Tribunal Confirms the test for Family status discrimination is no different than for other grounds of discrimination

  • March 30, 2021
  • Anoop Kalsi

Family status discrimination has been a hot issue at the Ontario Human Rights Tribunal, particularly because the test for family status discrimination may not have been as clear as some would hope. Much of the confusion arises as to whether the Federal Court of Appeal decision in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (Link) [“Johnstone”] or the Tribunal’s decision Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (link) [“Misetich”], established the appropriate test for family status discrimination.

If following Johnstone, an employee must take significant steps prior to seeking accommodation from the employer. Particularly, the Federal Court of Appeal outlined a four-part test for anyone seeking to establish discrimination on the ground of family status. This four-part test arose out of the context of childcare obligations, and the onus was on the employee to demonstrate the following:

  • The child is under his or her care and supervision;
  • The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;
  • The individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
  • The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.

The issue with the Johnstone test was that it created a separate onus and distinction on those seeking family status accommodation than any other protected ground, such as disability.

The Tribunal’s decision in Misetich recognized the distinction established by the Johnstone case and did not agree there should be a different test to establish family status discrimination, but rather the same test should apply for all grounds of discrimination covered by the Ontario Human Rights Code (link) [“Code”].

In the recent decision of Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98, the Tribunal provided further clarity on the appropriate test for family status discrimination. It confirmed the appropriate test for family status discrimination under the Code is to be the same as for other grounds under the Code. In other words, the Tribunal confirmed the unified approach in Misetich.

The Tribunal further confirmed that all steps an employee has taken to address their family status needs (i.e. availabilities of daycare, coordination with the individual’s partner or spouse, etc.) when seeking accommodation from their employer, does not establish a separate test or burden that an employee must satisfy before the employer’s duty to accommodate is triggered. Rather, they become considerations that are part of the employee’s overall duty to cooperate in the accommodation process.

Notably, the Tribunal awarded the Applicant nearly $50,0000 comprising of $20,000 in general damages and $29,724.39 in lost wages. This is one of the highest awards from the Tribunal on family status discrimination.

You can read the Tribunal’s decision in Kovintharajah v. Paragon Linen and Laundry Services Inc., 2021 HRTO 98 here (link).

Have you experienced family status discrimination in your workplace? Bakerlaw may be able to help. Contact us here (link) to see if a consultation or retainer is right for you. To read more about what we do, visit our Human Rights page here (link).

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