In a recent decision by the Alberta Court of Appeal, United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 (CanLII), <https://canlii.ca/t/jg2fl>, retrieved on 2022-01-31, the Court addressed the threshold test for discrimination in a family context. Leve to appeal dismissed: 2022 CanLII 3791 (SCC).
The case came before the Court as an appeal from a judicial review of an arbitration award (Arbitrator Westgeest, dissenting). The reviewing Court (QB) found:
[4] In its decision, the Board majority discussed the inconsistency in the case law as to the test for prima facie discrimination in family status cases. The Board determined that it preferred the test set out by the Federal Court of Appeal in Canada (Attorney General) v Johnstone, 2014 FCA 110 at para 88, 372 DLR (4th) 730 [Johnstone], which provided that it “is only if the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination will be made out.” The Board majority found that the grievor in this matter had not proven self-accommodation, and dismissed the claim.
The majority considered and rejected the views of Ross J in SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 at para 77, 18 Alta LR (6th) 74 [SMS]:
….
[30] The Board instead determined that it preferred the test set down in Johnstone at para 88, finding that a family status claimant must establish four factors, including that the “grievor made reasonable efforts to meet the childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible”:
[42] As to whether the Board majority’s treatment of self-accommodation under the Moore test was reasonable, the court reviewed Health Sciences Assoc of BC v Campbell River and North Island Transition Society, 2004 BCCA 260 at para 39, 240 DLR (4th) 479 [Campbell River], which imported a “serious interference” standard into the prima facie discrimination test relating to family status, and Hoyt v Canadian National Railway, 2006 CHRT 33 (CanLII), 2006 CHRD 33, 57 CHRR 437, which rejected the “serious interference” threshold set out in Campbell River: QB Decision at paras 22-27. See also Rajotte v President of the Canadian Border Services Agency et al, 2009 PSST 25.
[43] When assessing Johnstone, the Reviewing Judge noted that while the Federal Court of Appeal purported to reject the “serious interference” requirement from Campbell River, it nonetheless expressly added both a “serious interference” and a “self-accommodation” standard: QB Decision at para 37, 46. She agreed with Ross J in SMS at paras 77, that Johnstone is “contrary to the objects of human rights law”, in that “it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases”, with the effect that it unjustifiably expanded the test for family status discrimination.
The reviewing judge quashed the arbitration decision and remitted the matter to a new panel.
With respect to the standard of review, the Appeals Court noted:
51] The QB Decision correctly determined that at the time, the applicable standard on a judicial review of an administrative decision was reasonableness. Just over eight months later, the Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov], in which it reconsidered the law applicable to judicial review of administrative decisions. Therein, the Court held that reasonableness continues to be the presumptively applicable standard of review, but that presumption may be rebutted where there is a clear indication of legislative intent to the contrary or where required by the rule of law: Vavilov at para 10. More specifically, there will be a clear indication of legislative intent to derogate from reasonableness if there is a statutory appeal mechanism from an administrative decision to a court, which signifies that an appellate standard is intended to be applied. Reasonableness will also be rebutted for certain categories of questions of law, such as those deemed to be of “central importance to the legal system as a whole”: Vavilov at para 17. It is the latter which is of concern in this matter.
The Court was of the view that “the definitional scope of the test for prima facie discrimination raises a question of law which is of central importance to the legal system as a whole.”
The Court stated:
[62] The Supreme Court in O’Malley, assessed both the distinction between direct and adverse effect discrimination, and the respective onuses on the employee and employer in cases of adverse effect discrimination; those principles have not changed since. In respect of direct and adverse effect discrimination, O’Malley at para 18 provided that direct discrimination occurs “where an employer adopts a practice or rule which on its face discriminates on a prohibited ground.” On the other hand, adverse effect discrimination occurs where the employer “for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members”. The Court provided that both direct and adverse effect discrimination are contrary to human rights legislation.
[63] In respect of onuses, an employee must show a prima facie case for discrimination, “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”. Having met this onus, if the “offending rule is rationally connected to the performance of the job… the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee’s position as are open to him without undue hardship”: O’Malley at para 28; see also Meiorin at para 54.
[64] In 2012, Abella J writing for the majority in Moore at para 33, described the test for a finding of prima facie discrimination as follows: a complainant employee is required to show (1) they have a characteristic protected from discrimination under the Code; (2) they experienced an adverse impact; and (3) the protected characteristic was a factor in the adverse impact. After prima facie discrimination has been established, the burden shifts to the respondent employer to justify the conduct or practice. See also Elk Valley at para 24; British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62 at para 86, [2017] 2 SCR 795 per Abella J; Telus at paras 27-28.
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[67] In Johnstone, Mainville JA writing for the Court, does not expressly cite Moore. Rather at para 93, he articulates the test for prima facie discrimination based on family status as follows:
(1) a child must be under the complainant’s care and supervision;
(2) the childcare obligation engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(3) “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
(4) the impugned workplace rule interferes in a manner that is non-trivial with the fulfillment of the childcare obligation. [Emphasis added]
….
[69] In justifying this additional self-accommodation requirement, Johnstone at paras 78-79 cited the British Columbia Court of Appeal in Campbell River for the proposition that family status complainants should be required to meet a higher threshold to establish prima facie discrimination beyond “a conflict between a work requirement and a family obligation”. Namely, Campbell River requires a “serious interference with a substantial parental or other family duty or obligation of the employee”, as emphasized in Johnstone. In Campbell River, this approach is to avoid “caus[ing] disruption and great mischief in the workplace”, given that most employees are required to manage parental/family obligations alongside their employment.
The Court concluded:
[98] In our view, the Supreme Court of Canada mandates that it is at the later justification stage, after prima facie discrimination has been established, that the onus shifts to the employer to show alternative approaches were investigated, and the prima facie discriminatory conduct was “reasonably necessary” in order to accomplish a broader goal. “In other words, an employer or service provider must show ‘that it could not have done anything else reasonable or practical to avoid the negative impact on the individual’” [citations omitted]: Moore at para 49; Meiorin at para 38.
[99] We conclude that Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie 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 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.