As we have written previously, the test to determine whether an employer has a duty to accommodate family status is not consistent in all Canadian jurisdictions. In United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 (United Nurses ABCA), the Alberta Court of Appeal (ABCA) recently left no doubt that, as indicated in 2015 by the Alberta Court of Queen’s Bench (ABQB) in SMS Equipment Inc v. Communications, Energy and Paperworks Union, Local 707, 2015 ABQB 162 (SMS Equipment), the applicable test for establishing a prima facie case of family status discrimination in Alberta is the three-part test established by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 (Moore), which also applies to other enumerated grounds of discrimination.
Alberta’s Reliance on The Moore Test
By way of background, the Moore test is a more lenient test than the four-part “Johnstone test” for establishing a prima facie case of family status discrimination in the workplace, which the ABCA expressly rejected in United Nurses ABCA. The Johnstone test was set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (Johnstone), and it is applied consistently in the federal jurisdiction, and often applied in jurisdictions outside British Columbia and Alberta, including inconsistently in Ontario.
The Johnstone test provides that:
…in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, 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 engages the 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 than trivial or insubstantial with the fulfillment of the childcare obligation. (para. 93)
The Moore test, applicable to discrimination claims more broadly, is set out below:
- Does the complainant have a characteristic that is protected from discrimination?
- Has the complainant experienced an adverse impact?
- Has the complainant demonstrated that the protected characteristic was a factor in the adverse impact?
The ABQB in SMS Equipment emphasized that the Moore test should be applied flexibly and contextually, demonstrating that family status is a factor in the adverse impact. The court noted that this element (that is, point 1 of the Moore test) would require a demonstration of only the first two factors in the Johnstone test:
A claimant must show “that a child is under his or her care and supervision” and “that the childcare obligation at issue engages the individual’s legal responsibility for the child, as opposed to a personal choice.” This follows from the determination that “family status” includes “childcare obligations”, not personal choices. (para. 76)
The United Nurses Litigation
In 2019, in United Nurses of Alberta v. Alberta Health Services, 2019 ABQB 255 (United Nurses ABQB), the ABQB overturned a family status discrimination decision of an Arbitration Board (Board) and remitted the matter back for rehearing before a freshly constituted board.
The complainant was a full-time registered nurse and the mother of two children. When her employer made changes to its shift schedules, the nurse asked for a family status accommodation to allow her to continue to work her existing shifts. When the nurse’s request was denied she began to work on a casual basis to meet her childcare obligations. The grievance filed on the nurse’s behalf was dismissed by the Board, which found that the nurse had not made sufficient efforts to self-accommodate.
Upon judicial review of the Board’s decision, the ABQB concluded that the Board applied the wrong legal test when it required the grievor to prove self-accommodation to establish a prima facie case of discrimination. The court stated that “the ‘correct’ articulation of the prima facie discrimination test” was provided by the arbitrator in SMS Equipment (i.e., the Moore test). (para 52)
The decision of the ABQB was appealed to the ABCA, resulting in the recent United Nurses ABCA holding. The ABCA acknowledged its authority to decide the correct test for prima facie discrimination in family status cases. The ABCA dismissed the appeal and clarified the law, bringing certainty that it is the Moore test that applies in Alberta. Accordingly, there is no requirement in the province to demonstrate reasonable efforts to self-accommodate, as required in Johnstone:
In our view, the nature of human rights and the rule of law, require one uniform and consistent test for determining prima facie discrimination in all cases. That test was laid down by the Supreme Court of Canada in Moore. There is no legal justification for the imposition in Johnstone of an additional, burdensome element of proof on family status claimants at the prima facie discrimination stage. Imposing a more onerous self-accommodation burden in this manner perpetuates rather than ameliorates human rights inequality. Inequality undermines the rule of law: Fraser v. Canada (Attorney General), 2020 SCC 28, 450 DLR (4th) 1. (para. 7)
The ABCA stated further:
While the Supreme Court of Canada has not yet specifically applied the Moore test to the protected ground of family status, the test has nevertheless been adopted in Canada as the leading framework for establishing prima facie discrimination. Until the Supreme Court expressly alters the test for prima facie discrimination in family status cases, the Moore test governs in such matters. (para. 65)
Bottom Line for Employers
The decision in United Nurses ABCA leaves no doubt that in order to prove family status discrimination in Alberta, a complainant will be required to satisfy the Moore test and will not be required to prove self-accommodation.
Nonetheless, there is a lingering patchwork of family status accommodation requirements across Canada. Employers that have operations in multiple Canadian jurisdictions will be held to different standards in different jurisdictions. For example, the test established in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 is applied in British Columbia; it requires claimants to demonstrate that a change in a term or condition of employment imposed by their employer results in a “serious interference with a substantial parental or other family duty or obligation.” The Johnstone test is applied consistently in the federal jurisdiction and other jurisdictions outside British Columbia and Alberta, although there seems to be uncertainty as to whether the Johnstone test or the test set out in Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (Misetich) applies in Ontario. Mistetich requires the employee to establish a negative impact on a family need that results in a real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.
As noted in our prior article, if an employer has operations in multiple Canadian jurisdictions and they accommodate the family obligations of employees in jurisdictions where the test is more lenient, but refuse to do so in jurisdictions where the test is more stringent, employee resentments are likely to develop.
In view of these issues, we continue to recommend that employers with operations in multiple jurisdictions in Canada:
- Develop company-wide accommodation policies that take a reasonable approach to legitimate childcare and eldercare obligations, erring on the side of flexibility rather than rigidity in establishing schedules and other arrangements;
- When asked to accommodate an employee’s childcare or eldercare obligations, have an open dialogue with the employee as soon as possible to ensure the employee’s accommodation needs are accurately understood;
- Analyze each employee request for accommodation of childcare or eldercare obligations in a reasonable manner, taking into sincere consideration whether the request will actually cause difficulty for the employer;
- Upon receiving the employee’s consent, open a dialogue with relevant employees to determine if they are prepared to assist in facilitating the requested accommodation;
- If appropriate, arrange for a temporary accommodation to allow the employee to put satisfactory childcare or eldercare in place; and
- Offer the employee an employee assistance program that can assist in identifying satisfactory childcare or eldercare support.