In the decision United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194, the Alberta Court of Appeal reviewed the decision of Canada (Attorney General) v. Johnstone 2014 FCA 110, a Federal Court of Appeal decision which is the leading authority setting out the test for family status discrimination.
The central issue in the appeal was what the applicable test for prima facie discrimination in family status human rights cases should entail. In other words, what is the threshold required for an employee to raise family status discrimination?
In the decision on appeal, the Arbitration Board majority followed the Johnstone test that requires that an employee has sought out reasonable alternative childcare arrangements unsuccessfully and that the employee is unable to fulfill his or her parental obligations. Only after being unable find alternative childcare arrangements, is a prima facie case of discrimination made out. This decision places some onus on the employee to make reasonable efforts to find child care before claiming discrimination based on family status. This seems like a reasonable approach.
However, in this case, the Alberta Court of Appeal determined that the Johnstone test should not be followed. Rather, the Court followed an earlier decision from the Supreme Court of Canada, Moore v. British Columbia, which laid down the following 3-part test for determining a prima facie case of discrimination:
(1) the complainant has a protected characteristic;
(2) they experienced an adverse impact on account of the challenged norm; and
(3) the protected characteristic was a factor in the adverse impact.
The Court of Appeal indicated that the additional requirement to establish that reasonable efforts were made to find alternative childcare options puts a further burden on a family status claimant to prove an element of self-accommodation which is not present in other discrimination matters, which is inconsistent with the Supreme Court of Canada precedent.
Though this decision arises out of Alberta, it should also be noted that the Johnstone test has been modified by the Ontario Human Rights Tribunal in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, following the same logic as the Alberta Court of Appeal. As it stands in Ontario, there has not been a unifying decision from the Court of Appeal similar to Alberta. However, given this new case and the comments found in Misetich, it is more likely than not that the Ontario Courts will adopt the new approach.
For employers, this does not mean that efforts by an employee to find alternative childcare are not relevant; but at the stage of determining whether a prima facie case is established, that evidence is not required for an applicant to meet its onus. Rather, the evidence will be considered to determine whether the employee cooperated with the accommodation process. It also remains appropriate for employers to make reasonable inquiries of employees as to the steps that have been taken to secure childcare if accommodation is being requested on this basis. Employees continue to have a duty to cooperate in the accommodation process.