This case concerned the meaning of discrimination based on family status. 

LEAF intervened before the Federal Court of Appeal. 

Facts 

Fiona Johnstone and her husband worked for the Canadian Border Services Agency (CBSA). Neither had predictable work schedules, and so Ms. Johnstone asked the CBSA to allow her to have a regular shift so she could make ongoing child care arrangements. The CBSA had accommodated the request of a set shift for other workers, who made the request based on religious or medical grounds, but refused to do so for Ms. Johnstone. The CBSA said that her childcare decisions fell in the realm of personal choice. Ms. Johnstone then reduced her full-time position to a part-time one to ensure childcare. 

Ms. Johnstone filed a human rights complaint. The Canadian Human Rights Tribunal found that the CBSA had discriminated against her based on her family status and awarded damages for lost wages and benefits, and pain and suffering. The Federal Court upheld much of the Tribunal’s decision. The CBSA appealed the decision to the Federal Court of Appeal. 

Arguments 

LEAF argued that the ground of “family status” included caregiving responsibilities arising from family relationships. The gendered reality of caregiving responsibilities meant that excluding these obligations from the definition of family status would adversely impact women workers, undermine substantive equality, and contradict long-standing human rights legislation. Claims of family status discrimination did not require a new or different test than other claims of discrimination. 

Outcome 

The Federal Court of Appeal dismissed the CBSA’s appeal, aside from some variations on the remedy given to Ms. Johnstone. The Court firmly rejected a restrictive definition of “family status” that did not include parental obligations such as childcare. The Court also rejected the CBSA’s argument that there should be a higher threshold that an employee must meet to establish a prima facie case of discrimination in family status cases. 

LEAF is grateful to Kate Hughes, Danielle Bisnar and Kim Stanton, counsel in this case.

Download the factum here.  

Read the Federal Court of Appeal’s decision here

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].