Workplace Human Rights

Family Status

Family Status

Statutory Definition

The first issue to be decided on this topic is how exactly “family status” is to be defined.

Many jurisdictions which offer protection to “family status” in employment do not offer a definition of the term. This is the case for Canada, B.C., Manitoba, Yukon and NWT.

Saskatchewan’s Code offers a specific definition. 1

Ontario, Nova Scotia and P.E.I. define the term to mean “the status of being in a parent and child relationship”.

Nunavut uses the words “the status of being related to another person by blood, marriage or adoption”, as does Alberta.

Newfoundland’s statute defines the relationship as “means the status of being in a parent and child relationship and, for the purpose of this paragraph, ‘child’ includes an adopted child and ‘parent’ includes an adoptive parent”.

While these statutes may define the ambit of the family members, the case law sets out the duties and obligations which are protected.

The broad ambit of the groups protected by family status include children and elderly family members.

Elder Care

The court added in Seeley the following words to define “family status” to conclude that such a term also mandates a reference to the “obligations of a parent to care for the child”.

 This obligation has been extended to the need to care for an elderly parent who was in need of medical treatment. 2 The applicant must show that the obligation is one which is required, as opposed to voluntary.

In this case the employer failed to show that it offered procedural and substantive accommodation and the employee’s case succeeded. An award of $15,000 of compensation was made.

In a further case the complainant was moved by his employer from Nova Scotia to Ottawa. His wife did not move due to the need to care for her ailing mother. The employer maintained a policy for reimbursement of dual residence expenses which it denied in this circumstance as the complainant’s mother-in-law did not meet the definition of eligibility. A successful claim was made based on adverse treatment due to family status. 3

The tribunal noted the interpretation of “family status” to include “duties and obligations that may arise within the family”, which includes “the relative status of who one’s family members are: the particular circumstances and characteristics of one’s family and, the duties and obligations that may arise within the family”.

Caselaw Defining The Obligation

As noted in this review, the law is much divided on this issue in Canadian jurisdictions. In fact, three different interpretations of the appropriate test remain in circulation.

The cases show significant controversy on fundamental issues. The question of what constitutes a prima facie case of family status discrimination has been the source of considerable ‘uncertainty and controversy’ in the human rights arenas controversy was noted and not resolved by the Supreme Court of Canada in 2020.

Need for Change in Terms of Employment ?

The first is whether the employer must have introduced a change in the terms of employment which has given rise to the alleged adverse treatment. This issue arose first in the 2004 Alberta case of Campbell River. This issue is seemingly no longer extant, certainly in British Columbia, given the 2023 decision of the British Columbia Court of Appeal in Gibraltar Mines.

On this issue, the B.C. Court of Appeal determined that it was not necessary to show that the employer had altered the terms of employment to give rise to the complaint. 4

Gravity of the Obligation

The Essential Test for Prima Facie Case & Family Status Controversy

The test to demonstrate a prima facie case remains as follows:5

  1. the complainant is a member of a group protected by the statute; and
  2. that he or she was subjected to adverse treatment; and
  3. that the subject matter of the complaint as alleged was a factor in the alleged adverse treatment.

It is the application of the second test of "adverse treatment" that has led to the present controversy.

Campbell River

Differing views as this test have been expressed. Should the test be that the required family duty be “substantial or out of the ordinary” or alternatively, would “any family obligation” suffice? The vocabulary for the former test has also been stated to be a “serious interference with a substantial serious parental duty or obligation”. The origin of this question comes from Alberta decision of Campbell River.

With respect to this issue, the same court noted that this need to look for such a degree of materiality to support the “substantial serious” test was required to avoid trivializing the duty. 6 This basic concept is not completely foreign to the case law assessing such claims. Most jurisdictions accept the fundamental concept that not each and every conflict between family concerns and work obligations will lead to a human rights violation. The issue becomes at what degree of gravity does the legal obligation arise.

The Campbell River test remains controversial. It has not been universally accepted in all Canadian jurisdictions. This mandated that a human rights violation based on family status show a “serious interference with a substantial serious parental duty or obligation”. 7 The Court stated:

In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.

The critical words in the passage are not the reference to a “change” as that has since been clarified, but rather the highlighted words, which has been added.

The B.C. Court of Appeal 8 in its most recent review of Campbell River and the above test, noted the controversy on this subject and stated its support of this proposition.

Some appellate courts have questioned whether the test in Campbell River is consistent with the more general Moore test for discrimination in human rights legislation: see e.g., United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 at para. 77; Canada (Attorney General) v. Johnstone, 2014 FCA 110 at paras. 80–81. A recognition that Campbell River does not require a change in employment terms to support a family status discrimination claim may assuage those concerns. But to the extent that these concerns arise from the requirement in Campbell River that a complainant show serious interference with a substantial parental or other family duty or obligation of the employee, I believe these concerns are misconceived.

On this issue of materiality in the grade of the alleged conduct, the Court noted that the statute in B.C., unlike other jurisdictions, does not define “family status” and further that such a graded review to establish materiality is required to distinguish “any family obligation” from protection. To do so would “trivialize” the “important value” to be protected.

In Gibraltar Mines, the court considered and agreed with the prior Alberta decision in Campbell River and confirmed that the impact must be a serious one and “Any other conclusion would be unworkable in an employment context.”

The debate over the acceptance of Campbell River in prior decisions centred upon the question of whether this line of cases was creating a different test for family status cases as compared to other forms of discrimination.

Federal Court

In one of the leading case on this topic, 9 Court agreed with the human rights tribunal found that child care responsibilities, of the nature in question, fit into the definition of “family status”, and hence required accommodation.

The employer had taken no steps to determine the degree of hardship it would suffer by accommodating the request. Its defence was accordingly not based on a test of “undue hardship”, only that it had no legal obligation to accommodate the request.

The employer was shown to have treated a parent requesting accommodation due to child care needs differently from those employees making the comparable requests based on medical or religious grounds.

Federal Court - Engaging a Legal Duty

This Court noted that that child care issues must have “immutable or constructively immutable personal characteristics”, ones which cannot be neglected without attracting legal consequences and which “form an integral component of the legal relationship between a parent and a child”. These are obligations “which a parent cannot neglect without engaging his or her legal liability”. For example, a parent could not leave a young child at home without supervision. The protected parental obligations are those “whose non-fulfillment engages the parent’s legal responsibility to the child”. Picking up the kids at hockey would not qualify, as such would be a “personal family choice”.

As noted by the Federal Court of Appeal, not all duties that arise within the family context will engage a protected right. The duty must be one which is just that, a legal duty for which legal consequences will flow if the employee cannot meet his or her obligation. 10

Federal Court Rejects Campbell River

This decision considered and rejected the more onerous test of "serious interference with a substantial serious parental duty or obligation" based on the prior decision from B.C. in Campbell River, discussed below.

As noted above, the decision in Gibraltar referenced Johnstone and considered this view as misconceived. This question was indeed reviewed by the Federal Court of Appeal in 2014 in Canada v Johnstone. The applicant had requested accommodation in working hours due to the birth of her child. She was offered a change in hours but conditioned by the unwritten policy that the weekly shift would be less than the usual 37.5 hours, which resulted in financial and other losses as she would then be treated as a part-time employee.

Ultimately, the human rights tribunal found that child care responsibilities of this nature fit into the definition of “family status”, and hence required accommodation.

The employer had taken no steps to determine the degree of hardship it would suffer by accommodating the request. Its defence was accordingly not based on a test of “undue hardship”, only that it had no legal obligation to accommodate the request.

The issue was raised as to whether the employee was required to meet a higher standard test to show a human rights violation based on family status by showing a “serious interference with a substantial serious parental duty or obligation”, based on a Campbell River. This was rejected.

The employer was shown to have treated a parent requesting accommodation due to child care needs differently from those employees making the comparable requests based on medical or religious grounds.

This Court noted that that child care issues must have “immutable or constructively immutable personal characteristics”, ones which cannot be neglected without attracting legal consequences and which “form an integral component of the legal relationship between a parent and a child”. These are obligations “which a parent cannot neglect without engaging his or her legal liability”. For example, a parent could not leave a young child at home without supervision. The protected parental obligations are those “whose non-fulfillment engages the parent’s legal responsibility to the child”. Picking up the kids at hockey would not qualify, as such would be a “personal family choice”. 11

In 2014 the Federal Court of Appeal  defined the determination of a family status complaint as one engaging a legal responsibility for the child, as opposed to one of personal choice and the context showed the pursuit of reasonable alternatives unsuccessfully and that the interference is “more than trivial or insubstantial”: 12

I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim 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.

Johnstone did add this obligation of self-accommodation. It also imposed the test that the workplace mandate should be “more than trivial”.

Ontario Cases

No Legal Duty Required

The Ontario Tribunal agreed with the fundamental proposition that not each and every negative consequence between a family and work obligation will give rise to a case of adverse treatment. 13 The Tribunal, however, took issue with the need for the obligation to emanate from a legal responsibility, as stated in Johnstone. It also detached itself from the need to show self-accommodation as a component of proving a prima facie case. It did state that this would be a consideration for the issue of accommodation once liability had been established.  14

Once the applicant proves discrimination, the onus shifts to the respondent to establish that the applicant cannot be accommodated to the point of undue hardship. It is then that one considers whether the applicant cooperated in the accommodation process. The obligation to cooperate includes providing the respondent with sufficient information relating to the family-related needs and working with the respondent in identifying possible solutions to resolve the family/work conflict. Accommodation is a joint process; it is not something that falls solely to the applicant.

As to the question of the correct test, the Tribunal did support the submission that the resulting consequence on the applicant must be calibrated to demonstrate a “real disadvantage”. The context of the family life must be weighed in this process of evaluation. This is distinct from self-accommodation, as the Tribunal determined:

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. For example, a workplace rule may be discriminatory if it puts the employee in the position of having to choose between working and caregiving or if it negatively impacts the parent/child relationship and the responsibilities that flow from that relationship in a significant way.

[55]        Assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the applicant. These supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need. For instance, if the applicant is a single parent, both the family-related need and the impact of the impugned rule on the family-related need may be greater.

[56]        Considering the supports available to an applicant may appear to some to be akin to considering whether an applicant can self-accommodate. It is different in a fundamental way. Requiring an applicant to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established. This is different than considering 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.

The End Result

This today then leaves the distinction between the divided views as “serious interference with a substantial serious parental duty or obligation” as opposed to interference as “more than trivial or insubstantial”. Added to this distinction is the Federal Court’s imposition of a duty to self-accommodate even on the liability issue. The Federal Court does itself acknowledge that some gradation of harm suffered must be reviewed. The question then becomes the degree.

The Federal Court also imposed the requirement of a “legal duty”. This has been rejected by other jurisdictions.

The Alberta Court of Appeal in 2021 also rejected the self-accommodation obligation set out in Johnstone.

Ontario did likewise. It rejected the self-accommodation requirement as a component of the prima facie test and also opposed the test of Campbell River. It did note the need for a graduated scale and the need to show a “real disadvantage”. It also stated that the issue of self-accommodation may arise on the question of accommodation, presumably because this is a dual responsibility.

Saskatchewan Court of Appeal

The decision of the above court was released approximately two weeks after Gibraltar Mines. It was a family status complaint based on elder obligations, as opposed to child care. The complainant asserted unfair conduct due to her need to care for her mother who was suffering from cancer.

The Court did note the three differing approaches. No party had, however, advocated the application of Campbell River, which left the issue as to whether Johnstone or Moore should be applied. The Court nonetheless reviewed and rejected Campbell River. The Court favoured the Moore approach and specifically stated that the self-accommodation obligation of Johnstone was not appropriate. Issue was also taken with the need to find a legal obligation as set out in Johnstone, which was partially influenced by this case being an elder care as opposed to child care case.

Anecdotal Review

The failure to accommodate child care issues was again seen as a breach of the duty to accommodate resulting in an award of $15,000. 15 This case focused on what was shown to be bona fide child care problems and miscommunication as to the issue of the return to work date.

Such an issue of family status was found to have led to the denial of a promotion 16 due to child care responsibilities, for which damages were assessed at $1,500. The applicant had applied for the promoted position and was asked if she would be able to attend the business premises immediately in the event of an emergency, knowing that she would not have been able to do so due to child care requirements.

Liability for this obligation was also found due to the employer’s refusal to accommodate the family needs of the applicant to care for his mother’s son, who was ill due to a difficult pregnancy and their prematurely born infant. Damages were set at $20,000. 17

Similarly, a termination due in part to the applicant’s need to care for his children due to spouse’s illness was contrary to this obligation 18 $10,000 was awarded.

The Alberta court agreed that a single mother with two children was adversely impacted by the need to work night shifts. The employer called no evidence of undue hardship. 19

A similar finding that the employer failed to accommodate the plaintiff’s child care needs to adapt to the newly imposed work schedule following a return from maternity leave and the employer’s adverse treatment by refusing to reinstate the plaintiff to the position of office manager on her return to work were actionable due to family status. 20

The Supreme Court of Canada considered an unusual fact situation in interpreting the words “family status” and “marital status” of the Ontario Code. 21

The complainant, Mr. A, was the brother-in-law of the two owners of his employer, Mr. B and Mr. C., who were uncles to the daughter of Mr. and Mrs. A.

Mr. B was confronted by his niece and his sister, Ms. and Mrs. A, that he had sexually molested Ms. A. He, in turn, terminated the employment of Mr. A, a long term employee approaching retirement.

The issue was whether the Code’s protections applied to the specific identity of the complainant as a family member or whether the words were limited to distinctions based on the fact that the complainant has a certain type of family or marital status.

The Supreme Court found that this was the case and hence in favour of the applicant, Mr. A., holding that discrimination on the basis of “relative status” was also covered by the statute.

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