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More on childcare: When saying no is not discriminatory

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I recently blogged about a case (Clark v. Bow Valley College 2014 AHRC 4) in which an employer was found by the Human Rights Tribunals of Alberta to have discriminated against an employee on the basis of her family status.  The Tribunal concluded that the College had not accommodated the employee when she asked for her return date from a maternity leave to be extended because she could not find adequate childcare. The case boiled down to the application of the four part test set out in the Federal Court of Appeal case of Canada (Attorney General) v. Johnstone [1].  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.

For a completely different set of facts and result, consider a decision rendered by the Human Rights Tribunal of Ontario earlier this month: Wing v. Niagara Falls Hydro Holding Corporation 2014 HRTO 1472.  The case centred on Ms. Wing who is a municipal Councillor for Niagara Falls and who sits on the Board of Directors of the Niagara Falls Hydro Holding Corporation (the “Corporation”).  At issue was a change of meeting times for the Board of the Corporation. Until 2012, Board meetings were held at 4:00 p.m. However, meeting times were changed to 3:30 p.m. starting in the early part of 2013. In addition, the Board had passed a resolution which would require directors who had missed two consecutive meetings to be removed from the Board.  Ms. Wing had some history of non-attendance in 2012.

In her Application to the Tribunal, Ms. Wing argued that the requirement to attend Board meetings at that time would interfere with her parental obligation to pick up her six-year-old daughter from school. This resulted in discrimination in employment on the basis of family status.

The facts of the case are straightforward. The first meeting at the new time was scheduled for February 13, 2013.  Ms. Wing advised the Secretary of the Board that if she was responsible that day for picking up her daughter at school as opposed to her husband, she would be late and she might have to bring her daughter to the meeting. When Ms. Wing did not hear back from the Secretary, she approached the President of the Board about a possible change to the meeting time.  He wrote back saying that he would discuss it with the Chair of the Board, and suggested that perhaps an arrangement could be made to have her daughter at the office in which the Board meeting would be conducted, or that she participate in the meetings by phone. Ms. Wing rejected both options and said that her preferred accommodation would be a later start time of 4:30 p.m.  Sometime later, Ms. Wing was told that the meeting time would not be moved. She advised the President of the Board that she could not call in because she would be driving to her daughter’s school to pick her up, and then driving her home. Four days later, Ms. Wing advised the President that she had filed her Human Rights Application.

Ms. Wing testified at the Tribunal that she had been in attendance at all the meetings notwithstanding the start time of 4:00 p.m. She had arranged for a parent of a school friend of her daughter to pick her up from school when these meetings occurred.

The Tribunal concluded that Ms. Wing was not in an employment relationship with the Corporation.  Nevertheless it went on to analyze whether she had made out a prima facie case of discrimination on the basis of family status. It concluded that she had not. On her childcare arrangements, the Tribunal commented:

…the applicant also made a choice not to enroll her daughter in after school care, but to pick her up from school at the end of the school day. The applicant explained that this was because she wanted, as much as possible, to replicate the same education experience enjoyed by her elder daughter. Also her younger daughter had apparently expressed some reluctance to attend the after-school program. While these decisions may be understandable, it is difficult to see them…as resulting from the applicant’s legal obligation to her daughter as opposed to personal choices.  Even if that is not the case, the applicant led no evidence that she even considered (Tribunal’s emphasis), let alone made reasonable efforts to find, alternative solutions to the dilemma she faced when the meeting time for the Board meeting conflicted with the school’s normal pick up time.

Moreover, the Tribunal concluded that Ms. Wing had failed to establish that the early start time had an adverse impact on her. She had in fact not missed the meetings in question, other than when she was on vacation.

Ms. Wing also made an allegation of reprisal, which the Tribunal said required further submissions from the parties. The portion of the Application alleging discrimination in employment on the basis of the family status was dismissed.

Employers should take note of this case, as it provides some insight into what facts a legal decision maker will look at to determine whether an employee’s right to be free from discrimination on the basis of family status because of childcare issues has been infringed. The Tribunal has concluded that picking up a six-year-old child from school oneself, when other options are available, is a personal choice. The Tribunal has also concluded that an employee must be able to show that they made efforts to find a reasonable solution, and that no such solution existed or was workable.  It is not good enough simply to argue inconvenience. Indeed, the Tribunal quoted the following provision from the Johnstone case:

It is also important not to trivialize human rights legislation by extending human rights protection to personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar volunteer activities…

Undoubtedly, we will continue to see more cases such as these that flesh out how far an employer’s legal obligation goes to accommodate an employee who is in the parental child relationship.

Janice Rubin

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