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Ontario Court Adopts Expansive Interpretation of Family Status Protection under the Ontario Human Rights Code

The Superior Court of Ontario recently adopted the test for family status discrimination as outlined in the seminal decision, Johnstone v Canada (Boarder Services), 2014 FCA 110 [“Johnstone”]. In Johnstone the Federal Court of Appeal found that family status includes parental responsibilities such as childcare obligations, which we previously blogged about here.

In Patridge v Botony Dental Corp. [2015] OJ No 226, Lee Patridge (“Patridge”) worked as a dental hygienist with the defendant company - Botony Dental Corp. (“Botony Dental”). In 2007, she became an office manager and later went on maternity leave. Prior to her leave, she worked from 9am to 5 pm as an office manager. Upon her return the employer re-assigned her as a hygienist, and initially told Patridge she would work 8 am to 3 pm. However, upon her return, Patridge worked from 10 am to 6pm, several days a week. Working until 6pm posed significant challenges to Patridge’s child care obligations. After some time, Patridge was dismissed by the employer due to escalating interactions and events between them.

Patridge then brought an action against Botony Dental for wrongful dismissal which included a claim for damages resulting from discrimination based on family status under the Human Rights Code. Botony Dental alleged that Patridge was dismissed for just cause.

After a detailed analysis, the Court found that there was no just cause to dismiss Patridge.

In assessing her claim for Human Rights damages, the Court applied the analysis from Johnston.

In order to prove discrimination based on family status, first a prima facie case of discrimination must be made out by the complainant. Second, the employer must show that the policy or practice is a bona fide occupational requirement and that those affected cannot be accommodated without undue hardship.

In order to make out a prima facie case of family status discrimination, resulting from childcare obligations, the individual advancing the claim must demonstrate the following:

• That a child is under his or her care and supervision;
• That the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
• 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
• That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

The Court found that a prima facie case of discrimination was made out. Patridge’s children were under her care and supervision, and this obligation was a legal responsibility. Patridge also organized a complex child care arrangement which included assistance from extended family members and neighbors, satisfying the reasonable efforts requirement. Lastly, working until 6pm interfered with Patridge’s child obligations in a more than trivial way, because she was charged a significant fee for picking up her children from daycare after 6pm. Additionally, on the reliance on extended family members or her husband to pick up the children proved to be very complicated in these circumstances.

Moving to the second part of the analysis, the employer must prove that workplace rule is a bona fide occupational requirement, by showing:

• The rule, standard or practice was adopted for a purpose rationally connected to the performance of the job;
• The rule, standard or practice was adopted in an honest and good-faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
• The rule, standard or practice is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristic of the claimant without imposing undue hardship upon the employer. (BCGSEU v British Columbia (Public Service Employee Relations Commission), [1999] 3 S.C.R. at para 54)

Ultimately the Court found there was no reason why Patridge could not be accommodated and commence work before 10 am, as the office was open before that time. There was also no reason why clients would not be available earlier in the day. Further, the requirement imposed on Patridge to work those hours was not adopted in good faith, and was characterized as a reprisal.  Lastly, since Patridge already worked an earlier shift as an office manager, it was clearly possible to accommodate without causing undue hardship to the employer. Therefore, Botony Dental was unable to show that the hours that Patridge was asked to work were a bona fide occupational requirement.

The Court ruled in favour of Patridge, awarding her $20,000 for a breach of the Human Rights Code.  In making their finding, the Court provided insight into their decision making process, stating:

Particularly where the discrimination has ultimately taken the form of dismissal, this particular breach affects a group of individuals who typically require childcare arrangements out of economic motivation. The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have an economic impact on individuals who can often least afford it. The Court's censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.

Employers have an obligation to accommodate employees when they have a legitimate accommodation request based on family status.  Please click here for a list of lawyers at CCP who can assist employers in determining when it is appropriate to accommodate an employee and what steps should be taken when such a request arises.