Alberta Court Of Appeal Confirms Test For Family Status Discrimination

• Published date: 15 July 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Stikeman Elliott LLP
• Author: Mr Gary Clarke, Alain Saint-Onge and Maja Blanchette

The recent decision of United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 ("UNA"), affirmed that the Moore test for prima facie discrimination, as set down by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 ("Moore"), is the appropriate test for determining family status discrimination cases in Alberta.

In our previous post on the issue of family status discrimination, we highlighted that there remains considerable divergence between Canadian jurisdictions on the appropriate legal test to be applied to claims of family status discrimination. While the Supreme Court of Canada ("SCC") had the opportunity to establish a uniform test for family status discrimination in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46, leave to appeal to SCC refused, 38580 ("Suen"), it declined to grant leave to appeal. As a result, there continues to be no unified test for family status discrimination and the applicable test depends on the jurisdiction where the discriminatory conduct is alleged to have occurred.

The recent UNA decision affirms the applicable test in Alberta and emphasizes the province's divergence from the federal test.

Facts and Summary of Previous Decisions

The complainant in UNA was a registered nurse, working for Alberta Health Services ("AHS"). AHS changed the complainant's work schedule, resulting in the complainant alleging an interference with her childcare obligations. The complainant's union grieved the schedule change and alleged that it had failed to accommodate her family status. The labour arbitration board ("Board") dismissed the grievance. The Board applied the Johnstone test, as set out by the Federal Court of Appeal in Johnstone v. Canada (Border Services Agency), 2014 FCA 110 ("Johnstone"). Based on the Johnstone test, the Board concluded that the complainant had failed to establish prima facie discrimination because she had not exhausted all options for alternative childcare and had not discharged her duty of self-accommodation. The majority of the Board noted that the comments in the Alberta decision of SMS Equipment Inc. v. CEP, Local 707, 2015 ABQB 162 ("SMS"), regarding the proper test for prima facie discrimination were obiter, and therefore not binding on them, leaving them free to prefer and apply the Johnstone test.

The union was successful on judicial review and the Alberta Court of Queen's Bench ("ABQB") directed the matter be sent back for rehearing. The ABQB...