Clarity From Confusion: Court Confirms Test For Family Status Discrimination

Published date19 July 2021
Subject MatterEmployment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
Law FirmField LLP
AuthorMr Kelly Nicholson

Jonathan Swift once observed that there is nothing constant in the world but inconsistency. The truth of that statement is nowhere more apparent than in the Canadian law governing family status accommodation, where the legal test applied to a complaint to determine its merit depends largely upon the geographical location of the complainant. Different jurisdictions have developed different approaches to the issue. The principal controversy concerns the question of whether complainants must demonstrate that they have made sufficient efforts to solve their problems themselves - to "self-accommodate" rather than rely upon their employers for accommodation - to establish a case of prima facie1 discrimination.

Swift's observations notwithstanding, a measure of consistency has finally been achieved - at least in Alberta - with the release of the Court of Appeal's decision in United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 ("Daigle"). In Daigle, the Court stated with some force that the proper test for establishing a case of prima facie family-status discrimination in Alberta is the three-part test for prima facie discrimination in general, described by the Supreme Court of Canada in Moore v British Columbia (Education), 2012 SCC 61 ("Moore"). The Court thus definitively disapproved of the more-onerous test articulated by the Federal Court of Appeal in Canada (Attorney General) v Johnstone, 2014 FCA 110 ("Johnstone"), which applies specifically to complaints of family status discrimination in workplaces under federal jurisdiction, and which is sometimes applied in provincially governed workplaces as well.

The Legal Backdrop: Moore and Johnstone

The central difference between the Moore and Johnstone tests concerns the issue of self-accommodation: that is, to what extent are a complainant's own efforts to provide reasonable self-accommodation relevant, and at what stage of the analysis should they be considered? In the Moore analysis, a complainant attempting to establish a case of prima facie discrimination of any kind, including family status discrimination, must prove (on a balance of probabilities) the following three criteria:

  1. That the complainant had a protected characteristic under the applicable human rights legislation;
  2. That the complainant suffered an adverse impact; and,
  3. That the protected characteristic was a factor in or was connected to the adverse impact.

Notably, in the Supreme Court's view, the question of self-accommodation is not a factor at this...

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