Canada (Attorney General) v. Johnstone

Canada (Attorney General) v. Johnstone
Court (s) Database
Federal Court Decisions
Date
2013-01-31
Neutral citation
2013 FC 113
File numbers
T-1418-10
Notes
Reported Decision
Decision Content
Date: 20130131
Docket: T-1418-10
Citation: 2013 FC 113
Ottawa, Ontario, January 31, 2013
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
FIONA ANN JOHNSTONE AND
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the Canadian Human Rights Tribunal August 6, 2010 decision allowing Ms. Fiona Johnstone’s complaint of human rights discrimination, because of family status, by the employer.
[2] Ms. Johnstone filed her complaint under the provisions of the Canadian Human Rights Act RSC 1985 c H-6 [the Act] which prohibits discrimination on the basis of family status in matters relating to employment. She contended that her employer, the Canadian Border Services Agency [CBSA], engaged in a discriminatory employment practice with respect to family status, specifically, in relation to her parental childcare obligations.
[3] Ms. Johnstone had been working as a border services officer on rotating shifts. She requested full-time employment working fixed day shifts that would allow her to arrange childcare for her young children. CBSA policy limited fixed day shifts as requested by Ms. Johnstone to part-time employment. Consequently, Ms. Johnstone was not eligible for benefits available to full time CBSA employees.
[4] The Tribunal found Ms. Johnstone had proven prima facie employment discrimination on the basis of family status contrary to the Act and decided the CBSA had not proven hardship for the employer necessary to exempt the CBSA from its obligation to accommodate for family status.
[5] The Applicant contests whether the term “family status” in the Act includes parental childcare obligations. It submits childcare is not included in the term “family status”. The Applicant also challenges the Tribunal’s legal test for finding prima facie discrimination based on family status. Finally, the Applicant contests several remedial orders of the Tribunal.
[6] On the central questions, I conclude the Tribunal reasonably found parental childcare obligations comes within the scope and meaning of “family status” in the Act. I also conclude the Tribunal applied the proper legal test for its finding of prima facie discrimination on the basis of family status. Finally, I am satisfied the Tribunal finding that the CBSA discriminated against Ms. Johnstone on the basis of family status to be reasonable having regard to the evidence before the Tribunal.
[7] On the question of remedies, while I conclude the Tribunal did not err generally, I find the Tribunal erred in part by failing to justify the compensation award for the period when Ms. Johnstone elected unpaid leave to accompany her spouse on relocation to Ottawa.
[8] My reasons are set out following.
Background
[9] Ms. Johnstone began working as a part-time customs inspector in the Passenger Operations District of the CBSA at Pearson International Airport [Pearson] in April 1998. After five months her position, now described as a border services officer, was converted to full-time. Her employment became indeterminate in 2001.
[10] In January 2003, following the birth of her first child, Ms. Johnstone requested accommodation. Specifically, she requested she continue in full-time employment with a fixed daytime shift schedule that coincided with childcare available to her. She renewed this request in December 2005 after the birth of her second child.
The Work Environment
[11] The CBSA was created on December 12, 2003 and took over the customs functions that had been responsibility of the Canada Customs and Revenue Agency, the ports of entry of inland immigration that had been handled by the Department of Citizenship and Immigration, and the entry inspections of food, plants and animals previously performed by the Canadian Food Inspection Agency.
[12] The CBSA Greater Toronto Area [GTA] region has three main operational districts: Passenger Operations, Commercial Operations and Greater Toronto Enforcement Centre [GTEC]. Only Passenger Operations and Commercial Operations employ border services officers.
[13] Commercial Operations is responsible for processing cargo from commercial aircraft and for sufferance warehouses that are facilities for landing, storage, safekeeping, transfer, examination, delivery and forwarding of imported goods before release. The bulk of this work is done at Pearson on the other side of the airfield from the passenger terminals.
[14] Gateway was previously a separate district within the CBSA’s GTA region. It was merged into the Commercial Operations district around 2005/2006. Border services officers at Gateway sort and examine mail, documents and parcels coming into Canada.
[15] In 2004 Passenger Operations was responsible for processing passengers in Pearson Terminals 1, 2 and 3 as well as at the East Hold where small aircraft arrive. All passengers were met and taken by bus to Terminal 2 for processing. In 2005 passengers arriving on private jets (fixed base operators) who had been processed through Passenger Operations were transferred to Commercial Operations. In January 2007 Terminal 2 was closed down and CBSA operations in that Terminal were shifted to Terminal 1. Currently, Air Canada’s U.S. and international flights operate through Terminal 1 and most other airlines operate through Terminal 3.
[16] The border services officers perform work at Passenger Operations, Commercial Operations and Gateway. One universal job description applies for all border services officers and all positions are classified similarly.
[17] Mr. Norm Sheridan has been District Director of Passenger Operations since 1999. In 2004 he had three Chiefs, one at each terminal, reporting to him. Ms. Rhonda Ruby was the Passenger Operation Chief at Terminal 1. Each Chief had between nine to thirteen Superintendents reporting to them. The Superintendents were responsible for day to day management in their Terminals and for supervising the border services officers in their crews.
[18] On February 12, 2007 the CBSA management structure expanded to 10 Chiefs within Passenger Operations. Superintendents continued in the same job description. The Superintendents prepare the border services officers’ shift schedules. Two Superintendents specifically manage accommodation requests by employees asking for relief from the shift schedules.
[19] Pearson is Canada’s busiest airport. Passenger Operations screens and processes travellers seeking entry to Canada 24 hours a day, 7 days a week. In order to meet operational requirements at Pearson, border services officers in Passenger Operations work rotating and variable shifts under an agreement established with the local union in 1987, titled the Variable Shift Scheduling Agreement [VSSA].
[20] All full-time border services officers at Pearson work a 56 day schedule period with hours of work patterned on 5 days on, 3 days off with each working shift of 8.57 hours less a 30 minute meal break.
Childcare Availability
[21] Ms. Johnstone testified she intended to make her work as a border services officer her career. She worked full-time as a border services officer on rotating shifts under the VSSA schedule.
[22] Ms. Johnstone gave birth to her first child in January 2003 and took a year of maternity leave. Her second child was born in 2005. Ms. Johnstone has been the primary parent caring for their children. She could not arrange childcare which would allow her to return to full-time shift work as a border services officer at Pearson.
[23] Her husband, Mr. Jason Noble, also worked a rotating shift schedule in his position as a customs superintendent at the Pearson Passenger Operations District. His shift hours as a supervisor were more onerous that Ms. Johnstone’s. Their work schedules overlapped 60% of the time but were not coordinated. As a result, Ms. Johnstone’s spouse could not take over or fill in the family childcare on a reliable basis.
[24] After the birth of her first child, Ms. Johnstone had been able to arrange childcare with family members. Her family members could provide childcare for the three days a week for fluctuating hours, including overnight.
Request for Accommodation
[25] Ms. Johnstone wanted to maintain her full-time employment status in order to access opportunities for training and advancement, pension, and other benefits available for full-time employees. Her concern was that she would lose both benefits and pension with long term consequences to her promotional opportunities and future retirement.
[26] Ms. Johnstone requested that she work full-time in static shifts over three days. She did not specify starting times or returning to the same duties she had performed. Full-time employment necessitated working a minimum of 37.5 hours per week.
[27] Ms. Johnstone contacted CBSA Management prior to her return to work in January 2004 asking to work full-time over three days with 13-hour shifts fixed per week. The 39-hour week could constitute full time employment. Ms. Johnstone approached Ms. Raby, the Terminal 1 Chief through her husband. Ms. Raby denied the request and instead offered Ms. Johnstone part-time work on a fixed schedule.
[28] Ms. Raby offered Ms. Johnstone a maximum of 10 hours a day for three days plus a further 4 hour shift on a fourth day for a total of 34 hours a week. While starting times might vary, the shifts would be on the same days of the week. The 34-hour week would constitute part-time employment. Ms. Raby had made it clear to Ms. Johnstone that CBSA policy, albeit unwritten, is that in order to get static shifts, the maximum hours of work allowed was 34 hours a week.
[29] Ms. Johnstone accepted the three 10-hour days but not the additional 4 hours because it would not achieve the full-time employment Ms. Johnstone wanted and the childcare expense for the fourth half-day negated the extra 4 hours of wages.
[30] Shortly after returning to work, Ms. Johnstone asked if she could remain on full-time status and characterize the hours not worked as leave without pay which would mean her income would still be pensionable. This request was denied. She asked if she could top up the difference to keep the equivalent of full-time pension benefits but this was also denied.
[31] After her second child was born, she asked in December 2005 to be allowed to work full-time hours over three days but was again refused. Ms. Johnstone then further reduced her hours of part-time work after the birth of her second child from the 30 hours of work she had been working.
Human Rights Complaint
[32] Ms. Johnstone filed her human rights complaint on April 23, 2004. She claimed the CBSA has engaged in a discriminatory practice on the ground of family status in an employment matter. Her complaint was brought pursuant to subsections 7(b) and 10(a) and (b) of the Act.
History of Proceedings
[33] After Ms. Johnstone filed her human rights complaint, the Canadian Human Rights Commission (the Commission) appointed an Investigator. The Investigator found that the CBSA differentiated between employees seeking relief from rotating shift schedules for medical reasons and those seeking the same relief for reasons of childcare. For employees of the first class, the CBSA allowed full-time work on fixed shifts, but required the latter to work fixed shifts part-time.
[34] The Investigator also found the evidence for operational concerns was an impressionistic assumption and concluded the CBSA failed to provide a justification for this policy. The Investigator recommended the Commission refer the complaint to the Tribunal.
The Commission
[35] On receipt of the Investigator’s report and recommendation, the Commission invited submissions from Ms. Johnstone and the CBSA. The Commission decided, at this screening stage, to dismiss Ms. Johnstone’s complaint. Its reasons were:
a. The CBSA accommodated Ms. Johnstone’s request for a fixed shift to meet her childcare obligations;
b. Ms. Johnstone accepted the part-time scheduling arrangement and did not request full-time hours; and
c. It was not satisfied the effect of the CBSA policy, which permits employees to be relieved of rotating shifts for 37.5 hours, constituted a serious interference with Ms. Johnstone’s duty as a parent or that it constituted discrimination on the basis of family status.
[36] Ms. Johnstone applied for judicial review of the Commission’s decision in the Federal Court.
[37] In Johnstone v Canada (Attorney General), 2007 FC 36 [Johnstone FC] Justice Barnes allowed Ms. Johnstone’s application and returned the matter back to the Commission for redetermination. The Federal Court of Appeal dismissed the Attorney General’s appeal of the Federal Court judicial review. Canada (Attorney General) v Johnstone, 2008 FCA 101 [Johnstone FCA].
[38] Ms. Johnstone’s human rights complaint subsequently proceeded to a hearing before the Tribunal.
The Tribunal
[39] Both the Applicant and the Respondent presented their evidence and expert evidence in a full hearing by the Tribunal. Ms. Johnstone testified and called three witnesses, Mr. Murray Star, another CBSA employee, and two expert witnesses, Dr. Linda Duxbury and Ms. Martha Friendly. The Respondent called Mr. Sheridan, the District Director of Passenger Operations, Ms. Raby, the Terminal 1 Chief, and one expert witness, Dr. Moore-Ede.
[40] On August 6, 2010, the Tribunal rendered its decision, allowing Ms. Johnstone’s complaint of discrimination based on family status.
[41] The Attorney General now applies for judicial review of the Tribunal’s decision.
Other Matters
[42] At the time of the Tribunal hearing Ms. Johnstone was on unpaid Care & Nurturing Leave covered by the VSSA. Before that, when her husband was transferred to Ottawa as a trainer, she went on a one year Relocation of Spouse Leave without pay. Ms. Johnstone’s intention was to return to full-time work when her children reached school age.
Decision Under Review
[43] The Tribunal allowed Ms. Johnstone’s human rights complaint on August 6, 2010. It described Ms. Johnstone’s complaint as:
The Complainant (Ms. Johnstone) alleges that the Respondent (CBSA) has engaged in a discriminatory practice on the ground of family status in a matter related to employment. The relevant prohibited ground of “family status” is enumerated in Section 3(1) of the Act.
[44] The Tribunal described the practices Ms. Johnstone complained of as a failure to accommodate by the employer and adverse differential treatment based on family status relating to the raising of two children. It noted, pursuant to Moore v Canada Post Corporation, 2007 CHRT 31 [Moore], at paragraph 86, “failure to accommodate” is not a discriminatory practice under the Act, as “there is no free-standing right to accommodation under the CHRA”. The Tribunal proceeded on adverse differential treatment based on family status relating to the raising of two children. The Tribunal identified the relevant time for the complaint as beginning April 23, 2004 to present times.
[45] After describing the CBSA structure and operations, the Tribunal reviewed the history of the CBSA and its predecessors on the issue of family status relating to employment. The Tribunal considered this history helpful as a framework to the present complaint.
[46] The Tribunal took specific note of the 1993 Tribunal decision, Brown v Canada (Department of National Revenue, Customs & Excise), [1993] CHRD No 7 [Brown], which involved the CBSA’s predecessor, the National Revenue Agency – Customs and Excise. That case also involved a CBSA employee who was a customs inspector who asked to work dayshift after her child was born.
[47] In Brown the Tribunal set out the requirements for establishing a prima facie case of discrimination based on family status. The Tribunal observed that Brown found parents are under an obligation to seek accommodation from their employer in order that they may meet their duties and obligations within the family.
[48] The Tribunal in Johnstone noted that the respondent was ordered “to prevent similar events from reoccurring 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.’”
[49] The Tribunal concluded that these recommendations were not implemented, as witnesses from both parties testified that there has never been full implementation of the orders in Brown.
The Evidence
[50] The Tribunal accepted Ms. Johnstone’s evidence was that she could no longer work the VSSA schedule when she became a mother. Ordinary daycare hours were limited to 7 a.m. to 6 p.m. Monday to Friday. Unlicensed daycare and private daycare would not provide daycare for unpredictable and fluctuating hours and not on weekends or overnight. Ms. Johnstone’s family members could provide daycare for three days a week including overnight.
[51] Ms. Johnstone gave evidence that she requested full time work with 13-hour days on Fridays, Saturdays and Mondays. She testified she was told she could only work part-time for a maximum of 34 hours at 10 hours a day over 3 days with an additional 4 hours on the fourth day. She also testified she asked whether she could remain on full-time status with the hours not worked as leave without pay or top up the difference to keep the equivalent about full-time status but she was refused. A live-in nanny was not a financially feasible option for Ms. Johnstone because of the expense and the requirement to move into a larger house to accommodate a live-in adult nanny.
[52] The Tribunal accepted that had Ms. Johnstone been allowed to work full-time over the three days she requested, she would have found a way to handle her childcare responsibilities.
[53] The Tribunal heard testimony from Murray Star who worked variable shifts with the CBSA. Mr. Star had obtained accommodation on religious grounds and was not required to work on the Sabbath and other holy days of religious observance.
[54] The Tribunal considered the evidence of Ms. Johnstone’s witness, Dr. Duxbury, who was accepted as an expert in human resources management including labour force demographics, managing change, and the impact of work-life balance issues on workers. Dr. Duxbury’s report related to accommodation needs of workers with childcare responsibilities and the impact of employers’ responses to accommodating those needs.
[55] The Tribunal also considered the evidence of Ms. Friendly, the Executive Director of the Toronto’s Childcare Resource and Research Unit, who filed a report on the extent childcare was accessible for parents working non-standard, rotating, unpredictable hours. The Tribunal accepted her as an expert on childcare policy in Canada. The Tribunal accepted as reliable Ms. Friendly’s conclusions on the difficulties faced by parents finding third party childcare when working in workplaces that require rotational fluctuating shifts. The Tribunal found that Ms. Friendly’s evidence supported Ms. Johnstone in that the type of childcare she needed was not easily available, if at all. The Tribunal also accepted there were relatively few workers who required such childcare assistance.
Prima Facie Case
[56] The Tribunal considered whether or not Ms. Johnstone had proven a prima facie case of discrimination based on family status. It identified the test to establish a prima facie case as set out in the Supreme Court of Canada’s decision in Ontario Human Rights Commission v Simpson- Sears Limited, [1985] 2 SCR 536 [O’Malley] at para 28.
[57] The Tribunal set out a two step process, the question of a prima facie case being first and a bona fide occupational requirement [BFOR], being second. The Tribunal stated:
… if the allegations by the Complainant are covered, and if believed, the evidence is complete and sufficient to justify a verdict in Ms. Johnstone’s favour, in absence of an answer from the Respondent. If the Tribunal answers in the affirmative to this, then the onus shifts to the Respondent to show that despite the discrimination found it had a Bona Fide Occupational Requirement (BFOR) to engage in it, and that accommodation of those affected would amount to undue hardship for the employer.
[58] The Tribunal noted that the parties disagreed on the definition of family status within the meaning of sections 3, 7, and 10 of the Act. Accordingly, the Tribunal addressed the meaning of family status before addressing whether a prima facie case has been made out.
[59] The Tribunal turned to the Supreme Court of Canada, in Canada (House of Commons) v Vaid, 2005 SCC 30 [Vaid], to apply Driedger’s modern approach to statutory interpretation: “the words of an Act are to be read with the scheme of the Act, the object of the Act, and the intention of Parliament”.
[60] The Tribunal found the inclusion of the phrase “have their needs accommodated” in the Act’s purpose clause has led to a broadening of interpretation. It found that family status should not be limited to identifying one as a parent or a familial relation of another person, but rather include the needs and obligations naturally flowing from that relationship.
[61] The Tribunal looked to the underlying purpose of the Act as providing all individuals a mechanism “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…” The Tribunal that found the phrase in the Act “lives that they are able and wish to have” to be an acknowledgement that individuals make choices including to have children, and that the Act affords protections against discrimination regarding those choices.
[62] Finally, the Tribunal concluded at para 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.
With that statement, the Tribunal found the enumerated ground of family status in the Act does include parental childcare responsibilities.
[63] The Tribunal then considered the CBSA submission that there is a different and higher threshold for family status discrimination as demonstrated by Health Sciences Assoc. of B.C. v Campbell River and North Island Transition Society, 2004 BCCA 260 [Campbell River]. The Tribunal noted the Campbell River test was rejected by Hoyt v Canadian National Railway, [2006] CHRD No 33 [Hoyt] and also Rajotte v The President of the Canadian Border Services Agency et al, 2009 PSST 0025 [Rajotte].
[64] The Tribunal found confirmation of this position in Johnstone FC that an individual should not have to tolerate some discrimination before being afforded the protection of the Act.
[65] The Tribunal concluded that Ms. Johnstone had made out a prima facie case of discrimination contrary to sections 7 and 10 of the Act. The CBSA had engaged in a discriminatory and arbitrary practice in the course of employment that adversely differentiated Ms. Johnstone on the prohibited ground of family status. More specifically, the Tribunal found that the CBSA established and pursued 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.
[66] The Tribunal noted that although the CBSA accommodated those seeking accommodation for medical and religious reasons, and although the CBSA departed from its arbitrary policy in other cases, it had been unyielding in Ms. Johnstone’s case.
[67] The Tribunal examined the evidence of Mr. Sheridan, the District Director of Passenger Operations for CBSA at Pearson who gave extensive testimony on Pearson operations. It observed that the level of detail on operations did not really assist in the fundamental questions before the Tribunal.
[68] Mr. Sheridan articulated the CBSA’s view that employees with childcare responsibilities do not require accommodation. CBSA does consider accommodation for religious or medical reasons but treats non-medical accommodation requests as “arrangements” outside of any requirement to accommodate. Requests based on family responsibilities for childcare issues were considered the result of a worker’s personal choice for which the employer bears no responsibility.
[69] The Tribunal understood Mr. Sheridan to be saying that, if Ms. Johnstone was accommodated for childcare responsibilities, management would be inundated with such requests, costs would be prohibitive, and it would be destructive to CBSA Pearson operations. The Tribunal noted when asked under cross-examination if there were many requests returning from maternity leave, he replied in the negative.
[70] Mr. Sheridan offered reasons why part-time work offered for static shifts was restricted to 10 hours a day to a maximum of 34 hours. It was to discourage employees from seeking part-time status nearly equivalent to full-time hours just to get around VSSA. Moreover, he said employees would suffer in terms of energy and focus when working longer than 10 hours. The Tribunal noted Mr. Sheridan acknowledged there were part-time employees working more than 10 hours per day. The Tribunal considered this view about loss of employee effectiveness to be merely impressionistic.
[71] The Tribunal also noted medical considerations were dealt with as requiring accommodation and opined the CBSA had found an efficient and individualized way to deal with medical accommodation at Pearson.
[72] The Tribunal summarized the evidence of Ms. Raby who was then the acting Chief of Terminal 1 at Pearson Passenger Operations. She testified that she was not aware of Ms. Johnstone’s first request. However, the Tribunal found that in following the CBSA’s unwritten policy, Ms. Raby’s approach would not have been any different had she known of Ms. Johnstone’s earlier request. The Tribunal also took note that Ms. Raby could not recall anyone else asking for full-time work on return from maternity leave.
[73] Finally, the Tribunal looked at the evidence of CBSA’s witness, Dr. Moore-Ede, who was qualified as an expert in the study of shift work and extended working hours. His report concluded that between 31 to 52% of CBSA workers would seek the same accommodation as Ms. Johnstone. The Tribunal found serious flaws in Dr. Moore-Ede’s report, finding that the sampling of workers involved a very small percentage of Canadian workers, the rest being American, and that no questionnaire or surveying had been done of CBSA workers. The Tribunal found that the numbers put forward in the report were not realistic as being founded on either inadequate detail in the question posed or unproven assumptions.
Bona Fide Occupational Requirement [BFOR]
[74] The Tribunal relied on the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 [Meiorin] for the principle that the duty of employers to accommodate is a fundamental legal obligation. It referred to the Council of Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15 [VIA Rail] for the definition of undue hardship. The Tribunal stated that the CBSA must not base its assessment of whether an employee needs accommodation or whether it can implement accommodation measures on impressionistic assumptions.
[75] The Tribunal found there are no viable health and safety concerns about Ms. Johnstone’s ability to perform 13-hour shifts. The Tribunal also noted that no analysis has been done by the CBSA nor any policies put in place since Brown or the Commission direction 10 years later. The Tribunal found that none of the various draft accommodation policy proposals were ever put into action.
[76] The Tribunal concluded that the CBSA had not established a bona fide occupational requirement defence nor had it established a sufficient undue hardship rationale to discharge the onus to show hardship.
[77] The Tribunal found that the CBSA had given management a cursory nominal understanding of human rights legislation and provided no management training or awareness of the details of the Brown decision. Nor had the CBSA undertaken any detailed look at bona fide operational requirements and examined options short of undue hardship.
[78] The Tribunal found that the evidence substantiated Ms. Johnstone’s complaint. Ms. Johnstone had proven prima facie employment discrimination on the basis of family status and the CBSA had not proven a bona fide occupational requirement or hardship necessary to exempt it from the obligation to accommodate for family status arising from childcare responsibilities under the Act.
Remedies
[79] The Tribunal ordered the CBSA to cease its discriminatory practices against employees seeking accommodation based on family status for purposes of childcare responsibilities. It required the CBSA to consult with Ms. Johnstone and the Commission to develop a plan to prevent further incidents of such discrimination. The Tribunal ordered the CBSA establish written policies including processes for individualized assessments to address family status accommodation requests within six months.
[80] The Tribunal ordered that Ms. Johnstone be compensated for her lost wages and benefits, including overtime that she would have received and pension contributions that would have been made had she been able to work on a full-time basis during the period in question. The Tribunal directed that Ms. Johnstone be entitled to pension contributions as a full-time employee during this period.
[81] The Tribunal also awarded Ms. Johnstone $15,000.00 for general damages for pain and suffering pursuant to s 53(2)(e) of the CHRA, and $20,000 for special compensation under s 53(3) of the CHRA, finding that the CBSA had deliberately denied protection to those needing it by ignoring efforts, both externally and internally, to bring about change with respect to its policies on family status accommodation. The Tribunal did not award solicitor client costs in light of the Federal Court of Appeal’s decision in Canada (Attorney General) v Mowat ,2009 FCA 309 [Mowat FCA].
Legislation
[82] The Canadian Human Rights Act, RSC, 1985, c H-6 provides:
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.
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 which a pardon has been granted.
7. It is a discriminatory practice, directly or indirectly,
...
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
53. (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.
(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
[Emphasis added]
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.
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.
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
...
b) de le défavoriser en cours d’emploi.
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) de fixer ou d’appliquer des lignes de conduite;
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.
53. (1) À l’issue de l’instruction, le membre instructeur rejette la plainte qu’il juge non fondée.
(2) À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la personne trouvée coupable d’un acte discriminatoire :
a) de mettre fin à l’acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment :
(i) d’adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii) de présenter une demande d’approbation et de mettre en oeuvre un programme prévus à l’article 17;
b) d’accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l’acte l’a privée;
c) d’indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l’acte;
d) d’indemniser la victime de la totalité, ou de la fraction des frais supplémentaires occasionnés par le recours à d’autres biens, services, installations ou moyens d’hébergement, et des dépenses entraînées par l’acte;
e) d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un préjudice moral.
(3) Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut ordonner à l’auteur d’un acte discriminatoire de payer à la victime une indemnité maximale de 20 000 $, s’il en vient à la conclusion que l’acte a été délibéré ou inconsidéré.
Issues
[83] The issues raised by this application are as follows:
a. What standard of review applies to the Tribunal’s determinations with respect to:
i. interpretation of “family status” in the Act,
ii. the legal test for prima facie discrimination based on family status,
iii. finding of prima facie discrimination based on family status, and
iv. remedies?
b. Did the Tribunal err in interpreting the term “family status” in section 3 of the Act to include childcare responsibilities?
c. Did the Tribunal err in finding the prima facie case of discrimination was established?
d. Did the Tribunal err in making its remedial orders?
Standard of Review
[84] The Applicant submits that the issues relating to the proper interpretation of family status, the legal test for establishing prima facie discrimination and whether the Tribunal erred in crafting its remedial orders are all questions of law to which the standard of correctness applies. While the Act is the home statute for the Canadian Human Rights Tribunal, it is also within the jurisdiction of other tribunals, such as labour, arbitration and public service tribunals.
Interpretation of “family status” in the Act
[85] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held there are two standards of review: correctness and reasonableness. Dunsmuir recognized that deference is generally appropriate where a tribunal is interpreting its home statute. Deference may also be warranted where a tribunal has developed particular expertise in the application of a general common law or civil rule in relation to a specific statutory context (Dunsmuir at para 54). In Canada (Citizenship and Immigration) v Khosa, 2009 SCC [Khosa] the Supreme Court confirmed that administrative decision makers are entitled to a measured deference in matters that relate to their special role, function and expertise (Khosa at paras 25-26).
[86] The Supreme Court stated the standard of correctne