In a prior post, the differing standards for the test of family status as the basis for workplace discrimination were discussed. While the statutory wording in each jurisdiction is identical, the federal legislation has chosen to impose a more rigorous test on the employee’s case than that required by Ontario’s Human Rights Tribunal.
As noted in the prior review, the Ontario law does not mandate that the employee first “self-accommodate” as a preliminary step to success in legal action. Also, Ontario law does not require that the parental obligations protected by human rights law engage a parent’s legal responsibility to their child (that is to say, non-fulfilment of said obligations would not necessarily result in a finding of neglect). The federal law differs from that of Ontario in both these respects.
The B.C. Court of Appeal recently considered this question. The court followed the same line of thinking as the federal human rights approach. It required the employee to demonstrate that the conditions of employment resulted in serious interference with a substantial parental or similar family duty or obligation.
Supreme Court Leave Application
Given the evident differences in the approach of the B.C. Court of Appeal, which is consistent with the federal interpretation of this issue and, the contrary approach taken by Ontario, one would have expected that the time for consistency in the law would have arrived. To make matters even more confusing, Alberta offers a hybrid interpretation of this subject matter, the details of which extend beyond this summary. Suffice it to say that Alberta’s policies can currently be found distinctly in the middle.
Seemingly, the table was set for the Supreme Court to settle this issue once and for all and offer certainty to those engaged in such family and social concerns, no matter which side of the issue they are on.
However, this was unfortunately not the case. The Supreme Court of Canada refused the leave application in a matter out of British Columbia which dealt with an employee who had been terminated following his refusal of an assignment that would require him to be out of province for several months. This assignment came shortly after the birth of his child. The employee had successfully complained to the BCHRT, a decision that the employer appealed. While the BCHRT found that there was sufficient reason to establish that the employee had demonstrated discrimination based on family status, the appeal’s court disagreed. The court held that while the employee’s desire to be at home with his wife and child in his non-working hours was commendable, he was no different from other parents and there was nothing to suggest that his child would not be well taken care of in his absence. The employee appealed to the Supreme Court and to the surprise of many, was denied the leave application.
The Present Status
The remedy of pursuing a family status complaint remains very much dependent upon which jurisdiction in Canada the applicant is in. Employers and employees alike in Ontario will need an understanding of federal and provincial jurisdiction, which is seemingly now well defined. It does seem unfair that the merits of the case are to be set by the determination of the relevant jurisdiction, but absent legislative change, which seems unlikely, such is the present state of this union.
Get Advice Before You Act
This perplexing issue requires careful and cautious action, no matter whether you are a concerned parent, worried about ageing parents or similarly interested employer. If you have questions about the issue of discrimination based on family status or any employment question, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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