Confusion as to what constitutes family-status discrimination in Canada continues to vex employers.
“The Supreme Court of Canada had an opportunity to create a uniform test across the country in 2019 but chose not to hear the case,” says Gary Clarke, the Calgary and Vancouver-based national co-head of Stikeman Elliott LLP’s employment and labour group. “That was surprising because some of the provincial tests incorporated concepts the court had previously rejected.”
Family status is a prohibited ground of discrimination in human rights legislation throughout Canada, but the test as to whether discrimination exists continues to depend on the jurisdiction in which the alleged discrimination occurred.
“I have no choice but to tell clients that it’s a minefield,” says Fred Wynne, an employment and human rights lawyer at Tevlin Gleadle Curtis Employment Law Strategies in Vancouver.
In industries under federal jurisdiction (such as airlines, financial institutions and railroads), complainants must show that an employee is under a legal responsibility to care for a child, that the employee tried to fulfil his or her obligations through reasonable alternative solutions that were reasonably accessible; and that the impugned workplace rule interfered with the childcare obligation in a manner that was more than trivial or insubstantial.
British Columbia requires complainants to show that a change in the terms of employment resulted in serious interference with a substantial parental or other family duty. “The B.C. test, like the federal test, has been criticized for creating a higher threshold for establishing discrimination based on family status relative to other prohibited grounds of discrimination,” Clarke says. “It also seems to contradict Supreme Court jurisprudence that the protected characteristic need only be ‘a factor’ in the adverse treatment and not one that had to rise to the level of ‘serious interference.’”
The upshot is that the rest of the country has been disinclined to follow B.C.’s lead. In Alberta, for example, the complainant must show only that a family status relationship exists; adverse treatment has occurred; and the adverse treatment resulted, at least in part, from the employee’s family status. But Alberta courts have also incorporated the federal requirement that complainants must show legal responsibility, as opposed to a personal choice, to care for a child.
“So unlike the federal and B.C. tests, the Alberta test does not create a higher threshold for establishing family status discrimination as opposed to other grounds of discrimination,” Clarke says. “But it does incorporate the requirement of a legal obligation from the federal jurisprudence.”
The Ontario test is similar to the Alberta approach. “In Ontario, complainants must show that their family status has resulted in a significant negative impact to the family relationship or to their work,” Clarke explains. “But Ontario, unlike Alberta, does not require an employee to establish a legal parental obligation.”
The fact that different jurisdictions define family status differently complicates matters further. By way of example, family status in Alberta embraces individuals related by “blood, marriage or adoption,” whereas Ontario mandates a “ parent-child relationship.” So how are employers with Canada-wide operations dealing with the issue?
According to Clarke, it varies. “Some employers go for the high-water mark and apply the most liberal test for family status across the country,” Clarke says. “Others just zero in on the applicable test in each jurisdiction.”
Whatever the approach, it’s confusing. “This is not easy stuff,” Clarke says. “It’s a brain-bender even for lawyers.”
From a practical perspective — and especially as the coronavirus pandemic rages — it’s important for employers to keep the lines of communication open and be proactive. “Depending on the circumstances, employers may consider implementing temporary alternate work schedules, leaves of absence, providing access to employee assistance programs that could assist in the search for appropriate care, and similar measures.”