Family Status Accommodations – for times when babies need tending and parents need mending (Part II)

by | May 9, 2014 | For Employers

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].

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.



Recent Posts

COVID in Ontario Workplaces: What is a Gray Zone Anyway?

On November 20, 2020 the Ontario government announced that certain regions of the province would be moved into different colour-coded zones. Effective November 23rd, restrictions were imposed on the City of Toronto and Peel Region as they were moved into Gray Zone which is a partial lockdown. These restrictions will last least 28 days.

read more

Toronto Office

702 - 2 Bloor Street West,
Toronto, ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue,
Barrie, ON L4N 9J2

Collingwood Office

220 - 1 First Street
Collingwood, ON
L9Y 1A1



+1 (888) 640-1728


(866) 883-8445


[email protected]

Toronto Office

702 - 2 Bloor Street West, Toronto ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue, Barrie ON L4N 9J2

Collingwood Office

220 - 1 First Street, Collingwood, ON L9Y 1A1


Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!