What is the Test for Establishing Discrimination on the Basis of Family Status?
by Deborah Cushing, Jennie Buchanan
Published: June, 2021
Submission: June, 2021
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Generally, the legal framework for human rights complaints involves a two-stage inquiry. At the first stage, the complainant has the burden of demonstrating prima facie for discrimination on a balance of probabilities. At the second stage, the burden shifts to the respondent to justify the prima facie discriminatory conduct or practice.
The Supreme Court of Canada set out the basic three-part test for prima facie discrimination in Moore v British Columbia (Education). However, courts and tribunals have applied this test inconsistently in cases of discrimination based on family status and, in some jurisdictions, have added a fourth requirement. For example, in British Columbia, complainants are required to demonstrate a "serious interference with a substantial parental or other family duty or obligation." In other jurisdictions, the complainant must demonstrate that "he or she has made reasonable efforts to meet [the] childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible."
In United Nurses, the Alberta Court of Appeal seized the opportunity to end the debate in that province, ruling that cases that import "a fourth requirement of self-accommodation into the Moore test for prima facie discrimination are wrong, and inappropriately hold family status complainants to a higher standard than other kinds of discrimination."
The complainant, a registered nurse with two young children, filed a grievance after her employer introduced changes to shift rotation schedules and denied her family status accommodation request to maintain her existing shift schedule for childcare reasons. When the employer denied her family status accommodation request, the complainant dropped from full time status to casual status in order to meet her childcare obligations.
The majority of the arbitration board dismissed the grievance, finding that the complainant had not made out a prima facie case of discrimination. Central to this decision was the majority's finding that the complainant had not demonstrated sufficient efforts to self-accommodate.
The complainant applied for judicial review. The reviewing judge found that the arbitration board applied the wrong legal test for prima facie discrimination and unreasonably required the complainant to prove self-accommodation. The employer appealed. The Court of Appeal agreed with the lower court.
Court of Appeal's Decision
The Court observed that the Moore test for prima facie discrimination applies to all discrimination claims. In the absence of a decision from the Supreme Court of Canada altering that test in family status cases, the Court held there is no legal justification for imposing an additional, burdensome element of proof on family status claimants.
The Court expressed concern that that application of different tests or standards to different categories of discrimination frustrates the ameliorative purpose of human rights law and begets inequality. With respect to family status claims, specifically, the Court viewed the self-accommodation requirement as an unacceptable barrier to substantive equality:
In our view, Johnstone represents an unacceptable, differential work-around which primarily adversely affects working Canadian women with dependent children (and elders), and promotes the polar opposite of substantive equality.
For employers in Alberta, this ruling does not prohibit entirely an inquiry into a complainant's efforts to find available, reasonable alternative childcare arrangements. Those efforts may be relevant at the second stage of the discrimination inquiry when assessing accommodation to the point of undue hardship. The Court was clear, however, that accommodation is a multi-party inquiry and not something for which the complainant is solely responsible.
As a practical matter, until the Supreme Court of Canada weighs in on the proper test for prima facie discrimination in family status cases, complainants in different jurisdictions will be subject to differing standards. In Alberta, it is now clear that complainants need not prove reasonable efforts to self-accommodate. In contrast, it is likely that complainants in British Columbia will still be required to demonstrate a "serious interference with a substantial parental or other family duty or obligation" in order to establish family status discrimination.
If you have any questions regarding family status discrimination, please contact a member of our Labour, Employment & Human Rights Group.
 Moore v British Columbia (Education), 2012 SCC 61.
 Health Sciences Assoc of BC v Campell River and North Island Transition Society, 2004 BCCA 260.
 Canada (Attorney General) v Johnstone, 2014 FCA 110.
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