Law Times

PAGE 10 But government appeals human rights decision to Federal Court FOCUS CBSA must accommodate childcare, tribunal rules BY ROBERT TODD Law Times T he Canadian Human Rights Tribunal has is- sued a ruling clarifying the scope of what constitutes fam- ily status protections under the Canadian Human Rights Act. Danny Bernstein, an Ogilvy Renault LLP lawyer who deals with human rights matters, says the tribunal's decision in August in Fiona Ann Johnstone v. Canada Border Service Agen- cy clarifi es an unsettled area of law after rulings from British Columbia outlined a narrower scope than what was found at the federal level. "Th e key take-away from that is that employers need to be aware of their obligations to accommodate family status and need to become informed as to what those obligations include or involve," says Bernstein. Johnstone, at the time a Canadian Employment Law Stacey Reginald Ball Cited by the Supreme Court of Canada "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." Canadian Bar Review More than 5,800 cases cited! Also available on CD-ROM or Internet and on Employment Spectrum! Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province and is used in law schools throughout Canada. Order your copy today Looseleaf (2 volumes) • $310 Subscription updates invoiced as issued (3-4/yr) P/C 0439030000 • Vol. 1 ISBN 0-88804-218-3 Vol. 2 ISBN 0-88804-362-7 CD-ROM or Internet version available separately • Prices start at $442 With methodically organized chapters covering the complete range of employment law, Canadian Employment Law provides the kind of detailed examination of the facts you can count on. The subject- matter is wide-ranging and addresses issues such as: wrongful dismissal, fiduciary obligations, tort law and vicarious liability issues, remedies, constitutional issues, occupational health and safety, employment contracts, duty of good faith and fidelity and human rights. Canada Border Services Agency offi cer at Pearson International Airport in Toronto, brought her complaint forward in April 2004, according to the deci- sion of tribunal member Kerry- Lynne Findlay. Th e complaint alleged breaches of ss. 7(a) and 10(a/b) of the Canadian Human Rights Act. Johnstone claimed the CBSA enforced policies that caused her to assume part-time status after returning to work following the birth of each of her two children despite the fact that she wanted full-time hours and was capable of handling them. Th e loss of hours also meant she no longer received certain benefi ts and pension en- titlements aff orded to full-time workers through the Public Ser- vice Superannuation Act. Upon her return to work after the birth of her chil- dren, Johnstone was unable to make childcare arrangements for more than three days each week. Consequently, she asked to be placed on a consistent three-day schedule of 13-hour days, which would allow her to maintain full-time status. But the employer denied the canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1115 Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 37¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE request, instead enforcing an unwritten policy of allowing workers with childcare respon- sibilities to receive static shifts without full-time hours. Yet the CBSA was found to be willing to accommodate employees for medical and religious reasons by giving them static shifts with full-time hours, Findlay wrote. She went on to note that "there was no dispute that this unwrit- ten policy is applied unevenly." In determining that John- stone had established a prima facie case of discrimination, the tribunal highlighted the importance of the freedom to choose to become a parent. "As a society, Canada should q Send me 1 year of Law Times for only $159.00 (plus applicable taxes) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 Mail or fax this form to Law Times www.lawtimesnews.com LT Sub ad - 1/4-3X.indd 1 9/17/10 9:19:28 AM recognize this fundamental free- dom and support that choice wherever possible," Findlay wrote. "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 balanc- es her parental obligations with her work opportunities, short of undue hardship." Th e tribunal ordered the CBSA to stop its discrimina- tory practice and work with the Canadian Human Rights Commission to create a plan to that end. In addition, Johnstone re- ceived $15,000 in general dam- ages for pain and suff ering and $20,000 in special compensa- tion. She will also get lost wages and benefi ts from January 2004 to the date of the decision. "CBSA's conduct has been November 15, 2010 • Law Times Employers must be aware of the need to accommodate family status, says Danny Bernstein. wilful and reckless, showing a disregard for Ms. Johnstone's situation and denying that a duty to accommodate exists on grounds of family status arising for childcare responsibilities such as hers," Findlay wrote. Th e attorney general of Can- ada is seeking judicial review of the decision at the Federal Court, which is to hear the mat- ter in the late spring of 2011. In the meantime, Bernstein recommends employers ensure they have their own policies addressing accommodation for family status. Th at will help managers take a consistent ap- proach to requests, he suggests. If employers haven't updated a relevant policy, they should open it back up to make sure it's in line with the jurisprudence. While the ruling has shed light on an area of the law that was somewhat unclear, Bern- stein emphasizes that it centred on a distinct set of facts. Never- theless, it's now clear that fl exi- bility is essential when it comes to requests for accommodation based on childcare obligations. "In this case, the employer really didn't give any consider- ation to the request," he says. "It was a blanket approach of an unwritten policy, and I think that's what got them into real trouble. Th ere was no indepen- dent consideration of this re- quest and there was no eff ort to fi nd a workable solution." Andrew Raven of Ottawa's Raven Cameron Ballantyne & Yazbeck LLP, who repre- sented Johnstone, says the decision rejects the approach taken by the B.C. Court of Appeal in Health Sciences As- sociation of British Columbia v. Campbell River and North Island Transition Society. He suggests that case adopts dif- ferent standards for establish- ing a prima facie case of dis- crimination for family status than any other ground. "To attach, for example, the requirement that there must be a severe or serious intrusion in a family responsibility, we don't ask the same question about dis- crimination on the ground of sex or disability," he says. LT www .lawtimesnews.com Includes a FREE digital edition!

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• For The Defence
• End Of An Era
• Focus On Labour and Employment Law