Johnstone v. Canada Border Services

Johnstone v. Canada Border Services
Collection
Canadian Human Rights Tribunal
Date
2010-08-06
Neutral citation
2010 CHRT 20
File number(s)
T1233/4507
Decision-maker(s)
Findlay, Kerry-Lynne
Decision type
Decision
Decision status
Final
Grounds
Family Status
Decision Content
Between:
Fiona Ann Johnstone
Complainant
- and - Canadian Human Rights Commission
Commission
- and - Canada Border Services
Respondent
Decision
Member: Kerry-Lynne D. Findlay, Q.C. Date: August 6, 2010 Citation: 2010 CHRT 20
Table of Contents
I. Complaint
II. Factual Background.
III. Respondent’s Operations.
IV. Canadian Human Rights Tribunal (CHRT)/CHRC History.
V. Complainant’s Case.
A. Evidence of Fiona Johnstone.
B. Evidence of Murray Star
C. Evidence of Expert, Dr. Linda Duxbury.
D. Evidence of Expert, Martha Friendly.
E. Prima Facie Case.
VI. Respondent’s Case.
A. Evidence of Norm Sheridan.
B. Evidence of Rhonda Raby.
C. Evidence of Expert, Dr. Moore-Ede.
VII. Conclusion/Analysis.
VIII. Decision.
IX. Remedy.
A. Systemic Remedy.
B. General Damages for Pain and Suffering.
C. Special Compensation.
D. Interest
E. Solicitor Client Costs.
F. Retention of Jurisdiction.
I. Complaint [1] This complaint arose in April 23, 2004, and is brought pursuant to Sections 7 (b) and 10 (a) and (b) of the Canadian Human Rights Act (the Act).
[2] 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.
[3] Section 7 (b) of the Act reads:
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. [1976-77, c.33, s.7.]
[4] Sections 10 (a) and (b) of the Act read:
It is a discriminatory practice of 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. [R.S., 1985, c. H-6, s. 10; 1998, c. 9, s. 13(E)]
[5] The practices complained of include failure to accommodate, and adverse differential treatment based on family status, which in this case means the raising of two young children. Pursuant to the findings in Moore v. Canada Post Corporation, 2007 CHRT 31, at para. 86 failure to accommodate is not a discriminatory practice under the Act, as there is no free-standing right to accommodation under the CHRA.
[6] The alleged practice against the Complainant began in 2004. Although the Statements of Particulars of both parties deal primarily with the time period up to and including 2007, the complaint filed herein referred to the discrimination as being ongoing. Ms. Johnstone took the same position at the hearing that the discrimination complained of constituted a continuing event and is ongoing. The Canadian Human Rights Commission (CHRC) supported this approach.
[7] The Respondent objected to the introduction of evidence being led pertaining to the time period after 2007 as constituting post complaint allegations, and that such evidence would be too remote in time in terms of relevancy. The complaint herein was filed April 23, 2004.
[8] The Tribunal accepted the Complainant’s and the CHRC’s characterization of the complaint as ongoing, and noted that the written complaint made this assertion. The allegations raised under Section 10 of the Act also speak to the conduct complained of being systemic in nature, and remedies sought reflect this position.
[9] Evidence was presented by all parties as to CBSA practices, CBSA written and unwritten policies, a relevant collective agreement as amended over the full time period, the governing Variable Shift Scheduling Agreement (VSSA) in place at the time of the complaint and as later amended, and implications both past and present of the implementation of those practices, policies and agreements.
[10] Ms. Johnstone alleges that the CBSA’s policies forced her into part-time status upon her return to work after having each of two children, resulting in her being given fewer hours of work than she was willing and able to work, with an attendant loss of benefits that are available to full-time employees, including benefits under her collective agreement and pension entitlements under the Public Service Superannuation Act.
[11] Both the Complainant and the CBSA were represented by legal counsel at the hearing. CHRC was also represented by legal counsel, but addressed only the Section 10 arguments raised by the complaint. It was very beneficial to this Tribunal to have experienced senior legal counsel acting on behalf of all parties.
[12] Previous to the hearing, the CBSA had sought to add the Union as a party. One of the main reasons given by CBSA to add the Union was that the VSSA prevented CBSA from considering Ms. Johnstone’s request for static shifts, encompassing full-time hours over only 3 days per week. This argument was not advanced by CBSA at this hearing.
[13] Ms. Johnstone and CHRC opposed the application on the grounds that none of the remedies sought by Ms. Johnstone required amendments to the governing collective agreement or to the VSSA. The Union provided an affidavit to the Tribunal taking a position of support of the Complainant, but did not actively participate. This motion was dismissed by the Tribunal on the basis that the Union’s participation in the hearing was not necessary for the presentation of relevant evidence or the Tribunal’s ability to adjudicate on the matters so raised. It was also dismissed because the application was made late in the process, and the Union’s participation would not be necessary to properly dispose of the liability portion of the complaint [See 2009 CHRT 14].
II. Factual Background [14] Ms. Johnstone is a Canada Border Services Officer (BSO). She has been in the employ of CBSA since April 14, 1998. She is presently on leave without pay, the particulars of which are detailed later in this Decision. At the time of this complaint she worked in Passenger Operations at the Pearson Airport Terminal (PIA) in Toronto, Canada.
[15] By all accounts Ms. Johnstone is an exemplary employee, often exceeding her superiors’ expectations and noted up for her diligence, excellent results, and acumen for her work duties.
[16] Ms. Johnstone has been married to Jason Noble (Jason) since December 2002. Jason is also a BSO. During the early relevant time of this complaint, Jason worked for CBSA as a Supervisor also at the PIA. He now works in Ottawa.
[17] Ms. Johnstone and her husband have two children. The eldest was born in January 2003, with Ms. Johnstone returning to work January 4, 2004. The second child was born in December 2004, with Ms. Johnstone returning to work December 26, 2005. Their two children will both be school age by 2010.
[18] PIA is a 24 hours, 7 days per week operation. To cover the operational requirements necessitated by the workplace, the Collective Agreement is built around a rotating shift plan referred to as the vassa but spelled VSSA, an acronym for Variable Shift Schedule Agreement. From the time that Ms. Johnstone commenced working for CBSA, after a relatively short time as a part-time employee, she worked full-time on a schedule of 5 days on, 3 days off rotating shifts governed by the VSSA.
[19] In addition to the rotation, the shifts are irregular and unpredictable. At the time of the events giving rise to this complaint, full-time employees rotated through 6 different start times over the course of days, afternoons, and evenings with no predictable pattern. Also, employees worked different days of the week throughout the duration of the schedule. This schedule was based on a 56 day pattern. BSOs were given 15 days’ notice of each new shift schedule. The employer can change the schedule on 5 days’ notice.
[20] A full-time position within the context of this case, and as contemplated per Article 25.13 of the Collective Agreement in place at the time, was 37.5 regularly scheduled hours per week, based on an 8 hour day that included an unpaid ½ hour meal break. Any employee who worked less than 37.5 hours per week was considered part-time. Any employee who worked greater than 37.5 hours per week was paid overtime.
[21] Overtime hours are required as a BSO. The requirement for overtime is often unpredictable, as it may arise due to job duties at any given time in particular circumstances that cannot be foreseen, e.g. the detention of goods or persons. Sometimes employees know ahead of time, or are called in by management to work on an overtime basis due to workplace demands as they arise.
[22] Jason also worked regularly scheduled full-time hours on rotating shifts governed by the VSSA, and he worked an additional 10:00 am shift. Due to his supervisory duties, he was also required, from time to time, to attend meetings and training sessions on his days off and travel to other ports during job actions.
[23] In 2002 to 2004, both before Ms. Johnstone went on her first maternity leave, and as she was returning from it, she sought accommodation from CBSA due to her new child-rearing responsibilities. She sought the same accommodation upon her return to work from her second maternity leave. Both times she was faced with an unwritten policy of CBSA that will not provide full-time hours to those requesting accommodation on the basis of child-rearing responsibilities.
[24] Prior to returning from her first maternity leave, Ms. Johnstone asked CBSA for full-time static shifts. Ms. Johnstone wanted to work 3 days per week, 13 hour days, so that she could remain full-time. A 13 hour shift would include one ½ hour unpaid meal break. She did not specify a preferred start time. When she was advised by CBSA that this was not possible, she then made an alternate request of 3 days per week, 12 hour days. Although she recognized that this second position was part-time, she was trying to maximize the hours she would work in order to have as little negative effect on her pension and benefits as possible.
[25] Ms. Johnstone testified that the reason she asked to work over a 3 day period, is that these were the 3 days per week during which she could arrange alternate child care. She had three family members who were willing to care for her child, and later children, one of the three days each. She had no family assistance for a fourth day.
[26] Ms. Johnstone also testified that she tried to arrange third party childcare but was unable to do so due to the scheduling difficulties of a rotating shift schedule. She had no greater success on a static shift schedule that was outside normal third party care hours, and that could be unpredictably extended due to overtime requirements.
[27] Ms. Johnstone testified that the reason she wanted to continue to work full-time hours was so that her pension entitlements and her promotional opportunities and income would not be adversely affected.
[28] CBSA was willing to accommodate Ms. Johnstone, but to the extent only of a static shift of 3 days per week up to a maximum of 10 hours per day, plus a further 4 hours on a fourth day.
[29] Corollary to the above, Ms. Johnstone suggested methods to her employer that would allow her to continue to keep her pension at a full-time level while working part-time, but these suggestions were refused. This is discussed in more detail below.
[30] There is no dispute that CBSA has an unwritten policy that anyone seeking accommodation in order to care for children may be accommodated by being given static shifts, but must also go to part-time hours to a maximum of 34 hours per week. This unwritten policy does not allow employees to have static shifts with full-time hours if the reason for the request is childcare responsibilities.
[31] There is also no dispute that CBSA has and does accommodate employees for medical and religious reasons by giving them static shifts with full-time hours, from time to time, for varying lengths of time, and for some on a permanent basis. These requests are assessed on an individual needs basis, and in the case of medical accommodation CBSA requires medical substantiation of the request. There are also instances of employees having been accommodated because they have children with medical needs.
[32] Further, there was no dispute that this unwritten policy is applied unevenly. There are CBSA employees working part-time at 36 hours per week, employees working full-time static shifts, and others who have been allowed - although part-time - to maintain the equivalent of full-time pension and benefit entitlements. Although two of CBSA’s management witnesses stated that CBSA wanted to discourage these anomalies, both conceded that these exceptions do continue to exist.
III. Respondent’s Operations [33] The mandate of the CBSA includes the screening and processing of travelers and goods entering into Canada at each of its airports and land borders on a 24 hours a day, 7 days a week basis.
[34] The busiest of these airports is PIA. The Passenger Operations District, a component of the CBSA’s operations in the Greater Toronto Area (GTA) region, oversees these functions at PIA.
[35] Until 1994, customs functions were the responsibility of Customs and Excise within the Department of National Revenue. In or around 1994/1995, the federal government decided to combine customs and excise into a single department, called the Department of National Revenue. In November 1999, these functions of the former department were transferred to a newly created agency called the Canada Customs and Revenue Agency (CCRA).
[36] On December 12, 2003, by federal Order-In-Council, the CCRA’s customs responsibilities were transferred to a new Crown agency called the Canada Border Services Agency. This agency also assumed the ports of entry component (Immigration Inland Enforcement) previously performed by the Department of Citizenship and Immigration. Additionally, the CBSA also took responsibility for the regulation of the entry of food, plants and animals, inspections previously performed by the Canadian Food Inspection Agency.
[37] This date of December 12, 2003, when CBSA was created (and took over the responsibilities relevant to this complaint) became significant as the evidence unfolded in terms of its relation to the exhibited comprehensive Employment Equity Compliance Review of CCRA delivered by the CHRC on December 10, 2003. This is dealt with in more detail below.
[38] Until the creation of the CCRA in 1999, the Complainant’s employer was the Treasury Board Secretariat (TBS). Under its constituent legislation, the CCRA, and now the CRA, is a separate employer. Upon the transfer of customs functions from the CCRA to CBSA on December 12, 2003, TBS once again became the Complainant’s employer.
[39] Passenger Operations is currently one of the three main operational districts within the GTA region of the CBSA. The other two are Commercial Operations and GTEC. GTEC does not employ BSOs. In addition to these districts, the GTA region has a number of other divisions including the Investigations Division, the Intelligence Division, the Compliance and Verification Division, the Planning and Program Integration Division, and the Corporate Services Division (Human Resources, IT, Finance and Administration).
[40] Of these, only Passenger Operations and Commercial Operations employ individuals at the group and level at which the Customs Inspectors (CIs) (PM-02s), later called BSOs (PM-03s) were classified in 2004 and thereafter. The International Mail Processing Centre (Gateway) is now included within Commercial Operations.
[41] Commercial Operations was responsible for processing cargo from commercial aircraft and sufferance warehouses [facilities established for the landing, storage, safekeeping, transfer, examination, delivery and forwarding of imported goods before they are released by the CBSA], outports, a marine component and a railhead with locations in Concord and Brampton. The bulk of the work of this district is done at the PIA on the other side of the airfield from the terminals. BSOs in Commercial Operations performed counter duties for the public and examination of freight at warehouses with a view to determining whether to seize, hold or release goods.
[42] In 2004, Gateway was a separate district within the GTA region. In or around 2005/2006 these operations were merged into the Commercial Operations district. The work of the BSOs at Gateway is to sort and examine mail, documents and parcels coming to Canada through a primary processing area belt and then through secondary examination. Documentation is prepared on larger shipments that are held until duties are paid. Workers at Gateway work static shifts.
[43] The BSO work performed at Gateway, Passenger Operations, and Commercial Operations is set out in one universal job description and all are classified similarly.
[44] In 2004, Passenger Operations at PIA was responsible for processing passengers in three terminals (Terminals 1, 2 and 3). Passenger Operations also had responsibility at the East Hold, a building on the air field where small aircraft cross-border flights arrive. In 2004, passengers on these flights were met and taken by bus into Terminal 2 for processing. Fixed base operators (private jets) arriving with passengers were also processed through Passenger Operations, a function that moved to Commercial Operations in 2005.
[45] In January 2007, Terminal 2 was closed down, and the CBSA operations within that terminal were absorbed within Terminal 1. Currently, Air Canada’s U.S. and international flights operate through Terminal 1, and most other airlines operate through Terminal 3.
[46] Mr. Norm Sheridan has been the District Director of Passenger Operations since 1999, and at all times relevant to this complaint. He first joined Revenue Canada–Customs & Excise in 1979 where he had a variety of roles and responsibilities including, for a time, Human Resources.
[47] In 2004, Mr. Sheridan had three Chiefs (one assigned to each Terminal) reporting to him. The three Chiefs included Rhonda Raby who testified at this inquiry, and held the position of Chief of Terminal 1.
[48] Each Chief had between nine to thirteen Superintendants reporting to them who were responsible for the day to day management in their Terminals and supervising the BSOs on their crews.
[49] BSOs each were assigned to crews within which they worked at the Primary Inspection Line (Primary), or Secondary counter (Secondary) processing passengers for entry into Canada. In 2004, each crew had approximately 8 employees. Management tried to balance gender and experience on the crews, as well as ensure language capability.
[50] Also in 2004, each of the 3 Chiefs was assisted in their management and coordination functions by one or two Operations Coordinators. These Operations Coordinators worked afternoons, weekends and statutory holidays.
[51] Effective February 12, 2007 the management structure was changed. There are now 10 Chiefs within Passenger Operations: 3 per each of the two Terminals; one Chief of Enforcement; one Chief of Corporate Services; one Chief of the Redevelopment Program; and one Chief responsible for Immigration Policy.
[52] The Superintendents in the Terminals continue in the same general job description. In the corporate area, they prepare shift schedules, manage the performance appraisal system, and monitor the program. There are currently two Superintendents who specifically manage any accommodation requests by employees asking to be relieved, for whatever reason, from the VSSA schedule.
IV. Canadian Human Rights Tribunal (CHRT)/CHRC History [53] There is a long history involving the CBSA (and its predecessors), and the CHRC, the CHRT and the Federal Court on the issue of the definition of family status discrimination as it relates to employment, and on the implementation of decisions previously taken. As this history arose repeatedly during the hearing, and many exhibits were tendered attesting to it, identifying some of this history at the outset is helpful as a framework to the present complaint.
1984 - 1993
[54] February 17, 1993: The decision of Brown v. National Revenue (Customs & Excise), 1993 CanLII 683 (CHRT) (Brown) dealt with the issue of discrimination based on sex (pregnancy) and family status contrary to the Act. The Respondent was the CBSA’s predecessor, the National Revenue Agency – Customs and Excise. As in this case, the Respondent took the position that the Complainant had been accommodated to a sufficient degree to the point of undue hardship, and that she had not made adequate efforts to obtain day care, the onus for which was hers alone. Although the decision was rendered in 1993, it was based on allegations that arose in 1984 and 1985. The inquiry into the complaint, which was found to be substantiated, required consideration of the nature of family status as a prohibited ground of discrimination within the Act.
[55] At page 15 of the Brown decision (supra), the Tribunal set forth the requirements to establish a prima facie case of discrimination based on the ground of family status as follows:
…the evidence must demonstrate that family status includes the status of being a Parent and includes the duties and obligations as a member of society and further that the Complainant was a parent incurring those duties and obligations. As a consequence of those duties and obligations, combined with an employer rule, the Complainant was unable to participate equally and fully in employment with her employer.
[56] At page 20 of the Brown decision, the Tribunal found that parents are under an obligation to seek accommodation from their employer so that they can best serve their obligations to the employer and their duties and obligations within the family. The Tribunal went on to state:
It is this Tribunal’s conclusion that the purposive interpretation to be affixed to s.2 of the CHRA is a clear recognition within the context of family status of a parent’s rights and duty to strike a balance coupled with a clear duty on the part of any employer to facilitate and accommodate that balance within the criteria set out in the Alberta Dairy Pool case. To consider any lesser approach to the problems facing the modern family within the employment environment is to render meaningless the concept of family status as a ground of discrimination.
[57] Ms. Brown was also a BSO (then called a Customs Inspector) who asked to work a day shift and if necessary to accomplish this a transfer, after her child was born to accommodate childcare needs as both she and her husband worked shifts. The Respondent employer did not accede to her request, as it did not recognize childcare needs for an employee working shifts as an accommodation obligation under the Act. Having found the Respondent’s failure to accommodate Ms. Brown’s request for day shift work discriminatory, the Tribunal directed the Respondent to write a letter of apology to Ms. Brown and 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 as noted in paragraph 54 above.
[58] Following this decision, a 1993 letter of apology to Ms. Brown was written by M. E. Hynna, Assistant Deputy Minister, Customs Operations Branch, two undated drafts of which were exhibited in this hearing with cover letters dated in July and August, 1993. The letter included the following:
Based on the findings of the Tribunal that there was discrimination by regional management against you on both grounds outlined in your complaint dated July 17, 1985 and, in accordance with the Tribunal’s ruling, I would like to apologize on behalf of the Department for failing to accommodate you during and after your pregnancy. It is regrettable that the circumstances arising from your situation were not facilitated by management at the outset. However, in order to avoid any future misunderstanding, I would like to reassure you that a departmental policy is being developed in order to ensure that similar practices do not occur in the future. A copy of this letter is being forwarded to management in The Toronto Regional Office as well as to your immediate supervisors for the purposes of remind them of their obligations under the Act.
[59] Presumably these last two paragraphs were a reference, at least in part, to the wording in Brown used at enumerated remedy 4 at page 15: In order to ensure similar discriminatory practices do not occur in the future, we direct pursuant to s. 53 (2) (a) that the Respondent submit proof sufficient for the CHRC that there exists an appropriate policy of accommodation for employee transfer.
[60] Of note, Mr. Norm Sheridan, currently Director of Passenger Operations for CBSA at PIA, is mentioned in Brown at page 9 as having re-written an evaluation of Ms. Brown who had been described by her then superintendent in 1987 as abnormal without further explanation. Mr. Sheridan testified that in or about this time, he was Director of Programs for 3 years in the Greater Toronto Regional Office, and from 1989 forward he held the positions of Chief of Operations at PIA for Terminal 2 and then Chief of Operations at PIA for Terminal 2 for one year, followed by various positions in the Regional office again such as Manager of Operational Services, Chief of Operational Services, Director of Human Resources, and Chief in Drawbacks, Refunds and Remissions. It is apparent from these senior positions in operations and human resources that Mr. Sheridan was personally familiar with the Brown decision.
1993 - 1995
[61] 1993: A further exhibited letter dated July 19, 1993 and referencing the Brown decision was written by Dianne Dioguardi, Staff Relations Officer, Operations Section, Staff relations and Compensation Division, Human Resources Branch, Revenue Canada Customs & Excise Revenue Canada. It was written to Mr. Robert J. Venier, Counsel for the Respondent, Civil Litigation, Toronto Regional Office, also with Revenue Canada It stated:
…[with] the impending integration of the two divisions of Revenue Canada – Taxation and Customs and Excise, all policies will have to be amalgamated and tabled at separate Executive Committee meetings. Consequently, it could be quite some time before this particular policy is approved.
[62] Counsel for the CHRC, Rosemary G. Morgan, indicated that she intended to file the decision with the Federal Court and proceed with enforcement. A letter from John Viassi Nagy, Civil Litigation counsel, dated March 18, 1994 was also exhibited, addressed to William F. Pentney of CHRC enclosing a draft policy to address the Brown decision. A judicial review of the Brown decision was initiated by the Respondent, and later mutually adjourned in 1995 in order to allow for a settlement of outstanding issues.
1998 – 1999
[63] The Federal Court initiated a Status Review of the implementation of the Brown decision in November 1998, which ultimately led to the dismissal of the judicial review application. An exhibited Treasury Board Secretariat letter dated October 5, 1999 to CHRC speaks to working in consultation with the CHRC to implement Brown, and giving the history of the matter. The letter noted that other implementation matters had been settled, but not the part of the Order calling for the Respondent to develop a policy of accommodation reflecting the decision.
2000
[64] The CCRA Labour Relations Division organized and hosted an Employment Equity Strategic Session on December 8, 2000. As part of the agenda, the participants considered an exhibited document drafted by this Division’s personnel entitled Draft – Introduction to the Strategic Direction of Employment Equity for the CCRA that bore a date mark of 2000-11-02. Revealing that there was at that time an internal recognition of the disproportionate burden on women workers for childcare and related family responsibilities, at pages 5 and 6 of this document the following was stated:
Women balancing work and family life is an issue that affects many women working in the federal public service and within the CCRA. Generally women still continue to play a greater role in bearing the responsibility for childcare, eldercare and home maintenance. This issue can be compounded by a corporate culture that does not recognize this, [Tribunal’s emphasis], which in turn can have adverse affects on the distribution of women within the organization. In a study produced by the Conference Board of Canada, when asked what the impact of work-life conflicts was, 32% of respondents (54% female 46% male) indicated they have turned down or chosen not to apply for a promotion. Fourteen percent have left a job because of the work-life conflict while 24% have turned down or chose not to apply for a transfer because of it. Women have been traditionally marginalized in the labour market…This trend is also seen in the CCRA where women dominate the Clerical Group with representation rates above 80% a full 10% above the Labour Market Availability. Under-representation for women in CCRA occurs in the Professional Group and the Program Administration and Senior Clerical Group … Surprisingly, women are graduating from university programs at a rate of 58% in comparison to men. This ratio is consistent in the social science area and in the arts and science areas women are graduating at a rate of 67% in comparison to men. The bulk of employees in the CCRA are with the Program Administration and Senior Clerical Group. This group is where the majority of our custom inspectors and revenue officers in the program administration (PM) group are coded.
2001- 2003
[65] November 8, 2001: On this date the CCRA was formally notified of an upcoming audit by the CHRC, pursuant to the Employment Equity Act. The process commenced in January 2002. There was a workforce analysis done in 2002 and a goals feedback exercise in 2002. On-site visits were conducted over several months in 2003 in BC, Ontario and Quebec. At the time, 58.4% of CCRA’s workers were women.
[66] A comprehensive Equity Compliance Review was completed and tendered by the CHRC to the CBSA’s immediate predecessor on December 10, 2003.
[67] At pages 15 and 16 of the Equity Compliance Review there was a section titled Women’s Program wherein the following was stated:
Nevertheless, the Agency has proposed some strategies and goals to improve the work situation for women as follows:
-increase representation of women in Administration & Senior Clerical using such initiatives as advertising on notices of job opportunities that employment equity may be used as a placement criterion; -accommodate women in balancing their work and personal life through supportive policies and management.
[68] On December 12, 2003, as noted previously, the CBSA was created and took over the operations relevant to this complaint. In that the Compliance Review was tabled two days previous, the whole of the evidence is clear that its recommendations were not followed up on or implemented.
[69] Witnesses for both parties testified that to their knowledge, as senior managers and employees, there has never been full implementation of the orders in Brown that speak to creating policies of accommodation which demonstrate an acceptance of the family status obligations of an employer as defined by Brown.
2004- 2007
[70] 2004: After Ms. Johnstone filed her complaint on April 23, 2004, the CHRC Investigator appointed found that CBSA differentiated between classes of employees, permitting employees who sought relief from the rotating shift schedule for medical reasons to remain full-time, while requiring those who sought the same relief for reasons of childcare to work part-time. Part-time allocations of work, for childcare reasons are defined by the CBSA as meaning up to 34 hours per week. The Investigator also found that the Respondent’s evidence of operational concerns was an impressionistic assumption and that the Respondent had failed to provide a justification for the policy in question. The CHRC Investigator recommended at that time that the complaint be referred to the CHRT.
[71] December 2005: An exhibited internet website page, published by CBSA Human Resources, contained excerpts from a GTAR Newsletter. GTAR is an acronym that stands for Groupe de travail des associations de retraités des secteurs, public et parapublic. This newsletter excerpt touts a proposed CBSA mandatory Employment Equity Program, and the formation of local committees within CBSA to implement short and long-term plans based on an Employment Equity Plan filed in April 2005. The following statements appear in reference to both the Canadian Human Rights Act (referred to below as a Human rights Code), the Employment Equity Act, and employment equity generally:
We will, through planning, implementing positive measures, monitoring and reporting, be able to chart our progress in this area, and demonstrate compliance with a key piece of Canadian legislation.…Many of us are balancing busy family lives with our work life; many of us have specific needs and wants from the organization. While organizational requirements always come first, we know that the Human Rights Code prohibits unreasonable discrimination on a number of grounds. For a complete list of prohibited grounds see the link below…. In addition to programming under the Employment Equity Act, CBSA adheres to principles related to diversity. In CBSA Human Resources Division website a workplace that embraces diversity, each individual is recognized for his or her uniqueness….
[72] January 2007: Notwithstanding the Investigator’s recommendation that the complaint be referred to the CHRT (see paragraph 70 above), the CHRC dismissed the complaint. Ms. Johnstone therefore initiated judicial review proceedings in the Federal Court seeking to set aside the CHRC decision. The application was allowed by Justice Barnes (See: Johnstone v. Canada (A.G.), 2007 FC 36). An appeal by the Respondent to the Federal Court of Appeal was dismissed (See: 2008 FCA 101), and the case remitted back to the CHRC for reconsideration. The CHRC thereafter referred the complaint to the CHRT for inquiry and deliberation.
[73] June 2007: The Respondent’s position herein is that family status discrimination has not been established on a prima facie basis, and that if it has been, the discrimination is justifiable as a Bona Fide Occupational Requirement (BFOR) due to undue hardship. In the context of this position taken, it is worth noting that a draft CBSA Policy on Duty to Accommodate dated June 2007 was exhibited.
[74] The Respondent objected to the inclusion of the Draft Policy to Accommodate arguing the document was highly prejudicial, it had never been implemented, and therefore should not form part of the record. On its face, the Draft Policy to Accommodate was prepared by the Employment Equity & Diversity Division, Human Resources Branch of the CBSA. Whether its provisions had been implemented or not, and the evidence clearly established that they had not, it was a document that the Complainant’s witness, Mr. Star, testified to. Mr. Star testified that he had been given the document by the Head of the employee’s Union who was in turn given it at a meeting with Respondent representatives. Mr. Star had taken the document to a meeting with management for the Respondent when he was a Union steward, and had referred to it in that meeting. Although Rhonda Raby denied any prior knowledge of it in that meeting and at the hearing, another management employee of the Respondent present at the meeting admitted to Mr. Star that he was familiar with the document. Mr. Star’s evidence was uncontroverted.
[75] The Draft Policy to Accommodate includes acknowledgement of the aims and objectives of federal Human Rights legislation and developed case law, as well as the responsibilities of the employee to inform the employer, request accommodation, and work with his/her manager to develop the most appropriate accommodation for the circumstances.
[76] The Draft Policy to Accommodate also outlines the responsibilities of the Union, the Human Resources Advisors, and the Manager’s/Supervisors, as including but not limited to:
ensuring all employees know their rights in regard to accommodation,
consulting on a confidential basis with the employees to determine the nature of the accommodation required,
meeting the employee’s needs short of causing undue hardship,
taking an active role in exploring alternative approaches and solutions to accommodate the employee,
granting accommodation requests in a timely, reasonable manner,
following up proactively on requests for temporary or permanent accommodation…,
creating and maintaining an inclusive environment that is accessible and enables employees to be open and honest, and
ensuring that all employees who choose to participate in all work-related events are able to do so and that they can take advantage of the opportunities offered (ex: team meetings, training etc.)
[77] The Draft Policy to Accommodate also speaks to the National Employment Equity/Diversity Section’s Role, calls for the creation of a CBSA National Job Accommodation Fund to assist in accommodation costs, and details processes for seeking accommodation, responding to accommodation requests, and appealing accommodation decisions if necessary.
V. Complainant’s Case A. Evidence of Fiona Johnstone [78] Until Ms. Johnstone had children, she worked regular full-time rotating shifts under the VSSA as outlined above. However, when she became a mother and the primary parent responsible for childcare, she could no longer work the VSSA schedule and meet her legal and moral obligations to her children due to a lack of available childcare.
[79] Ms. Johnstone testified that she was willing to engage third party childcare for her children. She quickly discovered, however, that the ordinary daycare hours of any registered facility were 7 am to 6 pm Monday through Friday.
[80] Ms. Johnstone also discovered that even unlicensed daycares or private daycare providers will not provide childcare on an unpredictable and fluctuating basis, usually not at all on weekends, and certainly not overnight.
[81] Ms. Johnstone then turned to her family members, and was able to get childcare coverage for unpredictable hours, including overnight, on three days per week. The Respondent disputed the Complainant’s diligence in trying to arrange for third party childcare assistance, however, this Tribunal accepts Ms. Johnstone’s evidence that this was the ultimate and best childcare arrangement she could make.
[82] The evidence showed that Jason’s shift requirements also as a BSO at PIA, albeit as a Supervisor, were in many ways more onerous than those of Ms. Johnstone. Their schedules typically overlapped 60% of the time, but were not coordinated in any manner. Jason could not provide the childcare Ms. Johnstone needed on a reliable basis either.
[83] Ms. Johnstone testified that the alternative of a live-in nanny or childcare provider was not an option for her, due to the expense and the necessity that she and her family would have had to move into a home that could accommodate another adult person. As the expert evidence unfolded at the hearing, it is not a viable