LEAF has been granted leave to intervene in Johnstone v. Canada Border Services Agency before the Federal Court of Appeal. In this case, the complainant, Fiona Johnstone, asked her employer, the CBSA, to allow her to have a regular shift in order that she could make ongoing child care arrangements. Both she and her husband are employed by the CBSA, and their shifts can start at any one of six times in the day or night, any day of the week, and these shifts change every six weeks. There is no predictability whatsoever that would enable Johnstone to arrange for regulated or reliable childcare for her children. Despite accommodating the request of a set shift for other workers, who made the request based on religious or medical grounds, the CBSA refused to do so for Johnstone, on the basis that her decisions related to childcare are in the realm of personal choice.

The Canadian Human Rights Tribunal agreed with Johnstone that the CBSA had discriminated against her on the basis of her family status. Evidence before the Tribunal indicated that the CBSA could easily have accommodated her request (as they had for other employees) and that it would not have cost the employer any money to do so. Further, Johnstone was forced to reduce her full-time position to part-time in order to ensure childcare for her children, and the Tribunal awarded damages to her for her lost benefits and pension. The Federal Court upheld the Tribunal decision and the CBSA appealed the decision to the Federal Court of Appeal.

Why LEAF’s Voice Needs to be Heard

The law in Canada is unsettled with respect to family status discrimination. The key issue on appeal is whether childcare obligations fall within the scope of family status protection under the Canadian Human Rights Act, and if so, the appropriate test for determining whether an employer has discriminated on this ground. The case is expected to clarify the scope of family status protection, as there are competing lines of authority, making this a case of significant national importance for caregivers across Canada. Regarding the test for showing prima facie family status discrimination in human rights cases, the CBSA is urging the Court to adopt a test that would place an additional burden on family status claimants. LEAF will argue that there should be no higher threshold for family status cases. LEAF will explain how a different threshold for proving family status discrimination will disproportionately and adversely impact women.

Given that caregiving obligations predominantly fall to women in Canada, LEAF will assert that family status discrimination is intertwined with sex discrimination. LEAF will argue that family status discrimination is compounded for racialized women, women living in poverty, women with disabilities, Indigenous women and women with other intersecting identities. LEAF will also challenge the rhetoric of and assumptions around the matter of ‘choice’ for women regarding employment and caregiving, and urge the Court to acknowledge how we as a society benefit from accommodating the ‘choice’ to have children.

LEAF recognizes the profound lack of affordable, quality daycare in Canada as well as the challenges we all face in caring for our family members at all stages of life. Johnstone is an important opportunity for women to address these issues and to ensure that discrimination on the basis of family status is understood in all its complexity.

LEAF’s oral argument will be presented to the Federal Court of Appeal in Toronto on March 11, 2014, by our pro bono counsel Kate Hughes and Danielle Bisnar of the firm Cavalluzzo, Shilton, McIntyre, Cornish LLP. Our factum is available here.