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Human Rights (Fed) - Family Status. Brink v. Canada
In Brink v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal from a denial of a Charter s.15 ['discrimination'] class action certification motion, here where the motion judge struck the claim (without leave to amend it) on the basis that no Charter claim was made out on the pleadings. The claim was with respect to immigration process fees charged by the government to "non-Canadian born" individuals.
Here the court notes that 'family status', while enumerated in human rights codes, is not yet recognized in the Supreme Court of Canada as a Charter analogous s.15 ground:[105] It is important to note that the basis for the alleged discrimination at issue in Fraser [SS: Fraser v. Canada (Attorney General), 2020 SCC 28] was family/parental status, and the Court was being asked to recognize such status as a new analogous ground for the purposes of section 15 of the Charter: at para. 116. While "“family status”" is a protected ground in the federal and most provincial human rights statutes, the Supreme Court had not previously considered whether family/parental status constituted an analogous ground in the Charter context. As a result, the Court was understandably concerned about recognizing a new analogous ground, in the absence of evidence as to the possible impact that such recognition could have: Fraser, above at para. 120. That is not what we are faced with here. . Tarek-Kaminker v. Canada (Attorney General)
In Tarek-Kaminker v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR of human rights issues in a labour grievance [here before the Federal Public Service Labour Relations and Employment Board (FPSLREB)].
In these quotes the court addresses 'family status' under the CHRA:[69] Section 3 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 identifies the grounds of discrimination prohibited by the Act. These include, amongst others, religion and family status. The term “family status” has been interpreted as including an individual’s parental obligations, such as childcare obligations: Canada (Attorney General) v. Johnstone, 2014 FCA 110 at para. 66. . Tarek-Kaminker v. Canada (Attorney General)
In Tarek-Kaminker v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR of human rights issues in a labour grievance [here before the Federal Public Service Labour Relations and Employment Board (FPSLREB)].
In these quotes the court considers the Board's treatment of prima facie discrimination, here in a family status context:[91] While the test for family status discrimination is not uniform across the country, the parties agree that the applicable test for establishing a prima facie case of discrimination on the basis of family status at the federal level is that set out in this Court’s decision in Johnstone, above.
[92] In Johnstone, this Court held that there should be no hierarchy of human rights. Consequently, the test that should apply to a finding of prima facie discrimination on the ground of family status should be substantially the same as the test that applies to the other enumerated grounds of discrimination: Johnstone, above at para. 81.
[93] This Court went on in Johnstone to adopt the definition of a “prima facie case” provided by the Supreme Court of Canada in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. There the Supreme Court held that a prima facie case of discrimination was one that “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”: at para. 28.
[94] Because prima facie discrimination on different prohibited grounds can arise in a variety of different factual situations, the test to be applied must necessarily be flexible and contextual: Johnstone, above at paras. 81, 83. As was noted by this Court in Canada (Attorney General) v. Canada (Human Rights Commission), 2005 FCA 154, a flexible legal test for prima facie discrimination “is better able than more precise tests to advance the broad purpose underlying the Canadian Human Rights Act, namely, the elimination in the federal legislative sphere of discrimination [in] employment”: at para. 28.
[95] This Court further recognized that the specific types of evidence and information that may be pertinent or useful to establish a prima facie case of discrimination will largely depend on the prohibited ground of discrimination at issue: Johnstone, above at para. 84.
[96] With this in mind, this Court held at paragraph 93 of Johnstone that in order to make out a prima facie case of workplace discrimination based on the prohibited ground of family status resulting from childcare obligations, the claimant must show:i) that a child is under his or her care and supervision;
ii) that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. [97] This Court elaborated on the third element of the test in Johnstone (sometimes referred to as the duty to “self-accommodate”), explaining that a claimant will have to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work. The claimant will also have to show that available childcare services or alternative arrangements are not reasonably accessible to them to enable them to meet their work needs, such that he or she is facing a bona fide childcare problem. This is a highly fact-specific question, and each case must be reviewed on an individual basis, having regard to all of the relevant circumstances: Johnstone, above at para. 96.
[98] Not every conflict between one’s professional obligations and one’s family responsibilities constitutes prima facie discrimination. Parents usually have various options available to meet their parental obligations. As a result, it cannot be said that a childcare obligation has resulted in an employee being unable to meet his or her work obligations unless no reasonable childcare alternative is reasonably available to the employee. It is only where the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination on the basis of family status will be made out: Johnstone, above at para. 88.
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