A recent case from the Human Rights Tribunals of Alberta is an example of how childcare is quickly becoming a hot human rights issue in the post Canada (Attorney General) v. Johnstone [1] workplace. Readers will recall that in Johnstone, the Federal Court of Appeal articulated a four part test for prima facie discrimination in family status childcare obligation cases. It stated that:

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 engaged an 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 trivial or insubstantial with the fulfillment of the childcare obligation.

In Clark v Bow Valley College 2014 AHRC 4, the Tribunal considered the adequacy of the College’s response to a request from Ms. Clark that her return date from maternity leave [2] be extended for three weeks. Due to a mistake on the part of the College, Ms. Clark thought her leave would run from January 2010 to the beginning of February 2011. She had made arrangements for childcare for when she thought she was returning.  However, the return date was too late, and she was obliged to return a few weeks earlier.  Ms. Clark made attempts to find childcare for her son, but was unable to do so.  When she told her employer about her difficulties, they sent her information about childcare options in Calgary.  Ms. Clark lived 100 kilometres away. When Ms. Clark did not return on the date required by the College, she was considered to have abandoned her position and her employment was terminated.

The thrust of the case was whether Ms. Clark’s actions vis-à-vis the care of her child for the several weeks in question were reasonable.  Did her behaviour indicate that she was acting on the basis of a legal responsibility for her child or were her childcare decisions ones of personal choice?  To make that distinction, the Tribunal heard highly personal information regarding Ms. Clark’s family and child that ordinarily, an employer would not delve into.  This included evidence that:

• Ms. Clark’s son was born prematurely and she wanted him to be in a home-based daycare instead of a communal centre that had more children. This was because he was more prone to infection than full term babies;
• Ms. Clark had made inquiries of the childcare she had arranged, and they could not take her son early;
• Ms. Clark’s financial resources were extremely strained after a lengthy leave, which had been extended by a sick leave she took before the maternity leave. She could not readily afford a deposit for childcare, or the $200 purchase of a new childcare seat that would be needed if she made the lengthy drive to Calgary;
• On this issue, there was considerable evidence on the fact that the existing car seat only fit into Ms. Clark’s husband’s car, which she could not drive because it was manual, and it bothered her knee;
• Ms. Clark lived 100 kilometres from Calgary, and began her shift early. The daycare options provided to her by the College did not include a start early enough for her to make her shift in time;
• Ms. Clark had no extended family to help her. While she had a grown daughter, she had a job, and childcare responsibilities of her own. Her mother lived three hours away and her father was disabled;
• Ms. Clark’s husband was not an optimal choice, and his job would be in jeopardy if he took the time off to look after their son;
• Ms. Clark had banked 35 days of unused vacation which she was prepared to use to extend the leave.

On its part, the College maintained that their denial of an extended leave was due to operational requirements. The College argued that it was short of nursing faculty. It submitted that resources at the College were very tight and it would have been difficult to hire new faculty and approvals sometimes took a year.  In addition, the College said that it was best to have only one instructor assigned to a clinic class for reasons of consistency. They had indeed attempted to accommodate Ms. Clark by sending her information about two different childcare options when she advised them of her difficulties. They had serious questions as to why Ms. Clark’s husband did not take care of the baby.  While it had provided Ms. Clark with one extra week of leave, that was as far as it was prepared to go. The College maintained that they had satisfied their obligations in this regard and requiring them to extend the leave by two extra weeks was undue hardship.

In assessing the evidence, the Tribunal Chair took particular note of this:

What is noticeably absent from all communications between Bow Valley representatives while this circumstance was unfolding is ANY (Tribunal’s emphasis) discussion about Ms. Clark’s childcare challenge.  At no time do they ask Ms. Clark to attend a meeting to see if something could be worked out, or to further understand the nature of her concerns.

The Tribunal found that Ms. Clark’s efforts to find childcare were reasonable and the obstacles she experienced legitimate. She had a bona fide childcare problem. The College however, did not do what was required to accommodate her. It did not conduct an assessment of the situation based on the personal needs of Ms. Clark.  She had raised a potential human rights protected concern. The Tribunal concluded that by responding with “four days of vacation and two brochures of childcare services that wouldn’t work” the College had failed to offer up anything that was meaningful.

Ms. Clark was entitled to $15,000 as general damages for injury to dignity and four months of wages for the period of time she was unemployed.

Employers and their counsel should take note of this decision. It emphasizes the need to engage in meaningful dialogue with employees who present human rights based requests for accommodation.   This means something more than sending pro forma information to employees.  Of course, we know from the case law that accommodation is a two-way street.  That means that the employee must also participate in a conversation with the employer about what their needs are and what obstacles they are encountering.

Employers should also be mindful of how the facts of an accommodation request to which they have said no will look in retrospect, particularly in the eyes of human rights decision makers.  Ms. Clark’s leave was over a year, and she had 35 days of banked vacation days.  This raises the obvious question: could she not have just used her vacation days? Indeed the Tribunal concludes as much.  The operational difficulties that the College asserted were rejected by the Tribunal chair as being persuasive, and given the evidence, to some degree even existent.  Ms. Clark had a baby with some health difficulties and she had no money.  Given these facts, a denial of an extension of a leave for three weeks, particularly after the employer has made a mistake regarding the dates, makes this employer look unsympathetic, notwithstanding what may very well have been good faith efforts to address Ms. Clark’s childcare problems.

Janice Rubin

[1] 2013 FC 113 (CanLII), 2014 FCA 110 (CanLII)

[2] The Tribunal Chair refers to the leave as a “maternity leave” throughout the decision.  I have adopted her language instead of using “pregnancy and parental leave”.