In an important new development, the Federal Court of Appeal has provided much needed guidance on an employer’s requirement to assess an employee’s request for accommodation of childcare needs.
In Canada (Attorney General) v. Johnstone, the Court articulates a new four-step test claimants must meet before an instance of discrimination based on family status will be sustained. The Court found that employees must first make reasonable efforts to secure childcare and that only obligations integral to the legal relationship between a parent and child will be protected. This means that claims based on employee preferences, and workplace requirements which interfere with childcare obligations in a trivial manner, such as family trips and participation in voluntary activities, are not protected.
For employers in British Columbia, this decision serves as a further shift away from the more stringent approach articulated by the BC Court of Appeal in Campbell River, which remains good law in BC, but has been rejected by courts and tribunals in other provinces. Given this trend, and the time which has passed since the Campbell River decision, it is very likely that the Johnstone test will be adopted in British Columbia sooner, rather than later. In any event, the clear test established by the Federal Court of Appeal in Johnstone provides a useful tool for analysing such requests on an individual basis and, where necessary, creating workable solutions that balance parental obligations with work opportunities, short of undue hardship.
We are pleased to provide a link to an excellent in-depth article on the Johnstone decision by our Ontario affiliate, Hicks Morley, with permission.