Law Times

Law Times • November 14, 2016 Page 13 www.lawtimesnews.com Explosion in eldercare cases coming? BY MICHAEL MCKIERNAN For Law Times E mployment lawyers are gearing up for an explo- sion in family status cases in the coming years as eldercare responsibilities pile on top of childcare duties for younger workers. According to Toronto em- ployment lawyer Andrew Monk- house, employers will have to get used to family status accommo- dation requests and discrimina- tion complaints as the so-called "sandwich generation" adjusts to its new challenges. "Part of the reason we are seeing more cases about family status is that it used to be all about childcare. But now people aren't just looking after their kids, they're looking after their par- ents, too. With an aging popula- tion, more and more people will have obligations toward older family members, which is some- thing employers need to take into consideration," Monkhouse says. At the same time, the Human Rights Tribunal of Ontario has taken a fresh look at its approach to family status discrimination over concerns the current test did not account well for elder- care issues. In Misetich v. Value Vil- lage Stores Inc., HRTO vice- chairwoman Jennifer Scott re- jected the federal approach laid out in the landmark 2014 case of Canada (Attorney General) v. Johnstone. A number of HRTO cases had applied the Johnstone test for establishing family status discrimination set by the Feder- al Court of Canada in that deci- sion, which, in cases of childcare, required claimants to prove: • The child was under their care or supervision; • The childcare obligation at issue engaged their legal responsibility for that child, rather than personal choice; • They had made reasonable efforts to find alternative so- lutions, and that none were reasonably accessible; and • The impugned workplace rule interfered in a manner that was more than trivial or insubstantial with the fulfilment of the childcare obligation. In its judgment, the appeal court emphasized that the family status discrimination test should be "substantially the same" as those applying to other protected grounds, rejecting the notion of "hierarchies of human rights." However, in her Sept. 20 deci- sion, Scott suggested the appeal court had not gone far enough. "There is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination alleged," Scott wrote, adding that "by develop- ing different tests, the test for family status discrimination has become, perhaps inadvertently, higher than for other kinds of discrimination." Scott refused to apply the Johnstone test, concluding that it imposed an "unduly onerous burden on applicants" by limit- ing human rights protection to "legal responsibilities." The case has moved family status closer to parity with other protected grounds of discrimi- nation in this province and "re- ignited the whole debate on what the test should be for family sta- tus discrimination," says Jason Ward, founder of Lindsay, Ont. law firm Wards PC. "The tribunal has gone against itself by saying that it won't follow Johnstone. It says the test for family status should be the same as any other ground of discrimination," Ward says. "Where that leaves us is uncer- tainty in this province about what the test is." Ward says Johnstone remains the law for employers regulated federally, but those provincially regulated will now have to take into consideration the test laid out by Scott in Misetich, which involved a woman who wanted a work schedule that would al- low her to get home in time to prepare dinner for her elderly mother. According to Misetich, em- ployees will have to show that a workplace rule results in a nega- tive impact that causes "real dis- advantage to the parent/child relationship and the responsibil- ities that f low from that relation- ship, and/or to the employee's work," in order to establish fam- ily status discrimination. Onus then shifts to the employer to show that the applicant cannot be accommodated to the point of undue hardship. Applying the new test to the case in front of her, Scott found the woman had failed to make out her claim for discrimination because of the lack of informa- tion she supplied about the na- ture of her eldercare responsi- bilities for her employer. The HRTO had already shown willingness to relax its interpretation of the Johnstone test earlier this year in the case of Miraka v. A.C.D. Wholesale Meats Ltd., which involved a father who took some days off at short notice to care for his child while his wife was ill. The tribunal relieved Miraka of the requirement to search out alter- native childcare arrangements because his case only involved an "infrequent, sporadic or un- expected" childcare issue as op- posed to a long-term one. "It will be interesting to see how the courts grapple with the inconsistencies in the tests ap- plied," Ward says. LT Andrew Monkhouse says employers will find the prominence of family status accommodation and discrimination mat- ters increasing in the coming years. © 2016 Thomson Reuters Canada Limited 00238CY-84416-CE Drafting Assistant – Transactional also: • Flags discrepancies in defined terms, numbering, punctuation, and non- conforming phrases • Hyperlinks those flagged issues, allowing you to navigate to the exact location within your documents • Links key concepts such as cited sources and defined terms • Scans your document and quickly connects to other documents referenced in the transaction With Drafting Assistant – Transactional, you'll expedite the document review process and spend more time tackling the substantive, client-specific issues that matter most. Imagine if you could cut your proofreading time in half FOR MORE INFORMATION Call 1-866-609-5811 or visit carswell.com/drafting-assistant-transactional Now you can streamline your proofing tasks with Drafting Assistant – Transactional. In seconds, it analyzes your document and alerts you to potential errors and omissions. The tribunal has gone against itself by saying that it won't follow Johnstone. Jason Ward FOCUS

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