Smolik v. Seaspan Marine Corporation

Smolik v. Seaspan Marine Corporation
Collection
Canadian Human Rights Tribunal
Date
2021-02-26
Neutral citation
2021 CHRT 11
File number(s)
T2268/2318
Decision-maker(s)
Pannu, Alex G.
Decision type
Decision
Decision status
Final
Grounds
Family Status
Marital Status
Summary:
Andreas Smolik is a marine engineer. He had worked for Seaspan Marine Corporation for years when his wife sadly died, leaving him a single parent of two children aged 6 and 9. After this loss, he told Seaspan that he needed a schedule that would work with his new childcare duties. Some of Seaspan’s vessels are at sea for a 12-hour shift. Others are at sea for periods of 1-3 weeks at a time. Mr. Smolik did not feel he could leave his kids with a caregiver for weeks at a time. He requested either a regular schedule or flexible shifts near home.
It took Seaspan a long time to propose a return to work plan. When they did offer one, it was not predictable. It also did not provide him with anything close to a full-time income. Seaspan did offer him one office position later on. However, it was on very short notice and with little information. Mr. Smolik turned it down because he would have lost his engineer certification. This had been his trade for over 25 years. Eventually he had to ask for leave, to work for other employers to earn a living.
Mr. Smolik claimed he was discriminated against based on his family status. Seaspan argued that Mr. Smolik’s requests were more like “personal preferences”. The Tribunal disagreed and found that being the only parent of two young, grieving children clearly falls under the definition of “family status”. Seaspan claimed that Mr. Smolik did not do enough to find childcare. The Tribunal also disagreed.
The Tribunal analyzed the efforts Seaspan made to help Mr. Smolik to meet his childcare needs. It found that Seaspan did not do enough under human rights law.
Mr. Smolik was awarded $469,392.68 for lost wages, as well as $15,000 for his pain and suffering and $10,000 for willful or reckless discrimination. Additionally, Seaspan was ordered to pay $27,239.84 for lost pension and benefits contributions and $10,392.23 for health and dental expenses. The Tribunal also ordered Seaspan to work with the Canadian Human Rights Commission to ensure this type of discriminatory practice will not happen in the future.
This case was complicated by the fact that Mr. Smolik belonged to a union. In unionized jobs, management, employees, and the union must work together to find accommodation solutions. Still, the Tribunal found that even where there is a collective agreement, the employer must always do its part to accommodate employees.
This decision has been sent to the Federal Court to be judicially reviewed.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT 11
Date: February 26, 2021
File No.: T2268/2318
Between:
Andreas Smolik
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Seaspan Marine Corporation
Respondent
Decision
Member:
Alex G. Pannu
Table of Contents
Complaint 1
A. Preliminary Objection – Scope of Commission’s Participation 1
Issues 2
Law 3
Evidence 5
A. Complainant Witness 5
B. Respondent Witnesses 10
Analysis 12
A. Did the Complainant establish that the Respondent discriminated against him under section 7? 12
B. Has the respondent established a valid justification for its otherwise discriminatory actions? 17
Decision 23
Remedy 24
Complaint [1] Andreas Smolik is the Complainant in this case. He is a marine engineer holding a First Class certification. Mr. Smolik’s employer, Seaspan Marine Corporation (Seaspan) is the Respondent. Seaspan is a marine transportation company operating along the West Coast of North America. Its main activities are ship assist/escort and towing services. It has a fleet of approximately 32 tugboats with over 600 employees, including approximately 44 marine engineers at the time of the complaint. Depending on the operations, some vessels are at sea for a 12-hour period, while others will sail continuously for a period of one to three weeks at a time.
[2] Mr. Smolik alleges that the Respondent treated him in an adverse differential manner on the basis of his family status, under section 7 of the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA), by failing to accommodate him with a work schedule that would allow him to fulfil his childcare obligations.
[3] The Respondent submits that the Complainant has failed to establish a prima facie case of discrimination and that the case should be dismissed. In the alternative, Seaspan says that it offered reasonable accommodation to Mr. Smolik, to the point of undue hardship.
[4] All parties were represented by counsel at the three-day hearing, which was held in Vancouver, British Columbia. The Canadian Human Rights Commission (“Commission”) which investigated and referred the matter to the Tribunal for adjudication participated at the hearing in support of the public interest. The Complainant and the Respondent both provided evidence and called several witnesses to testify.
A. Preliminary Objection – Scope of Commission’s Participation [5] During the hearing and in its closing written submissions the Respondent alleged that the Commission acted outside the scope of its jurisdiction and mandate under the CHRA and that I should entirely disregard its closing written submissions.
[6] During the hearing I ruled that the Commission was entitled to “fully participate” in the hearing and I reiterate that decision now.
[7] The term “public interest” is not defined under the CHRA. There is nothing in the legislation nor am I aware of any jurisprudence that narrowly restricts the participation of the Commission in human rights matters.
[8] Section 51 says clearly that “…the Commission shall adopt such position as, in its opinion (emphasis added), is in the public interest having regard to the nature of the complaint.”
[9] The Commission’s discretionary power to act in the public interest is not absolute. The power exercised by the Commission would still be subject to normal administrative law principles such as fairness, acting in an unbiased manner and not engaging in acts tantamount to abuse of process. None of these occurred during the hearing.
[10] The legislative scheme of human rights in Canada mandates the Commission to investigate complaints and refer them to the Tribunal if warranted. At a hearing one would expect the Commission to raise evidence of possible discrimination as their mandate includes trying to eliminate discrimination. Their mandate does not restrict them to only participate where issues of systemic discrimination exists.
[11] It was obvious to me during the hearing that the Commission had a particular interest in how employers accommodated their employees who had childcare obligations.
Issues [12] The issues for the Tribunal to decide are:
Has the Complainant established a prima facie case of discrimination under section 7 of the Act, because the Respondent failed to provide a work schedule that would allow him to meet his childcare obligations?
If yes, has the Respondent established a valid justification for its otherwise discriminatory actions?
If the Respondent cannot establish a justification, what remedies should be awarded that flow from the discrimination?
Law [13] Section 7 of the CHRA says it is a discriminatory practice to refuse to employ or continue to employ, or differentiate adversely against an employee, on a prohibited ground of discrimination. The prohibited grounds of discrimination include family status and are set out in section 3(1) of the Act.
[14] Childcare obligations are within the scope of protection offered by the ground of family status. In Canada (Attorney General) v. Johnstone[1], the Federal Court of Appeal set out the applicable test of discrimination based on family status. A Complainant making a claim for discrimination on the basis of family status must show on a balance of probabilities that:
a child is under their care and supervision;
the childcare obligation engages the individual’s obligation for that child rather than personal choice;
they have made reasonable efforts to meet that childcare obligation through reasonable alternative solutions; and that no such alternative solutions are reasonably accessible; and
the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.[2]
[15] In Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center),[3] the Supreme Court explained that in practical terms, once a prima facie case of discrimination has been established, the Respondent can either present evidence to refute the allegations of discrimination, put forward a defence justifying the discrimination, or both. If no justification is established by the Respondent, proof of these three elements on a balance of probabilities will be sufficient for the Tribunal to find that the CHRA has been violated. If, on the other hand, the Respondent succeeds in justifying the decision, there will have been no violation, even if the complainant meets their case.
[16] In the wake of Bombardier, it is clear that a complainant must establish a case which covers the allegations made and which, if believed, is complete and sufficient to justify a decision for the complainant.
[17] Mr. Smolik is required to establish, on a balance of probabilities, each of the four elements set out in Johnstone. Seaspan may then provide evidence that refutes the Complainant’s allegations, put forward a defence justifying its own actions, or both.
[18] If Mr. Smolik is able to establish a case of discrimination against him, Seaspan may argue in its defence that they attempted to accommodate the Complainant to the point of undue hardship. Under this defence, the Respondent has a burden to prove that they had a bona fide justification for the alleged discrimination. The Supreme Court of Canada held in cases such as British Columbia (Public Service Employee Relations Commission v BCGSEU (Meiorin)[4] and British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) (Grismer)[5], that a respondent relying on a defence of bona fide occupational requirement must demonstrate on a balance of probabilities that:
The Respondent adopted the impugned standard (in this case, its work scheduling policies and practices) for a purpose or goal rationally connected to the function being performed;
The Respondent adopted the standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate purpose or goal; and
The standard is reasonably necessary to the accomplishment of that legitimate purpose or goal, in the sense that it is impossible to accommodate an individual sharing the characteristics of the Complainant without incurring undue hardship based on health, safety or cost.
[19] I would add that undue hardship means more than inconvenience to a respondent should they rely on such a defence. In Central Okanagan School District No. 23 v. Renaud the Supreme Court said that the word “undue” implied that some hardship is acceptable.[6]
[20] In its submissions, the Commission noted that Seaspan did not question Mr. Smolik’s need for accommodation because of his childcare obligations. The Commission pointed out that Seaspan’s witness Mr. Thompson admitted on cross-examination that he did not question Mr. Smolik’s need for accommodation nor what childcare arrangements he tried to make. Seaspan’s other witness, Ms. Vigeant also admitted during her cross-examination that she did not raise questions about Mr. Smolik’s request for accommodation during the 2016 mediation because she said she was more concerned about finding a resolution than legal questions.
[21] The Commission contended that Mr. Smolik did establish a case for discrimination and that Seaspan, not having questioned Mr. Smolik’s need for accommodation previously, should not have raised it for the first time at the hearing.
[22] The Commission cited Lafreniere v Via Rail Canada Inc.[7] , submitting that an employer who does not challenge an employee’s medical documentation at the time that an accommodation request is made cannot later rely on that negligence as a defence.
[23] However, I do not agree that Lafreniere suggests that Seaspan’s failure to challenge Mr. Smolik’s request for accommodation somehow lowers the initial burden on him to provide some evidence of discrimination. The principles set out in Bombardier still apply and the initial burden still falls upon the Complainant.
Evidence A. Complainant Witness (i) Andreas Smolik [24] Andreas Smolik testified as the Complainant. He is a Marine Engineer with a first-class marine engineer certification. Mr. Smolik started working for Seaspan in that capacity in 1997. Since 2017, he has been working as a marine engineer for another company while on a leave of absence from Seaspan.
[25] Mr. Smolik worked on vessels chartered by Seaspan to Seaspan Ferries immediately prior to the events which led to the filing of his human rights complaint. He worked 12-hour shifts, five to seven days a week. After his shifts, Mr. Smolik went home to his family in North Vancouver. Occasionally, Mr. Smolik worked overtime shifts to cover for colleagues.
[26] Mr. Smolik married his wife Cathy in 2001. They had a daughter Anna in 2003 and son Magnus in 2006. Cathy’s employer permitted flexible work hours; from 2003 to 2013 the Smoliks were able to meet their childcare obligations themselves.
[27] Sadly, Cathy was diagnosed with cancer in 2011. Her conditioned worsened in 2013 and Mr. Smolik took a leave of absence in March 2013 to take care of their children and support his wife. Tragically, she passed away in May 2013. Mr. Smolik went on bereavement leave from Seaspan following Cathy’s death.
[28] Mr. Smolik became the sole caregiver for his children, aged 9 and 6 at the time. He testified that his daughter became reclusive and, despite counselling, had difficulty processing her mother’s death. Mr. Smolik described his son as being emotionally dependent on him and anxious when apart from his father.
[29] By September 2013, Mr. Smolik thought his children’s emotional state had stabilized enough that he could return to work. He met with Captain Steve Thompson (Seaspan’s manager of Marine Personnel) and Jeff Sanders (his Canadian Merchant Service Guild union representative) to discuss a return to work.
[30] Mr. Smolik testified that he told Seaspan that he could not work on their coastal vessels because of his lack of childcare options and his children’s emotional needs. These emotional needs prevented Mr. Smolik from being away from his children for the two to three weeks required to work on a coastal vessel.
[31] Mr. Smolik told Seaspan that he needed either (a) a job like his previous one – in which he worked 12 hour shifts and could go home to his family; or (b) another schedule that was flexible enough to allow him to do most school pickups. Unfortunately for Mr. Smolik, during his leave from Seaspan, the two coastal ferries on which he had worked were no longer part of their fleet, complicating these requests.
[32] Due to the emotional impact on his children, Mr. Smolik testified that he wanted to preserve his family unit. He considered his relatives as caregivers. Mr. Smolik had one brother with four children who lived in Maple Ridge. His other brother was a bachelor in New Westminster who Mr. Smolik felt could not look after his children for extended periods. Mr. Smolik’s mother-in-law lived closer in West Vancouver, but he did not consider her a suitable caregiver.
[33] He testified that he had considered hiring a nanny for his children, but felt that he could not trust one to care of his children for either multiple weeks at a time or an erratic schedule. Mr. Smolik said he consulted a friend who had hired a caregiver after his wife passed away, and it turned into a “revolving door of nannies”.
[34] Given his family situation at the time, the option of having a family member or nanny be available on stand-by to provide 24-hour care for his children (who were dealing with the loss of their mother) on an unpredictable schedule or for an extended period of time (1 to 3 weeks), was not reasonably accessible.
[35] Mr. Smolik testified he was able to meet his childcare obligations through alternative childcare for a number of hours, including overnight, in the event he received and took a call-out shift and chilldcare in the event he received a scheduled, 12-hour “lunch bucket” shift/position and in the event he received a 7-8 day pager/on-call shift/position.
[36] Mr. Smolik said he maintained contact with Mr. Thompson and other Seaspan representatives throughout the fall of 2013. In November 2013, he met with Thompson, Capt. Walker (Assistant Manager, Marine Personnel), Gilbert Astorga (Seaspan Manager, Labour Relations), and Robert Sampson (Guild business agent). They discussed the option of placing Smolik on the call-out list to provide him the flexibility to turn down callouts that did not work with his schedule. Mr. Smolik said around this time he printed a copy of the CHRA for Mr. Thompson to flag Seaspan’s duty to accommodate based on Mr. Smolik’s family status. Mr. Smolik said that Mr. Thompson did not seem to want to acknowledge the copy.
[37] In January 2014, Seaspan presented a proposal for call-out work which Mr. Smolik accepted. It was for a one-year term and would be reviewed after six months. Mr. Smolik would be eligible for call-out work at the Roberts Bank and Vancouver Harbour locations only. The list would be called on the basis of seniority.
[38] Mr. Smolik testified that he accepted the proposal because he was led to believe that it would result in full-time income while accommodating his schedule. Unfortunately, the amount of work from this proposal ended up being far less than what Mr. Smolik expected.
[39] He said that from January until August 2014, he received only 7 call-outs. Mr. Smolik was very concerned about the lack of work and began calling and visiting the dispatch office numerous times to inquire about available work.
[40] He met with Mr. Thompson and Mr. Sanders in June 2014 to review the call-out agreement. Mr. Smolik testified that Seaspan acknowledged at this meeting that it had not provided him with sufficient work. He did not recall turning down any call-outs. Although there was no resolution to the lack of work for Mr. Smolik at this meeting, he testified that Seaspan assured him more work would be available in the busier summer season. However, the situation did not improve for Mr. Smolik during the rest of 2014.
[41] From September to December 2014, the situation only improved marginally, with Mr. Smolik receiving 8 call-outs and some limited dockside maintenance work. From January 2015 to April 2015, Mr. Smolik received an additional 9 call-outs. Mr. Smolik said he believed he completed the majority of the call-out work that was offered to him
[42] On January 5th, 2015, Mr. Smolik and Mr. Thompson met to discuss a position in the office for a marine dispatcher. He testified that Seaspan did not provide him with any information about the pay scale, compensation, or hours of work. The dispatch position also would not allow him to maintain his Marine Engineer certificate. Seaspan asked Mr. Smolik to respond to the offer that day or the next day, at the latest. Mr. Smolik turned down the job on the basis that it would mean the eventual loss of his engineer certification. A few days later, Seaspan asked whether he was interested in undertaking aptitude testing for the dispatch job. Mr. Smolik said he did not respond to that request because he had already turned down the offer.
[43] In March 2015, Mr. Smolik requested and received a one-year leave of absence from Seaspan to seek full-time employment elsewhere. During this leave, Mr. Smolik maintained his employment and Guild status with Seaspan. He found a job as a replacement marine engineer with Coast Mountain Bus Company on their Seabus ferries. This position did not pay as much as his job with Seaspan, but it was close to home and the hours were consistent. The Seabus job lasted until June when the Seabus employee he was replacing returned from leave.
[44] Although Mr. Smolik believed there was enough work at Seaspan to employ him on almost a full-time basis through call-outs and relief work, he testified that Seaspan was not willing to provide a sufficient amount of work to meet his financial needs.
[45] Mr. Smolik advised Seaspan that he was not interested in part-time work. Rather, he proposed working a Wednesday to Wednesday pager job (i.e. on-call) for the vessels Resolution, Kestrel, Eagle and Osprey, in addition to the random call-out list. In response, Seaspan advised Mr. Smolik that those relief pager jobs "typically go to the high seniority engineers whom are in a red day situation" and the amount of shifts he could pick up would be relatively small.
[46] Mr. Smolik also suggested he be given holiday relief work as there were 7.5 senior Marine Engineers (who had 6 weeks' vacation each) at Roberts Bank and Vancouver Harbour. This meant there were 45 weeks of holiday relief time available to be filled. This proposal was not accepted by Seaspan either.
[47] Mr. Smolik made inquiries with Gilbert Astorga, the Manager of Labour Relations of Seaspan Marine and Seaspan Ferries as to the possibility of obtaining work at Seaspan Ferries. Mr. Astorga contacted the Engineering Superintendent for Seaspan Ferries, Phil Loewen, and advised that Seaspan Marine had no restrictions in allowing Mr. Smolik to work for Seaspan Ferries. However, Mr. Smolik never heard back from Mr. Loewen. Mr. Smolik went to see him and was advised that Seaspan did not want any past Seaspan Marine employees who had worked on certain vessels previously on loan to Seaspan Ferries (i.e. the Challenger and Greg) to work for Seaspan Ferries. Mr. Smolik was denied the opportunity to work for Seaspan Ferries.
[48] In March 2016, Mr. Smolik attended a mediation with Seaspan and the Commission on his human rights complaint. The Guild was not named as a party in the complaint and did not attend the mediation.
[49] The parties reached an agreement in principle involving the designation of “super seniority” for Mr. Smolik during a one week on, one week off work schedule. During his week “on”, he would be available to do call-out and relief work at Roberts Bank and Vancouver Harbour, with the first right of refusal until he met his monthly hours for full-time income. During his “off” week, Mr. Smolik would receive call-out work based on his regular seniority level and could choose to work additional hours, above full-time, if he wanted. Mr. Smolik testified he was told he would have super seniority for one week at a time, with the possibility that someone else would be displaced.
[50] Unfortunately, the Guild did not support the settlement because it said it contravened provisions of the collective agreement. Seaspan and the Guild blamed each other for the collapse of the settlement. Seaspan did not undertake any further efforts to accommodate Mr. Smolik with work at Seaspan.
[51] Seaspan granted another unpaid leave of absence and Mr. Smolik was initially able to find work again at Seabus. With Seaspan’s consent, Mr. Smolik next worked with Saam Smit, a competitor of Seaspan. The employment with Saam Smit became full-time. Mr. Smolik is currently employed at the same maritime engineer pay scale rate as he was at Seaspan.
B. Respondent Witnesses (i) Steve Thompson [52] Captain Steve Thompson worked for Seaspan until his retirement in 2015. He was formerly the Manager of Marine Personnel responsible for ensuring adequate crew levels as well as hiring, discipline and training. At Seaspan, Mr. Thompson dealt with Mr. Smolik’s human rights complaint against it.
[53] In his testimony, Mr. Thompson described Seaspan’s various operations and the types of ships and schedules that marine engineers like Mr. Smolik would work. Mr. Smolik used to work a shift that was 12 hours on and 12 off, seven days a week and then 14 days off.. However, those vessels were transferred during Mr. Smolik’s bereavement leave in 2013.
[54] Seaspan’s remaining operations were long-haul barge towing on their continuous vessels. These vessels would be at sea for two to three weeks at a time. There were two ships continuous docking at the Roberts Bank location. Those crews worked a shift schedule of seven days on shift, followed by seven off, seven on and then 14 days off. Seaspan used a pager system in which crew “on shift” were required to be on-call to work with a four-hour notice. They could work up to 16 hours on a shift. In addition to the regular work at Roberts Bank there was also some sporadic tug work at Vancouver Harbour.
[55] In September 2013 Mr. Smolik spoke to Mr. Thompson and Jeff Sanders about his return to work. Mr. Smolik told Mr. Thompson that due to his childcare requirements, he could not work on the continuous coastal vessels. Mr. Smolik told Mr. Thompson that he needed either (a) a flexible schedule in that would allow him to pick up his children after school; or (b) structured work in the Lower Mainland providing a full-time salary.
[56] Mr. Thompson testified that there were few options for employment based on Mr. Smolik’s requirements. First, the structured schedule was no longer possible given the transfer of the vessels on which Mr. Smolik previously worked. Second, Mr. Smolik ruled out the continuous coastal vessels. Third, the Roberts Bank vessels had very unstructured schedules. Finally, the river and harbour tugs did not require marine engineers.
[57] Mr. Thompson testified that the 2014 call-out agreement limiting Mr. Smolik’s employment to call-outs was contrary to Seaspan’s normal policy. The agreement also expected Mr. Smolik to make reasonable efforts to return to his regular full-time duties by January of 2015. In addition, as a non-full-time employee, Mr. Smolik was told that his benefits were to be pro-rated, although inadvertently that was not done.
[58] Mr. Thompson said he met with Mr. Smolik in January 2015 to offer him a job as a marine dispatcher at Seaspan’s office. He described the dispatcher’s schedule as seven days on (12 hours) seven days off, seven nights (12 hours) and two weeks off. Mr. Thompson said he considered it a “perfect fit” for Mr. Smolik because it was both structured and provided a full-time salary. No evidence was produced at the hearing about the compensation. The position was a non-union one and the evidence was not conclusive about the effect this may have on Mr. Smolik’s Guild membership and his Guild pension.
[59] In August 2015, Mr. Thompson reviewed the call-out sheets for relief work prepared by the payroll department. Mr. Thompson’s analysis was that based on seniority, Mr. Smolik could not expect to receive the full-time hours that he needed.
[60] In August 2015, Mr. Smolik emailed Mr. Thompson to say that he believed he could also work the Roberts Bank pager job, based on his experience working in a structured job at Seabus. However, Mr. Thompson said he rejected the idea because (a) the pager job normally went to high priority senior engineers; and (b) the job was actually unstructured.
(ii) Virginie Vigeant [61] Virginie Vigeant was formerly the Human Resources manager at Seaspan from 2013 to 2018. She became involved in Mr. Smolik’s matter when he filed a human rights complaint against Seaspan.
[62] In May 2016, she and Mr. Thompson attended a mediation with Mr. Smolik on behalf of Seaspan. Ms. Vigeant testified that she invited Trevor Lang from the Guild to attend the mediation, but he declined as the Guild was not named as a party in the human rights complaint.
[63] Ms. Vigeant testified that after Seaspan and Mr. Smolik reached an agreement at the mediation, she brought it to Mr. Lang at the Guild to obtain the union’s consent. Despite her efforts, she said the union refused to support the agreement because giving Mr. Smolik “super seniority” status would, in the union’s words, “open up a can of worms”. She said the union threatened to file both union and individual grievances if the agreement was implemented.
[64] Ms. Vigeant said that Seaspan would not proceed with the agreement without the union’s consent. After the Guild confirmed in writing that they would not support the agreement, Seaspan took no further action to engage with the union on the issue.
Analysis A. Did the Complainant establish that the Respondent discriminated against him under section 7? [65] In order to establish a case of discrimination on the basis of his family status, Mr. Smolik needed to establish on a balance of probabilities that his circumstances met the four-stage test set out by the Federal Court of Appeal in Johnstone. The four requirements are: 1) a child is under their care and supervision; 2) the childcare obligation engages the individual’s obligation for that child rather than personal choice; 3) they have made reasonable efforts to meet that childcare obligation through reasonable alternative solutions and that no such alternative solutions are reasonably accessible; and 4) the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
(i) Was a child under the Complainant’s care and supervision? [66] The tragic death of Cathy Smolik in May 2015 left their two children in the sole custody, care and supervision of their father Andreas Smolik. The Respondent did not dispute this first element of the Johnson test.
(ii) Did the childcare obligation engage the Complainant’s obligation for that child rather than personal choice? [67] Becoming the sole parent and provider for his children was an obligation thrust upon him by his wife’s death and a responsibility that Mr. Smolik dutifully accepted.
[68] The Respondent disputed this second element of the Johnson test. The Respondent submitted that Mr. Smolik’s legal obligation to provide childcare for his children did not mean that he was the only one who could provide it.
[69] The Respondent relied on a number of cases to support its position. In Flatt v Treasury Board (Department of Industry)[8], the grievor was unsuccessful in arguing that her employer had a duty to accommodate her in allowing to work from home so that she could continue to breastfeed her child. The Board in applying Johnstone, made a legal distinction saying while it was her legal obligation to provide nourishment to her child, it was her personal choice on how to provide that nourishment.
[70] I would distinguish Flatt on the basis that in Flatt, the parent’s desire to breastfeed during office hours is factually far different from Mr. Smolik’s legal obligation as the only parent to provide childcare to his children when his employment options were to be away from home for weeks at a time or be called to work on short notice at irregular hours.
[71] The Respondent also cited Canadian National Railway Co. v. Unifor Council 4000[9], where the grievor had her previous position abolished. The arbitrator did not find that the grievor established a prima facie discrimination on the basis of family status saying the grievor’s childcare requirements (medical knowledge and English fluency) were not based on legal requirements but rather based on personal preference.
[72] This case is distinguishable in that Mr. Smolik’s children were young, and they were mentally and emotionally affected by their mother’s death. Mr. Smolik was not seeking any specific type of childcare based on his personal preference. As their father and sole parent, he made an assessment was that he was their only suitable caregiver at the time he was ready to return to work. Seaspan did not challenge Mr. Smolik’s initial assessment nor ask for medical evidence to support it or his childcare arrangements when they tried to accommodate his return to work.
[73] The Federal Court in Canadian National Railway v. Seeley[10] said that in a claim for discrimination under family status, the Complainant needed to provide some evidence but did not create a high standard of proof.
[74] Mr. Smolik was in a similar situation to the Complainant in Seeley – the primary caregiver with two young children. Unlike Mrs. Seeley, Mr. Smolik did not have a spouse to share any of the childcare obligations.
[75] Two other cases involving family status claims before the Tribunal add further support to Seeley in terms of standard of proof. Both involve CN as respondent and together with Seeley, are often referred to as the CN Trilogy.[11]
[76] In both Whyte and Richards, the Tribunal reviewed the evidence and concluded that it showed the complainants were parents and that this status generally included the duties of childcare. The Tribunal said that their childcare obligations as sole parents were sufficient to establish a prima facie case.
[77] In these family status cases, I must consider these claims in context. Mr. Smolik is a sole parent and has no spouse or partner with whom to share his childcare obligations. His claim clearly relates to his childcare obligations and not a personal choice.
[78] I find in this case that Mr. Smolik’s childcare obligations were a legal obligation and not a personal choice.
(iii) Did the Complainant make reasonable efforts to meet that childcare obligation through reasonable alternative solutions and no such alternative solutions were reasonably accessible? [79] The Respondent made submissions during the hearing that Mr. Smolik did not make reasonable efforts to satisfy his childcare obligation through reasonable alternative solutions.
[80] At the time of their mother’s passing, the Smolik children were nine and six years old respectively. Mr. Smolik testified that his children were greatly affected by their mother’s death. Both received counselling and he described his daughter as becoming reclusive and his son as being very dependent on him , wanting to know his father’s whereabouts even up until the date of the hearing.
[81] Mr. Smolik said that he considered family members as options for childcare. His own mother had passed away six months earlier. He had one brother who was married and had children, but he lived in Maple Ridge, quite a distance from the North Shore. His other brother was a bachelor with no parenting experience living in New Westminster and Mr. Smolik doubted he could provide more than five to six hours of childcare at a time. Cathy’s only living relative was her mother in West Vancouver, but Mr. Smolik did not believe she could provide much childcare beyond pick-ups from school.
[82] Mr. Smolik’s initial assessment of his family members as insufficient to meet his childcare obligations was subsequently borne out by the types of work available and the required work schedule. It would be too onerous to expect family members to provide childcare if Mr. Smolik were at sea for 1-3 weeks at a time. Neither could he reasonably expect them to be able to provide childcare on short notice on unstructured schedules.
[83] Mr. Smolik testified that he discussed childcare options with a friend and his impression of their experience in hiring a nanny was that it would become a “revolving door” because of the difficulty of finding a nanny to be on call for stretches of 24/7 work for 1-3 weeks at a time. He rejected the idea and felt that he himself was the best option for childcare upon his return to work.
[84] The Tribunal should give some deference to a Complainant who is presumed to have the best knowledge of his children. I accept Mr. Smolik’s belief that his childcare obligations were best met by him at the time he first indicated he was ready to return to work.
[85] Mr. Smolik demonstrated that he was able to secure alternative childcare for a number of hours to, including overnight, in the event he received and took a call-out shift and chilldcare in the event he received a scheduled, 12-hour “lunch bucket” shift/position and in the event he received a 7-8 day pager/on-call shift/position.
[86] The evidence does not show whether Seaspan asked Mr. Smolik, at the conclusion of the one-year agreement if he could alter his childcare arrangements to allow him to work additional hours or different shifts.
[87] In my view, Mr. Smolik made reasonable efforts to meet his childcare obligation through alternative solutions and no such alternative solutions were reasonably accessible.
(iv) Did the impugned workplace rule interfere in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation? [88] The workplace rules in question are the available employment opportunities, work schedules and the distribution of work at Seaspan for their marine engineers at the time of Mr. Smolik’s return to work.
[89] With the transfer of the two coastal ferries during Mr. Smolik’s leave, Seaspan’s available work for marine engineers largely consisted of long-haul barge towing on their continuous vessels. These vessels would be at sea for two to three weeks at a time. It was not feasible nor reasonable to expect Mr. Smolik to accept assignment to these vessels. He could not be away from home for weeks at a time because his children were still emotionally fragile after their mother’s death. He was also not able find alternative childcare from either family members or a nanny for such long periods at a time.
[90] There were two ships continuous docking at the Roberts Bank location. Those crews worked a shift schedule of seven days on shift, followed by seven off, seven on and then 14 days off. Seaspan used a pager system in which crew “on shift” were required to be on-call to work with a four-hour notice. They could work up to 16 hours on a shift. It would have been challenging for Mr. Smolik to work on these ships because the irregular schedule and short notice would have made arranging suitable childcare difficult.
[91] Seaspan’s proposal for call-out work, on the basis of seniority, at the Roberts Bank and Vancouver Harbour locations only did not produce the equivalent of a full-time income.
[92] Seaspan’s work opportunities and schedules made it almost impossible for Mr. Smolik to return to work without an accommodation for Mr. Smolik’s childcare obligation. They interfered with Mr. Smolik’s childcare obligation in ways that were more than trivial or insubstantial.
[93] Thus, I find that the Complainant has met the four prongs of the Johnstone test.
[94] I conclude that Mr. Smolik established a prima facie case of discrimination against him on the grounds of his family status contrary to section 7 of the Act.
B. Has the respondent established a valid justification for its otherwise discriminatory actions? [95] I have determined that the Complainant established a case that the Respondent discriminated against him on the basis of his family status. The Respondent submitted evidence to try to refute the Complainant’s case, but I have preferred the evidence of the Complainant. The Respondent has also submitted evidence to justify its actions and support its argument that it offered accommodation to the Complainant to the point of undue hardship.
[96] The test for establishing a bona fide occupational requirement (BFOR) was set out in Meiorin. It says an employer relying on an undue hardship defence must prove the following on a balance of probabilities:
a. The Respondent adopted the impugned standard (in this case the requirement to adhere to the employer's standard hours of work and scheduling practices) for a purpose or goal rationally connected to the function being performed;
b. The Respondent ad