Canada (Attorney General) v. Johnstone

Canada (Attorney General) v. Johnstone
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-05-02
Neutral citation
2014 FCA 110
File numbers
A-89-13
Notes
Reported Decision
Decision Content
Date: May 2, 2014
Docket: A-89-13
Citation: 2014 FCA 110
CORAM:
PELLETIER J.A.
MAINVILLE J.A.
SCOTT J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
FIONA ANN JOHNSTONE and CANADIAN HUMAN RIGHTS COMMISSION
Respondents
and
WOMEN'S LEGAL EDUCATION AND ACTION FUND INC.
Intervener
Heard at Toronto, Ontario, on March 11, 2014.
Judgment delivered at Ottawa, Ontario, on May 2, 2014.
REASONS FOR JUDGMENT BY:
MAINVILLE J.A.
CONCURRED IN BY:
PELLETIER J.A.
SCOTT J.A.
Date: May 2, 2014
Docket: A-89-13
Citation: 2014 FCA 110
CORAM:
PELLETIER J.A.
MAINVILLE J.A.
SCOTT J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
FIONA ANN JOHNSTONE and CANADIAN HUMAN RIGHTS COMMISSION
Respondents
and
WOMEN'S LEGAL EDUCATION AND ACTION FUND INC.
Intervener
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1] This is an appeal from a judgment reported as 2013 FC 113 of Mandamin J. of the Federal Court (Federal Court Judge) dismissing the judicial review application of the Attorney General of Canada challenging a decision of the Canadian Human Rights Tribunal (Tribunal) reported as 2010 CHRT 20.
[2] The Tribunal held that the Canadian Border Services Agency (CBSA) had discriminated within the meaning of section 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 against the respondent Fiona Ann Johnstone on the ground of family status by refusing to accommodate her childcare needs through work scheduling arrangements.
[3] For the reasons set out below, I would allow the appeal in part to vary the judgment of the Federal Court Judge on the subject of two remedial measures flowing from the Tribunal’s decision, and in all other respects I would dismiss the appeal with costs in favour of Ms. Johnstone.
Background and context [4] The full background to this litigation is extensively set out in the Tribunal’s decision and need not be repeated here. It is sufficient for the purposes of this appeal to simply point out some of the salient facts.
[5] Ms. Johnstone is an employee of the CBSA since 1998. Her husband also works for the CBSA as a supervisor. They have two children. After the eldest was born in January 2003, Ms. Johnstone returned to work from her maternity leave on January 4, 2004. The second child was then born in December 2004, and Ms. Johnstone returned to work on December 26, 2005.
[6] Prior to returning to work from her first maternity leave, Ms. Johnstone asked the CBSA for an accommodation to her work schedule at the Pearson International Airport in Toronto.
[7] The work schedule for full-time CBSA employees occupying positions similar to that of Ms. Johnstone is built around a rotating shift plan referred to as a Variable Shift Scheduling Agreement or VSSA. At the pertinent time, full-time employees rotated through 6 different start times over the course of days, afternoons, and evenings with no predictable pattern, and they worked different days of the week throughout the duration of the schedule. The schedule was based on a 56 day pattern, and employees were given 15 days notice of each new shift schedule, subject to the employer’s discretion to change the schedule on 5 days’ notice.
[8] Full-time employees such as Ms. Johnstone were required to work 37.5 scheduled hours per week under the VSSA on the basis of an 8 hour day that included a one half hour meal break. Any individual who worked less than 37.5 hours a week was considered a part-time employee. Part-time employees had fewer employment benefits than full-time employees, notably with regard to pension entitlements and promotion opportunities.
[9] It is useful to note that Ms. Johnstone’s husband also worked on a variable shift schedule as a customs superintendent. Their work schedules overlapped 60% of the time but were not coordinated. The Tribunal concluded that Ms. Johnstone’s husband was facing the same work scheduling problems, and that neither could provide the necessary childcare on a reliable basis.
[10] In the past, the CBSA had accommodated some employees who had medical issues by providing them with a fixed work schedule (static shift) on a full-time basis. The CBSA also accommodated employee work schedules with respect to constraints resulting from religious beliefs. However, the CBSA refused to provide an accommodation to employees with childcare obligations on the ground that it had no legal duty to do so. Instead, the CBSA had an unwritten policy allowing an employee with childcare obligations to work fixed schedules, but only insofar as the employee agreed to be treated as having a part-time status with a maximum work schedule of 34 hours per week.
[11] Prior to returning from her first maternity leave, Ms. Johnstone asked the CBSA to provide her with static shifts on a full-time basis. She wished to work 3 days per week for 13 hours a day (including one half-hour meal break) so that she could remain full-time. She requested this schedule since she only had access to child care arrangements with family members for the three days in question, and was unable to make other childcare arrangements on a reasonable basis. In light of its unwritten policy, CBSA only offered her static shifts for 34 hours per week resulting in her being treated as a part-time employee.
[12] It is useful to note that the CBSA did not refuse to provide static shifts to Ms. Johnstone on a full-time basis on the ground that this would cause it undue hardship. Rather, it refused the proposed schedule on the ground that it had no legal duty to accommodate Ms. Johnstone’s childcare responsibilities.
[13] Ms. Johnstone was not satisfied with the CBSA’s unwritten policy that required her to accept part-time employment in return for obtaining static shifts. As a result, she filed a complaint with the Canadian Human Rights Commission on April 24, 2004, alleging discrimination on the basis of family status contrary to sections 7 and 10 of the Canadian Human Rights Act.
[14] The provisions of the Canadian Human Rights Act that are particularly pertinent for the purposes of Ms. Johnstone’s complaint are subsection 3(1), paragraph 7(b) and section 10, which read as follows:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
3. (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, l’état de personne graciée ou la déficience.
[Emphasis added]
[Je souligne]
7. It is a discriminatory practice, directly or indirectly,
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
[…]
[…]
(b) in the course of employment, to differentiate adversely in relation to an employee,
b) de le défavoriser en cours d’emploi.
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer, employee organization or employer organization
10. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association patronale ou l’organisation syndicale :
(a) to establish or pursue a policy or practice, or
a) de fixer ou d’appliquer des lignes de conduite;
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
b) de conclure des ententes touchant le recrutement, les mises en rapport, l’engagement, les promotions, la formation, l’apprentissage, les mutations ou tout autre aspect d’un emploi présent ou éventuel.
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
Procedural history (a) Proceedings before the Canadian Human Rights Commission and related proceedings in the Federal Courts [15] The investigator who examined the complaint recommended that it be referred to the Tribunal. However, the Canadian Human Rights Commission did not follow this recommendation and instead dismissed the complaint. The Commission found that the CBSA had offered Ms. Johnstone accommodation in the form of a 34 hour a week part-time fixed work schedule. The Commission was not convinced that this policy constituted a serious interference with Ms. Johnstone’s duties as a parent or that it had a discriminatory impact on the basis of family status.
[16] Ms. Johnstone sought judicial review of this refusal before the Federal Court. In Johnstone v. Canada (Attorney General), 2007 FC 36, 306 F.T.R. 271, Barnes J. allowed the judicial review application and remitted the matter back to the Commission for a new determination.
[17] Applying a standard of correctness to the legal issue before him, Barnes J. rejected the test for prima facie discrimination taken from the British Columbia Court of Appeal’s decision in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, 2004 BCCA 260, 240 D.L.R. (4th) 479 (Campbell River) that the Commission had adopted for screening out the complaint. Under the Campbell River test, “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”: Campbell River at para. 39.
[18] On the basis of the discussion of the Tribunal in Hoyt v. Canadian National Railway, 2006 CHRT 33 (Hoyt), Barnes J. found that (a) the Campbell River test conflated the threshold issue of prima facie discrimination with the second stage of the analysis relating to discrimination that deals with bona fide occupational requirements, and (b) the suggestion in Campbell River that prima facie discrimination only arises where the employer changes the conditions of employment was wrong in law. Barnes J. rather concluded that the threshold for prima facie discrimination on the ground of family status should be the same as for any other prohibited ground of discrimination. As a result, the simple fact that Ms. Johnstone had been adversely affected by the CBSA’s unwritten policy was sufficient to establish a prima facie ground of discrimination. The matter was, therefore, remitted to the Commission for reconsideration on that basis.
[19] The appeal from Barnes J.’s decision was dismissed by this Court in Canada (Attorney General) v. Johnstone, 2008 FCA 101, 377 N.R. 235 with no opinion being expressed as to whether the appropriate legal test for prima facie discrimination in this case should be based on Campbell River or on Hoyt.
[20] The Commission subsequently referred the complaint to the Tribunal.
(b) The decision of the Tribunal [21] Following an extensive review of the case law, the Tribunal held that the prohibited ground of discrimination on family status includes family and parental obligations such as childcare obligations. It consequently rejected the Appellant’s definition of family status that limited its scope to the status of being in a family relationship. In this regard, the Tribunal noted the following at paragraph 233 of its decision:
[233] This Tribunal finds that the freedom to choose to become a parent is so vital that it should not be constrained by the fear of discriminatory consequences. As a society, Canada should recognize this fundamental freedom and support that choice wherever possible. For the employer, this means assessing situations such as Ms. Johnstone’s on an individual basis and working together with her to create a workable solution that balances her parental obligations with her work opportunities, short of undue hardship.
[22] With respect to the prima facie case of discrimination on the ground of family status, the Tribunal rejected the test set out in Campbell River. It rather followed the test propounded in Hoyt and approved by Barnes J. Under this approach, “an individual should not have to tolerate some amount of discrimination to a certain unknown level before being afforded the protection of the [Canadian Human Rights] Act”: Tribunal’s decision at para. 238.
[23] As a result, the Tribunal held that Ms. Johnstone had made out a case of prima facie discrimination in that the “CBSA engaged in a discriminatory practice by establishing and pursuing an unwritten policy communicated to and followed by management that affected Ms. Johnstone’s employment opportunities including, but not limited to promotion, training, transfer, and benefits on the prohibited ground of family status”: Tribunal decision at para. 242.
[24] The Tribunal further held that the CBSA had not established a defence based on a bona fide occupational requirement that would justify its refusal of the work schedule accommodation sought by Ms. Johnstone, nor had it developed a sufficient undue hardship argument to discharge it from its duty of accommodation. The Tribunal noted, at paragraphs 359 and 362 of its decision, that the position advanced on behalf of the CBSA throughout the proceedings was that it had no legal duty to accommodate Ms. Johnstone, rather than whether such an accommodation would lead to undue hardship.
[25] The Tribunal, therefore, ordered the CBSA to cease its discriminatory practice against employees who seek accommodation on the basis of family status for purposes of childcare responsibilities, and to consult with the Canadian Human Rights Commission to develop a plan to prevent further incidents of discrimination based on family status in the future: Tribunal’s decision at para. 366. It further ordered the CBSA to establish written policies satisfactory to Ms. Johnstone and the Canadian Human Rights Commission that would implement a mechanism where family status accommodation requests would be addressed within 6 months, and include a process for individualized assessments of those making such requests: Tribunal’s decision at para. 367.
[26] The Tribunal also ordered the CBSA to compensate Ms. Johnstone for her lost wages and benefits from January 4, 2004, when she first commenced part-time employment, until the date of its decision. It awarded Ms. Johnstone $15,000 for pain and suffering pursuant to paragraph 53(2)(e) of the Canadian Human Rights Act.
[27] The Tribunal further awarded the maximum amount of $20,000 for special compensation pursuant to subsection 53(3) of the Canadian Human Rights Act, as a result of its finding that the CBSA had engaged in the discriminatory practice wilfully and recklessly. This award was largely based on the Tribunal’s conclusion that the CBSA had failed to follow Brown v. Canada (Department of National Revenue), 1993 CanLII 683 (CHRT) (Brown), a prior decision of the Tribunal dealing with the issue of discrimination based on sex (pregnancy) and family status.
[28] In Brown, the Tribunal had “ordered the Respondent to prevent similar events from recurring through recognition and policies that would acknowledge family status to be interpreted as involving ‘a parent’s rights and duty to strike a balance [between work obligations and child rearing] coupled with a clear duty on the part of any employer to facilitate and accommodate that balance’”: Tribunal’s decision at para. 57. In the Tribunal’s view, this prior order had been ignored by the CBSA, thus justifying in this case an award of special compensation under subsection 53(3): Tribunal’s decision at paras. 381 and 382.
(c) Judicial Review before the Federal Court [29] The Attorney General of Canada sought judicial review of the Tribunal’s decision. The Federal Court Judge dismissed the application, with the exception of two issues. First, he referred the matter back to the Tribunal so as to allow it to reconsider its award of loss wages and benefits for the period from August 2007 to August 2008 during which Ms. Johnstone opted for unpaid leave so as to accompany her spouse to Ottawa, and (b) he excluded Ms. Johnstone as a party to be consulted with respect to the development of a written remedial policy by the CBSA.
[30] The Federal Court Judge applied the reasonableness standard of review to all of the issues raised before him, including the legal definition and scope of the prohibited ground of discrimination on the basis of family status and the legal test for finding a prima facie case of discrimination on that ground
[31] The Federal Court Judge held that the Tribunal had reasonably concluded that family status includes childcare responsibilities, since that interpretation was well within the scope of the ordinary meaning of the words, was consistent with the opinions of numerous human rights and labour relations adjudicative bodies that have considered the matter, and was consistent with the objectives of the Canadian Human Rights Act.
[32] The Judge also held that the test used by the Tribunal for finding a prima facie case of discrimination was reasonable, as was its application of that test in this case. In so doing, he specifically discarded the “serious interference” test used in Campbell River.
[33] However, the Federal Court Judge found fault with the Tribunal’s remedies. He noted that the evidence showed that Ms. Johnstone had sought, and obtained, an unpaid leave from August 2007 to August 2008 to accompany her husband to Ottawa. Since he could not discern the basis on which the Tribunal awarded full wages to Ms. Johnstone for that period of time, he referred that issue back to the Tribunal for reconsideration.
[34] The Federal Court Judge also concluded that the Tribunal exceeded its jurisdiction when it ordered the CBSA to establish written remedial policies satisfactory to Ms. Johnstone. In the Judge’s view, the Canadian Human Rights Act “does not provide that a victim may have a role or participate in the development of remedial polic[i]es to redress the discriminatory practices”: Federal Court Judge’s reasons at para. 168.
Issues raised in this appeal [35] The issues raised in this appeal may be set out as follows:
1. What is the applicable standard of review?
2. Did the Tribunal commit a reviewable error in concluding that family status includes childcare obligations?
3. Did the Tribunal commit a reviewable error in identifying the legal test for finding a prima facie case of discrimination on the ground of family status?
4. Applying the proper meaning and scope to family status, and using the proper legal test, did the Tribunal commit a reviewable error in finding that a prima facie case of discrimination on the ground of family status had been made out in this case?
5. Did the Tribunal commit reviewable errors with respect to its remedial orders, notably with respect to: (a) the award of lost wages for the period subsequent to December 2005; (b) the requirement that the CBSA establish a written policy satisfactory to the Canadian Human Rights Commission; and (c) the award of special damages under paragraph 53(3) of the Canadian Human Rights Act?
The standard of review [36] In an appeal of a judgment concerning a judicial review application, the role of this Court is to determine whether the application judge identified and applied the correct standard of review, and in the event he or she has not, to assess the decision under review in light of the correct standard: Keith v. Correctional Service of Canada, 2012 FCA 117, 40 Admin. L.R. (5th) 1 at para. 41; Yu v. Canada (Attorney General), 2011 FCA 42, 414 N.R. 283 at para. 19; Canada Revenue Agency v. Telfer, 2009 FCA 23, 386 N.R. 212 at para. 18.
[37] This means, in effect, that an appellate court’s focus is on the administrative decision; in this case, the decision of the Tribunal: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at para. 46; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 247; Minister of Citizenship and Immigration v. Kandola, 2014 FCA 85 at para. 29.
[38] The application judge’s selection of the appropriate standard of review is itself a question of law subject to review on the standard of correctness: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 35; Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 43; Prairie Acid Rain Coalition v. Canada (Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610 at para. 14.
[39] There is no dispute in this appeal that the conclusion of the Tribunal with respect to questions of fact and of mixed fact and law are to be reviewed on a standard of reasonableness. However, there is substantial disagreement as to the standard of review that applies to findings of law made by the Tribunal, particularly with respect to (a) the meaning and scope of family status as a prohibited ground of discrimination and (b) the applicable legal test under which a finding of discrimination may be made with respect to that prohibited ground.
[40] The interpretation by an adjudicative tribunal of its enabling statute or of statutes closely related to its functions are presumed to be subject to deference on judicial review: Alberta (Information and Privacy Commissioner) v. Alberta Teacher’s Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 34, 39 and 41; McLean v. British Columbia (Securities Commission), 2013 SCC 67, 366 D.L.R. (4th) 30 at paras. 21, 22 and 33.
[41] That presumption may, however, be rebutted if it can be concluded that Parliament’s intent is inconsistent with its application: Rogers Communication Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283 at para. 15 (Rogers Communications). Indeed, the determination of the appropriate standard of review is essentially a search for legislative intent: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) at para. 30; Dr. Q v. College of Physicians and Surgeons of British Columbia, above at para. 21.
[42] Prior to Dunsmuir, the Supreme Court of Canada had specifically held that the standard of review pertaining to the meaning and scope of family status as a prohibited ground of discrimination was correctness: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 576-578 (Mossop). Our Court had also held that the standard of review for the test for prima facie discrimination is correctness: Canada (Attorney General) v. Sketchley, 2005 FCA 404, [2006] 3 F.C.R. 392. The question before us here is whether this is still good law in light of Dunsmuir and the decisions of the Supreme Court of Canada which have followed it.
[43] That question was left unanswered by the Supreme Court of Canada in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (Mowat). That case concerned the interpretation by the Tribunal of paragraphs 53(2)(c) and (d) of the Canadian Human Rights Act with respect to its authority to award legal costs. In Mowatt, LeBel and Cromwell JJ. applied a standard of reasonableness to the Tribunal’s decision to award legal costs, and they concluded that the Tribunal’s decision in that case was unreasonable. In so doing, they emphasized that a standard of correctness may well apply to decisions of the Tribunal dealing with broad human rights principles: Mowat at para. 23.
[44] In light of the four factors discussed below, I conclude that, in this case, the presumption of reasonableness is rebutted and a standard of correctness is to be applied with respect to the two legal issues before us, namely (a) the meaning and scope of “family status” as a prohibited ground of discrimination, and (b) the applicable legal test under which a finding of prima facie discrimination may be made under that prohibited ground.
[45] First, the Supreme Court of Canada has consistently held that fundamental rights set out in human rights legislation, such as the Canadian Human Rights Act, are “quasi-constitutional” rights: see notably Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at pp. 157-158; Ont. Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at pp. 546-547; Dickason v. University of Alberta, [1992] 2 R.C.S. 1103 at p. 1154; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68, [2003] 3 S.C.R. 228 at para. 43; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 at para. 81; New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604 at para. 19.
[46] As noted in Dunsmuir at paragraph 58, and for obvious reasons, constitutional issues are necessarily subject to review on a correctness standard. In my view, this approach extends as well to quasi-constitutional issues involving the fundamental human rights set out in Canadian Human Rights Act and provincial human rights legislation.
[47] Second, a multiplicity of courts and tribunals are called upon to interpret and apply human rights legislation, including the Canadian Human Rights Act. As this appeal illustrates, labour arbitration boards, labour relations boards and superior courts throughout Canada are regularly called upon to adjudicate with respect to the fundamental human rights described in the Canadian Human Rights Act and other human rights legislation. As a result, courts have been called upon in the past and will be called upon in the future to examine the same legal issues the Tribunal is required to address in these proceedings.
[48] As aptly noted in Rogers Communications at paragraph 14, it would be inconsistent to review the legal questions at issue here on judicial review of a decision of the Tribunal on a deferential standard, but adopt a correctness standard on an appeal from a decision of a court at first instance on the same legal question. This concurrent jurisdiction of a multiplicity of decisions makers, including the Tribunal and the courts, rebuts the presumption of reasonableness with regard to the two questions of law raised in this appeal: Rogers Communications at para. 15.
[49] Third, in University of British Columbia v. Berg, [1993] 2 S.C.R. 353 at pp. 368 and 369 and 372-373 and in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 at paras. 47-48, the Supreme Court of Canada concluded that the interpretation of “service customarily available to the public” for the purposes of the British Columbia Human Rights Act, S.B.C. 1984, c. 22 and of “services to the public” in the Yukon Human Rights Act, R.S.Y. 1986 (Supp.) c. 11 were general questions of law to be reviewed on a standard of correctness, based on the principle that “in order for the interpretation of human rights legislation to be purposive, differences in wording among the various provinces should not be permitted to frustrate the similar purpose underlying these provisions”: Gould at para. 47; Berg at p. 372-373.
[50] Most provinces have adopted human rights legislation that prohibits discrimination on the basis of family status: Human Rights Code, R.S.O. 1990, c. H-19, s.1; Human Rights Code, R.S.B.C. 1996, c. 210, ss. 7(1); Human Rights Act, R.S.N.S. 1989, c. 214, par.. 5(1)(r); Alberta Human Rights Act, R.S.A. 2000, c. A-25.5. ss. 3(1); The Human Rights Code, C.C.S.M., H175, ss. 9(2); The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, par. 2(1)(m.01); Human Rights Act, S.N.L. 2010, c. H-13.1, ss. 9(1); Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. 13.
[51] The two principal legal issues raised in this appeal concern questions of fundamental rights and principles in a human rights context. These are not issues about questions of proof or mere procedure, or about the remedial authority of a human rights tribunal or commission. As such, for the sake of consistency between the various human rights statutes in force across the country, the meaning and scope of family status and the legal test to find prima facie discrimination on that prohibited ground are issues of central importance to the legal system, and beyond the Tribunal’s expertise, which attracts a standard of correctness on judicial review: Dunsmuir at para. 60.
[52] Fourth, Dunsmuir also stands for the proposition that when the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular question, the matter should be deemed settled. As noted above, the Supreme Court of Canada has determined in the past that a correctness standard of review applies to the meaning and scope of family status under the Canadian Human Rights Act: Mossop at pp. 576-578. Whether the jurisprudence of the Supreme Court of Canada post-Dunsmuir has implicitly overruled this prior approach with respect to fundamental human rights is a matter best left for the Supreme Court itself to decide. Until the Supreme Court of Canada decides otherwise, our Court is bound by Mossop: Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489 at para. 21.
The meaning and scope of family status [53] The appellant submits that the ordinary and grammatical meaning of the expression family status should prevail, and that this expression should therefore be interpreted as defining a legal status, like the ground of marital status. As a consequence, the prohibited ground of family status would be limited to the personal characteristic of whether or not one is part of a family or has a particular family relationship, but it would not include any substantive parental obligations such as childcare obligations.
[54] The appellant notably submits that by defining family status broadly to include parental obligations, the Tribunal adopted a meaning that does not align with the other prohibited grounds of discrimination that are all based on immutable or constructively immutable personal characteristics. In the appellant’s view, a person’s absolute or relative family status is immutable or constructively immutable, but the same cannot be readily said of childcare obligations.
[55] The appellant thus proposes a literal interpretation of the expression family status that excludes childcare obligations. According to this interpretation, by defining the ground in terms of status, Parliament did not intend to protect childcare responsibilities. Conflicts between these responsibilities and the terms and conditions of employment would not represent a disadvantage that is arbitrary or based on stereotypes concerning a person’s family status.
[56] The appellant finds comfort for this interpretation in the legislative history of the provision, and relies on a statement from the responsible Minister at the time the ground of family status was incorporated into the Canadian Human Rights Act to the effect that Parliament’s intent was primarily to prevent discrimination based on one’s relative family status.
[57] The appellant further submits that by introducing into the Canadian Human Rights Act the notion of discrimination on the ground of childcare obligations, the Tribunal modified the Act in a significant way, and that a change of this magnitude raises difficult questions of social policy that Parliament, rather than the courts, is best placed to address.
[58] However, the appellant cites no judicial authority that would directly support this restrictive interpretation of the expression family status. On the contrary, all the decisions of the courts, human rights tribunals and labour adjudicators that have been submitted to us in this appeal, and that have directly considered the matter, have decided the contrary.
[59] In fact, judges and adjudicators have been almost unanimous in finding that family status incorporates parental obligations such as childcare obligations. This has been the position consistently held by:
(a) the Tribunal: Brown, Hoyt, Woiden v. Lynn, 2002 CanLII 8171; Closs v. Fulton Forwarders Incorporated and Stephen Fulton, 2012 CHRT 30; Richards v. Canadian National Railway, 2010 CHRT 24; Whyte v. Canadian National Railway, 2010 CHRT 22; Seeley v. Canadian National Railway, 2010 CHRT 23;
(b) the Federal Court: Johnstone v. Canada (Attorney General), 2007 FC 36, 306 F.T.R. 271 referred to above; Patterson v. Canada (Revenue Agency), 2011 FC 1398, 401 F.T.R. 211 at paras. 34-35;
(c) the British Columbia Court of Appeal: Campbell River at para. 39;
(d) the Human Rights Tribunal of Ontario: Devaney v. ZRV Holdings Limited and Zeidler Partnership Architects, 2012 HRTO 1590; Callaghan v. 1059711 Ontario Inc., 2012 HRTO 233; McDonald v. Mid-Huron Roofing, 2009 HRTO 1306; C.D. v. Wal-Mart Canada Corp., 2009 HRTO 801;
(e) labour arbitrators: Canada Post Corp. v. Canadian Union of Postal Workers (Sommerville Grievance), 156 L.A.C. (4th) 109; Ontario Public Service Employees Union v. Ontario Public Service Staff Union (DeFreitas Grievance), [2005] O.L.A.A. No. 396 (QL).
[60] Our Court is not bound by these decisions, but they are difficult to ignore since their logic is compelling and better reflects the large and liberal interpretation that is to be given to human rights legislation.
[61] It is generally accepted that human rights legislation must be given a broad interpretation to ensure that the stated objects and purposes of such legislation are fulfilled. As a result, a narrow restrictive interpretation that would defeat the purpose of eliminating discrimination should be avoided: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 114 at pp. 1137-1138 quoting approvingly from Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission, [1985] 3 W.W.R. 717 at p. 735.
[62] As also noted in numerous decisions of the Supreme Court of Canada, the key provisions of human rights legislation must be interpreted in a flexible manner and with an adaptive approach: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 at para. 76; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Lexis Nexis, 2008) at pp. 502-503.
[63] The proper interpretative rule was set out as follows in B v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403 at para. 44:
More generally, this Court has repeatedly reiterated the view that human rights legislation has a unique quasi-constitutional nature and ought to be interpreted in a liberal and purposive manner in order to advance the broad policy considerations underlying it: see, for example, Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, at para. 120; University of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 370; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, at pp. 89-90; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at pp. 157-58.
[64] In that case, the Supreme Court of Canada was called upon to determine whether the expressions “marital status” and “family status” in the Ontario Human Rights Code, R.S.O. 1990, c. H.19 were broad enough to encompass a situation where an adverse distinction is drawn on the particular identity of a complainant’s spouse or family member, or whether the ground was restricted to distinctions based on the mere fact that the complainant has a certain type of marital or family status. Iacobucci and Bastarache JJ. noted that the broad goal of anti-discrimination statutes is furthered by embracing a more inclusive interpretation of the expression family status: B v. Ontario (Human Rights Commission), above at para. 4.
[65] That broad and purposive approach also applies in this case, particularly where due regard is given to the purpose of the Canadian Human Rights Act set out in section 2:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l’égalité des chances d’épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’état matrimonial, la situation de famille, la déficience ou l’état de personne graciée.
[Emphasis added]
[Je souligne]
[66] There is no basis for the assertion that requiring accommodation for childcare obligations overshoots the purpose of including family status as a prohibited ground of discrimination. Indeed, 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. The broad and liberal interpretation of human rights legislation requires an approach that favours a broad participation and inclusion in employment opportunities for those parents who wish or need to pursue such opportunities.
[67] It is noteworthy that Parliament chose to use two distinct words for the word “status” in the French version of sections 2 and 3 of the Canadian Human Rights Act: “l’état matrimonial” for marital status and the much broader “situation de famille” for family status. The French word “situation” is broadly defined in Le Nouveau Petit Robert as “[e]nsemble des circonstances dans lesquelles une personne se trouve” (the whole of the circumstances in which an individual finds himself). In contrast, that same common dictionary defines “état” as “[m]anière d’être (d’une personne ou d’une chose) considérée dans ce qu’elle a de durable” (state of being of a person or thing considered in its enduring aspects). The distinction is important, and supports a much broader interpretation of “family status” that includes family circumstances, such as childcare obligations.
[68] That being said, the precise types of childcare activities that are contemplated by the prohibited ground of family status need to be carefully considered. Prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic.
[69] It is also important not to trivialize human rights legislation by extending human rights protection to personal family choices, suc