Family Status: The Fiona Johnstone decision

On May 2, 2014 the Federal Court of Appeal released a decision which considered an employer’s duty to modify an employee’s hours to accommodate the employee’s childcare obligations; i.e. an employee’s family status.

Fiona Johnstone and her husband worked a 56-day schedule at Pearson International Airport. They had a young child. During each 56-day schedule the couple rotated through six different start times over the course of days, afternoons, and evenings with no predictable pattern, and they worked different days of the week throughout the duration of the schedule. Each employee was given 15 days notice of each new shift schedule, subject to the employer’s discretion to change the schedule on five days’ notice.

Not surprisingly, the Johnstones could not find childcare that would work around their schedules. Ms. Johnstone could however arrange childcare for three 13 hour days per week. The employer refused her request for accommodation and offered her part-time hours that resulted in substantially fewer benefits and pension.

She filed a human rights complaint arguing that the employer should have modified her schedule to accommodate her child care needs.

In this case, the Federal Court of Appeal outlined a four part test that an employee must satisfy when seeking family status accommodation; namely:

(i)             that a child is under the employee’s 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 the employee 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.

This court explicitly rejected the British Columbia’s Court of Appeal’s approach to this issue so two court of appeals disagree on this issue. The federal government has not announced whether it intends to appeal this decision to the Supreme Court of Canada.

This decision applies to federally regulated employees. The Ontario courts will likely consider this decision when deciding similar cases because the section of the Canadian Human Rights Act that was considered is virtually identical to a section in Ontario’s Human Rights Code.

For a summary of the three different legal approaches to accommodating an employee on the basis of family status in Canada, click here.

 If you have any questions about responding to employee requests for accommodation because of family status, please contact the MacLeod Law Firm at 1 (888) 640-1728 or at [email protected].