Source: http://decisions.fct-cf.gc.ca/en/2013/2013fc113/2013fc113.html
Date:
20130131
Docket:
T-1418-10
Citation:
2013 FC
113
Ottawa,
Ontario, January
31, 2013
PRESENT:
The Honourable Mr. Justice Mandamin
BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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FIONA ANN
JOHNSTONE AND
CANADIAN
HUMAN RIGHTS COMMISSION
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an
application for judicial review of the Canadian Human Rights Tribunal August 6,
2010 decision allowing Ms. Fiona Johnstone’s complaint of human rights
discrimination, because of family status, by the employer.
[2] Ms.
Johnstone filed her complaint under the provisions of the Canadian Human
Rights Act RSC 1985 c H-6 [the Act] which prohibits discrimination on
the basis of family status in matters relating to employment. She contended that
her employer, the Canadian Border Services Agency [CBSA], engaged in a
discriminatory employment practice with respect to family status, specifically,
in relation to her parental childcare obligations.
[3] Ms.
Johnstone had been working as a border services officer on rotating shifts. She
requested full-time employment working fixed day shifts that would allow her to
arrange childcare for her young children. CBSA policy limited fixed day shifts
as requested by Ms. Johnstone to part-time employment. Consequently, Ms.
Johnstone was not eligible for benefits available to full time CBSA
employees.
[4] The Tribunal
found Ms. Johnstone had proven prima facie employment discrimination on
the basis of family status contrary to the Act and decided the CBSA had
not proven hardship for the employer necessary to exempt the CBSA from its
obligation to accommodate for family status.
[5] The
Applicant contests whether the term “family status” in the Act includes
parental childcare obligations. It submits childcare is not included in the term
“family status”. The Applicant also challenges the Tribunal’s legal test for
finding prima facie discrimination based on family status. Finally, the
Applicant contests several remedial orders of the Tribunal.
[6] On the
central questions, I conclude the Tribunal reasonably found parental childcare
obligations comes within the scope and meaning of “family status” in the
Act. I also conclude the Tribunal applied the proper legal test for its
finding of prima facie discrimination on the basis of family status.
Finally, I am satisfied the Tribunal finding that the CBSA discriminated against
Ms. Johnstone on the basis of family status to be reasonable having regard to
the evidence before the Tribunal.
[7] On the
question of remedies, while I conclude the Tribunal did not err generally, I
find the Tribunal erred in part by failing to justify the compensation award for
the period when Ms. Johnstone elected unpaid leave to accompany her spouse on
relocation to Ottawa.
[8] My reasons
are set out following.
Background
[9] Ms.
Johnstone began working as a part-time customs inspector in the Passenger
Operations District of the CBSA at Pearson International Airport [Pearson] in
April 1998. After five months her position, now described as a border services
officer, was converted to full-time. Her employment became indeterminate in
2001.
[10] In January
2003, following the birth of her first child, Ms. Johnstone requested
accommodation. Specifically, she requested she continue in full-time employment
with a fixed daytime shift schedule that coincided with childcare available to
her. She renewed this request in December 2005 after the birth of her second
child.
The Work
Environment
[11] The CBSA was
created on December 12, 2003 and took over the customs functions that had been
responsibility of the Canada Customs and Revenue Agency, the ports of entry of
inland immigration that had been handled by the Department of Citizenship and
Immigration, and the entry inspections of food, plants and animals previously
performed by the Canadian Food Inspection Agency.
[12] The CBSA
Greater Toronto Area [GTA] region has three main operational districts:
Passenger Operations, Commercial Operations and Greater Toronto Enforcement
Centre [GTEC]. Only Passenger Operations and Commercial Operations employ border
services officers.
[13] Commercial
Operations is responsible for processing cargo from commercial aircraft and for
sufferance warehouses that are facilities for landing, storage, safekeeping,
transfer, examination, delivery and forwarding of imported goods before release.
The bulk of this work is done at Pearson on the other side of the airfield from
the passenger terminals.
[14] Gateway was
previously a separate district within the CBSA’s GTA region. It was merged into
the Commercial Operations district around 2005/2006. Border services officers
at Gateway sort and examine mail, documents and parcels coming into Canada.
[15] In 2004
Passenger Operations was responsible for processing passengers in Pearson
Terminals 1, 2 and 3 as well as at the East Hold where small aircraft arrive.
All passengers were met and taken by bus to Terminal 2 for processing. In 2005
passengers arriving on private jets (fixed base operators) who had been
processed through Passenger Operations were transferred to Commercial
Operations. In January 2007 Terminal 2 was closed down and CBSA operations in
that Terminal were shifted to Terminal 1. Currently, Air Canada’s U.S. and
international flights operate through Terminal 1 and most other airlines operate
through Terminal 3.
[16] The border
services officers perform work at Passenger Operations, Commercial Operations
and Gateway. One universal job description applies for all border services
officers and all positions are classified similarly.
[17] Mr. Norm
Sheridan has been District Director of Passenger Operations since 1999. In 2004
he had three Chiefs, one at each terminal, reporting to him. Ms. Rhonda Ruby was
the Passenger Operation Chief at Terminal 1. Each Chief had between nine to
thirteen Superintendents reporting to them. The Superintendents were responsible
for day to day management in their Terminals and for supervising the border
services officers in their crews.
[18] On February
12, 2007 the CBSA management structure expanded to 10 Chiefs within Passenger
Operations. Superintendents continued in the same job description. The
Superintendents prepare the border services officers’ shift schedules. Two
Superintendents specifically manage accommodation requests by employees asking
for relief from the shift schedules.
[19] Pearson is
Canada’s busiest airport. Passenger Operations screens and processes travellers
seeking entry to Canada 24 hours a day, 7 days a week. In order to meet
operational requirements at Pearson, border services officers in Passenger
Operations work rotating and variable shifts under an agreement established with
the local union in 1987, titled the Variable Shift Scheduling Agreement
[VSSA].
[20] All
full-time border services officers at Pearson work a 56 day schedule period with
hours of work patterned on 5 days on, 3 days off with each working shift of 8.57
hours less a 30 minute meal break.
Childcare
Availability
[21] Ms.
Johnstone testified she intended to make her work as a border services officer
her career. She worked full-time as a border services officer on rotating shifts
under the VSSA schedule.
[22] Ms.
Johnstone gave birth to her first child in January 2003 and took a year of
maternity leave. Her second child was born in 2005. Ms. Johnstone has been the
primary parent caring for their children. She could not arrange childcare which
would allow her to return to full-time shift work as a border services officer
at Pearson.
[23] Her husband,
Mr. Jason Noble, also worked a rotating shift schedule in his position as a
customs superintendent at the Pearson Passenger Operations District. His shift
hours as a supervisor were more onerous that Ms. Johnstone’s. Their work
schedules overlapped 60% of the time but were not coordinated. As a result, Ms.
Johnstone’s spouse could not take over or fill in the family childcare on a
reliable basis.
[24] After the
birth of her first child, Ms. Johnstone had been able to arrange childcare with
family members. Her family members could provide childcare for the three days a
week for fluctuating hours, including overnight.
Request for
Accommodation
[25] Ms.
Johnstone wanted to maintain her full-time employment status in order to access
opportunities for training and advancement, pension, and other benefits
available for full-time employees. Her concern was that she would lose both
benefits and pension with long term consequences to her promotional
opportunities and future retirement.
[26] Ms.
Johnstone requested that she work full-time in static shifts over three days.
She did not specify starting times or returning to the same duties she had
performed. Full-time employment necessitated working a minimum of 37.5 hours per
week.
[27] Ms.
Johnstone contacted CBSA Management prior to her return to work in January 2004
asking to work full-time over three days with 13-hour shifts fixed per week. The
39-hour week could constitute full time employment. Ms. Johnstone approached Ms.
Raby, the Terminal 1 Chief through her husband. Ms. Raby denied the request and
instead offered Ms. Johnstone part-time work on a fixed schedule.
[28] Ms. Raby
offered Ms. Johnstone a maximum of 10 hours a day for three days plus a further
4 hour shift on a fourth day for a total of 34 hours a week. While starting
times might vary, the shifts would be on the same days of the week. The 34-hour
week would constitute part-time employment. Ms. Raby had made it clear to Ms.
Johnstone that CBSA policy, albeit unwritten, is that in order to get static
shifts, the maximum hours of work allowed was 34 hours a week.
[29] Ms.
Johnstone accepted the three 10-hour days but not the additional 4 hours because
it would not achieve the full-time employment Ms. Johnstone wanted and the
childcare expense for the fourth half-day negated the extra 4 hours of
wages.
[30] Shortly
after returning to work, Ms. Johnstone asked if she could remain on full-time
status and characterize the hours not worked as leave without pay which would
mean her income would still be pensionable. This request was denied. She asked
if she could top up the difference to keep the equivalent of full-time pension
benefits but this was also denied.
[31] After her
second child was born, she asked in December 2005 to be allowed to work
full-time hours over three days but was again refused. Ms. Johnstone then
further reduced her hours of part-time work after the birth of her second child
from the 30 hours of work she had been working.
Human Rights
Complaint
[32] Ms.
Johnstone filed her human rights complaint on April 23, 2004. She claimed the
CBSA has engaged in a discriminatory practice on the ground of family status in
an employment matter. Her complaint was brought pursuant to subsections 7(b) and
10(a) and (b) of the Act.
History of
Proceedings
[33] After Ms.
Johnstone filed her human rights complaint, the Canadian Human Rights Commission
(the Commission) appointed an Investigator. The Investigator found that the CBSA
differentiated between employees seeking relief from rotating shift schedules
for medical reasons and those seeking the same relief for reasons of childcare.
For employees of the first class, the CBSA allowed full-time work on fixed
shifts, but required the latter to work fixed shifts part-time.
[34] The
Investigator also found the evidence for operational concerns was an
impressionistic assumption and concluded the CBSA failed to provide a
justification for this policy. The Investigator recommended the Commission refer
the complaint to the Tribunal.
The
Commission
[35] On receipt
of the Investigator’s report and recommendation, the Commission invited
submissions from Ms. Johnstone and the CBSA. The Commission decided, at this
screening stage, to dismiss Ms. Johnstone’s complaint. Its reasons
were:
a. The CBSA
accommodated Ms. Johnstone’s request for a fixed shift to meet her childcare
obligations;
b. Ms.
Johnstone accepted the part-time scheduling arrangement and did not request
full-time hours; and
c. It was not
satisfied the effect of the CBSA policy, which permits employees to be relieved
of rotating shifts for 37.5 hours, constituted a serious interference with Ms.
Johnstone’s duty as a parent or that it constituted discrimination on the basis
of family status.
[36] Ms.
Johnstone applied for judicial review of the Commission’s decision in the
Federal Court.
[37] In
Johnstone v Canada (Attorney General), 2007 FC 36 [Johnstone FC]
Justice Barnes allowed Ms. Johnstone’s application and returned the matter back
to the Commission for redetermination. The Federal Court of Appeal dismissed the
Attorney General’s appeal of the Federal Court judicial review. Canada
(Attorney General) v Johnstone, 2008 FCA 101 [Johnstone FCA].
[38] Ms.
Johnstone’s human rights complaint subsequently proceeded to a hearing before
the Tribunal.
The
Tribunal
[39] Both the
Applicant and the Respondent presented their evidence and expert evidence in a
full hearing by the Tribunal. Ms. Johnstone testified and called three
witnesses, Mr. Murray Star, another CBSA employee, and two expert witnesses, Dr.
Linda Duxbury and Ms. Martha Friendly. The Respondent called Mr. Sheridan, the
District Director of Passenger Operations, Ms. Raby, the Terminal 1 Chief, and
one expert witness, Dr. Moore-Ede.
[40] On August 6,
2010, the Tribunal rendered its decision, allowing Ms. Johnstone’s complaint of
discrimination based on family status.
[41] The Attorney
General now applies for judicial review of the Tribunal’s decision.
Other
Matters
[42] At the time
of the Tribunal hearing Ms. Johnstone was on unpaid Care & Nurturing Leave
covered by the VSSA. Before that, when her husband was transferred to Ottawa as
a trainer, she went on a one year Relocation of Spouse Leave without pay. Ms.
Johnstone’s intention was to return to full-time work when her children reached
school age.
Decision
Under Review
[43] The Tribunal
allowed Ms. Johnstone’s human rights complaint on August 6, 2010. It described
Ms. Johnstone’s complaint as:
The
Complainant (Ms. Johnstone) alleges that the Respondent (CBSA) has engaged in a
discriminatory practice on the ground of family status in a matter related to
employment. The relevant prohibited ground of “family status” is enumerated in
Section 3(1) of the Act.
[44] The Tribunal
described the practices Ms. Johnstone complained of as a failure to accommodate
by the employer and adverse differential treatment based on family status
relating to the raising of two children. It noted, pursuant to Moore v Canada
Post Corporation, 2007 CHRT 31 [Moore], at paragraph 86, “failure to
accommodate” is not a discriminatory practice under the Act, as “there is
no free-standing right to accommodation under the CHRA”. The Tribunal proceeded
on adverse differential treatment based on family status relating to the raising
of two children. The Tribunal identified the relevant time for the complaint as
beginning April 23, 2004 to present times.
[45] After
describing the CBSA structure and operations, the Tribunal reviewed the history
of the CBSA and its predecessors on the issue of family status relating to
employment. The Tribunal considered this history helpful as a framework to the
present complaint.
[46] The Tribunal
took specific note of the 1993 Tribunal decision, Brown v Canada (Department
of National Revenue, Customs & Excise), [1993] CHRD No 7 [Brown],
which involved the CBSA’s predecessor, the National Revenue Agency – Customs and
Excise. That case also involved a CBSA employee who was a customs inspector who
asked to work dayshift after her child was born.
[47] In
Brown the Tribunal set out the requirements for establishing a prima
facie case of discrimination based on family status. The Tribunal observed
that Brown found parents are under an obligation to seek accommodation
from their employer in order that they may meet their duties and obligations
within the family.
[48] The Tribunal
in Johnstone noted that the respondent was ordered “to prevent similar
events from reoccurring through recognition and policies that would acknowledge
family status to be interpreted as involving ‘a parent’s rights and duty to
strike a balance [between work obligations and child rearing] coupled with a
clear duty on the part of any employer to facilitate and accommodate that
balance.’”
[49] The Tribunal
concluded that these recommendations were not implemented, as witnesses from
both parties testified that there has never been full implementation of the
orders in Brown.
The
Evidence
[50] The Tribunal
accepted Ms. Johnstone’s evidence was that she could no longer work the VSSA
schedule when she became a mother. Ordinary daycare hours were limited to 7 a.m.
to 6 p.m. Monday to Friday. Unlicensed daycare and private daycare would not
provide daycare for unpredictable and fluctuating hours and not on weekends or
overnight. Ms. Johnstone’s family members could provide daycare for three days a
week including overnight.
[51] Ms.
Johnstone gave evidence that she requested full time work with 13-hour days on
Fridays, Saturdays and Mondays. She testified she was told she could only work
part-time for a maximum of 34 hours at 10 hours a day over 3 days with an
additional 4 hours on the fourth day. She also testified she asked whether she
could remain on full-time status with the hours not worked as leave without pay
or top up the difference to keep the equivalent about full-time status but she
was refused. A live-in nanny was not a financially feasible option for Ms.
Johnstone because of the expense and the requirement to move into a larger house
to accommodate a live-in adult nanny.
[52] The Tribunal
accepted that had Ms. Johnstone been allowed to work full-time over the three
days she requested, she would have found a way to handle her childcare
responsibilities.
[53] The Tribunal
heard testimony from Murray Star who worked variable shifts with the CBSA. Mr.
Star had obtained accommodation on religious grounds and was not required to
work on the Sabbath and other holy days of religious observance.
[54] The Tribunal
considered the evidence of Ms. Johnstone’s witness, Dr. Duxbury, who was
accepted as an expert in human resources management including labour force
demographics, managing change, and the impact of work-life balance issues on
workers. Dr. Duxbury’s report related to accommodation needs of workers with
childcare responsibilities and the impact of employers’ responses to
accommodating those needs.
[55] The Tribunal
also considered the evidence of Ms. Friendly, the Executive Director of the
Toronto’s Childcare Resource and Research Unit, who filed a report on the extent
childcare was accessible for parents working non-standard, rotating,
unpredictable hours. The Tribunal accepted her as an expert on childcare policy
in Canada. The Tribunal accepted as reliable Ms. Friendly’s conclusions on the
difficulties faced by parents finding third party childcare when working in
workplaces that require rotational fluctuating shifts. The Tribunal found that
Ms. Friendly’s evidence supported Ms. Johnstone in that the type of childcare
she needed was not easily available, if at all. The Tribunal also accepted there
were relatively few workers who required such childcare assistance.
Prima
Facie Case
[56] The Tribunal
considered whether or not Ms. Johnstone had proven a prima facie case of
discrimination based on family status. It identified the test to establish a
prima facie case as set out in the Supreme Court of Canada’s decision in
Ontario Human Rights Commission v Simpson- Sears Limited, [1985] 2 SCR
536 [O’Malley] at para 28.
[57] The Tribunal
set out a two step process, the question of a prima facie case being
first and a bona fide occupational requirement [BFOR], being second. The
Tribunal stated:
… if the
allegations by the Complainant are covered, and if believed, the evidence is
complete and sufficient to justify a verdict in Ms. Johnstone’s favour, in
absence of an answer from the Respondent. If the Tribunal answers in the
affirmative to this, then the onus shifts to the Respondent to show that despite
the discrimination found it had a Bona Fide Occupational Requirement (BFOR) to
engage in it, and that accommodation of those affected would amount to undue
hardship for the employer.
[58] The
Tribunal noted that the parties disagreed on the definition of family status
within the meaning of sections 3, 7, and 10 of the Act. Accordingly, the
Tribunal addressed the meaning of family status before addressing whether a
prima facie case has been made out.
[59] The Tribunal
turned to the Supreme Court of Canada, in Canada (House of Commons) v
Vaid, 2005 SCC 30 [Vaid], to apply Driedger’s modern approach to
statutory interpretation: “the words of an Act are to be read with the scheme of
the Act, the object of the Act, and the intention of Parliament”.
[60] The Tribunal
found the inclusion of the phrase “have their needs accommodated” in the
Act’s purpose clause has led to a broadening of interpretation. It found
that family status should not be limited to identifying one as a parent or a
familial relation of another person, but rather include the needs and
obligations naturally flowing from that relationship.
[61] The Tribunal
looked to the underlying purpose of the Act as providing all individuals
a mechanism “to make for themselves the lives that they are able and wish to
have and to have their needs accommodated, consistent with their duties and
obligations as members of society…” The Tribunal that found the phrase in the
Act “lives that they are able and wish to have” to be an acknowledgement
that individuals make choices including to have children, and that the
Act affords protections against discrimination regarding those
choices.
[62] Finally,
the Tribunal concluded at para 233:
This
Tribunal finds that the freedom to choose to become a parent is so vital that it
should not be constrained by the fear of discriminatory consequences. As a
society, Canada should recognize this fundamental freedom and support that
choice wherever possible. For the employer, this means assessing situations such
as Ms. Johnstone’s on an individual basis and working together with her to
create a workable solution that balances her parental obligations with her work
opportunities, short of undue hardship.
With that
statement, the Tribunal found the enumerated ground of family status in the
Act does include parental childcare responsibilities.
[63] The Tribunal
then considered the CBSA submission that there is a different and higher
threshold for family status discrimination as demonstrated by Health Sciences
Assoc. of B.C. v Campbell River and North Island Transition Society, 2004
BCCA 260 [Campbell River]. The Tribunal noted the Campbell River
test was rejected by Hoyt v Canadian National Railway, [2006] CHRD No 33
[Hoyt] and also Rajotte v The President of the Canadian Border
Services Agency et al, 2009 PSST 0025 [Rajotte].
[64] The Tribunal
found confirmation of this position in Johnstone FC that an individual
should not have to tolerate some discrimination before being afforded the
protection of the Act.
[65] The Tribunal
concluded that Ms. Johnstone had made out a prima facie case of
discrimination contrary to sections 7 and 10 of the Act. The CBSA had
engaged in a discriminatory and arbitrary practice in the course of employment
that adversely differentiated Ms. Johnstone on the prohibited ground of family
status. More specifically, the Tribunal found that the CBSA established and
pursued an unwritten policy communicated to and followed by management that
affected Ms. Johnstone’s employment opportunities including, but not limited to
promotion, training, transfer, and benefits on the prohibited ground of family
status.
[66] The Tribunal
noted that although the CBSA accommodated those seeking accommodation for
medical and religious reasons, and although the CBSA departed from its arbitrary
policy in other cases, it had been unyielding in Ms. Johnstone’s
case.
[67] The Tribunal
examined the evidence of Mr. Sheridan, the District Director of Passenger
Operations for CBSA at Pearson who gave extensive testimony on Pearson
operations. It observed that the level of detail on operations did not really
assist in the fundamental questions before the Tribunal.
[68] Mr. Sheridan
articulated the CBSA’s view that employees with childcare responsibilities do
not require accommodation. CBSA does consider accommodation for religious or
medical reasons but treats non-medical accommodation requests as “arrangements”
outside of any requirement to accommodate. Requests based on family
responsibilities for childcare issues were considered the result of a worker’s
personal choice for which the employer bears no responsibility.
[69] The Tribunal
understood Mr. Sheridan to be saying that, if Ms. Johnstone was accommodated for
childcare responsibilities, management would be inundated with such requests,
costs would be prohibitive, and it would be destructive to CBSA Pearson
operations. The Tribunal noted when asked under cross-examination if there were
many requests returning from maternity leave, he replied in the
negative.
[70] Mr. Sheridan
offered reasons why part-time work offered for static shifts was restricted to
10 hours a day to a maximum of 34 hours. It was to discourage employees from
seeking part-time status nearly equivalent to full-time hours just to get around
VSSA. Moreover, he said employees would suffer in terms of energy and focus when
working longer than 10 hours. The Tribunal noted Mr. Sheridan acknowledged
there were part-time employees working more than 10 hours per day. The Tribunal
considered this view about loss of employee effectiveness to be merely
impressionistic.
[71] The Tribunal
also noted medical considerations were dealt with as requiring accommodation and
opined the CBSA had found an efficient and individualized way to deal with
medical accommodation at Pearson.
[72] The Tribunal
summarized the evidence of Ms. Raby who was then the acting Chief of Terminal 1
at Pearson Passenger Operations. She testified that she was not aware of Ms.
Johnstone’s first request. However, the Tribunal found that in following the
CBSA’s unwritten policy, Ms. Raby’s approach would not have been any different
had she known of Ms. Johnstone’s earlier request. The Tribunal also took note
that Ms. Raby could not recall anyone else asking for full-time work on return
from maternity leave.
[73] Finally, the
Tribunal looked at the evidence of CBSA’s witness, Dr. Moore-Ede, who was
qualified as an expert in the study of shift work and extended working hours.
His report that concluded that between 31 to 52% of CBSA workers would seek the
same accommodation as Ms. Johnstone. The Tribunal found serious flaws in Dr.
Moore-Ede’s report, finding that the sampling of workers involved a very small
percentage of Canadian workers, the rest being American, and that no
questionnaire or surveying had been done of CBSA workers. The Tribunal found
that the numbers put forward in the report were not realistic as being founded
on either inadequate detail in the question posed or unproven
assumptions.
Bona Fide
Occupational Requirement [BFOR]
[79]
The Tribunal relied on the Supreme Court of Canada’s decision in British
Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3
SCR 3 [Meiorin] for the principle that the duty of employers to
accommodate is a fundamental legal obligation. It referred to the Council of
Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15 [VIA
Rail] for the definition of undue hardship. The Tribunal stated that the
CBSA must not base its assessment of whether an employee needs accommodation or
whether it can implement accommodation measures on impressionistic assumptions.
[74] The Tribunal
found there are no viable health and safety concerns about Ms. Johnstone’s
ability to perform 13-hour shifts. The Tribunal also noted that no analysis has
been done by the CBSA nor any policies put in place since Brown or the
Commission direction 10 years later. The Tribunal found that none of the various
draft accommodation policy proposals were ever put into action.
[75] The Tribunal
concluded that the CBSA had not established a bona fide occupational
requirement defence nor had it established a sufficient undue hardship rationale
to discharge the onus to show hardship.
[76] The Tribunal
found that the CBSA had given management a cursory nominal understanding of
human rights legislation and provided no management training or awareness of the
details of the Brown decision. Nor had the CBSA undertaken any detailed
look at bona fide operational requirements and examined options short of
undue hardship.
[77] The Tribunal
found that the evidence substantiated Ms. Johnstone’s complaint. Ms. Johnstone
had proven prima facie employment discrimination on the basis of family
status and the CBSA had not proven a bona fide occupational requirement
or hardship necessary to exempt it from the obligation to accommodate for family
status arising from childcare responsibilities under the Act.
Remedies
[78] The Tribunal
ordered the CBSA to cease its discriminatory practices against employees seeking
accommodation based on family status for purposes of childcare responsibilities.
It required the CBSA to consult with Ms. Johnstone and the Commission to develop
a plan to prevent further incidents of such discrimination. The Tribunal ordered
the CBSA establish written policies including processes for individualized
assessments to address family status accommodation requests within six months.
[79] The Tribunal
ordered that Ms. Johnstone be compensated for her lost wages and benefits,
including overtime that she would have received and pension contributions that
would have been made had she been able to work on a full-time basis during the
period in question. The Tribunal directed that Ms. Johnstone be entitled to
pension contributions as a full-time employee during this period.
[80] The Tribunal
also awarded Ms. Johnstone $15,000.00 for general damages for pain and suffering
pursuant to s 53(2)(e) of the CHRA, and $20,000 for special compensation under s
53(3) of the CHRA, finding that the CBSA had deliberately denied protection to
those by ignoring efforts, both externally and internally, to bring about change
with respect to its policies on family status accommodation. The Tribunal did
not award solicitor client costs in light of the Federal Court of Appeal’s
decision in Canada (Attorney General) v Mowat ,2009 FCA 309 [Mowat
FCA].
Legislation
[81] The
Canadian Human Rights Act, RSC, 1985, c H-6 provides:
|
2. The
purpose of this Act is to extend the laws in Canada to give effect, within
the purview of matters coming within the legislative authority of Parliament,
to the principle that all individuals should have an opportunity equal with
other individuals to make for themselves the lives that they are able and wish
to have and to have their needs accommodated, consistent with their duties and
obligations as members of society, without being hindered in or prevented
from doing so by discriminatory practices 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 been
ordered.
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 which a
pardon has been granted.
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.
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.
53. (1) At
the conclusion of an inquiry, the member or panel conducting the inquiry shall
dismiss the complaint if the member or panel finds that the complaint is not
substantiated.
(2)
If at the
conclusion of the inquiry the
member or panel finds that the complaint is substantiated, the member
or panel may, subject to section 54, make an
order against the
person found to be engaging or to have engaged in the discriminatory practice
and include in the order any of the following terms that the member or panel
considers appropriate:
(a)
that the
person cease the discriminatory practice and take measures, in consultation with
the Commission on the general purposes of the measures, to redress the practice
or to prevent the same or a similar practice from occurring in
future,
including
(i) the
adoption of a special program, plan or arrangement referred to in subsection
16(1), or
(ii) making
an application for approval and implementing a plan under section 17;
(b) that the
person make available to the victim of the discriminatory practice, on the first
reasonable occasion, the rights, opportunities or privileges that are being or
were denied the victim as a result of the practice;
(c)
that the
person compensate the victim for any or all of the wages that the victim was
deprived of and for any expenses incurred by the victim as a result of the
discriminatory practice;
(d) that the
person compensate the victim for any or all additional costs of obtaining
alternative goods, services, facilities or accommodation and for any expenses
incurred by the victim as a result of the discriminatory practice;
and
(e)
that the
person compensate the victim, by an amount not exceeding twenty thousand
dollars, for any pain and suffering that the
victim experienced as a result of the discriminatory practice.
(3) In
addition to any order under subsection (2), the member or panel may order the
person to pay such compensation not exceeding twenty thousand dollars to the
victim as the member or panel may determine if the member or panel finds that
the person is engaging or has engaged in the discriminatory practice wilfully or
recklessly.
[Emphasis
added]
|
2. La
présente loi a pour objet de compléter la législation canadienne en donnant
effet, dans le champ de compétence du Parlement du Canada, au principe suivant :
le droit de tous les individus, dans la mesure compatible avec leurs devoirs et
obligations au sein de la société, à l’égalité des chances d’épanouissement et Ã
la prise de mesures visant à la satisfaction de leurs besoins, indépendamment
des considérations fondées sur la race, l’origine nationale ou ethnique, la
couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état
matrimonial, la situation de famille, la déficience ou l’état de personne
graciée.
3. (1) Pour
l’application de la présente loi, les motifs de distinction illicite sont ceux
qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la
religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la
situation de famille, l’état de personne graciée ou la déficience.
7. Constitue
un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le
fait, par des moyens directs ou indirects :
...
b) de le
défavoriser en cours d’emploi.
10.
Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction
illicite et s’il est susceptible d’annihiler les chances d’emploi ou
d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour
l’employeur, l’association patronale ou l’organisation syndicale :
a) de fixer
ou d’appliquer des lignes de conduite;
b) de
conclure des ententes touchant le recrutement, les mises en rapport,
l’engagement, les promotions, la formation, l’apprentissage, les mutations ou
tout autre aspect d’un emploi présent ou éventuel.
53. (1) À
l’issue de l’instruction, le membre instructeur rejette la plainte qu’il juge
non fondée.
(2) À
l’issue de l’instruction, le membre instructeur qui juge la plainte fondée,
peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la
personne trouvée coupable d’un acte discriminatoire :
a) de mettre
fin à l’acte et de prendre, en consultation avec la Commission relativement Ã
leurs objectifs généraux, des mesures de redressement ou des mesures destinées Ã
prévenir des actes semblables, notamment :
(i)
d’adopter un programme, un plan ou un arrangement visés au paragraphe
16(1),
(ii) de
présenter une demande d’approbation et de mettre en oeuvre un programme prévus Ã
l’article 17;
b)
d’accorder à la victime, dès que les circonstances le permettent, les droits,
chances ou avantages dont l’acte l’a privée;
c)
d’indemniser la victime de la totalité, ou de la fraction des pertes de salaire
et des dépenses entraînées par l’acte;
d)
d’indemniser la victime de la totalité, ou de la fraction des frais
supplémentaires occasionnés par le recours à d’autres biens, services,
installations ou moyens d’hébergement, et des dépenses entraînées par
l’acte;
e)
d’indemniser jusqu’Ã concurrence de 20 000 $ la victime qui a souffert un
préjudice moral.
(3) Outre
les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut
ordonner à l’auteur d’un acte discriminatoire de payer à la victime une
indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a été
délibéré ou inconsidéré.
|
Issues
[82] The issues
raised by this application are as follows:
a. What
standard of review applies to the Tribunal’s determinations with respect
to:
i.
interpretation
of “family status” in the Act,
ii.
the legal
test for prima facie discrimination based on family status,
iii.
finding of
prima facie discrimination based on family status, and
iv.
remedies?
b. Did the
Tribunal err in interpreting the term “family status” in section 3 of the
Act to include childcare responsibilities?
c. Did the
Tribunal err in finding the prima facie case of discrimination was
established?
d. Did the
Tribunal err in making its remedial orders?
Standard of
Review
[83] The
Applicant submits that the issues relating to the proper interpretation of
family status, the legal test for establishing prima facie discrimination
and whether the Tribunal erred in crafting its remedial orders are all questions
of law to which the standard of correctness applies. While the Act is the
home statute for the Canadian Human Rights Tribunal, it is also within the
jurisdiction of other tribunals, such as labour, arbitration and public service
tribunals.
Interpretation
of “family status” in the Act
[84] The Supreme
Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
held there are two standards of review: correctness and reasonableness.
Dunsmuir recognized that deference is generally appropriate where a tribunal
is interpreting its home statute. Deference may also be warranted where a
tribunal has developed particular expertise in the application of a general
common law or civil rule in relation to a specific statutory context
(Dunsmuir at para 54). In Canada (Citizenship and Immigration) v
Khosa, 2009 SCC [Khosa] the Supreme Court confirmed that
administrative decision makers are entitled to a measured deference in matters
that relate to their special role, function and expertise (Khosa at paras
25-26).
[85] The Supreme
Court stated the standard of correctness will continue to apply to
constitutional questions, questions of law that are of central importance to the
legal system as a whole and that are outside the adjudicator’s expertise as well
as questions regarding jurisdictional boundaries between two or more competing
specialized tribunals (Dunsmuir at paras 58, 60, 61). Furthermore, the
standard of correctness will also apply to true questions of
jurisdiction.
[86] Recently, in
Canada (Canadian Human Rights Commission) v Canada (Attorney General),
2011 SCC 53 [Mowat SCC], the Supreme Court considered whether the
Canadian Human Rights Tribunal could order legal costs as a form of
compensation. This issue directly related to the interpretation and application
of the Tribunal's own statute namely the Act. The Supreme Court held the
question of whether a particular tribunal could grant legal costs was not one of
central importance to the Canadian legal system. The Court also found that
question was not outside the expertise of the Tribunal. In result the Supreme
Court found the Tribunal's decision on the issue of awarding costs based on its
interpretation of the relevant provision in the Act to be reviewable on
the standard of reasonableness. Mowat SCC at para 27.
[87] In assessing
the reasonableness of the Tribunal decision the Supreme Court in Mowat
went on to state:
[33]
The question is one of statutory interpretation and the object is to seek the
intent of Parliament by reading the words of the provision in their entire
context and according to the grammatical and ordinary sense, harmoniously with
the scheme an object of the Act and the intention of Parliament [citation
omitted]. In approaching this task in relation to human rights legislation, one
must be mindful that it expresses fundamental values and pursues fundamental
goals. It must therefore be interpreted liberally and purposely so that the
rights enunciated are given their full recognition and effect: [citation
omitted]. However, what is required is nonetheless an interpretation of the text
of the statute which respects the words chosen by Parliament.
Accordingly,
the standard of review was that of reasonableness keeping in mind the basic
principles of statutory interpretation and respect for the words of
Parliament.
[88] While the
scope of human rights is important and important issues arise because of family
matters, it cannot be readily said that the interpretation of “family status” in
the Act is a question of law of central importance to the legal system as
a whole. It is true that provincial human rights tribunals across the country
also address human rights issues arising because of family matters but they do
so in accordance with their own legislation and, while preferable, the tribunals
are not obligated to apply the same precise interpretation as given in similar
provisions in federal or other provincial provisions as long as regard is had
for similar purposes.
[89] Turning to
the specific question of the standard of review of the Tribunal’s interpretation
of “family status” in the Act, the following considerations
apply:
a. the Tribunal
is interpreting its home statute;
b. the Tribunal
is adjudicating within an area in which it has expertise;
c. this
question also does not relate to jurisdictional boundaries between competing
specialized tribunals; in this respect the various federal tribunals’ that may
have regard to the Act, such as labour arbitrators and public service
tribunals, have overlapping rather than jurisdictional boundaries;
and,
d. the
interpretation of “family status” in the Act cannot be said to raise a
constitutional question given it involves the interpretation of a federal
statute.
[90] Having
regard to the teachings in Dunsmuir, Khosa and Mowat SCC and to
the above considerations, I conclude that the Tribunal’s determination of
whether “family status” includes childcare based on its interpretation of the
term in the Act is reviewable on a standard of reasonableness.
Legal Test
for Prima
Facie Discrimination
[91] In
Johnstone FC the Court was reviewing the screening decision of the
Commission in dismissing Ms. Johnstone’s complaint. Justice Barnes found the
issue was very much like that in Sketchley v Canada (Attorney General),
2005 FCA 404 [Sketchley]. In Sketchley, the Commission’s reasoning
was dependent on its legal conclusions as to the precedential value of
Scheuneman v Canada (Attorney General), (2000) 266 NR 154 and did not
engage the respondent’s specific circumstances and fact situation.
[92] The Federal
Court of Appeal undertook a pragmatic and functional approach to the issue in
reviewing the Commission’s decision identified as the legal question of whether
the employer Treasury Board’s policy was prima facie discriminatory.
Sketchley at paras. 61- 81 The Federal Court of Appeal
concluded:
[81]
Applying the pragmatic and functional approach to the Commission’s particular
decision in the TB complaint, the four factors lead on balance to a standard of
review of correctness. For its decision with respect to this complaint to be
upheld, the Commission was required to have decided correctly the legal question
of whether the TB policy is prima facie discriminatory, a question which
I consider below.
[93] In
Johnstone FC the Federal Court decided the appropriate standard of review
of the Commission’s screening decision to be correctness stating:
[18] In
this case the Commission was not convinced that the loss of hours suffered by
Ms. Johnstone brought about by the CBSA’s fixed shift policy constituted “a
serious interference” with her parental duties or that it had a discriminatory
impact on the basis of family status. As in Sketchley, above, this
characterization of the CBSA’s employment policy as non-discriminatory was based
on a discrete and abstract question of law and, as such, it is reviewable on the
standard of correctness.
[94] Johnstone
FCA
was appealed to the Federal Court of Appeal which upheld the Federal Court
decision. In doing so, the Federal Court of Appeal stated:
[2]
The reasons given by the Commission for screening out the compliant indicate
that the Commission adopted a legal test for prima facie discrimination
that is apparently consistent with Health Sciences Association of British
Columbia v. Campbell River & North Island Transition Society, [2004]
B.C.J. No. 922, 2004 BCCA 260 but inconsistent with the subsequent decision of
the Canadian Human Rights Tribunal in Hoyt v. C.N.R., [2006] C.H.R.D. No.
33. We express no opinion on what the legal test is. …
[95] In the case
at hand the Applicant submits the Tribunal erred in the legal test for
establishing prima facie discrimination based on family
status.
[96] The
requirement for prima facie discrimination was reviewed by the Supreme
Court of Canada in O’Malley. The Supreme Court stated a complainant must
show a prima facie case of discrimination in proceedings before human
rights tribunals describing the test as;
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.
O’Malley at para
28.
Finding of
Prima
Facie Discrimination on Family Status
[97] The standard
of review applicable to the Tribunal’s finding of prima facie
discrimination necessarily involves application of the law to the facts, a
question of mixed law and fact. I find this invokes a standard of
reasonableness. Dunsmuir para 57.
Remedies
[98] Finally, the
standard of review applicable to the assessment of the Tribunal’s remedial
orders is dependent on the Tribunal’s findings of fact. As such the Tribunal
must address questions of fact and law and fact.
[99] The award of
remedies comes within the Tribunal’s area of expertise in deciding factual
questions as to the amount of compensation, if any, to award. Furthermore, the
issuing of remedial orders to address offending discrimination is entirely
within the Tribunal’s discretion as is the question whether punitive damages
should be awarded where supported by the facts.
[100] I conclude
the standard of review for the Tribunal’s decisions on remedies is that of
reasonableness.
Analysis
[101] The
Applicant submits the Tribunal erred in adopting an overly broad interpretation
of “family status” under the Act. The Applicant submits the Tribunal
erred in that it:
a. gave no
regard to the ordinary and grammatical meaning of the term “family status” or to
Parliament’s use of “status” as a qualifying term;
b. acknowledged
the intent of Parliament as reflected in Hansard but held it was not
persuasive; and
c. failed to
give due regard to the object and purpose of the Act, the inclusion of
“family status” in section 3, and the scheme of the Act as a
whole.
[102] The
Applicant submits the proper interpretation of the term “family status” is one
which prevents individuals from being denied opportunities on the basis of
arbitrary or stereotypical assumptions relating to irrelevant personal
characteristics. It protects against distinctions based on family
characteristics for which a person has little or no control. The Applicant
submits this term does not include the obligations that arise between the parent
and their children including childcare. Rather the intention was to prevent
discrimination by reason of the mere fact that being a parent or a parent of a
particular child.
[103] The
Applicant also contends the inclusion of the qualifying term “status”, which is
generally understood to convey a particular position or legal standing, operates
to limit the scope of the term “family status”. It refers to a personal
characteristic which Parliament deemed should be irrelevant to employment.
Interpretation
of “Family Status” in the Act
[104] Section 3 of
the Act provides as follows:
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 which a pardon has
been granted.
The
Act does not define the term “family status”.
[105] The Tribunal
has previously interpreted “family status” to include regular childcare
obligations. In Brown, the Tribunal stated:
It is this
Tribunal’s conclusion that the purposive interpretation to be affixed to s. 2 of
the CHRA is a clear recognition within the context of “family status” of
a parent’s right and duty to strike that balance coupled with a clear duty on
the part of an employer to facilitate and accommodate that balance with in the
criteria set out in the Alberta Dairy Pool case. To consider any lesser approach
to the problems facing the modern family within the employment environment is to
render meaningless the concept of “family status” as a ground of
discrimination.
Brown
at paras
17-18
[106] The Tribunal
came to the same conclusion in Hoyt where the Tribunal had found the
employer failed to modify an employee’s shift requirements that prevented her
from making childcare arrangements for her daughter. In Hoyt, at
para 117,the Tribunal referred to the judicial definition of the term family
status stating discrimination on this ground has been judicially defined as
“….practices or attitudes which have the effect of limiting the conditions of
employment of, or employment opportunities available to, employees on the basis
of a characteristic relating to their…family”. B. v Ontario (Human Rights
Commission), affirmed 2002 SCC 66 [B].
[107] The
inclusion of family childcare obligations within family status has been adopted
in other forums and jurisdictions: provincial human rights tribunals (Ontario:
Wight v Ontario (Office of the Legislative Assembly), [1998] OHRBID No
13; Alberta: Rennie v Peaches and Cream Skin Care Ltd., 2006 AHRC
13 (CanLII) [Rennie]; federal labour boards (Canada Post v Canada
Union of Postal Workers (Somerville Grievance, CUPW 790-03-00008, Arb.
Lanyon), [2006] CLAD No 371 at para 66, and Rajotte, and
provincial and federal superior courts (BC Court of Appeal: Campbell
Rive; Federal Court: Johnstone FC.
[108] Human rights
legislation has a quasi-constitutional status. This elevated status derives from
the fundamental character and values such legislation expresses and pursues. The
Supreme Court of Canada has held that human rights legislation must be
interpreted in a large and liberal manner in order to attain the objects of the
legislation. In CNR v Canada (Human Rights Commission), [1987] 1 SCR 1114
[Action Travail des Femmes] the Supreme Court stated:
24
Human rights legislation is intended to give rise, amongst other things, to
individual rights of vital importance, rights capable of enforcement, in the
final analysis, in a court of law. I recognize that in the construction of such
legislation the words of the Act must be given their plain meaning, but it is
equally important that the rights enunciated by given their full recognition and
effect. We should not search for ways and means to minimize those rights and to
enfeeble their proper impact. Although it may seem commonplace, it may be
wise to remind ourselves of the statutory guidance given by the federal
Interpretation Act which asserts that statutes are deemed to be remedial and are
thus to be given such fair, large and liberal interpretation as will best ensure
that their objects are attained. …
[Emphasis
added]
[109] The
Interpretation Act RSC 1985 c I-21, section 12 provides: “Every enactment
is deemed remedial, and shall be given such fair, large, and liberal
construction and interpretation as best ensures the attainment of its
objectives” The term “family status” in section 3 of the Act should be
interpreted in a large and liberal manner consistent with the attainment of the
Act’s objectives and purposes stated in section 2:
The purpose
of this Act is to extend the laws in Canada to give effect, within the purview
of matters coming within the legislative authority of Parliament, to the
principle that all individuals should have an opportunity equal with other
individuals to make for themselves the lives that they are able and wish to have
and to have their needs accommodated, consistent with their duties and
obligations as members of society, without being hindered in or prevented
from doing so by discriminatory practices 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.
[Emphasis
added]
[110] The
definition of word ‘family’ in the Canadian Oxford Dictionary 2d includes
“the members of a household esp. parents and their children.” The definition of
the word “status” includes “a person’s legal standing which determines his or
her rights and duties”. The two words taken together amounts to more than a mere
descriptor of a parent of a child and also can reference the obligations of a
parent to care for the child.
[111] There are
two other sources which help set context and provide guidance with respect to
the question of the interpretation to be given the interpretation of “family
status”:
a. first,
Brooks v Canada Safeway, [1989] 1 SCR 1219 at para 40 [Brooks] are
worth repeating:
Combining
paid work with motherhood and accommodating the childbearing needs of working
women are ever-increasing imperatives. That those who bear children and benefit
society as a whole thereby should not be economically or socially disadvantaged
seems to bespeak the obvious.
b. second, in
the Report on Equality in Employment, Justice Abella wrote at p 185:
“From the point of view of mothers, access to childcare and the nature of such
care limits employment options.”
Furthermore, in her Report, Justice Abella relied on the ILO’s 1981 Recommendation Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities. Article 6 of that document contains: “With a view to creating effective equality of opportunity and treatment of men and women workers, each Member should make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and to the extent possible, without conflict between their employment and family responsibilities.”
Furthermore, in her Report, Justice Abella relied on the ILO’s 1981 Recommendation Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities. Article 6 of that document contains: “With a view to creating effective equality of opportunity and treatment of men and women workers, each Member should make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and to the extent possible, without conflict between their employment and family responsibilities.”
[112] Finally, it
is difficult to have regard to family without giving thought to children in the
family and the relationship between parents and children. The singular most
important aspect of that relationship is the parents’ care for children. It
seems to me that if Parliament intended to exclude parental childcare
obligations, it would have chosen language that clearly said so.
[113] In result, I
conclude the Tribunal’s conclusion that family status includes childcare
obligations is reasonable. It is within the scope of ordinary meaning of the
words; it is in accord with decisions in related human rights and labour forums;
it is in keeping with the jurisprudence; and it is consistent with the objects
of the Act.
Test for
Prima
Facie Discrimination based on Family Status
[114] The onus is
on the complainant to establish discrimination has occurred contrary to the
prohibition in the Act. The test of what constitutes a prima facie
case of discrimination in human rights cases was set out by the Supreme Court of
Canada in O’Malley:
A prima
facie case 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”.
O’Malley,at para
28.
[115] The
complainant needs to demonstrate that the employer’s conduct, policies or
practices has some differential impact due to a personal characteristic which is
recognized as a prohibited ground of discrimination contrary to sections 7 and
10 of the Act. Morris v Canada (Canadian Armed Forces),
[2005] FCJ No 731, [Morris] paras 26-28.
[116] The
Applicant points to tribunal and court decisions that recognize not all
claimants’ conditions will trigger the protection of human rights legislation.
(Alberta (Solicitor General) v Alberta Union of Provincial Employees
(Jungwirth Grievance), [2010] AGAA No 5; Syndicat Northcrest v
Amselem, 2004 SCC 47, paras 46-54 [Amselem]; McGill University
Health Centre (Montreal General Hospital) v Syndicat des employés de l’Hôpital
general de Montréal, 2007 SCC 4, Abella, concurring at para 49).
[117] The
Applicant submits the Tribunal erred in rejecting the test set out Campbell
River. In that case the Court of Appeal held that the mere fact that
an employee with a family is affected by a policy of the employer would not be
sufficient to establish a prima facie case. Rather, discrimination is
only made out where the evidence established a serious interference with a
substantial parental or other family duty. The British Columbia Court of Appeal
set out the test in Campbell River at para 39 to be applied
as:
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 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]
[118] The
Applicant points out the problem with “family status” discrimination cases are
the inherent ambiguity in family responsibilities. The jurisprudence to date
have identified family responsibilities for which employees have sought
accommodation include karate lessons, attendance at an out-of-town hockey
tournament, unspecified commitments of family, continued residence in a
particular city, attendance at a spouse’s medical appointments, assisting family
members with immigration process and preference to be at home with a pre-school
child. The Applicant emphasizes that the Campbell River test calls for
“serious interference” with parental obligations.
[119] The
Respondent counters with cases that have held otherwise. Hoyt,
supra at paras 120-121, Rajotte, supra, rejecting the
“serious interference” test from Campbell River, supra; Wight,
supra, at para 310, B., supra at paras 44-45, 58; Meiroin,
supra, at paras 69-70; Sketchley, supra at para 91;
McGill, supra at para 11.
[120] The Tribunal
acknowledged that “not every tension that arises in the context of work-life
balance can or should be addressed by human rights jurisprudence”. In my view
the childcare obligations arising in discrimination claimed based on family
status must be one of substance and the complainant must have tried to reconcile
family obligations with work obligations. However, this requirement does not
constitute creating a higher threshold test of serious interference.
[121] The Federal
Court of Appeal held in Morris, supra at para 27:
In other
words, the legal definition of a prima facie case does not require the
Commission to adduce any particular type of evidence to prove the facts
necessary to establish that the complainant was the victim of a discriminatory
practice as defined in the Act. Paragraph 7(b) requires only that a person was
differentiated adversely on a prohibited ground in the course of
employment.
This
approach was followed in Johnstone FC and applies equally
here.
[122] In
Johnstone FC Justice Barnes stated:
30
The Commission’s apparent adoption of the serious interference test for
identifying family status discrimination also fails to conform with other
binding authorities which have clearly established the test for a finding of
prima facie discrimination. Nowhere to be found in those authorities is a
requirement that a complainant establish a “serious interference” with his or
her protected interests. …
31 On
this issue I agree with the legal analysis at para. 38 of the Applicant’s
Memorandum of Fact and Law where it stated:
The
Applicant submits that the underlying circumstances in the present case are no
different, and the same threshold for discrimination should apply. To that end,
pursuant to the CHRA, any and all discrimination is contrary to the
Act. There is no discretion, and no degree or level of discrimination
which must be suffered by the complainant to obtain the protection of the
CHRA. Thus, the fact that the Applicant was adversely affected by the
Respondent’s policy is sufficient to establish a prima facie case of
discrimination, and, by applying a higher standard to the ground of family
status in its decision, the Commission erred in law.
Johnstone FC at paras
30-31.
[Emphasis
added]
[123] Requiring a
higher threshold, a serious interference, for the ground of family status is to
lessen the protection on that ground as compared with other protected grounds.
I agree that the requirement for a higher threshold for proof of prima
facie discrimination for one ground as opposed to the other grounds for
which discrimination is prohibited in section 3 would contrary to the remedial
purpose and objective of the Act.
[124] The emphasis
on the words “a serious issue” in Campbell River confounds
the question of employment discrimination on the basis of family status. It is
to be remembered that Campbell River involved the employer
society changing the hours of employment of an employee mother who needed to be
at home after school hours to care for her son who was afflicted with a
psychiatric disability and had behavioural problems. The B.C. Court of Appeal
stated at para 40:
In the
present case, the arbitrator accepted the evidence of Dr. Lund that Ms. Howard’s
son has a major psychiatric disorder and that her attendance to his needs during
after-school hours was “an extraordinarily important medical adjunct to the
son’s well being. In my opinion, this was a substantial parental obligation
of Ms. Howard to her son. The decision by the respondent to change Ms. Howard’s
hours of work was a serious interference off her discharge of that
obligation. Accordingly, the arbitrator erred in not finding a
prima facie case of discrimination on the merits of family
status.
[Emphasis
added]
[125] Simply
stated, any significant interference with a substantial parental obligation is
serious. Parental obligations to the child may be met in a number of different
ways. It is when an employment rule or condition interferes with an employee’s
ability to meet a substantial parental obligation in any realistic way that the
case for prima facie discrimination based on family status is made
out.
[126] In
Amselem the Supreme Court of Canada ruled that a person’s freedom of
religion is interfered with where the person demonstrates that he or she has a
sincere religious belief and a third party interfered, in a manner that is
non-trivial or not insubstantial, with that person’s ability to act in
accordance with the belief.
[127] The phrase
“a substantial parental duty or obligation” equates with and establishes the
same threshold as a sincere religious belief. Amselem.
[128] In my view,
the serious interference test as proposed by the Applicant is not an appropriate
test for discrimination on the ground of family status. It creates a higher
threshold to establish a prima facie case on the ground of family status
as compared to other grounds. Rather, the question to be asked is whether the
employment rule interferes with an employee’s ability to fulfill her substantial
parental obligations in any realistic way.
Finding
Proof of Prima
Facie Discrimination
[129] The
Applicant submits the Tribunal focussed only on the impact of the local shift
scheduling rule instead of first considering if the rotational shift schedule
had an adverse impact and then considering whether the local scheduling rule an
employee must accept part-time employment in order to work fixed shifts was
reasonable accommodation.
[130] The
Applicant argues Ms. Johnstone did not show that rotating shifts interfered with
her core obligation as a parent to arrange for childcare for the children.
Moreover, she did not show the reasons for the conflict were due to
circumstances beyond her control instead of the result of a series of choices
she and her husband jointly made. The Applicant submits the evidence before the
Tribunal was the availability of childcare depended on a number of choices many
of which were in the sole control of the parent: the choice of where to live,
what size home to have, the choice to have the father continue to work rotating
shifts, their preference to have their children in their care as much as
possible or to have only family members provide care, their preference not to
pay for childcare and the Respondent Johnstone’s preference to work three days a
week.
[131] The
Applicant points out Ms. Friendly conceded there was little empirical data on
the availability of non-regulated childcare which was the type overwhelmingly
used by most Canadians. The Applicant notes Ms. Johnstone acknowledged from
1998-2002 she had worked the rotational shift and also worked a second job on
Monday to Thursday 9:00 a.m. to 1:00 p.m. She did this by switching shifts
whenever conflicts arose. Given this, the Applicant submits it is unclear why
the Respondent and her husband could not have arranged childcare for certain
days, switched shifts or taken family or other leave if necessary. The Applicant
also points out no consideration was given to the choice by Ms. Johnstone and
her husband to move from a home she owned in Toronto, six kilometres from the
airport, to the small town of Cookstown, near Barrie.
[132] The
Applicant argues that it was unreasonable for the Tribunal to find that it was
doubtful anyone in Ms. Johnstone’s situation would find any third party other
than family willing to provide childcare. The Applicant also submits that this
finding was unsupported by the evidence.
[133] The
Applicant emphasizes
that Pearson is a 24 hour, 7 day a week operation and rotating shifts is a
condition of employment for all employees. Application of the VSSA to full-time
employees cannot be viewed as arbitrary, nor does it engage in stereotypical
presumptions about parents of young children. As a result,
the Applicant submits prima facie discrimination on the basis of “family
status” was not made out on the facts of this case. While it may be that Ms.
Johnstone and her husband faced difficulties in balancing their work schedules
and their childcare arrangements, these same challenges were faced by other
border services officers at Pearson, all of whom were able to resolve the
conflict, by making different choices.
[134] Nevertheless
I find there was evidence before the Tribunal supporting its conclusion that Ms.
Johnston was discriminated against on the basis of her family status.
[135] Ms.
Johnstone testified about her efforts to secure childcare which would allow her
to continue to work the rotating schedule as set out in VSSA. She investigated
both regulated childcare providers and unregulated childcare providers and made
broader inquiries in an attempt to secure flexible childcare. She found she
could not secure childcare that would allow her to continue under the VSSA
schedule.
[136] Ms.
Johnstone’s evidence with respect to the need for accommodation was confirmed by
expert testimony. Ms. Friendly testified that unpredictability in hours required
was the most difficult factor in accommodating childcare and opined that Ms.
Johnstone’s situation was one of the most difficult childcare situations she
could imagine.
[137] The Tribunal
also had evidence the CBSA made no attempt to accommodate Ms. Johnstone or
inquire into her individual circumstances, choosing to rely on its unwritten
blanket policy.
[138] The Tribunal
was in a position to assess whether the CBSA adversely differentiated against
Ms. Johnstone compared to treatment of other individuals seeking accommodation
for medical and religious reasons, given that it allowed individuals in those
groups to continue to work full-time. The CBSA allowed individualized
assessments of employees seeking accommodation on medical or religious grounds
but responded to Ms. Johnstone on the basis of a blanket policy that required
her to forfeit her status as a full-time employee.
[139] The CBSA’s
policy was based on the arbitrary assumption that the need for accommodation on
the basis of family obligations was merely the result of choices that
individuals make, rather than legitimate need.
[140] While the
CBSA contended that some of the couples that have children under school age, Ms.
Johnstone’s evidence was that virtually all of the couples dealt with their
childcare obligations by accepting part-time hours imposed on them in exchange
for the static shifts they required.
[141] Finally,
there was evidence before the Tribunal that some CBSA employees have been
allowed to work more than 10-hour shifts. The Tribunal had the factual basis to
conclude there was no support for CBSA’s conclusion that the 10-hour shift
maximum was related to a legitimate health or occupational
requirement.
[142] On the
evidence before it, the Tribunal found Ms. Johnstone was a parent who had
substantial childcare obligations and despite her best efforts could not find
daycare for her children. The Tribunal also found on the evidence that
accommodating Ms. Johnstone would not have caused undue hardship to the
CBSA.
[143] In
Dunsmuir the Supreme Court stated that “a court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
justification, transparency and intelligibility, but it is also concerned with
whether the decision falls within a range of possible acceptable outcomes
defensible in respect of the facts and the law”. Dunsmuir para 47. In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland and Labrador
Nurses Union], the Supreme Court emphasized “the reasons must be read
together with the outcome and serve the purpose of showing whether the results
falls within a range of possible outcomes”. Newfoundland and Labrador Nurses
Union para 14.
[144] Here the
Tribunal, after addressing the interpretation of “family status” in the
legislation, and treatment of the words in jurisprudence, set out the legal test
for a prima facie case and considered the evidence before it. The
Applicant prefers certain facts and interpretations of these facts but the
substance of the matter is the Tribunal had evidence before it that support the
outcome it arrived at. In doing so, the Tribunal’s decision falls within a range
of possible outcomes.
[145] The
Tribunal’s finding that Ms. Johnstone had established a prima facie case
of discrimination pursuant to ss. 7 and 10 of the Act. I am satisfied its
findings are supported by the evidence and are within the range of reasonable
outcomes.
Remedial Orders
[146] The Applicant submits that even
if the Tribunal’s findings with respect to prima facie discrimination are
sustained, the Tribunal made the following errors of law and mixed fact and law
in crafting their remedial order:
a. the Tribunal erred in awarding
lost wages for periods of time that Ms. Johnstone’s admitted she was unavailable
or otherwise chose not to work;
b. the Tribunal erred in finding
CBSA’s conduct toward Ms. Johnstone was wilful and reckless warranting the
maximum allowable special compensation under subsection 53(3);
c. the Tribunal exceeded its
jurisdiction requiring the CBSA to establish written policies satisfactory to
Ms. Johnstone and the Commission.
Lost Wages
[147] The Federal Court of Appeal
decision in Chopra v Canada (Attorney General), 2007 FCA 268
[Chopra] confirms that there is no requirement that the Tribunal apply
common law principles such as foreseeability and mitigation in the statutory
context of the Act:
[37] The
fact that foreseeability is not an appropriate device for limiting the losses
for which a complainant may be compensated does not mean that there should be no
limit on the liability for compensation. The first limit is that recognized by
all members of the Court in Morgan, that is, there must be a causal link
between the discriminatory practice and the loss claimed. The second limit is
recognized in the Act itself, namely, the discretion given to the Tribunal to
make an order for compensation for any or all of wages lost as a result of the
discriminatory practice. This discretion must be exercised on a principled
basis.
Accordingly, the damages in human
rights cases are only limited by causality and the requirement that any decision
limit the remedial order be made on a “principled basis”.
[148] The Tribunal noted that the
parties seemed confident they could reach agreement on the quantum to which Ms.
Johnstone would be entitled for lost wages and benefits if the Tribunal ordered
compensation on this basis. The Tribunal found Ms. Johnstone would have worked
full-time hours from the entire period January 2004 to the present had the
impudent scheduling rule not applied to her. The Tribunal had ordered the CBSA
to pay the difference between full-time wages and the hours worked other than
when she was on her second maternity leave from December 2004 to December 2005.
[149] The Applicant submits the CBSA
had no control over the Ms. Johnstone’s decision to reduce her hours from 34
hours to 30 hours during the first period and from 34 hours to 20 hours during
the second period. The Applicant also submits that Ms. Johnstone voluntarily
opted to reduce her work schedule during the first period to three days a week
for a maximum of 30 hours instead of the three and a half days a week for a
maximum of 34 hours. After the second parental leave the Applicant submits Ms.
Johnstone chose to only work 20 hours per week because her sister was
unavailable to provide childcare on Fridays.
[150] The Applicant also submits the
Tribunal erred in ordering the CBSA pay Ms. Johnstone full time from August 2007
to August 2008 since she took advantage of unpaid leave provisions under VSSA
while her spouse was stationed in Ottawa and she made no effort to seek a
position with CBSA in Ottawa. The Applicant submits that there is no causal
connection between the lost wages during this period and the alleged
discriminatory practice.
[151] The Tribunal’s decision to award
full time pay status for part time work does have a causal connection with the
discrimination the Tribunal found to have occurred while Ms. Johnstone worked at
CBSA operations at Pearson. The Tribunal noted that Ms. Johnstone testified she
“would have made it work” had she been granted full time shifts. Ms. Johnstone
was not able to work full time regardless of the amount of hours she worked part
time.
[152] However, I find it difficult to
discern the basis for the Tribunal’s award of full wages for the period Ms.
Johnstone was on unpaid leave under VSSA on accompanying her spouse to Ottawa.
Both the change in the terms of taking leave and relocating to Ottawa require
further rationale for the award for this period which the Tribunal has not
provided. Without such, I cannot say there is a causal connection between the
discrimination found to have occurred at Pearson and Ms. Johnstone’s sojourn in
Ottawa.
[153] The Tribunal’s award of full time
wages and benefits is reasonable but for the period from August 2007 to August
2008 when Ms. Johnstone opted for unpaid leave provisions under VSSA to
accompany her husband to Ottawa. Since the Tribunal did not address that
circumstance satisfactorily, I am referring that portion of the award back to
the Tribunal for reconsideration.
Special
Compensation
[154] In making an
order for special compensation under subsection 53(3) of the Act, the
Tribunal must establish the person is engaging or has engaged in discriminatory
practice wilfully and recklessly. This is a punitive provision intended to
provide a deterrent and discourage those who deliberately discriminate. A
finding of wilfulness requires the discriminatory act and the infringement of
the person’s rights under the Act is intentional. Recklessness usually
denotes acts that disregard or show indifference for the consequences such that
the conduct is done wantonly or heedlessly.
[155] The
Applicant submits the Tribunal erred in finding the CBSA conduct was wilful and
reckless advancing four main arguments:
a. the Tribunal
misdirected its inquiry under subsection 53(3) by not focusing on the particular
facts relating to Ms. Johnstone’s present complaint, instead directing its
inquiry into a review of the CBSA’s failure to implement a ruling in
Brown that did not direct the employer to “develop accommodation
policies for those seeking accommodation on the ground of family status”;
b. the Tribunal
mischaracterized and misconstrued documentary evidence concerning employment
equity that were not properly identified by witnesses and were not
relevant;
c. the Tribunal
ignored evidence of good faith on the part of CBSA’s management including the
approach they took to the request for accommodation which included seeking the
advice of human resources experts;
d. the Tribunal
failed to give due regard to the unsettled nature of the law noting that CBSA’s
decision was consistent with that of the earlier Commission decision on October
11, 2005 decision which applied Campbell River.
[156] The
Applicant submits there have been a number of conflicting decisions with respect
to the meaning and scope of the ground family status by arbitrators, labour
boards and human rights tribunals. The Applicant submits that employers are
entitled and obliged to adhere to developments in the law but it is unreasonable
to find an employer’s conduct to be wilful and reckless when the law is so
unsettled.
[157] The Tribunal is a specialized
human rights tribunal whose decisions in the area of its expertise are due
deference. The gist of the Tribunal’s award on special damages is that the CBSA
failed to have regard to the central question of accommodation for family status
when it was well aware of the issue arising on the question of childcare.
[158] Administrative
decision makers are masters of general proceedings and have significant latitude
in applying the rules of evidence. Section 50(3)(c) of the Act provides
the Tribunal with a wide discretion to:
Receive and
accept in the evidence and other information which on oath or by affidavit or
otherwise the member of the panel sees fit whether or not that evidence or
information would be admissible in a court of law.
See also
Dhanjal v Air Canada, [1996] CHRD No 4 at paras 9-24; aff’d [1997] FCJ
1599.
In result,
the Court ought not to reweigh the evidence that was before the Tribunal in this
matter.
[159] The CBSA
cannot rely on the Commission’s decision to screen out Ms. Johnstone’s complaint
when it was overturned by the Court in Johnstone FC. The jurisprudence,
including Campbell River, concluded that family status included family
childcare obligations. The jurisprudence largely relied upon by the Applicant
other than Campbell River turns on fact situations where the purported
childcare obligations were matters of personal choice or of a minor nature.
[160] It is open
for the Tribunal to conclude the CBSA ignored the jurisprudence when it took the
position that family obligations did not fall within family status because
having children was a matter of personal choice. It was also open for the
Tribunal to find there was no individual analysis by the CBSA of Ms. Johnstone’s
request by the CBSA.
[161] The Tribunal identified the basis
in evidence to support its award of special compensation. In particular, the
Tribunal found the CBSA disregarded the decision in Brown which squarely
addressed the issue of family status accommodation for this employer at this
worksite, developed but never implemented a policy on family status
accommodation, lacked human rights training for senior management levels, and
made no attempt to inquire into Ms. Johnstone’s personal circumstances or inform
her of options.
[162] Given the deference accorded to
the Tribunal on matters concerning its expertise and its identification of the
basis for its award of special compensation, I conclude the Tribunal’s order of
special compensation is justified.
Exceeding
Jurisdiction
[163] Finally, the
Applicant submits the Tribunal erred and exceeded its jurisdiction in ordering
the CBSA to establish written policies “satisfactory to Ms. Johnstone and
the CHRC”. [Emphasis added]. The Applicant submits the Tribunal has no authority
to require that such policies be subject to the approval of another party.
[164] The
Tribunal’s order to establish policies is authorized by the Act given the
wording of paragraph 53(2)(a). The Tribunal has a broad remedial authority to
order measures in consultation with the Commission to redress the offending
practice or prevent the same or similar practice occurring in the future.
[165] The Tribunal
ordered the CBSA to cease its discriminatory practices against employees who
seek accommodation based on family status for purposes of childcare 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. The
Tribunal further ordered the CBSA to establish written policies satisfactory to
Ms. Johnstone and the Canadian Human Rights Commission to address family status
accommodation requests within six months and that these policies include a
process for individualized assessments of those making such requests.
[166] The
Act expressly provides the Tribunal may direct an offending employer
involve the Canadian Human Rights Commission by way of consultation and
development of measures to redress discriminatory practices:
53(2)(a)
that the
person cease the discriminatory practice and take measures, in consultation with
the Commission on the general purposes of the measures, to redress the practice
or to prevent the same or a similar practice from occurring in
future,
including
(i) the
adoption of a special program, plan or arrangement referred to in subsection
16(1), or
(ii) making
an application for approval and implementing a plan under section 17;
[Emphasis
added]
This
legislation overrides the employer’s right to
manage its own enterprise without interference from external agencies or
persons.
[167] The
Act provides that a person who was the subject of discriminatory
treatment may receive compensation in the form of lost wages and expenses as
well as any pain and suffering experiences. However, it does not provide that a
victim may have a role or participate in the development of remedial polices to
redress the discriminatory practices.
[168] In ordering
the CBSA to develop written policies to address family status accommodation
requests satisfactory to Ms. Johnstone, I find the Tribunal exceeded the bounds
of the jurisdiction the Act confers on the Tribunal to order remedial
measures.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The
application for judicial review is dismissed subject to the exceptions that
follow.
2. The Tribunal’s award of full-time
wages and benefits for the period from August 2007 to August 2008 when Ms.
Johnstone opted for unpaid leave provisions under VSSA to accompany her spouse
to Ottawa is referred back to the Tribunal for reconsideration.
3. The portion
of the Tribunal Order that includes Ms. Johnstone as a party to be consulted in
the development of written remedial policies is struck.
4. Costs are
awarded to the Respondent Johnstone.
“Leonard S.
Mandamin”
Judge
FEDERAL
COURT
SOLICITORS OF
RECORD
DOCKET:
T-1418-10
STYLE OF
CAUSE:
ATTORNEY GENERAL OF CANADA v FIONA ANN JOHNSTONE AND CANADIAN
HUMAN RIGHTS COMMISSION
PLACE OF HEARING: OTTAWA,
ONTARIO
DATE OF HEARING: MAY 30,
2011
REASONS FOR
JUDGMENT:
MANDAMIN J.
DATED:
JANUARY 31, 2013
APPEARANCES:
|
Christine Morh
Susan Keenan
|
FOR THE
APPLICANT
|
|
Andrew Raven
Andrew Astritis
|
FOR THE
RESPONDENT
FIONA ANN
JOHNSTONE
|
|
Ikram Warsame
Daniel Poulin
|
FOR THE
RESPONDENT
CANADIAN
HUMAN
RIGHTS
COMMISSION
|
SOLICITORS OF
RECORD:
|
Myles J. Kirvan Deputy Attorney
General of Canada
Toronto, Ontario
|
FOR THE
APPLICANT
|
|
Raven, Cameron, Ballantyne &
Yazbeck LLP
Ottawa, Ontario
|
FOR THE
RESPONDENT
FIONA ANN
JOHNSTONE
|
|
Canadian Human Rights
Commission
Litigation Services
Ottawa, Ontario
|
FOR THE
RESPONDENT
CANADIAN HUMAN
RIGHTS
COMMISSION
|
