Authors: Megan Kheong, Jianna Rieder, Calen Nixon
Human rights legislation protects employees against discrimination on the basis of family status. This protection can extend to include childcare responsibilities. However, it can be difficult for employers to determine when their duty to accommodate an employee’s childcare needs is triggered.
Recently, in United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 (UNA), the Alberta Court of Appeal clarified the legal test for prima facie discrimination on the basis of family status in Alberta.
Prior Judicial Landscape
Prior to UNA, the Supreme Court of Canada set out the test for prima facie discrimination in Moore v British Columbia (Education), 2012 SCC 61 at para 33,  3 SCR 360 (the “Moore test”). In Moore, the Supreme Court held that the claimant must show that:
- they have a characteristic protected from discrimination;
- they have experienced an adverse impact on account of a challenged norm; and
- the protected characteristic was a factor in the adverse impact.
The claimant’s proof of these three elements then triggers the employer’s duty to accommodate.
Subsequently, in Canada (Attorney General) v Johnstone, 2014 FCA 110 at para 88, 372 DLR (4th) 730, the Federal Court of Appeal fine-tuned the test for prima facie discrimination on the basis of family status (the “Johnstone test”). The Johnstone test introduced a new element to the claimant’s onus of proving prima facie discrimination in the Moore test: a requirement that the claimant must show that they had unsuccessfully made reasonable efforts to find alternative childcare arrangements. The introduction of the Johnstone test has had ripple effects in human rights decisions across the country, as decision-makers have grappled with whether they should follow the higher-standard Johnstone test. In other provinces such as British Columbia, courts have affirmed an even higher standard than the Johnstone test or Moore test, requiring complainants to show a “serious interference” with a “substantial” family duty (Health Sciences Assoc of BC v Campbell River and North Island Transition Society, 2004 BCCA 260; Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46).
The UNA Decision
In UNA, the grievor, a registered nurse, had been working a four-day on/four-day off schedule of varying 12-hour shift work since 2011. In 2013, the employer changed her schedule to a four-day on/five-day off rotation in order to comply with the Collective Agreement, but this caused problems with her childcare arrangement. The employer rejected her request to have a different schedule because it would not comply with the Collective Agreement, and she and her husband considered but ruled out alternative childcare arrangements. As a result, the grievor had no choice but to move to a casual position with less benefits. The United Nurses of Alberta brought a grievance on behalf of the grievor.
The majority of the Arbitration Board applied the Johnstone test and found that, because the claimant had not seriously considered or sought reasonable alternative childcare options prior to requesting the reassignment, the claimant had failed to prove that there had been prima facie discrimination. Consequently, the grievor’s requests did not trigger the employer’s duty to accommodate. The claimant applied for judicial review of this decision to the Alberta Court of Queen’s Bench, where the Reviewing Judge found that the Board had erred in following the Johnstone test, and remitted the matter back down to be heard before a new panel.
The Employer appealed the decision of the Reviewing Judge to the Alberta Court of Appeal. The main issue before the Court of Appeal was whether it should follow the Johnstone test – that is, whether family status claimants had to first show that they had unsuccessfully sought out reasonable alternative childcare arrangements in order to prove prima facie discrimination.
The Alberta Court of Appeal concluded that there was no justification for this additional requirement in cases of alleged discrimination on the basis of family status. Once a claimant has shown that that they have met the requirements of the Moore test, a prima facie case of discrimination is made out, triggering the employer’s duty to accommodate. The employer then has the burden of showing that the impugned policy is a bona fide occupational requirement, or that they have accommodated the employee to the point of undue hardship.
Legal Implications in Alberta
The UNA decision is one of the few appellate-level decisions that has considered the test for prima facie discrimination on the basis of family status. The Alberta Court of Appeal has clarified that, at least in Alberta, the standard for prima facie discrimination is low, and that the employer has a duty to accommodate before the employee has sought out reasonable alternative childcare arrangements.
Importantly, this decision does not mean that employees have no obligation to assist in the accommodation process. Rather, the accommodation process remains a multi-party inquiry, and the employee must work with the employer to identify and assess possible solutions to the childcare conflict. In UNA, the Court of Appeal recognized that this may include seeking reasonable alternative childcare arrangements.
Legal Implications in Other Jurisdictions
Federally-regulated employers and those that operate exclusively in British Columbia and Alberta have clarity on what test will apply for prima facie discrimination on the basis of family status. However, each approach is different and outside of those jurisdictions the law remains unsettled. It remains to be seen what impact UNA will have nationwide.
An employer’s duty to accommodate is highly-fact dependent. The unprecedented circumstances employers face as the world returns to pre-pandemic norms have compounded some of the accommodation issues. The MLT Aikins labour and employment team across Western Canada would be pleased to assist in navigating requests related to accommodating childcare or other caregiving needs.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.