found in SMS [SMS Equipment Inc. v CEP, Local 707, 2015 ABQB 162, [2015] 8 WWR 779], at para77, the test in Johnstone requires a complainant to not only "prove that a workplace rule has a discriminatory impact on them, but thatthey are unable to avoid that impact"; this leads to a one-sided rather than a multi-party inquiry into accommodation, and which coulddeter complainants from even pursuing discrimination claims which are meant to remove barriers to full-participation in the workplace.Johnstone unacceptably conflates prima facie discrimination which is determined at the first stage of the test, with that of duty toaccommodate which is determined only at the second justification stage. [Emphasis added] [101] This conclusion was further explained in SMS Equipment Inc. v Communications, Energy and Paperworkers Union,Local 707, 2015 ABQB 162, [2015] 8 WWR 779 [SMS].

The court held that the Johnstone self-accommodation requirement isunnecessary because a finding of discrimination does not automatically follow once a prima facie case is established, and it is contrary tothe objects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discriminationcases (SMS at para 77): 77 A flexible and contextual application of the Moore test does not justify the application of an entirely different test of prima faciediscrimination, and particularly does not justify including within that test a self-accommodation element that is not required with respectto other prohibited grounds of discrimination.

This is unnecessary and contrary to the objects of human rights law. It is unnecessarybecause a finding of discrimination does not automatically follow once a prima facie case is established. It is only when the complainantestablishes a prima facie case and the respondent fails to justify the rule or conduct that discrimination will be found.

It is contrary to theobjects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases.Complainants are not only required to prove that a workplace rule has a discriminatory impact on them, but that they were unable toavoid that impact. Thus the Grievor was subjected to an examination regarding her relationship or lack thereof with the biological fathersof her children, her choice of caregivers for her children and her personal financial circumstances.

She had to undergo this examinationbefore the Employer would even consider a request for an accommodation in the form of a shift exchange that she had arranged withanother willing employee. The search for accommodation is intended to be "a multi-party inquiry," involving the employer, the unionand the complainant: Renaud v. Central Okanagan School District No. 23, (SCC), [1992] 2 S.C.R. 970 at 994, (1992),141 N.R. 185 [Central Okanagan], cited in Arbitrator's Decision at para 69.

Converting this multi-party inquiry into a one-sidedinvestigation could certainly deter complainants from pursuing claims for discrimination based on family status, and thus detract fromthe policy goal of removing discriminatory barriers to full participation in the workforce. [Emphasis added] [102] There is no legal justification for imposing this burdensome element of proof on family status claimants at the primafacie discrimination stage: United Nurses at paras 7 and 77. [103] Fourth, while efforts to find available, reasonable alternative care arrangements may be relevant at the secondjustification stage of the inquiry, I agree it is not relevant to whether a prima facie case of family status discrimination is made out:United Nurses at para 75. [104] The court in United Nurses held there is an irreconcilable contradiction if a legal obligation of childcare is protectedunder family status, but the complainant’s choices in the performance of that legal obligation could prevent the complainant fromestablishing prima facie discrimination (para. 72): 72 Johnstone also entails, and the Board Decision perpetuated, an irreconcilable contradiction by accepting that family status is aprohibited ground of discrimination encompassing legal obligations for childcare, only to find it is this very legal obligation and anychoice related thereto, that excludes RN Daigle from establishing prima face discrimination.

This flawed logic is directly contrary to thedicta of Abella J (for the majority on this point) in Quebec (Attorney General) v A, 2013 SCC 5 at para 336, [2013] 1 SCR 61: Moreover, this Court has repeatedly rejected arguments that choice protects a distinction from a finding of discrimination. In Brooks v.Canada Safeway Ltd., (SCC), [1989] 1 S.C.R. 1219, the employer argued that a different amount of compensation forwomen who took time off from work while pregnant was not discriminatory because "pregnancy is a voluntary state and, like otherforms of voluntary leave, it should not be compensated" (p. 1236).

Dickson C.J. refused to accept that pregnancy was a choice, notingthat an emphasis on choice would be "against one of the purposes of anti-discrimination legislation . . . the removal of unfairdisadvantages which have been imposed on individuals or groups in society" (p. 1238). In other words, not only was pregnancy not a"true choice", but choice was irrelevant to the question of discrimination. [Emphasis in original]

Similarly, in the case of family status discrimination, when one has a child or children and is employed, not only is childcare not a "truechoice", but choice is irrelevant to the question of discrimination. [Emphasis added] [105] Viewed another way, the Johnstone self-accommodation requirement demands a complainant prove more than a “link orconnection” between a protected ground and the adverse treatment, which is contrary to the direction from the Supreme Court in Stewartv Elk Valley Coal Corp., 2017 SCC 30 at para 46, [2017] 1 SCR 591 [Elk Valley], that a protected ground need only be “a factor” in theadverse treatment.

See also: United Nurses at paras 73-75. [106] Fifth, the test of legal responsibility set out in Johnstone is difficult to apply in the context of elder care and may result ina more onerous test than that applied in childcare cases. [107] In Johnstone, the requirement that there must be a legal obligation was explained at para. 95: 95 The second factor requires demonstrating an obligation which engages the individual's legal responsibility for the child.

Thisnotably requires the complainant to show that the child has not reached an age where he or she can reasonably be expected to care forhimself or herself during the parent's work hours.

It also requires demonstrating that the childcare need at issue is one that flows from alegal obligation, as opposed to resulting from personal choices. [108] The aspect of the Johnstone test which requires engagement of a legal obligation does not fit well in elder care cases,because an adult child’s responsibility to provide care for an elderly parent is not as clear as a parent’s legal responsibility to care for a minor child.

This concern was expressed in Misetich v Value Village Stores Inc., 2016 HRTO 1229 at paras 46 and 47, 39 CCEL (4th)129 [Misetich]: 46 There may be many obligations that caregivers have that may not emanate from their legal responsibilities, but are still essential tothe parent/child relationship. I agree with the submissions of the Commission that to limit human rights protection to legalresponsibilities imposes an unduly onerous burden on applicants. 47 Four, the test of legal responsibility is difficult to apply in the context of eldercare.

An adult child's legal responsibility to providecare for his or her elderly parent is not as clear as a parent's legal responsibility to care for his or her minor child. In Bharti [OntarioPublic Service Employees Union (Bharti) v. Ontario (Natural Resources and Forestry), ], the arbitrator held thelegal responsibility must be providing the necessaries of life for eldercare. This may be a higher test than that applied for childcare.

As aresult, there may be a different test for childcare and eldercare in the family status case law. [Emphasis added] [109] In Canada (Attorney General) v Bodnar, 2017 FCA 171 at para 37, 415 DLR (4th) 459, the Federal Court of Appealnoted that the Johnstone criteria would need to be nuanced somewhat in the case of elder care responsibilities, as there might be apractical moral need to provide urgently needed care for a disabled parent or to take them to medical appointments, as opposed to a legalrequirement to do so as would exist in the case of a child.

The need to adapt or “nuance” the test to apply in elder care situations makesthe test of legal responsibility as set out in Johnstone difficult to apply in practice. [110] The requirement to establish a legal obligation may also be difficult to apply in practice in childcare cases. In City ofYellowknife v A.B., 2018 NWTSC 50 at para 68, [2019] 1 WWR 731, the court noted this difficulty and observed that drawing the linebetween a personal choice and a legal obligation can be problematic: 68 I tend to agree with the Commission that the Johnstone test raises legitimate concerns.

It creates a framework for the analysis of aclaim of discrimination based on family status that is different from the one that applies to claims of discrimination based on othergrounds. It places a burden of self-accommodation on the claimant. Finally, the requirement that the childcare obligation at issue engagethe parent's legal responsibility may be difficult to apply in complex situations, such as the one in this case.

In some cases drawing theline between personal choice and legal obligation, and the idea that any given childcare obligation will neatly fall in one category or theother, is problematic. [111] The practical difficulty in applying the test of legal responsibility set out in Johnstone in both elder care and childcaresituations weighs against adopting that test. [112] Sixth, the test in Campbell River has been criticized because it requires a complainant to establish a change in a term orcondition of employment imposed by an employer which results in serious interference with a substantial parental or other family duty orobligation.

This has the effect of imposing a higher standard for establishing a prima facie case of discrimination on the basis of familystatus than on the basis of other protected grounds. [113] These criticisms of the Campbell River test were noted by the British Columbia Human Rights Tribunal in Adair vForensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147 at para 122:

122 Campbell River has been criticized for imposing a different and higher standard for establishing a prima facie case ofdiscrimination on the basis of family status than on the basis of other protected grounds. The decision in Campbell River may no longerbe supportable in light of the recent statement by the Chief Justice for the majority in Stewart v. Elk Valley Coal Corp., 2017 SCC 30[Elk Valley] at para. 46, that adding adjectives like "material" or "significant" to the elements of a prima facie case of discrimination isunnecessary.

In that case, the Court reaffirmed the three-part test for prima facie discrimination that was set out in Moore and rejectedproposed modifications for the test in the context of discrimination relating to substance abuse. [114] As stated in this passage, it is also questionable whether incorporation of these elements of the test remain sustainablefollowing the Supreme Court’s decision in Elk Valley.

In Elk Valley (decided 13 years after Campbell River) the Supreme Courtconfirmed that a protected ground or characteristic need only be “a factor” in the adverse treatment, and rejected the idea that adjectivessuch as “significant” or “material” should be incorporated into the test: 46 Second, I see no need to alter the settled view that the protected ground or characteristic need only be "a factor" in the decision. Itwas suggested in argument that adjectives should be added: the ground should be a "significant" factor, or a "material" factor.

Little isgained by adding adjectives to the requirement that the impugned ground be "a factor" in the adverse treatment. In each case, the tribunalmust decide on the factor or factors that played a role in the adverse treatment. This is a matter of fact.

If a protected ground contributedto the adverse treatment, then it must be material. [Emphasis added] [115] This calls into question whether the Campbell River requirement that a complainant must show the change in a term orcondition of employment resulted in serious interference with a substantial parental or other family duty or obligation remainssustainable following the clear statement in Elk Valley that a protected ground or characteristic need only be “a factor” in the adversetreatment. [116] For these reasons, I conclude Campbell River should not be followed. [117] In reaching this conclusion, I have considered that the Campbell River test was affirmed by the British Columbia Court of Appeal in Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46, 21 BCLR (6th) 306 [Envirocon].

However, CampbellRiver was affirmed on the simple basis that it was binding on the court, without addressing these criticisms or the implications of ElkValley. [118] In Envirocon, the appellant argued the Campbell River test should be reconsidered, citing several decisions in whichcriticism of that test has been expressed (paras. 23-24): 23 As indicated above, although the Tribunal was guided by the Campbell River test — i.e., the underlined portion of the abovequotation — it questioned whether that test remains good law. On this appeal, Mr.

Suen argues this Court should reconsider the test forfamily-status discrimination set out in Campbell River. In doing so, he refers to decisions in which criticism of that test has beenexpressed: Johnstone v. Canada (Border Services Agency), 2014 FCA 110, [2015] 2 F.C.R. 595; SMS Equipment Inc. v. CEP, Local 707,2015 ABQB 162, [2015] 8 W.W.R. 779; City of Yellowknife v. A.B. et al, 2018 NWTSC 50. He also refers to British Columbia (PublicService Employee Relations Commission) v. B.C.G.E.U., (SCC), [1999] 3 S.C.R. 3, Moore v. British Columbia(Ministry of Education), and Stewart v.

Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, cases that do not involve family-statusdiscrimination. 24 In essence, Mr. Suen's position is that the test in Campbell River is too restrictive. He submits it is only necessary for acomplainant to show that a change in a term or condition of employment interferes with a parental or other family duty or obligation. [119] The court held it was unnecessary to address the argument that the Campbell River test should be reconsidered becausethat decision was binding on the court (at para. 25): 25 It is unnecessary to address Mr.

Suen's arguments in any detail, as this division is bound by Campbell River. In that regard, I noteMr. Suen requested this appeal be heard by a five-justice division so the Court could consider whether Campbell River ought to beoverruled: see Practice Directive (Criminal & Civil), Five Justice Divisions (February 3, 2012). That request was denied. [120] I have also considered Palik v Lloydminster Public School Division No. 99, (Sask HRT)[Palik], a 2006 decision of the Saskatchewan Human Rights Tribunal which followed Campbell River.

In para. 90 of that decision, thetribunal expressly noted that Campbell River was the only judicial authority on point at that time. Since Palik predates Moore, I do notconsider this decision to be persuasive. [121] Seventh and finally, the Moore test for prima facie discrimination can be applied flexibly and contextually infamily status cases: United Nurses at paras 77 and 81. The requirement that a complainant have a characteristic protected fromdiscrimination under the Code may be met if there are characteristics of the complainant’s family status relationship which are so

protected. [122] Applying the Moore test, protected characteristics of family status relationships may be established over time inappropriate cases, as can limits on which characteristics are not protected or are only protected in a limited way or in limitedcircumstances.

For the purposes of this complaint, I have concluded that an elder care obligation, as a characteristic of the parent andchild relationship, can fall within family status protection under the Code as a matter of law. [123] For all of the reasons set out above, I conclude a complainant must establish the criteria set out in Moore todemonstrate a prima facie case of family status discrimination. [124] I now turn to consider whether NRDC discriminated against Heena on the basis of family status. 3.

Did NRDC discriminate against Heena on the basis of family status? [125] The first step in analyzing a complaint under the Code is to consider whether a prima facie case of discriminationhas been established: Gronvold at paras 54-55.

A prima facie case is one which, if believed, is complete and sufficient to justify a verdictin the complainant's favour in the absence of an answer from the employer: Ontario (Human Rights Commission) v Simpsons-Sears Ltd., (SCC), [1985] 2 SCR 536 at para 28 (WL) [Simpson-Sears]. [126] For the reasons which follow, I conclude a prima facie case of discrimination has not been established becauseHeena has not proven a link or connection between the prohibited ground of family status and the alleged adverse treatment upon whichshe relies. [127] In paragraph 8 of her Complaint dated December 12, 2019, Heena claims NRDC discriminated against her on the basisof family status by failing to accommodate and refusing to continue to employ her, contrary to s. 16(1) of the Code: 8.

I have reason to believe, and do believe, that North Ridge Development Corporation discriminated against me on the basis of familystatus by failing to accommodate me and refusing to continue to employ me, contrary to

Section 16 of The Saskatchewan Human RightsCode. [128] Section 16(1) reads as follows: Discrimination in employment prohibited 16(1) No employer shall refuse to employ, refuse to continue to employ or otherwise discriminate against a person or class of personswith respect to employment, or a term or condition of employment, on the basis of a prohibited ground. … [129] As explained above, to demonstrate a prima facie case of family status discrimination, Heena must establish thecriteria set out in Moore. The issues to be determined are therefore: (

i) whether Heena has a protected characteristic of family status; (ii) whether Heena suffered an adverse impact; and (iii) whether her family status was a factor in that adverse impact. [130] Heena argues these criteria are established because: (

i) as a characteristic of her parent and child relationship, she had an obligation to care for her ailing mother in February 2019which falls within the protected ground of family status; (ii) NRDC’s actions in denying her request for a one-week leave of absence on February 6, 2019 and sending her the Letteradversely impacted her because she was required to return to work instead of being able to fulfil this obligation; and (iii) her family status was a factor in that adverse impact. [131] Before turning to consider these issues, there are four principles informing my analysis which merit mention. [132] First, to establish a prima facie case, a complainant must prove a link or connection between the prohibitedground and the adverse treatment: Elk Valley at paras 45 and 50; United Nurses at para 94.

Put another way, it must be established thatthe prohibited ground was a factor in the adverse treatment: Bombardier at para 52. [133] To establish a prima facie case in this context, there must therefore be an action by the employer which adverselyimpacts some need of the person connected to family status which requires accommodation by an employer. An employee must do morethan simply establish a negative impact on a family need.

The negative impact must result in real disadvantage to the parent/childrelationship and the responsibilities that flow from that relationship: Misetich at para 54. [134] Second, not every nexus or connection, no matter how remote, is sufficient: Owens at para 101 and the cases citedtherein.

[ 135 ] Third, whether a protected status was a factor in an adverse impact is a question of fact: Elk Valley at paras 45-46 . [ 136 ] Fourth, a link or connection between the prohibited ground and the adverse treatment must be established on a balance of probabilities: Bombardier at para 65. [ 137 ] With these principles in mind, I will now turn to consider whether the Moore criteria have been established. (

a) Criterion 1: Did Heena have a protected characteristic? [ 138 ] As explained above, I have already determined that an elder care obligation, as a characteristic of a parent and child relationship, can fall within family status protection under the Code as a matter of law. [ 139 ] In this case, I conclude it is unnecessary to decide whether Heena’s relationship with Pushpaben involved an elder care obligation which is protected by family status because the second and third criteria from Moore have not been established. [ 140 ] Assuming without deciding Heena had an obligation to care for her ailing mother in February 2019 which falls within the protected ground of family status, on the evidence before me it is clear that Heena’s family status was not a factor in NRDC denying her request for a one-week leave of absence on February 6, 2019 and sending her the Letter, as explained below. (

b) Criterion 2 and 3: Did Heena suffer an adverse impact in which family status was a factor? [ 141 ] Heena argues NRDC’s actions in denying her request for a one-week leave of absence on February 6, 2019 and sending her the Letter adversely impacted her because she was required to return to work instead of fulfilling her obligation to care for her mother. [ 142 ] I respectfully disagree. On the evidence before me, Heena has not established that her family status was a factor.

The required link or connection between the prohibited ground and the alleged adverse treatment by NRDC – whether viewed as NRDC denying her request for a one-week leave of absence, sending the Letter, or these two actions collectively – has not been established on the evidence. [ 143 ] To explain my reasons for this conclusion, I will address each of NRDC’s actions which are said to be discriminatory. (

i) Denial of one-week leave of absence [ 144 ] The first action alleged to be discriminatory is NRDC’s denial of Heena’s request for a one-week leave of absence on February 6, 2019.

For the reasons which follow, I conclude Heena’s family status, and in particular any obligation in her parent/child relationship to care for her ailing mother, was not a factor in this decision. [ 145 ] First, I find NRDC was sensitive to Heena’s circumstances throughout Pushpaben’s illness and had a history of working with her when she required time off. [ 146 ] During 2018, NRDC allowed Heena to work flexible hours and worked with her to ensure she could take Pushpaben to her medical appointments.

Heena testified NRDC had a history of working well with her whenever she required time off. [ 147 ] NRDC also allowed Heena to take a medical leave of absence from November 10 to December 4, 2018 when she was having difficulty coping with Pushpaben’s cancer diagnosis. [ 148 ] When Heena first went to Calgary on December 24, 2018, NRDC allowed Heena to adjust her return date from January 1 to January 7, 2019 even though Heena had not asked for authorization to do so in advance. [ 149 ] In addition, on January 14 when Heena requested a three-month leave of absence to take Pushpaben to India, NRDC did not deny that request but identified options for her to consider which would allow Heena to take the trip while still meeting NRDC’s needs as her employer. [ 150 ] When Heena subsequently went to Calgary on January 31, again without asking for authorization to do so, NRDC again allowed her to remain in Calgary until a return date was discussed with her. [ 151 ] While Heena is not required to establish discriminatory intent on the part of NRDC ( Simpson-Sears at para 13), these events demonstrate that NRDC was sensitive to Heena’s circumstances and was willing to work with her. [ 152 ] Second, when Heena asked Ben on February 6 to be allowed to stay in Calgary for an additional week (until Monday, February 18) there was no evidence of a health or care concern which required Heena to remain in Calgary to care for Pushpaben that week. [ 153 ] Pushpaben had not had any medical appointments since her last radiation treatment in December 2018, and her next follow-up appointment was not scheduled until March 2019. [ 154 ] On January 14, 2019, approximately three weeks before requesting the additional week off, Heena requested a three- month leave of absence to take Pushpaben to India.

Pushpaben’s medical condition was sufficiently stable to embark on a lengthy international trip at that time. [ 155 ] Two weeks after that, when Heena returned to Calgary on January 31, she did not think Pushpaben needed medical attention and did not take her to see a doctor at any time while in Calgary. Heena testified Pushpaben’s mood and depression improved after she arrived.

[ 156 ] Aside from Heena’s subjective feeling that Pushpaben was not ready to travel when she requested the additional week off on February 6, there was no evidence of a health or care concern which required Heena to remain in Calgary to care for Pushpaben until February 18. Heena had not received any medical advice suggesting Pushpaben was unable to travel by car to Saskatoon at that time.

While medical evidence is not necessarily required to establish an elder care obligation, no care obligation has otherwise been established on the evidence before me. [ 157 ] Third, and consistent with this, the reason Heena wanted an additional week off was not because she was needed to care for her mother, but because Pushpaben wanted to stay in Calgary and because it would be more convenient for them to travel back to Saskatoon at the end of the following week. [ 158 ] Heena initially planned to bring Pushpaben back to Saskatoon on Thursday, February 7, 2019.

However, Pushpaben wanted to remain in Calgary and Heena wanted to respect her wishes. [ 159 ] In addition, Kevin was busy preparing for midterm exams, and Heena was not comfortable travelling to Saskatoon with Pushpaben alone because it was very cold out.

Heena testified Kevin was on a reading week during the week of February 18 and would be able to drive them back to Saskatoon at that time. [ 160 ] For these reasons, I conclude Heena’s family status was not a factor when NRDC denied her request for a one- week leave of absence on February 6, 2019. [ 161 ] On the evidence before me, I find Heena requested the additional week off because Pushpaben wanted to stay in Calgary and because she preferred to have Kevin drive them back to Saskatoon so she would not have to drive in the cold; not because of a legitimate need to stay in Calgary until February 18 to care for Pushpaben. [ 162 ] As there was no need for Heena to be absent from work until February 18 because of a family status elder care obligation, NRDC’s actions in denying Heena’s request for an additional week off did not adversely impact her ability or responsibility to care for her ailing mother and did not require accommodation by NRDC. [ 163 ] Put another way, the link between the prohibited ground and the adverse treatment necessary to establish a prima facie case is not demonstrated on the evidence.

Where the evidence does not support the conclusion that family status was a factor in the employer’s action, a prima facie case of discrimination is not established. See: Elk Valley at para 43 . (ii) Letter dated February 7, 2019 (Exhibit J-1 Tab K) [ 164 ] The second action alleged to be discriminatory is NRDC’s delivery of the Letter on February 7, 2019. [ 165 ] After Ben denied Heena’s request for an additional week off on February 6, 2019, he called Heena the next day to let her know that she would be receiving a letter from NRDC’s human resources department.

Later that day, Heena received an email from Cindy with the Letter attached. The Letter read as follows: We are writing with respect to your recent absence from work. You should be aware that your regular attendance at work is important to our business. You have been absent from work since Wednesday, January 30, 2019 when you went home sick at approximately 3:00 pm. You did not return to work on Thursday, January 31st and did not advise anyone that you would not be coming to work. It wasn’t until Ben followed up with you that you advised him that you were in Calgary and would be back soon.

This current absence has not be [sic] authorized or approved and we expect you to return to your fulltime duties on Monday February 11, 2019. If you fail to return on Monday you will be deemed to have resigned your position and your employment with North Ridge Development Corporation will be terminated. [ 166 ] Heena argues this Letter adversely impacted her obligation to care for her mother and was discriminatory in two ways. She argues the Letter forced her to choose between working and caring for her mother, because: (

a) the Letter meant she would no longer be able to have any time off to care for her mother; and (

b) she would lose her job if she did not abandon her mother and return to work on February 11, 2019. [ 167 ] For the reasons which follow, I conclude Heena’s family status was not a factor when NRDC sent her the Letter. I also conclude Heena did not suffer an adverse impact by receiving it.

Argument 1: NRDC would not provide further time off [ 168 ] The first argument is that Heena was forced to choose between working and caring for her mother because she would no longer be allowed any time off to provide that care. [ 169 ] Although Heena testified she was offended by the Letter and interpreted it as meaning she would not ever be allowed time off to care for her mother in the future, I find as a fact this was not the case.

Heena’s subjective belief NRDC would not accommodate any future holidays or absences from work is unreasonable and not supported by the evidence. [ 170 ] The Letter does not state, nor does it reasonably imply, that Heena would no longer be allowed to have time off to care for her mother in the future. This issue is not mentioned in the Letter.

[ 171 ] As explained above, NRDC was sensitive to Heena’s circumstances throughout Pushpaben’s illness and had a history of working with her to give her time off when requested. The Letter does not establish NRDC would not continue to do so going forward.

Argument 2: Heena would lose her position [ 172 ] The next argument is that Heena was forced to choose between working and caring for her mother because the Letter stated she would lose her job if she did not abandon her mother and return to work on February 11, 2019. [ 173 ] For the reasons which follow, I conclude the statement in the Letter that Heena’s position with NRDC would be terminated if she did not return to work on February 11 did not adversely impact her ability or responsibility to care for her ailing mother, and that her family status was not a factor in NRDC sending the Letter. [ 174 ] First, as explained above, I have found there was no need for Heena to be absent from work until February 18 because of a family status elder care obligation. [ 175 ] Second, the Letter was not sent without regard for Heena’s family obligations; it was sent because Heena had left her employment without authorization and was unable to confirm when she would return. [ 176 ] When the Letter was sent on February 7, Heena had been absent from work without authorization since January 31.

In an email exchange between Heena and Ben on February 4 and 5, Heena was unable to provide a timeframe when she expected to return to Saskatoon. In these circumstances, it was reasonable for NRDC to send the Letter to confirm her return date and to advise that she would be deemed to have resigned if she did not return. [ 177 ] Third, Heena had already agreed to return to work on February 11 before she received the Letter.

She testified she agreed to return on February 11 because she had a good relationship with Ben and understood she would be needed when he was away. [ 178 ] Fourth, the possible discipline set out in the Letter did not occur. Heena returned to work on February 11 and was not deemed to have resigned. [ 179 ] Fifth, NRDC did not refuse to continue to employ Heena, did not request her resignation, and did not force her to choose between working and caring for her mother.

Rather, Heena resigned immediately upon arriving back at the office. [ 180 ] Although Heena testified the Letter left her with no alternative but to resign, I find as a fact this was not the case. As explained above, her subjective belief that NRDC would not accommodate any future holidays or absences from work is not supported by the evidence. [ 181 ] Sixth, Heena chose to resign so she could spend more time with Pushpaben, not because NRDC forced her to do so.

Heena testified she felt guilty about not taking Pushpaben to India, and by resigning she would be able to spend more time with her. [ 182 ] The wish to spend more time with an ailing loved one is certainly understandable, but it does not necessarily create an elder care obligation protected from discrimination under family status. This was observed by the Federal Public Relations Employment Board in Grant at para 116 : 116 Again, I sympathize with wanting to be close to an elderly parent, especially when they are ill.

There can be a feeling of helplessness, if not guilt, when one cannot be close to their aging parents in those circumstances. While being present may be the preferred option, it does not necessarily create an eldercare obligation protected from discrimination under the ground of family status. [ 183 ] Seventh and finally, Heena did not make the decision to resign in haste. She testified she made the decision to resign shortly before driving back to Saskatoon from Calgary.

After tendering her letter of resignation, Heena worked out her two-week notice period and never reconsidered or attempted to rescind her resignation. [ 184 ] For these reasons, I conclude Heena’s family status was not a factor in NRDC sending the Letter to her, and that she did not suffer an adverse impact by receiving it. (

c) Conclusion on prima facie case [ 185 ] For the reasons set out above, I conclude t he link or connection between the prohibited ground and the alleged adverse treatment by NRDC required in order to demonstrate a prima facie case – whether viewed as NRDC denying her request for a one-week leave of absence, sending the Letter, or these two actions collectively – has not been established on the evidence. [ 186 ] If I am wrong in my conclusion that the Moore test should be followed, I would have reached the same conclusion and dismissed the complaint applying the criteria set out in Johnstone or Campbell River . 4.

Remedies [ 187 ] Since I have concluded no prima facie case has been established, it is unnecessary to consider remedies or damages. V. COSTS

[ 188 ] NRDC seeks an award of costs against the HRC.

Section 36 of the Code prohibits an award of costs unless there has been vexatious, frivolous, or abusive conduct on the part of any party: Costs 36 Neither the court nor the Court of Appeal may award costs to any party unless the court or the Court of Appeal considers that there has been vexatious, frivolous or abusive conduct on the part of any party. [ 189 ] The HRC is a party to a complaint under the Code : s. 37(1) (a). [ 190 ] NRDC argues this complaint is frivolous, and the actions of the HRC in bringing it to a hearing is vexatious.

It argues the HRC did not fulfill its obligation under s. 30 of the Code to undertake an analysis of the merits of the case, and instead simply presumed liability in deciding to advance the case to a hearing. [ 191 ] The HRC argues it is the role of the court to decide whether the evidence will be persuasive on a balance of probabilities, that the case was not frivolous, and the decision to proceed to a hearing in this case was not vexatious. [ 192 ] In support of its request for costs, NRDC relies on Love v Canada (Privacy Commissioner) , 2015 FCA 198 [ Love ] , where the Federal Court of Appeal held at para. 24 that a human rights complaint may be considered frivolous where a complainant fails to claim or assert a link between the adverse treatment and the prohibited ground: 24 The case law further recognizes that in assessing whether a complaint is frivolous, the Commission may look to the absence of a claimed link between the impugned conduct and a ground of discrimination under the CHRA [ Canadian Human Rights Act, RSC 1985, c H-6 ].

More specifically, where a complainant fails to assert a link between the conduct complained of and a prohibited ground of discrimination — or, to put the matter another way, fails to explain why the adverse treatment was connected to one of the grounds prohibited under the CHRA — then the Commission may reasonably conclude that it is plain and obvious that a complaint could not succeed, as was recently noted by this Court in McIlvenna v. Bank of Nova Scotia, 2014 FCA 203 , 466 N.R. 195 at para. 14 . (See also, to similar effect , Canada (Attorney General) v.

Mohawks of the Bay of Quinte , 2012 FC 105 , 404 F.T.R. 173 at para. 41 and Hartjes v. Canada (Attorney General ), 2008 FC 830 , 334 F.T.R. 277 at para.15.) [ 193 ] The situation here is different. Heena claimed and asserted a link between the alleged adverse treatment and the prohibited ground, but she was unsuccessful establishing it.

For this reason, this complaint is not frivolous for the reason described in Love . [ 194 ] While the HRC’s decision to proceed to a hearing may not have been advisable in hindsight, in these circumstances I conclude the complaint was not frivolous and the decision to proceed to a hearing was not vexatious. An award of costs is therefore not available under s. 36 of the Code , and I decline to make any order for costs. VI.

SUMMARY [ 195 ] For all of the reasons set out above, I conclude NRDC did not discriminate against Heena on the basis of family status by failing to accommodate and refusing to continue to employ her contrary to s. 16 of the Code . [ 196 ] The complaint is dismissed. There will be no order as to costs. J. K.D. KILBACK