Legal Test for Family Status Discrimination Remains Unsettled in Ontario

On January 27, 2022, the Supreme Court of Canada denied an application for leave to appeal and left intact the Alberta Court of Appeal’s May 2021 decision in United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194. This case is an important one for all Canadian human rights jurisdictions, including Ontario, as it determined the legal requirements of the prima facie test for discrimination in Alberta under the Alberta Human Rights Act.

The Supreme Court of Canada’s decision leaves each provincial, territorial, and federal jurisdiction in Canada to decide their own appropriate legal tests for prima facie discrimination in family status cases. The Court of Appeal for Ontario (ONCA) has not yet weighed in this issue and the applicable legal test remains unsettled under Ontario’s Human Rights Code.

In order to establish a prima facie case of discrimination, the law is well-settled that a human rights complainant must show:

  1. They have a characteristic protected from discrimination;
  2. They experienced an adverse impact; and
  3. The protected characteristic was a factor in the adverse impact. 

The question for the Alberta Court of Appeal was: was a human rights complainant required to prove “self-accommodation” in order to establish prima facie ital discrimination under the protected characteristic of family status?

The Court of Appeal’s answer to this question was ‘no.’ In Alberta, there is no fourth requirement of “self-accommodation:”

[99]           We conclude that Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie ital discrimination are wrong, and inappropriately hold family status claimants to a higher standard than other kinds of discrimination. The Supreme Court of Canada has set the test for prima facie discrimination, without limitation, and without evidentiary embellishments. In Alberta, the debate must end: the test for prima facie ital discrimination ought to be exactly the same whether in the context of direct or adverse effects discrimination based on prohibited grounds, or in cases advanced under human rights legislation or under a collective agreement or otherwise, or before the courts on review. Different tests, or evidentiary gradations of the same test, beget inequality.

This means that there is no unique prima test for family status cases that is different from any other protected characteristic under human rights legislation. United Nurses stands in contrast to Canada (Attorney General) v. Johnstone, 2014 FCA 110, which found that a human rights complainant had to meet four factors, and not just three, to establish a prima facie ital case of family status discrimination:

[93]               I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is 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.

The third factor in Johnstone, mentioned above, is often referred to as the complainant’s duty to “self-accommodate;” to make reasonable efforts to try and resolve their own childcare obligations and establish that there is no reasonable solution. The ONCA has not yet weighed in on the debate yet. In Partridge, 2014 ONCA 836, the ONCA, while recognizing the debate, did not squarely address the issue of the apparently competing tests in the Federal Court (Johnstone) and elsewhere. At the Human Rights Tribunal of Ontario (HRTO), the approach has been divided (see Espinoza, 2021 HRTO 68 at paragraph 95).

The most extensive HRTO analysis is in Misetich, 2016 HRTO 1229, which is consistent with the settled law on the duty to accommodate as a multi-party obligation that imposes duties on all parties to participate openly and cooperatively and consider all reasonable options and alternatives in addressing the competing demands of work and family care responsibilities.

In Ontario the reality may be—at least until the ONCA decides to resolve the issue—that whatever legal test is applied to matters of family status discrimination; the outcome would likely be the same in most cases on the facts of any given case. There is a fair amount of analytical similarity between considering “contextual considerations” (Misetich) and any efforts of “self-accommodation” (Johnstone). That was the outcome in Partridge at paragraph 20. No matter which prima facie test was applied (Johnstone or Misetich), the result would have been the same (see also Simpson, 2019 HRTO 10, at paragraph 31 and Peternel, 2018 ONSC 3508 at paragraph 74).

Read the decision on Canlii here.