No unified test for prima facie discrimination, with test depending on the jurisdiction
The test for proving prima facie discrimination based on family status in Alberta should not have to include proof from the person who feels discriminated against that they looked at all available options to solve their situation, the Alberta Court of Appeal recently ruled.
Stikeman Elliott partner Gary Clarke says there continues to be no unified test for family status discrimination in Canada, with the applicable test depending on the jurisdiction where the discriminatory conduct is alleged to have occurred. However, the appeal court's decision in United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 affirms the applicable test in Alberta, ruling it should be based on the Supreme Court of Canada's ruling in Moore v. British Columbia (Education), 2012 SCC 61, a decision reaffirmed in an Alberta case, SMS Equipment Inc. v. CEP, Local 707, 2015 ABQB 162.
In the Alberta decision, Clarke says, once prima facie discrimination is established, the burden "then shifts to the employer to justify the conduct that led to the adverse impact, including assessing accommodation to the point of undue hardship. "If this burden isn't met, discrimination will be found."
The specific takeaway for Alberta employers from the appeal court ruling is that family status claimants "should not face a separate and higher burden of proof" when establishing prima facie discrimination compared to discrimination claims based on other protected grounds.
Says Clarke: "I think the court of appeal is saying why, with family status, is there this added requirement that the employee hop through all these hoops to look for alternatives? Whereas the established law for other protected grounds doesn't share that same requirement."
The appeal court made clear that once the onus shifts to the employer to show alternative approaches were investigated and that the prima facie discriminatory conduct was reasonably necessary to accomplish a broader goal, an employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the employee.
The complainant, in this case, was a registered nurse working for Alberta Health Services. AHS changed the complainant's work schedule, resulting in an interference with her childcare obligations. The complainant's union grieved the schedule change and alleged that it had failed to accommodate her family status. The case eventually went to the labour arbitration board.
The labour arbitration board dismissed the grievance, applying the test set out by the Federal Court of Appeal in Johnstone v. Canada (Border Services Agency), 2014. Based on the Johnstone test, the Board concluded that the complainant had failed to establish prima facie discrimination because she had not exhausted all options for alternative childcare and had not discharged her duty of self-accommodation.
The majority of the Board noted that the comments in the Alberta decision of SMS Equipment Inc. v. CEP regarding the proper test for prima facie discrimination were obiter, and therefore not binding on them, leaving them free to prefer and apply the Johnstone test.
The union was successful on judicial review by the Alberta Court of Queen's Bench, which sent the nurse's case back to the arbitration board for another hearing, noting that not all obiter may be disregarded. The Court of Queen's Bench ruled the nurse's duty of self-accommodation was improperly considered by the Board as being part of the first stage of the prima facie test for discrimination and as the basis for the dismissal of the grievance.
The Court of Queen's Bench ruled the Board failed to consider the SMS ruling properly and failed to reconcile the Johnstone test with other binding precedents. The Queen’s Bench court concluded the Board's "disregard of jurisprudence, both from this Court and from the Supreme Court of Canada, was not explained and so cannot be said to be transparent."
AHS appealed the Queen’s Bench court decision to the Alberta Court of Appeal. The appeal court dismissed AHS' appeal and confirmed that the test in Alberta for establishing prima facie family status discrimination is the test laid out by the SCC in Moore and reaffirmed in SMS.
The Moore test requires a complainant to prove that:
- they have a characteristic protected by human rights legislation (e.g., family status);
- they experienced an adverse impact (e.g., termination, discipline, decision not to be hired);
- and their protected characteristic was a factor in the adverse impact (e.g., their family status factored into the employer's decision not to hire them).
Concerning the second and third criteria, the appeal court ruled that the claimant's self-accommodation efforts should not be assessed as part of the test of establishing prima facie discrimination. Instead, if a claimant is successful on all three steps of the Moore test, thereby establishing prima facie discrimination, then self-accommodation will become relevant during the justification stage. That process would address questions of bona fide occupational requirements and the employer's duty to accommodate to the point of undue hardship.
Stikeman's Clarke says that as Alberta and other jurisdictions emerge from COVID-19 restrictions, employers will recall employees working remotely back to the workplace. "It seems likely that employers will be faced with increased requests for work schedule accommodations based on family status arising from alternative childcare arrangements that were implemented by employees to cope with the challenges of COVID-19."
The various decisions in the UNA case also acknowledge concerns that workplace disruptions could occur if "every conflict between work and family obligations is treated as discriminatory," says Clarke.
"Accordingly, an employee's self-accommodation efforts remain a relevant consideration in the overall analysis where family status discrimination has been alleged."
To properly address family status issues, employers should keep in mind the applicable test for assessing family status discrimination in their jurisdiction, Clarke says. While family status is a prohibited ground of discrimination in all Canadian jurisdictions, the test for family status discrimination varies between jurisdictions. Before the UNA case, Clarke had written a blog outlining the different approaches to this issue across the country. He notes that in Ontario, for example, Misetich v. Value Village Stores Inc., 2016 HRTO 1229 held that the test for family status discrimination should be the same as the test for discrimination for all other prohibited grounds.
Clarke also notes that the Supreme Court of Canada had the opportunity to establish a uniform test for family status discrimination in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46. However, it chose not to by refusing leave to appeal.
"As a result, there continues to be no unified test for family status discrimination, and the applicable test depends on the jurisdiction where the discriminatory conduct is alleged to have occurred."
However, Clarke notes that this doesn't mean the SCC will not revisit the issue in the future, "especially if family status discrimination claims become more prevalent in the aftermath of the pandemic.
He adds: "This is an area of law that continues to evolve."