Meeting 21: Family Status and Social Media in Recent Case Law Discrimination in the Workplace

Mou v. MHPM Project Leaders, 2017 HRTO 246 (CanLII)

In 2016, Wenying (Winnie) Mou alleged discrimination on the grounds of disability when she lost her employment after a series of events that affected her profoundly. In particular, the applicant alleges that in January 2013, she was injured as a result of slipping and falling on ice. The applicant was required to take time off for this injury and although she attempted to return to work a number of times, she was not able to do so until late January 2013. In May 2013, the applicant learned she was pregnant with her first child. In early June 2013, the applicant suffered a miscarriage. Shortly thereafter, the applicant’s mother-in-law passed away; both events triggered a very severe and disabling depression.

As a result of her absences from work, she did not achieve her required 1800-hour target for 2013, and she received her first negative evaluation in terms of performance. The applicant was terminated on February 27, 2014.

The respondent argues that the Application should be dismissed because the applicant has failed to establish a disability. It asserts that in order for an injury or illness to constitute a disability, there must be an aspect of permanence and persistence to the condition.

The Court refused the request of dismissal because the applicant had established a disability and she was terminated before recovering from it.

Later, in 2017, the Court held the hearing of the case to determine whether the respondent’s decision of firing the applicant was discriminatory on the grounds of disability.

The Court acknowledges that the respondent was, in fact, worried because of the absenteeism of the applicant, because they had a meeting in December 2013 to discuss it. Later, in February of 2014, the applicant was dismissed alleging shortage of work. Due to the time proximity, the applicant believed that the reason for their dismissal was due to absences related to a disability.

However, the respondent provided a sound explanation as to the reason for dismissal (i.e. a lack of work in Eastern Ontario and not the applicant’s absences). This reasoning was accepted by the Court. Consequently, the application was dismissed because the applicant could not established a prima facie case of discrimination.

Questions to be Determined:

1. Did the applicant (Wenying Mou) succeed in establishing a disability that should have been accommodate under the Ontario Human Rights Code?
    
2. Was the applicant (Wenying Mou) discriminated against with respect to employment because of her disability?

Findings:

1. Did the applicant (Wenying (Winnie) Mou) succeed in establishing a disability that should have been accommodate under the Ontario Human Rights Code?
   
   YES
    
2. Was the applicant (Wenying Mou) discriminated against with respect to employment because of her disability?
   
   NO

Reasoning:

In this case the arbitrator denied the solicitude of dismissal because the applicant did establish a disability:

In my view, injuries resulting from a slip and fall that take almost three weeks to heal constitute a disability under the Code. The applicant attempted to return to work on two occasions, but was unable to do so because of the extent of her injuries. The respondent advised the applicant to inquire about short term disability coverage. An injury of this nature is not a common ailment, nor is it transitory. (para. 20)

Furthermore, the Court found that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability, because it can cause severe emotional scars, like in Mou’s case when she kept experiencing significant emotional distress after the event.

The Court disagreed with the assertion that in order to constitute a disability, the condition must have an aspect of permanence and persistence. The applicant also complains about the respondent’s treatment of her work-related absences as a performance issue when those absences were connected to her health, therefore, the respondent’s request to dismiss the Application was denied.

 In a second hearing, the Court determined whether the respondent’s decision of dismissing the applicant was discriminatory on the grounds of disability after the numerous absences of the applicant during 2013. As prove, the applicant stated a meeting held in December 2013 when the respondent expressed their concerns about her attendance and offered her help to improve it; the applicant asserted that the absences were isolated incidents and vowed to achieve the minimum hours she was hired for.

It is clear from the email that was prepared on the day of the meeting that the purpose of the meeting was two-fold. It was to notify the applicant that her absences in 2013 were a problem and also to provide the support that she required in order to improve her attendance. There is no question the respondent was concerned about the applicant’s absenteeism in 2013, and that this absenteeism included disability-related absences. (para. 32)

Later, in February 2014, she was let go. In response, the respondent asserted that the dismissal was due to a shortage of jobs in Eastern Ontario. Due to the proximity between the meeting and the dismissal, the applicant believes that her disability-related absences were a factor in her termination. However, the timing does not constitute discrimination per se. The court believes that the absences were not a factor in the dismissal, because the respondent’s version was more believable:

Ashley testified that there was less work in 2013 and 2014 because of a slow-down in the real estate market. He testified that no intermediate project managers were hired in 2013, and only two were hired in 2014 for a hospital in Nunavut. This evidence is consistent with the decision by Public Works to remove the intermediate and senior project managers on the East Block in December 2013. (para. 45)

There is no question that the respondent was concerned about the applicant’s attendance in 2013. However, that fact alone is not discriminatory. The evidence does not establish that the applicant’s absenteeism played a role in the decision to terminate her employment. It is for this reason that the Application is dismissed. (para. 48)

In consequence, the application was ultimately dismissed. 

Maciel v. Fashion Coiffures, 2009 HRTO 1804 (CanLII)

Jessica Maciel, the applicant, was hired to work as a receptionist in two related salons operated by the respondent in the Erin Mills Town Centre. At the time when she was hired she was just over four months pregnant, but the employer was not aware of her pregnancy when signing the employment contract.

The parties agree that the applicant commenced work at Nino D’Arena on August 11, 2008 in the morning. The person training Ms. Maciel was Meena Gaidhu. With respect to what happened that morning, the parties’ versions are in conflict. Maciel states that one hour into her first day shift she experienced nausea and went to the washroom. When she returned Ms. Gaidhu, who was training her, asked if she was okay, and at that point, the applicant disclosed her pregnancy. Ms. Gaidhu then explained that there were some problems related to pregnancy and employment in the past and that Ms. Maciel should talk immediately with Ms. Conforti, the business manager. The applicant followed this advice and had a meeting with Ms. Conforti that morning.

The applicant testified that the meeting went well. Ms. Conforti congratulated her on her pregnancy. Then her tone changed and she expressed concern about the applicant’s long-term availability. The applicant told her that she was there for the long term, but this did not satisfy Ms. Conforti’s concerns. The applicant said that to allay

Ms. Conforti’s concerns she offered to work part-time to see how it worked out, but this did not seem to make any difference. Ms. Conforti told the applicant she would speak to “head office” and let her know the decision. Soon after this conversation, the applicant was let go. The following day, the applicant received a phone call from Ms. Conforti, who told her she could not fill the receptionist position for which she had been hired because she would be going off on maternity leave.

Ms. Conforti testified that the applicant asked to meet on her first day of employment stating that she no longer wanted a full-time position and asked for a part-time position. Ms. Conforti did not ask any questions about the change, and testified that she advised the applicant that she had no part-time work to offer her in the two salons she managed. Right after, she did not see a point in moving forward with the training and sent Ms. Maciel home. After that first phone call, Ms. Conforti testified that she wrote a letter in which she advised the applicant that she had been hired into a position with set hours and reiterating that she did not have a part-time position to accommodate the applicant’s request for 20 hours a week. Ms. Conforti claims no knowledge of the pregnancy.

Even though the parties presented two opposite views of the events, the Court found Ms. Maciel’s version more believable, because there was no credible reason given for why the applicant, having applied for and accepted a full-time position, would propose on her first day of employment that she wanted to work part-time.

Moreover, during the trial, Ms. Conforti’s counselor consulted the OHRC’s Policy on Pregnancy, which was deemed “strange” by the Judge especially if, as the respondent asserted, she had never disclosed her pregnancy to Ms. Conforti.

For these reasons, the Court established a prima facie case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19; and it determined the total of $35,719 in reparation for wage loss, maternity leave benefits loss, and compensation for injury to her dignity, feelings and self-respect.

Question to be Determined:

1. Is there a prima facie case of discrimination on the basis of sex (pregnancy), contrary to the Code?

Findings:

1. Is there a prima facie case of discrimination on the basis of sex (pregnancy), contrary to the Code?

YES

Reasoning:

In this case, there are several factors that lead the Court to prefer the applicant’s version of events over the respondents’ version:

First, there was no credible reason given for why the applicant, having applied for and accepted a full-time position, would propose on her first day of employment that she work part-time… The question of hours highlights another problem with the respondents’ case, namely Ms. Conforti’s complete lack of curiosity about what the applicant meant when she purportedly asked for 20 hours a week. (para. 33)

After the dismissal and a phone call, Ms. Conforti wrote a letter to the applicant stating that no part-time work was available:

I find it inconsistent that she would go to the effort of confirming that there was no part-time position and specifically set out which hours the applicant was expected to work, but then shred the contract of employment between the parties. This carefully constructed letter is more consistent with the applicant’s evidence that in one of the post-termination telephone calls she advised Ms. Conforti that it was discriminatory to fire someone because they were pregnant and asked for her contract of employment. (para. 41)

Finally, the Court dismissed the two examples of previous maternity leave accommodations that Ms. Conforti had made, these were deemed as irrelevant to the case.

Remedy:

The Court awarded compensation of $35,719 in reparation for wage loss, maternity leave benefits loss, and compensation for injury to her dignity, feelings and self-respect.

$9,060.00 – loss of employment income

$11,659.00 – loss of maternity and parental leave benefits

$15,000.00 – compensation for injury to her dignity, feelings and self-respect 

Communications, Energy and Paperworkers Union (CEP), Local 707 v. SMS Equipment Inc., 2015 ABQB 162 (CanLII)

The Grievor moved to Fort McMurray and started working as a labourer with the Employer on November 30, 2010, working 14 days on and 14 days off, with rotating day and night shifts each 14-days. In February 2012, the Grievor gave birth to a second son. While she was on maternity leave, she applied for a first-year welder apprentice position with shifts of seven days on and seven days off with rotating tours of days and nights. After getting accepted, the Grievor returned to work with the Employer on October 11, 2012, several months prior to the expiry of her maternity leave.

On November 8, 2012, after her first night shift, the Grievor requested to be permitted to work straight day shifts, rather than rotating day and night shifts, because the work schedule of her older son’s father had changed and he was no longer providing any significant childcare; and the father of her younger son had no involvement with his child. The Employer refused her request on November 20, 2012.

Afterwards, in December 2012, the Union filed a grievance on the Grievor’s behalf, claiming the Employer violated the prohibition against discrimination on the basis of family status when it refused to accommodate the Grievor’s childcare requirements.

In March 2013, the Grievor spoke to an employer human resources representative. The Grievor explained that she had obtained childcare but it was too expensive to pay for childcare both during the nights while she worked and during the days while she slept, as a consequence, she looked after the children herself during those days resulting in sleep deprivation before going to work. Rather than searching for suitable accommodations, the Employer discussed the contributions, or lack thereof, by her sons’ fathers in relation to expenses and childcare.

On May 9, 2013, the Union requested a shift modification for the Grievor and another welding apprentice, who was prepared to work a schedule of exclusive nights while the Grievor would work a schedule of exclusive days. The Employer denied the request. Then, the Union’s grievance proceeded to Arbitration which resulted in a positive case of prima facie discrimination on the ground of family status, and the company was directed to accommodate the Grievor by allowing her to work a straight day shift.

SMS Equipment Inc. later appealed the decision, but this was also dismissed by Alberta’s court.

Question to be Determined:

1. Does “family status” include the duties and responsibilities of childcare?
2. Did the Union establish a prima facie case of discrimination?
3. Has the Employer established that its rule or policy is a “bona fide occupational requirement”?

Findings:

1. Does “family status” include the duties and responsibilities of childcare?
   
   YES
    
2. Does the Union has established a prima facie case of discrimination?
   
   YES
    
3. Has the employer established that its rule or policy is a “bona fide occupational requirement”?
   
   NO

Reasoning:

In this case, the Court used Johnstone v. Canada Border Services [2010] C.H.R. D. No. 20 (“Johnstone 2010”), also a case related to working nights shifts, and other pieces of jurisdiction to determine whether family status includes childcare responsibilities:

It is difficult to have regard to family without giving thought to children in the family and the relationship between parents and children. The singular most important aspect of that relationship is the parents’ care for children. It seems to me that if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so.

In result, I conclude the Tribunal’s conclusion that family status includes childcare obligations is reasonable. It is within the scope of ordinary meaning of the words; it is in accord with decisions in related human rights and labour forums; it is in keeping with the jurisprudence; and it is consistent with the objects of the Act. (para. 112 & 113)

At the same time, the Court took into consideration the special circumstances of being a woman in a non-traditional sector.

The Grievor is a single parent of two children under the age of six. The fathers of her children provide virtually no childcare and she has no other family residing in Fort McMurray. The Employer requires that employees work rotating night and day shifts. The adverse effect upon the Grievor is that on the weeks she is required to work nights, she must either look after her children herself and sleep only a few hours each day or spend hundreds of dollars per month for additional childcare while she sleeps. The Grievor asked to work exclusively day shifts. She found another employee in the same classification who is prepared to work exclusively night shifts. Some other employees have been permitted to work exclusively night shifts. For reasons that have not been provided, the Employer rejected her request for accommodation. (para. 56)

For these reasons, the Court determined that the adverse effects suffered by the Grievor (going sleepless or spending additional sums of money for childcare while she sleeps) were a direct consequence of the Employer’s policy on working rotating shifts. In consequence, the Union did established a prima facie case of discrimination on the ground of family status, because the Employer’s rule requiring welders to work night shifts has the effect of imposing a burden on the Grievor due to her childcare responsibilities that is not imposed upon welders who do not share her status.

The Employer argues that this case is about personal choices of the Grievor. Specifically, choices about where and with whom she lives; who she is prepared to have care for her children; which vehicle she drives; whether to pursue legal remedies against her children’s father for financial support; and which job she chose to pursue. It argues that decisions like Jungwirth and Power Stream require employees to prove they have taken all reasonable steps to “self-accommodate” before a prima facie case of discrimination may be established and the Grievor has not taken all appropriate steps to do so in this case. (para. 64)

Finally, the Employer did not present any evidence that accommodating the Grievor by permitting her to work exclusively nights would cause it undue hardship. Accordingly, the Employer has not established that its rule or policy is a bona fide occupational requirement and hence the Employer’s rule requiring the Grievor to work rotating night and days shifts is discriminatory.

Remedy:

The Court directed the Employer to forthwith accommodate the Grievor by permitting her to work a straight day shift, and also directed the Employer, Union and the Grievor to meet to discuss any other reasonable forms of accommodation to address the current circumstances of the Grievor and the Employer.

A.B. v. The City of Yellowknife, 2016 NT HRAP 19718 (CanLII)

The complainant has a child with special needs related to autism and used to work about twenty hours per week as a cashier-receptionist for the City of Yellowknife from 2006 to 2010. In September 2011, the complainant moved to the position of full-time booking clerk and during the summer and Christmas school break she was approved the entire period off to take care of her child. Even though there was not a specific agreement, there was a general understanding that the respondent would accommodate the complainant.

On March 28, 2012, the complainant met with the respondent to discuss her request for the summer of 2012 off. She was granted a partial accommodation, and when the complainant indicated that working evenings and weekends would leave her too stressed and tired, the Human Resources Officer said she would have to get a doctor’s note to explain why she could not work. On April 19, 2012, the complainant met with the respondent with letters from Dr. Ewan Affleck, supporting her request on the basis that requiring the complainant to work as proposed would have a “deleterious impact” on the child, and another letter from the Northwest Territories Disabilities Council stating that they could not support the child in its summer camps because of the child’s complex needs and behavioural risks.

The complainant described how working evening and weekends would affect her quality of life. She had been unable to have dates with her husband and working would prevent her from having a family vacation. The Human Resources Officer perceived the complainant’s comments as an admissions that the complainant felt entitled to summer vacation and “date nights”. On June 19, 2012, the complainant met again with the respondent with a letter from Dr. Nicole Radziminski, which explained the child’s need for a routine and proximity to “people he is comfortable with and who are capable of managing his needs”.

The respondent deemed the letters provided by the complainant insufficient, since they did not come from the complainant’s own doctor or establish her own medical need. The complainant resigned in mid-July after using the last of her annual leave.

Question to be Determined:

1. Did the complainant establish a prima facie discrimination based on family status?
    
2. Did the respondent establish a bona fide occupational requirement for the complainant to work evenings and weekends?
    
3. Did the respondent accommodate to the point of undue hardship?

Findings:

1. Did the complainant establish a prima facie discrimination based on family status?
   
   YES
    
2. Did the respondent establish a bona fide occupational requirement for the complainant to work evenings and weekends?​
   
   NO
    
3. Did the respondent accommodate to the point of undue hardship?
   
   NO

Reasoning:

In this case, the respondent dismissed the complainant’s reasons for having a structured routine, even though she presented several letters supporting her testimony:

There is conflicting evidence about comments made by the complainant during one of the earlier meetings. The complainant described how working evening and weekends would affect her quality of life. She had been unable to have dates with her husband and working would prevent her from having a family vacation. The Human Resources Officer perceived the complainant’s comments as clear admissions the complainant felt entitled to summer vacation and “date nights”. (para. 12)

The complainant and educational workers presented evidence regarding the complainant’s childcare situation in 2012. She was fully prepared to take care of her child and she was the most suitable person to fill his specific needs. But the respondents were not aware of all the extra care the child would need, even though the Human Resources Manager had taken special training on accommodation and Human Rights.

On top of that, The City did not have a policy specific to accommodation based on family status. It has accommodated employees on this basis, mainly with minor scheduling changes. And even though the complainant asked for the summer and Christmas break off the previous year, the City did not make any arrangements to take care of the situation in 2012.

The test for discrimination on the basis of family status is set out in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) at para. 95: 2016 CanLII 19718 (NT HRAP)7

…the individual advancing the claim must show (i) that a child 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. 19)

 In this case the Court decided that all of these criteria had been met, specially the second one, because the Court established that, for the complainant, having the evenings and weekend off was a legitimate need in order to keep taking care of her child. Furthermore, the respondent’s proposed schedules were not reasonably accessible, and they did not prepare any accommodation for 2012, knowing that in 2011 A.B. was granted full-time accommodation during the Christmas break and summer time period.

The complainant’s childcare needs were no less in 2012 than they were in 2011. The respondent’s circumstances had not changed in terms of the number of employees on staff, hiring practices or operational needs. The City had an employee who was granted full accommodation in 2011 and expected the same in 2012, notwithstanding differing views as to whether there was an agreement.

The City nonetheless waited for the complainant to raise the issue before beginning to discuss alternatives to full accommodation. In the meantime, the respondent did nothing to address problems with the student by considering another substitute or training a replacement. The only party that could have done anything about the operational need for effective bookings was the respondent. The circumstances were not new, and should not have come as a surprise. (para. 47 & 48)

Finally, the court determined that the complainant’s request for the 2012 summer off would not have imposed an undue hardship on an organization with the size and capacity of the City; therefore, the respondent’s inflexibility prevented it from taking a remedial approach incurring in a Human Rights violation.

Remedy:

The following is a summary total of the monetary remedies outlined in these reasons for decision:

• $35,213.47 for lost income and benefits;
• $129.07 for hearing expenses;
• $15,000.00 for injury to dignity, feelings and self-respect; and
• $5,000.00 in exemplary damages;

Total:      $55,342.54

Sally Rowley v. 1145678 Ontario Limited and Stuart MacDonald, 2015 HRTO 776

The applicant, Sally Rowley, alleged discrimination on the basis of family status after she was fired from a car dealership. Rowley states that she was dismissed because she made a couple of personal phone calls regarding her son, who has special needs. The respondents’ deny that the applicant was terminated because of her son or because she took personal calls and/or because she was away from work on a couple of occasions. The respondents’ position is that the applicant was terminated for “over socializing”, not being at her position and performing her job, and returning late from lunch on more than one occasion

The applicant was employed as a service coordinator from January 6, 2014 until February 14, 2014 when she was terminated. She reported to the personal respondent. 

On February 14, 2014, the personal respondent asked to see the applicant before she left for the day. When she reported to his office, he told her that she was being relieved from her employment, and he did not provide a reason as she had not been an employee for three months. The applicant told the personal respondent that she did not accept his reason for her termination and demanded to see Mr. Herrmann. He re-stated the same reasons for firing her and she did not inform him about her special needs son.

During the hearing the application was found not discriminatory on the ground of family status.

Question to be determine:

1. Did the complainant establish a prima facie discrimination based on family status?

Findings:

NO

Reasoning:

In this case, Rowley did not provide sufficient proof of her accusation and she admitted that she went to other departments during working hours to chat with other employees:

While the applicant points to her absences from work and receipt of personal telephone calls as reasons, at least in part, for her termination, I find that the applicant has not been able to prove that her family status was the reason for, or a factor in, her termination. I accept the uncontradicted evidence that the personal respondent told the applicant that she was terminated for reasons other than personal telephone calls and leaving work because of her son. (para. 35 & 36)

On top of this, Mr. Herrmann was not aware that the applicant had a special needs child, but the personal respondent was aware of her son. However, this information was never communicated to Mr. Hermann:

By itself, Mr. Herrmann not knowing that the applicant had a special needs child as of February 14, 2014 would undermine the applicant’s allegation that she was terminated because of her family status of having a special needs child. (para. 39)

Therefore, the applicant has not been able to prove that Mr. Herrmann knew that she was receiving telephone calls in relation to her child or was taking time off work to attend to her child, or that these were factors in deciding to terminate her. The Court found the respondent’s explanation more believable and dismissed the application stating that the applicant did not establish a prima facie case of discrimination.

Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (CanLII)

The applicant, Tonka Misetich, alleged discrimination with respect to employment because of family status. In this case, the proposed change to Tonka’s work schedule at Value Village, to accommodate her physical restrictions, prohibited her from taking care of her eldercare responsibilities.

The applicant commenced employment with the respondent in April 2006 at its Niagara Falls store working as a part-time sales clerk working at the front of the store in retail. During this time, the applicant worked days, evenings and on-call. Around June 2010, the applicant moved to a production position in the back of the store and started working straight days, Monday to Friday.

In January 2013, the applicant developed a repetitive strain injury in her left hand and arm. In order to accommodate this disability, Value Village offered temporary, modified duties that would fit her physical restrictions. She would go back to the retail floor and her schedules would also change to rotating shifts. 

The applicant declined the respondent’s offer of modified duties on January 16, 2013. She returned the January 10, 2013 letter to the store manager with a hand-written note which stated the hours would place a hardship on the applicant because she prepared evening meals for her mother. Misetich also sent letters stating that she was only available to work regular hours Monday-Friday.

On June 28, 2013, the store manager sent the applicant a registered letter regarding her failure to provide medical evidence to support her ongoing absence from work, as well as her failure to provide medical evidence to support her request for accommodation as a result of her eldercare responsibilities. She was asked to submit a letter indicating that she was: a. the primary caregiver for her mother, b. the parent requiring elder care is unable to safely perform the duties, c. there is no one other than herself who is able to provide the care, and d. she has taken all reasonable steps to self-accommodate and/or resolve the conflict created.

The applicant responded in writing to this letter on July 4, 2013, stating that the request of information about her mother’s need was “insulting and offensive” (para. 13), and refused to share medical and confidential information. The respondent requested the applicant provide a physician’s statement to validate her continued absence from work. It was not until August 19, 2013, when Misetich’s family doctor confirmed that she was only able to work regular hours.

The claims manager did not accept the statement because she believed the doctor was the applicant’s doctor, not the mother’s doctor. The claims manager requested evidence, other than from the applicant, that there were no reasonable alternatives available to care for her mother beyond 5 p.m.

In the August 30, 2013 letter, the applicant was advised that her failure to cooperate with the respondent’s directives may be viewed as insubordination and could put her employment in jeopardy.

The applicant did not work her scheduled September shifts and on September 16, 2013, the store manager sent the applicant a third registered letter requesting medical documentation. On September 24, 2013, the applicant provided a handwritten note advising them that her doctor was on vacation until September 30, 2013, and that she was not abandoning her position. On October 1, 2013, the store manager terminated the applicant’s employment for job abandonment. The same day, the applicant attempted to provide a doctor’s note but it was dismissed by the store manager.

Question to be determine:

Did the complainant establish a prima facie discrimination based on family status?

Findings:

NO

Reasoning:

The Court used the case Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (“Johnstone”) as a test to assess the potential discrimination, even though the test of legal responsibility is difficult to apply in the context of eldercare.

The issue discussed in this case, started on January 10, 2013 when the respondent offered a change of position to accommodate the applicant’s disability request. Upon receiving the proposal, the applicant asserted the change in hours would create a hardship for her because she had eldercare responsibilities and prepared evening meals for her mother. Over the next ten months, the respondent requested medical proof from the applicant regarding her mother’s care.

The applicant provided little information to the respondent because she believed the respondent was not entitled to private information about her mother. The applicant was angry that this information was even requested. In January 2013, she told the respondent that she prepared evening meals for her mother. In February 2013, she told 2016 HRTO 1229 (CanLII) that she cared for her 86-year old parent. In July 2013, she advised the respondent that she would not share her mother’s confidential and private medical information. (para. 61)

Further, the applicant even advised her doctor to not to disclose medical or personal information to Value Village. Given the lack of details regarding Ms. Misetich’s eldercare needs, the Court considered that:

The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. (para. 64)

For these reasons, the applicant failed at establishing a prima facie case of discrimination. And even though she provided more evidence during the hearing to support her case, she failed in doing so during the accommodation process with Value Village.

Had the applicant provided this information to the employer, the applicant may have been able to establish that the proposed change in hours constituted adverse treatment on the basis of her family status. Had she done so, the respondent may have been obligated to accommodate the applicant’s eldercare responsibilities up to the point of undue hardship. That accommodation may have been to permit the applicant to work days in production (if there were tasks the applicant could physically perform) or in retail. However, all of this is theoretical because the applicant did not communicate this information to the respondent. (para. 72)

Finally, the Court determined that the termination of employment was not discriminatory in nature and the application was dismissed.