By Christina Iannozzi, Western Law School

shutterstock_444295678In Johnstone[1], the Federal Court of Appeal confirmed that federal employees are protected from discrimination on the basis of family status, which includes not only the status of being a parent, but also the parental obligations that flow from being a parent, such as childcare. One of the potential applications of Johnstone is to analogous arguments which can be made by employees claiming accommodation for eldercare. As the number of seniors in Ontario is expected to double to more than four million by 2041, there will be an increased need for eldercare.[2] Given the country’s aging population, employee requests for accommodation by way of absences or modifications to their working day to allow for eldercare responsibilities are already becoming more common.

The most recent ruling on eldercare revisited the test for family status discrimination. In Misetich[3], the Human Rights Tribunal of Ontario ruled that there is no requirement for an employee to self-accommodate before making a claim of discrimination. After extensively reviewing the case law, Vice Chair Scott expressed concerns that a different test for discrimination had evolved in respect of family status than other protected grounds. The case law does not point to any principled basis for developing a different test for discrimination depending on the prohibited ground. The test should be the same in all cases, wherein, “[a]n applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment.”[4]

Requiring an applicant to establish that they could not self-accommodate, conflates the test for discrimination and accommodation. Instead of a self-accommodation requirement, adjudicators must consider the other supports available to the applicant. The focus is on “…the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination.”[5]

Of central importance to the issue of eldercare is the Tribunal’s rejection of the second branch of the Johnstone test. Namely, that a caregiving obligation must engage the employee’s legal responsibility, as opposed to a personal choice.[6] This test of legal responsibility is difficult to apply in the context of eldercare, as there may be many obligations that caregivers have that may not emanate from their legal responsibilities, but are still essential to the parent/child relationship.[7] Citing Bharti[8], the Vice Chair cautioned against the emergence of a different test for childcare and eldercare in the jurisprudence.

The Ontario Human Rights Commission intervened in Misetich and argued that to limit human rights protection to legal responsibilities imposes an unduly onerous burden on applicants.[9] Vice Chair Scott agreed and stated what she said was the appropriate test for prima facie discrimination:

In order to establish family status discrimination in the context of employment, the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.[10]

Although the applicant’s claim failed, this decision reopens the debate surrounding the self-accommodation principle and the correct test for proving a prima facie case.  It will be interesting to observe further developments in Misetich if the Tribunal’s decisions is appealed, given that the decision runs directly contrary to recent case law and is at odds with the Tribunal’s previous acceptance of Johnstone.

[1] Johnstone v Canada (Border Services Agency), 2014 FCA 110 [Johnstone].

[2] The number of seniors aged 65 and over is projected to more than double from almost 2.1 million, or 15.2% of population, in 2013 to over 4.5 million, or 25.5%, by 2041: Ontario Ministry of Finance, Population Projections 2013-2041 Update, (Spring 2016) at 4.

[3] Misetich v Value Village Stores Inc., 2016 HRTO 1229 [Misetich]

[4] Ibid, at para. 42.

[5] Ibid, at para. 56.

[6] “…the ground of family status in the Canadian Human Rights Act includes parental obligations which engage the parent’s legal responsibility for the child, such as childcare obligations, as opposed to personal choices.”, Johnstone, supra note 1 at para. 74.

[7] Misetich, supra note 3 at 46.

[8] Ontario (Ministry of Natural Resources and Forestry) and OPSEU (Bharti), Re (2015) 253 L.A.C. (4th) 79: where the arbitrator held the legal responsibility must be providing the necessaries of life for eldercare, arguably a higher test than that applied for childcare.

[9] Misetich, supra note 3 at 46.

[10] Ibid, at para. 54.