Johnstone Decision Underlines Need for More Flexible and Inclusive Workplaces

Where a workplace rule results in a bona fide childcare problem, the workplace must accommodate, Federal Court of Appeal rules

In March 2014, LEAF intervened in the case of Johnstone v. Canada Border Services Agency before the Federal Court of Appeal to argue that employers cannot discriminate against employees with childcare responsibilities. LEAF stated that discrimination on the basis of family status is intertwined with sex discrimination given that most caregivers continue to be women.

Fiona Johnstone had asked her employer, the Canada Border Service Agency (CBSA), for a regular shift so that she could secure ongoing childcare for her two toddlers. Both she and her husband worked rotating shifts at CBSA with no predictable pattern. The CBSA refused to accommodate Ms. Johnstone’s request, suggesting that her childcare decisions were merely based on “personal choice”. Their solution was for her to change her status from full-time to part-time, resulting in less pay and the loss of her pension and other benefits.

The Canadian Human Rights Tribunal decided that the CBSA had discriminated against Ms. Johnstone on the basis of her family status. The Tribunal found that the CBSA had accommodated employees for medical and religious reasons by providing a fixed shift and could have similarly accommodated Ms. Johnstone’s childcare needs while she had young children. The CBSA, represented by the federal Department of Justice, appealed to the Federal Court which upheld the Tribunal’s ruling. The CBSA then appealed to the Federal Court of Appeal.

In its unanimous May 2, 2014,decision, the Federal Court of Appeal dismissed the CBSA’s appeals (with the exception of some variations on the remedy). The Court firmly rejected a restrictive definition of “family status” that did not include parental obligations such as childcare. It held that protection from discrimination for childcare obligations flows from family status in the same way that protection against discrimination on the basis of pregnancy flows from the sex of the individual.

Further, the Court 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. While the CBSA had argued that employers should have to accommodate parental obligations only if these obligations were substantial and could not be delegated to a third party, the Court held that there should be no hierarchy of human rights.

LEAF is pleased that an employee will not have to prove she or he has done “everything within his or her power” to arrange childcare. Instead, she must demonstrate that she has made reasonable efforts to meet childcare obligations through reasonable alternative solutions, and is unable to reconcile competing family and work obligations. Where the resulting interference with childcare is more than “trivial or insubstantial”, the employer’s duty to accommodate will arise. This is a win for those who have been shut out of meaningful work because of workplace schedules and other rules constructed around the outdated norm of a male employee with a spouse at home doing all the childcare.

Laws which require workplaces to be more flexible and inclusive promote the participation of more women in the labour market,” notes Diane O’Reggio, LEAF Executive Director. Indeed, the Court affirmed that: “Without reasonable accommodation for parents’ childcare obligations, many parents will be impeded from fully participating in the work force so as to make for themselves the lives they are able and wish to have.”

LEAF welcomes the overall result in Johnstone in our quest to achieve workplace equality for women across Canada.

The Federal Court of Appeal’s decision in Johnstone is available here.

The decision in the companion case of Seeley v. Canadian National Railway Company was also released on May 2 and is available here.

Pro bono counsel Kate Hughes and Danielle Bisnar of the firm Cavalluzzo Shilton McIntyre Cornish LLP represented LEAF. Our factum is available here.

For more information, please contact:

Kim Stanton                                    

LEAF Legal Director

Telephone: 416.595.7170 ext. 223

Email: [email protected]

Kate Hughes


Telephone: 416.964.5525

Email: [email protected]