Law Times

Law Times • January 25, 2016 Page 7 www.lawtimesnews.com COMMENT Does Canada need a new law school? BY FRED HEADON W ith stories of a shortage of articling po- sitions, a growing number of unpaid articling positions, and of new lawyers unable to find jobs filling our news queues, a report that Ryerson University is interested in starting up its own law school prompts some people to scratch their heads: Does Canada need another law school? Ryerson is not the only Canadian university with dreams of a legal academy — Trinity Western Uni- versity in B.C. is also trying to obtain approval for its planned law school, and Thompson Rivers University and Lakehead University are two institutions with rela- tively new law schools. What might new law schools want to teach to help their graduates succeed in the new realities? The salient word here is "new." CBA Futures has a wish list for law schools – new and not so new. In fact, half of the 22 recommendations in our 2014 report Futures: Transforming the Delivery of Legal Services in Canada, deal with legal education at the pre- and post-call levels. For example: No. 15: Legal education providers, including law schools, should be empowered to innovate so that students can have a choice in the way they receive le- gal education, whether through traditional models or through restructured, streamlined, or specialized pro- grams or innovative delivery models. No. 16: An integrated, practical approach, including multidisciplinary skills training, should be incorpo- rated into curricula to provide "translational knowl- edge" – the ability to turn critical knowledge of legal concepts, regulatory processes, and legal culture into actual problem-solving ability in practice. No. 19: There should be a structured, rigorous, and consistent approach to pre-call training to ensure new lawyers have all the skills and knowledge required to practise safely and effectively. No. 21: Educational providers should consider creat- ing parallel programs in areas such as legal technology, in college or other environments, or incorporated into law school education, to educate and train new streams of legal service providers, which may include lawyers. In addition, we'd like to see admissions standards broadened and debt-forgiveness programs instituted that will encourage students from all cultural and eco- nomic strata in Canada to apply to law school, so that the country's changing demographics are better repre- sented in its legal profession and to encourage greater innovation in the delivery of legal services. And that's just for starters. There's plenty more where that came from. Putting the client at the centre of the legal system is a key theme in both the CBA's Futures and Envisioning Equal Justice initiatives. A corollary to that is that law- yers must be equipped to deliver services in the ways clients expect and to more often do so in co-operation with other professionals. Meeting those expectations will take more than the traditional training lawyers have received. "In our consultations, the education and training of lawyers was one of the most intensely discussed is- sues, with widespread opinions offered on law schools' admissions criteria and curricula; the cost of legal edu- cation; student debt; the length of legal study; post-law school/pre-call training; and continuing professional development. Some debated the extent to which law schools should balance pure legal knowledge with practical skills," the report says. "There are already vastly different ways of prac- tising law and vastly different client needs. We ex- pect that even more different career paths will be- come available in coming years." On the whole, we also heard that Canada's law fac- ulties are doing a good job of teaching law students. They enjoy reputations for excellence that often extend well beyond provincial or national borders. They have been doing a great job of what we first asked them to do – but now graduates need more. From substantive knowledge of related disciplines to skills training to de- veloping new kinds of professionals to assist us — there is much work to do. That is why we believe that law schools that approach legal education with an eye to the needs of a 21 st -century lawyer, will need to re-think how and what they teach. The need for legal education to change to meet the needs of today's students has been a key pillar of the Futures initiative. Building on our recommendations, we're preparing to launch a guide for law students and young lawyers aimed at helping them find their way in the new market for legal services. And in March, in conjunction with the Canadian Bar Review, we're bringing academics and other stakeholders together to participate in a workshop to discuss the future of legal education. These initiatives are part of our efforts to share with those who teach and train lawyers what we learned and to help them play their crucial role in en- suring Canadians continue to benefit from the vibrant and relevant legal profession they expect and deserve. Law students and young lawyers are the future of the profession. It is, therefore, in the profession's interest to ensure law schools prepare them for the opportunities and the challenges that lie ahead. LT uFred Headon is chairman of the CBA's Legal Futures Initiative. u SPEAKER'S CORNER Breastfeeding and the duty to accommodate I t is undisputed that the practice of breastfeeding must be promoted and protected. Since the ability to breastfeed is unique to the female gender, a woman who opts to breastfeed may be subjected to adverse treatment in a workplace, something her male colleague would never face. An employer's failure or refusal to accommodate a nursing employee's breastfeeding needs may give rise to a discrimination complaint. A case in point is Flatt v. Canada (At- torney General), where the Federal Court of Appeal (FCA) grappled with issues stemming from the difficulties of balanc- ing motherhood and career. Having concluded that breastfeeding is a personal choice and not a legal obli- gation, the FCA resolved that discrimina- tion on that basis is rooted in family status and not sex. In Flatt, Laura Marie Flatt worked full time with the Spectrum Management Op- erations Branch of Industry Canada, which supervises and manages the radio frequency spectrum in Canada. In September 2007, September 2009, and March 2012, Flatt took a one-year mater- nity leave. Having breastfed her third child for a year, Flatt decided that she would like to continue breastfeeding for another year. Therefore, she sought Spectrum's permis- sion to telework full time from home be- tween 6 a.m. and 2 p.m. Despite being offered a number of pos- sible arrangements, Flatt, ultimately, re- verted to her original request, which Spec- trum was unable to accommodate. On March 22, 2013, Flatt launched a grievance with the Public Service Labour Relations and Employment Board on the grounds of sex and family status for Spec- trum's failure to accommodate her desire to breastfeed her child. The board acknowledged that lactation is a physical condition, being an immutable characteris- tic, while breastfeeding is a wom- an's personal choice influenced by a variety of physical, personal, and social factors. It went on to conclude that breastfeeding is an expression of family status, rather than the female gender, which flows from the mother-infant relationship. Indeed, while a woman's biological ca- pacity to breastfeed is a natural function, breastfeeding per se is not an entirely natural instinct but an acquired skill. An argument that a woman's capacity to breastfeed should equate to a legal obligation to nourish an in- fant through breastfeeding is untenable. It casts stigma on women who cannot or do not wish to breastfeed and has a dangerous potential of stereotyping women by imply- ing that every good woman must be a breast- feeding mother. It is helpful to keep in mind that feeding an infant with formula, which has nourished millions of children for decades, does not au- tomatically result in an inferior health con- dition. Hence, breastfeeding is not an im- mutable characteristic but a parental choice. On appeal, the FCA upheld the board's decision. It recognized that there could be cases where breastfeeding can be seen as part of a mother's legal obligation to feed her child. It explained that to make a case of dis- crimination on the basis of family status related to breastfeeding, a complainant would have to provide evidence and fore- seeably divulge personal information. The purpose of such evidence would be to es- tablish that returning to work is incompat- ible with breastfeeding. The FCA said that evidence should strive to identify a child's medical condition requiring breastfeeding, address the particu- lar needs of a child, and clarify the reasons why a child may not con- tinue to receive the benefits of hu- man milk while being bottle-fed. The FCA confirmed that the four-prong test it propounded in Canada (Attorney General) v. Johnstone, 2014 FCA 110 is applicable to cases of dis- crimination on the basis of an employer's failure to accommodate breastfeeding. In order for a complainant to have a prima fa- cie case of workplace discrimination, the test requires: (1) that a child is under her parental care and supervision; (2) that the childcare obligation at issue engages her legal responsibility for that child, as opposed to personal choice; (3) that she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions; and (4) that the impugned workplace rule in- terferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation. This test is both flexible and contextual, because it is applied in cases with many fac- tual situations involving various grounds of discrimination. Having resolved that breastfeeding during working hours is not a legal obliga- tion towards the child, the FCA found that Flatt's evidence did not meet the second branch of the Johnstone test and, as such, she had not made her case of prima facie discrimination. Accommodating the need of a nurs- ing employee is appropriate and desirable. It gives rise to a vexing question: whether to pay an employee for lactation breaks. The answer requires balancing the rights of nursing mothers and that of employers, while having regard to the fundamental principle that one must perform work in exchange for pay. At one point, Flatt sought Spectrum's accommodation that would have permit- ted her to take 45 minutes of paid lactation breaks, without forfeiting her lunch breaks. Forty-five minutes of paid lactation break for every eight-hour working day amounts to 24 days of paid leave each year. This type of generosity may be unafford- able for small and medium-size employers. On this basis alone, employers would be able to argue that a nursing employee cannot be accommodated without undue hardship. On a practical level, to compensate lactation breaks would give rise to resentment among the nursing employee's co-workers, because of possible perception of special treatment. This can be especially true for adoptive mothers and women who do not breastfeed, whether by choice or necessity. Flatt recognized that breastfeeding is a woman's personal choice, which could give rise to a form of "family status" dis- crimination. The onus is on working-out- side-the-home mothers to make a prima facie case of discrimination. Medical evidence to support a woman's choice to continue breastfeeding beyond maternity leave is a must. LT uNikolay Chsherbinin is an employ- ment and immigration lawyer at Chsherbinin Litigation and author of The Law of Inducement in Canadian Employment Law published by Car- swell, a Thomson Reuters Business. He can be reached at 416-907-2587, nc@nclaw.ca, or by visiting nclaw.ca. Nikolay Y. Chsherbinin

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