Date: 20070116
Docket: T-1523-05
Citation: 2007 FC 36
Ottawa, Ontario, January 16,
2007
PRESENT: THE HONOURABLE MR. JUSTICE ROBERT L. BARNES
BETWEEN:
FIONA
JOHNSTONE
Applicant(s)
and
ATTORNEY
GENERAL OF CANADA
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Fiona Johnstone, is a Customs Inspector employed with the Canada
Border Services Agency (CBSA) since 1998. She works at the Pearson
International Airport (Pearson) in
Toronto. Her
husband also works at Pearson as a Customs Superintendent.
[2]
The
normal scheduling for Customs employees at Pearson involves rotating shifts
providing 24-hour per day coverage. A full-time employee works 37.5 hours per
week.
[3]
In
January, 2003, Ms. Johnstone, took maternity leave. She returned to work a
year later. With both Ms. Johnstone and her husband working on differing shift
schedules, it was essentially impossible for them to find a childcare provider
with matching availability. In the result, Ms. Johnstone requested
accommodation in the form of three fixed 12-hour shifts per week so that
alternate childcare could be obtained while she was at work.
[4]
For
employees whose childcare responsibilities conflict with the rotating shift
schedule, the CBSA accommodation policy provides for fixed shifts, but only up
to 34 hours per week. In accordance with its policy, the CBSA responded to Ms.
Johnstone’s request for accommodation by offering fixed shifts of up to 4 days
per week but not exceeding 10 hours per day to a maximum of 34 hours per week.
When Ms. Johnstone considered the expenses required to attend at Pearson for a
half day of paid employment, she concluded that the additional 4 hours of
available work per week would not be cost-effective. For that reason she
settled on three shifts per week of 10 hours each.
[5]
Ms.
Johnstone was not satisfied with the CBSA’s policy which required that she
accept part-time employment in return for obtaining fixed shifts. She made a
complaint to the Canadian Human Rights Commission (Commission) arguing that the
CBSA policy discriminated against her on the basis of family status. She also
contended that the CBSA did not require all of its disabled employees to work
on a part-time basis when accommodating their medical needs for fixed shifts.
[6]
The
Commission appointed an Investigator to review the circumstances of Ms. Johnstone’s
case. The Investigator conducted an investigation and recommended that the
Commission appoint a conciliator to pursue settlement of Ms. Johnstone’s
complaint and, failing settlement, she recommended the appointment of a Human
Rights Tribunal to adjudicate the matter.
[7]
The
parties were allowed to respond to the Investigator’s report and both of them
did so. On October 11, 2005, the Commission dismissed Ms. Johnstone’s
complaint and it is from that decision that Ms. Johnstone seeks relief on this
application for judicial review.
Investigator’s Report
[8]
The
Investigator’s Report contains a comprehensive review of the evidence
considered. The Investigator’s recommendation to the Commission to proceed
with Ms. Johnstone’s complaint was based on the following findings:
1. Ms.
Johnstone required employment accommodation to address legitimate child care
needs;
2. Ms.
Johnstone was aware of the CBSA policy, which required employees seeking fixed
shifts for family status reasons to accept part-time hours;
3. Ms.
Johnstone requested that the CBSA accommodate her child care needs with three
fixed 12-hour shifts per week;
4. The
CBSA responded to Ms. Johnstone’s proposal by imposing its policy of part-time
employment not to exceed 34 hours per week;
5. Ms.
Johnstone appears to have had no choice but to request and accept the CBSA
offer of part-time employment in return for obtaining fixed shifts;
6. The
CBSA policy on fixed shifts does not permit those requiring accommodation for
non-medical needs to remain full-time employees and, in that regard, appears to
differentiate between classes of employees who require accommodation;
7. The
CBSA’s argument that it had no duty to further accommodate Ms. Johnstone because
she had failed to request full-time fixed shift employment was circular because
its policy denied such accommodation;
8. The
CBSA’s evidence of operational concerns arising from a more liberal approach to
fixed shift accommodation was an “impressionistic assumption”.
9. The
CBSA policy for family status accommodation may have an adverse impact on
female employees because such requests are more often made by women than by
men;
10. The
CBSA policy on fixed shifts appears to have indirectly discriminated against
Ms. Johnstone because she was “forced” to work part-time to accommodate her
family situation; and
11. The
relegation of Ms. Johnstone to part-time status may have a long-term negative
impact on her pension entitlement.
[9]
The
Investigator also noted the potential importance of Ms. Johnstone’s case for
resolving similar future cases through the development of jurisprudence
“surrounding the issue of accommodation based on family status”.
The Commission’s
Decision
[10]
The
Commission rejected the recommendation of its Investigator and dismissed Ms.
Johnstone’s complaint. The Commission’s letter to Ms. Johnstone provided the
following rationale for its decision:
·
it is
satisfied that the respondent accommodated the complainant’s request for a
static shift to meet her child care obligations;
·
the
evidence shows that the complainant accepted the scheduling arrangement, and
did not request full time hours; and
·
in view of
the fact that that the respondent’s policy permits employees in circumstances
such as that of the complainant to be relieved from the obligation of working
rotating shifts for 37.5 hours weekly, and to instead work static shifts for up
to 34 hours weekly, the Commission is not convinced that the effect of the
respondent’s policy constitutes a serious interference with the complainant’s
duty as a parent or that it has a discriminatory impact on the basis of family
status.
Issues
[11]
The
issue before me is whether the Commission erred by dismissing Ms. Johnstone’s
complaint at the screening stage. To decide that question, it is first
necessary to conduct a functional and pragmatic assessment to identify the
appropriate standard of review with respect to the issues raised by the
Applicant.
Analysis
Standard of Review
[12]
The
Commission’s decision to dismiss Ms. Johnstone’s complaint at the screening
stage was made in accordance with its statutory authority under section
44(3)(b) of the Canadian Human Rights Act, R.S.C. 1985, c H-6, as
amended. This aspect of the Commission’s jurisdiction has been the subject of
considerable judicial attention and is fairly well defined. In Bell v. Canada (Canadian
Human Rights Commission); Cooper v. Canada (Canadian
Human Rights Commission), [1996] 3 S.C.R. 854, [1996] S.C.J. No. 115, the
Court described the Commission’s screening role at para. 53 as follows:
The Commission is not an adjudicative
body; that is the role of a tribunal appointed under the Act. When deciding
whether a complaint should proceed to be inquired into by a tribunal, the
Commission fulfills a screening analysis somewhat analogous to that of a judge
at a preliminary inquiry. It is not the job of the Commission to determine if
the complaint is made out. Rather its duty is to decide if, under the
provisions of the Act, an inquiry is warranted having regard to all the facts.
The central component of the Commission's role, then, is that of assessing the
sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat
des employés de production du Québec et de L'Acadie v. Canada (Canadian Human
Rights Commission), [1989] 2 S.C.R. 879, at p. 899:
The other course of action is
to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b)
that this occur where there is insufficient evidence to warrant appointment of a
tribunal under s. 39. It is not intended that this be a determination where the
evidence is weighed as in a judicial proceeding but rather the Commission must
determine whether there is a reasonable basis in the evidence for proceeding to
the next stage.
It is clear from the above passage that the
central task of the Commission at the screening stage is to weigh the
sufficiency of the evidence to determine if a complaint should be referred to
the next stage: also see Coupal v. Canada (Attorney
General),
[2006] F.C.J. No. 325, 2006 FC 255 at para. 26.
[13]
Although
in Bell Canada v. Communications, Energy and
Paperworkers’ Union of Canada, [1999] 1 F.C. 113, [1998] F.C.J. No.
1609, the Federal Court of Appeal observed that a reviewing Court ought not to
“intervene lightly” in a screening decision, it has also said that such a
decision must have a discernable rational basis of support: see Gee v.
Canada (Minister of National Revenue), [2002] F.C.J. No. 12, 2002 FCA 4 at
para. 13 and Kidd v. Greater Toronto Airports Authority, [2004] F.C.J.
No. 859, 2004 FC 703 at para. 22 aff’d. [2005] F.C.J. No. 377, 2005 FCA 81.
The Federal Court has also noted that a dismissal of a complaint at the
screening stage “adds to the seriousness of the decision” and therefore justifies
a careful review: see Sketchley v. Canada (Attorney
General), [2004] F.C.J. No. 1403, 2004 FC
1151 at
para. 51. I would add that a decision by the Commission to dismiss a complaint
without convincing reasons and contrary to the findings and recommendation of
the Commission’s investigator warrants a particularly careful review.
[14]
In
this case the Commission dismissed Ms. Johnstone’s complaint on the basis that
she had agreed to the CBSA’s accommodation terms and because the impugned fixed
shift policy was not discriminatory. The first of these issues is heavily
fact-laden and the second raises an issue of law.
[15]
Ordinarily
the Commission’s factual determinations are deserving of considerable judicial
deference. This is reflected in the authorities and, most recently, in the Sketchley
decision, [2005] F.C.J. No. 2056, 2005 FCA 404, which offers a
comprehensive review of the pragmatic and functional analysis required to be
applied to the Commission’s screening decisions. The issue in Sketchley
was one of law (ie. whether a particular employment policy was discriminatory),
but the Court’s detailed review of the pragmatic and functional factors is
helpful to the standard of review analysis required in this case with respect
to all of the Commission’s grounds for dismissing Ms. Johnstone’s complaint.
[16]
The
amount of deference that the Commission is owed for its factual conclusion that
Ms. Johnstone had accepted the CBSA’s accommodation terms is complicated in
this case by its rejection of the contrary finding made by its Investigator.
The Commission had to have drawn its own inference from the Investigator’s
factual findings to have reached such a conclusion and it is arguable that in
so doing it was in no better position than the Court on judicial review.
Nevertheless, I have concluded that a standard of reasonableness should be
applied to this aspect of the decision in accordance with the decisions in Gee,
above, at para. 13, Gardner v. Canada (Attorney
General),
[2005] F.C.J. No. 1442, 2005 FCA 284 at para. 21, MacLean v. v. Marine
Atlantic Inc., [2003] F.C.J. No. 1854, 2003 FC 1459 at para. 42 and Megerdoonian
v. Canadian Imperial Bank of Commerce, [2004] F.C.J. No. 1310, 2004 FC 1063
at para. 8.
[17]
The
Commission’s decision that Ms. Johnstone had not established a prima facie
case of discrimination was very much like the issue before the Court in Sketchley,
above. In that case the Commission had dismissed a complaint at the screening
stage by holding that the employer’s policy of differentiating between disabled
employees was not prima facie discriminatory. That decision was
described by the Court as one which turned on a particular and discrete
question of law. This type of abstract legal analysis was said to attract less
deference on judicial review than a question which was significantly
fact-based. The Court also observed that where the Commission dismisses a complaint
at the screening level it is making a final determination of rights and, when
it does so on a point of law, the decision should be subject to a less
deferential standard of review (see para. 80).
[18]
In
this case the Commission was not convinced that the loss of hours suffered by
Ms. Johnstone brought about by the CBSA’s fixed shift policy constituted “a
serious interference” with her parental duties or that it had a discriminatory
impact on the basis of family status. As in Sketchley, above, this
characterization of the CBSA’s employment policy as non-discriminatory was
based on a discrete and abstract question of law and, as such, it is reviewable
on the standard of correctness.
Did
the Commission Err by Concluding that Ms. Johnstone Had Accepted the
Accommodation Terms Proposed by the CBSA?
[19]
The
Commission’s decision is obviously at odds with the Investigator’s finding that
Ms. Johnstone had no option but to request part-time employment in the face of
the CBSA accommodation policy providing for fixed shifts in family status cases.
[20]
The
Investigator found that Ms. Johnstone had made inquiries and was aware of the
CBSA policy which required that she assume part-time employment in return for
fixed shifts. That was the established context in which she requested
part-time work of three 12-hour shifts per week, was
offered 34 hours per week over 4 days and
ultimately accepted 30 hours per week over 3 days. The Investigator declined
to accept that this exchange represented a matter of choice by Ms. Johnstone
but found, rather, that it was the simple imposition by the CBSA, and the reluctant
acceptance by Ms. Johnstone, of the existing CBSA policy.
[21]
In
contrast, the Commission’s decision states that the CBSA accommodated Ms.
Johnstone’s request for static shifts, that she accepted the scheduling
arrangement and that she did not request full-time hours.
[22]
The
positions of the Investigator and the Commission are obviously not congruent
and cannot be reconciled.
[23]
The
Commission’s decision on this issue presents a number of problems. The
Commission offers no reasons for coming to a different conclusion than the
Investigator in the face of a substantial body of evidence supporting the
Investigator’s finding that Ms. Johnstone’s decision to accept part-time work
was essentially involuntary. It is also noteworthy that the CBSA never
contended that the result might have been different had Ms. Johnstone simply
requested full-time hours and, indeed, the CBSA’s submissions to the Commission
indicate that its fixed shift policy in family status cases had no built-in
flexibility. Quite to the contrary, the Investigator noted that the CBSA had defended
its policy by arguing “that only employees requiring medical accommodation can
remain full-time employees while working on a static shift” and because its
“operational needs require that its full-time staff work on shifts”. The CBSA
also argued that it would face a likely increase in sick-leave usage if it
allowed employees to work a static shift and still retain their full-time
status. It seems to me that if the CBSA had been willing to deviate from its
policy requiring part-time employment in return for fixed shifts it would have
so advised the Investigator.
[24]
The
Commission’s decision on this point seems to me to suffer from the same
weaknesses that were of concern to the Court in Moore v. Canada (Attorney
General),
[2005] F.C.J. No. 18, 2005 FC 13 and in Kidd, above, where Justice
Richard Mosley observed at para. 22:
22 It should be noted that the
Commission's decision in Maclean, supra, contradicted an investigator's report
that favoured sending the applicant's complaints to further inquiry. The Court
commented that it is well established that the Commission is not bound by an
investigator's recommendation(s) and therefore, the Commission must be presumed
to have considered such recommendation in reaching its decision. I do not
dispute the Commission's authority to disagree with the recommendation of an
investigator or that the Commission is presumed to have examined such report
and recommendation. However, when the reasons disclose no rationale for the
Commission's decision not to exercise its discretion to deal with the complaint
beyond the one year limitation period, the existence of a contradictory
recommendation from an investigator makes the inadequacy of the reasons more
readily apparent.
As in Gardner, above, the
absence of any reasons by the Commission for rejecting the Investigator’s finding
on this point places the reviewing Court in a position of marked disadvantage.
However, unlike Gardner, I am unable to draw an inference as to how the
Commission came to this conclusion and I accept that Ms. Johnstone would be
left to speculate as to the Commission’s reasons. I have, therefore, concluded
that the Commission’s decision is unreasonable and deficient for failing to provide
a rational basis for the conclusion that Ms. Johnstone voluntarily accepted the
CBSA’s accommodation terms.
Did
the Commission Err by Concluding that the CBSA’s Fixed Shift Policy Did Not
Constitute a Serious Interference with Ms. Johnstone’s Parental Duties And that
It Did Not Have a Discriminatory Impact on the Basis of Family Status?
[25]
There
also appear to be fundamental flaws in the Commission’s analysis of the legal
issues raised by Ms. Johnstone’s complaint. I have used the word “appear” in
the previous sentence advisedly. It is impossible to know exactly what the
Commission had in mind in saying that it was not convinced that the
CBSA’s fixed shift policy constituted a serious interference with Ms.
Johnstone’s parental duties or that it had a discriminatory impact.
[26]
It
appears that the Commission lost sight of the fact that it was the CBSA
rotating shift policy that was prima facie discriminatory and not necessarily
its fixed shift policy which was an accommodation measure. This point was
recognized by the Investigator who made specific reference to the decision in Brown
v. Canada (Department
of National Revenue, Customs and Excise), [1993] C.H.R.D. No. 7,
which had already concluded that the CBSA rotating shift policy at Pearson was prima
facie discriminatory in terms of its adverse effects in the family status
context. The Commission’s conclusion suggests that it examined the fixed shift
policy to see if it was discriminatory when, instead, it should have considered
whether that policy was sufficient to fulfill the CBSA’s duty to accommodate.
[27]
If
the Commission was of the view that the CBSA fixed shift policy needed to have
a discriminatory effect for Ms. Johnstone’s complaint to move forward, it erred
in law. Such an approach would incorrectly conflate the issues of prima
facie discrimination and accommodation. In the absence of a determination
that the fixed shift policy was itself prima facie discriminatory, what
was required was a determination of whether that policy accommodated Ms.
Johnstone’s family status needs to the point of undue hardship. The burden of
proof on that issue rested with the CBSA and not with Ms. Johnstone so that the
Commission’s statement that it was “not convinced” gives rise to a further
concern about whether that burden was incorrectly imposed upon Ms. Johnstone:
see British Columbia Public Service Employee Relations Commission v. BCGSEU,
[1999] 3 S.C.R. 3, [1999] S.C.J. No. 46 at page 39.
[28]
The
fixed shift policy might also have been prima facie discriminatory in
the sense that it may have been more restrictive than the policy available to
other classes of employees who required fixed-shift accommodation: see Sketchley,
above, at para. 91. Here, there was evidence noted by the Commission’s
Investigator that the CBSA did differentiate between medical and family status
cases by not requiring all of its medically accommodated employees to work
part-time. This point is not resolved conclusively in the Record before the
Court and the point seems to have been overlooked by the Commission when it
dismissed the complaint. If it was not overlooked, it was at least deserving
of some explanation or analysis by the Commission because it was potentially
important evidence that the CBSA’s fixed shift policy was itself prima facie
discriminatory or, alternatively, that the CBSA had failed to accommodate Ms.
Johnstone’s family status needs to the point of undue hardship. After all, if
exceptions to the part-time rule could be made in medical cases, it might be
difficult to deny the same relief in cases involving other forms of discrimination.
[29]
It
also appears that the Commission adopted the CBSA submission that the fixed
shift policy was required to constitute a “serious interference” with Ms.
Johnstone’s parental duties. The Commission’s use of the “serious
interference” test seems to have been taken from the British Columbia Court of
Appeal decision in H.S.A.B.C. v. Campbell River & North
Island Transition
Society,
[2004] B.C.J. No. 922, 2004 BCCA 260, 240 D.L.R. (4th) 479, where the Court
described an employer’s legal obligations in dealing with a family status
accommodation request as follows:
[39] If the term
"family status" is not elusive of definition, the definition lies
somewhere between the two extremes urged by the parties. Whether particular
conduct does or does not amount to prima facie discrimination on the
basis of family status will depend on the circumstances of each case. In the
usual case where there is no bad faith on the part of the employer and no
governing provision in the applicable collective agreement or employment
contract, it seems to me that a prima facie case of discrimination is
made out when a change in a term or condition of employment imposed by an
employer results in a serious interference with a substantial parental or other
family duty or obligation of the employee. I think that in the vast
majority of situations in which there is a conflict between a work requirement
and a family obligation it would be difficult to make out a prima facie
case.
[Emphasis added]
The Campbell River decision,
above, has been criticized for conflating the threshold issue of prima facie
discrimination with the second-stage bona fide occupational requirement (BFOR)
analysis. In Hoyt v. CNR, [2006] C.H.R.D. No. 33, Tribunal Member,
Julie Loyd, rejected the Campbell River approach on the
following basis at paras. 119 to 121:
119 A different articulation of the
evidence necessary to demonstrate a prima facie case is articulated by
the British Columbia Court of Appeal in Health Sciences Assn. of British
Columbia v. Campbell River and North Island Transition Society, [2004]
B.C.J. No. 922. The Court of Appeal found that the parameters of family status
as a prohibited ground of discrimination in the Human Rights Code of British
Columbia must not be drawn too broadly or it would have the potential to cause
'disruption and great mischief' in the workplace. The Court directed that a prima
facie case is made out "when a change in a term or condition of
employment imposed by an
employer results in serious interference
with a substantial parental or other family duty or obligation of the
employee." Low, J.A. observed that the prima facie case would be
difficult to make out in cases of conflict between work requirements and family
obligations.
120 With respect, I do not agree with
the Court's analysis. Human rights codes, because of their status as
'fundamental law,' must be interpreted liberally so that they may better
fulfill their objectives (Ontario Human Rights Commission and O'Malley v.
Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at p. 547, Canadian National
Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R.
1114 at pp. 1134-1136; Robichaud v. Canada (Treasury Board) [1987] 2
S.C.R. 84 at pp. 89-90). It would, in my view, be inappropriate to select out one
prohibited ground of discrimination for a more restrictive definition.
121 In my respectful opinion, the
concerns identified by the Court of Appeal, being serious workplace disruption
and great mischief, might be proper matters for consideration in the Meiorin
analysis and in particular the third branch of the analysis, being reasonable
necessity. When evaluating the magnitude of hardship, an accommodation might
give rise to matters such as serious disruption in the workplace, and serious
impact on employee morale are appropriate considerations (see Central
Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990] 2 S.C.R. 489 at pp.
520 - 521). Undue hardship is to be proven by the employer on a case by case
basis. A mere apprehension that undue hardship would result is not a proper
reason, in my respectful opinion, to obviate the analysis.
In my view the above concerns are valid.
While family status cases can raise unique problems that may not arise in other
human rights contexts, there is no obvious justification for relegating this
type of discrimination to a secondary or less compelling status: see ONA v.
Orillia Soldiers Memorial Hospital (1999), 169 D.L.R. (4th) 489,
42 O.R. (3d) 692, [1999] O.J. No. 44 (C.A.) at para. 44 and British Columbia v. BCGSEU, above, at
paras. 45 and 46. I would also add that to limit family status protection to
situations where the employer has changed a term or condition of employment is
unduly restrictive because the operative change typically arises within the
family and not in the
workplace (eg. the birth of a child, a
family illness, etc.). The suggestion by the Court in Campbell River,
above, that prima facie discrimination will only arise where the
employer changes the conditions of employment seems to me to be unworkable and,
with respect, wrong in law.
[30]
The
Commission’s apparent adoption of the serious interference test for identifying
family status discrimination also fails to conform with other binding
authorities which have clearly established the test for a finding of prima
facie discrimination. No where to be found in those authorities is a
requirement that a complainant establish a “serious interference” with his or
her protected interests. A recent confirmation of the accepted approach can be
found in Sketchley, above, at para. 86 where the Court held:
[86] At the outset, I must reiterate the
overarching principles of the British Columbia (Public Service Employee
Relations Commission) v. British Columbia Government and Service Employees' Union
(B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1
[Meiorin] test, whereby human rights cases are determined. Initially, the onus
lies on the complainant to prove prima facie discrimination. A prima
facie case is one which "covers the allegations made and which, if
they are believed, is complete and sufficient to justify a verdict in the
complainant's favour in the absence of an answer from the
respondent-employer" (Ontario (Human Rights Commission) v. Simpson
Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, at para. 28). That
being established, it is then incumbent on the employer to justify that
discrimination as a bona fide occupational requirement (BFOR).
To the same effect are the decisions in Canada
v. Minister of National Revenue, [2004] 1 F.C.R. 679, [2003] F.C.J. No.
1627, 2003 FC 1280 at para. 15 and Morris v. Canada (Canadian
Armed Forces), [2005] F.C.J. No. 731; 2005 FCA 154 where Justice John
Evans held at para. 27:
In other words, the legal definition of a
prima facie case does not require the Commission to adduce any
particular type of evidence to
prove the facts necessary to establish
that the complainant was the victim of a discriminatory practice as defined in
the Act. Paragraph 7(b) requires only that a person was differentiated
adversely on a prohibited ground in the course of employment.
[31]
On
this issue I agree with the legal analysis at para. 38 of the Applicant’s
Memorandum of Fact and Law where it is stated:
The Applicant submits that the underlying
circumstances in the present case are no different, and the same threshold for
discrimination must apply. To that end, pursuant to the CHRA, any and
all discrimination is contrary to the Act. There is no discretion, and
no degree or level of discrimination which must be suffered by a complainant to
obtain the protection of the CHRA. Thus, the fact that the Applicant
was adversely affected by the Respondent’s policy is sufficient to establish a prima
facie case of discrimination, and, by applying a higher standard to the
ground of family status in its decision, the Commission erred in law.
[32]
I
have one remaining concern with the Commission’s approach to Ms. Johnstone’s
complaint. The Commission’s Investigator recommended that the complaint go
forward, in part, because she felt it raised an important human rights issue,
the resolution of which might assist in the further development of the law.
That view was obviously rejected by the Commission but it was, nevertheless, a
valid observation.
[33]
The
law is not well settled with respect to the balancing of competing workplace
interests insofar as family status accommodation is concerned. For instance,
it is probably a safe assumption that many employees would consider rotating
shift work to be an undesirable feature of their employment. In the result,
some employers pay a shift premium to compensate their employees for the less desirable
working conditions. If that was the situation facing Ms. Johnstone, she would have
considerable difficulty claiming a wage premium that she had not earned. That
is so because the law is clear that providing different levels of compensation
to employees providing different levels of service is not considered
discriminatory: see ONA, above, at paras. 26 and 27.
[34]
In
this case, though, the CBSA’s policy relegated Ms. Johnstone to part-time
status in consideration for obtaining fixed shift employment. That policy
appears not to have been designed to motivate the non-accommodated workforce. Instead,
its purpose seems to have been to discourage employees like Ms. Johnstone from
seeking accommodation in the form of fixed shifts. The purpose of an
employment policy or standard can be an important consideration in determining
whether it is discriminatory: see ONA, above, paras. 28 to 31.
[35]
One
important issue raised by Ms. Johnstone’s complaint is, therefore, whether it
is legally appropriate to reduce an accommodated employee’s hours of work as a
means of either addressing a perceived non-compensatory workplace advantage
(eg. the avoidance of rotating shifts) or as a disincentive to employees who
might seek accommodation for family status reasons. This is, of course, not a
question for the Court to decide but the Commission’s obvious failure to
consider it raises a further concern about the correctness of its decision to
summarily dismiss Ms. Johnstone’s complaint.
[36]
In
conclusion, I find that the Commission’s decision to dismiss Ms. Johnstone’s
complaint cannot be sustained for the reasons I have given. I will, therefore,
set aside that decision and remit the matter back to the Commission for a
redetermination on the merits by a new decision-maker. That redetermination
shall be carried out in conformity with these reasons.
[37]
The
Applicant shall have her costs in the amount of $1,750.00 inclusive of
disbursements.
JUDGMENT
THIS COURT ADJUDGES that
this application is allowed with the matter to be remitted to the Commission
for a redetermination on the merits by a new decision-maker. That
redetermination shall be carried out in conformity with the reasons given
herein.
THIS COURT FURTHER ADJUDGES
that the Applicant shall have her costs in the amount of $1,750.00
inclusive of disbursements.
"R.
L. Barnes"
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