Docket: A-557-14
Citation:
2015 FCA 250
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CORAM:
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TRUDEL J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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LAURA MARIE
FLATT
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT
TRUDEL J.A.
I.
Overview
[1]
This is an application for judicial review from
a decision of the Public Service Labour Relations and Employment Board (Board),
dismissing a grievance of Laura Marie Flatt (applicant) against her employer,
the Treasury Board of Canada (employer).
[2]
The Board’s decision, penned by Board member
Augustus Richardson, is dated November 13, 2014 and bears the citation 2014
PSLREB 02.
[3]
Following her one-year maternity leave, the
applicant requested permission to telework in order to continue breastfeeding
her third child. Despite various exchanges, the parties failed to establish a
suitable work schedule that would meet both their needs. As a result, the
applicant filed a grievance claiming that the failure to accommodate was
discriminatory on the basis of sex and family status, contrary to the Canadian
Human Rights Act, R.S.C. 1985, c.H-6 and the collective agreement (see the
applicant’s individual grievance presentation, applicant’s Record, Tab B-5 page
145). The grievance was refused at every level up to this Court.
[4]
Having carefully reviewed the Board’s decision
and considered the parties’ written and oral submissions, I propose to dismiss
this application for judicial review. I have not been persuaded that the Board
committed legal errors or any other errors warranting our intervention.
II.
The relevant facts
[5]
The Board aptly summarized the facts of this
case. They are uncontested and well documented. For our purposes, it suffices
to know that the applicant is a spectrum management officer. She works
full-time within the Spectrum Management Operations Branch of Industry Canada,
which supervises and manages the radio frequency spectrum in Canada. In April
2007, she became pregnant and went on maternity leave in September 2007. She
returned from maternity leave in September 2008. In January 2009, she requested
to telework out of her home on Thursdays. Her request was accepted and she
continued with this arrangement until September 2009.
[6]
In September 2009, the applicant went on
maternity leave again. She returned to work in September 2010. Although the
arrangement differed, she once again received her employer’s permission to
telework out of her home, at least from April 2011 to March 2012.
[7]
The applicant commenced her one-year maternity
leave for her third child in March 2012. She breastfed her child. As the year
wore on, the applicant decided that she would like to continue breastfeeding
her child for another year, that is until March 2014. To that end, she
approached her employer, in November 2012, and sought permission to telework
full-time from her home between 6:00 and 14:00. The employer denied this
request because, inter alia,
it was not “operationally feasible” (email of
January 25, 2013, applicant’s Record, Tab C-4 at page 207).
[8]
The applicant ended up asking for an extended
leave without pay for the period running between March 4, 2013 and June 28,
2013 with a return to work on July 1st (email of January 27, 2013, ibidem at page 212). Her request was accepted.
[9]
Nonetheless, the applicant continued to seek a
teleworking arrangement. In early March 2013, several emails were exchanged
between the parties. The applicant explored the possibility of finding a
daycare close to her workplace. This would permit her to continue breastfeeding
her child while working physically in the office. She proposed a schedule
whereby she would telework two days per week. On the remaining three days, when
she would be in the office, she would take two 45 minutes breaks to attend the
daycare center and breastfeed her child. It must be understood that with this
proposal, the applicant wanted the breastfeeding time to be included in her paid
hours and did not wish to forfeit her lunch breaks. She only agreed to count
her two 15 minutes paid coffee breaks towards the breastfeeding time.
[10]
The employer generally agreed with this proposal
but flagged two issues: (1) the hours of work were to total 37.5 hours per
week, excluding lunch breaks and the time associated to breastfeeding; and (2)
the arrangement would be for one year (email of March 4, 2013, ibidem at page 220).
[11]
The applicant did not seek to address her
employer’s concerns but rather abandoned this possible arrangement proposing a
new one where she would telework from her home two full days per week and work
in the office the other three days, from 10:00 to 14:30, teleworking again from
her home on those days from 6:00 to 8:30.
[12]
Having considered this new request in light of
the relevant Duty to Accommodate Policy, the employer offered the applicant
three options:
a) That the [applicant] work from home one
day a week, and in the Burlington office four days a week, working a minimum of
7.5 hrs a day when in the Burlington office;
b) That the [applicant] work part-time; or
c) That the [applicant] continue on
leave-without-pay until she feels that her nursing is complete.
(Board’s reasons at paragraph 53, reference to Exhibits omitted).
[13]
The parties did not reach an agreement and the
applicant reverted to her original request – teleworking from her home on a
full-time basis (email of April 16, 2013, applicant’s Record at page 235). This
request forms the basis of her grievance dated March 22, 2013, in which she
alleges discrimination on the grounds of sex and family status contrary to the Canadian
Human Rights Act and seeks the following corrective measures:
That Management comply with my rights under
the Canadian Human Rights Act regarding “Sex and Family Status” and that Management respects its
obligation as prescribed in the Canadian Human Rights Commission, Duty to
Accommodate Policy.
That I be treated in accordance with the
IBEW, Local 2228 collective agreement.
That I be allowed to work from home full
time, Monday to Friday between the hours of 7:00 am to 3:00pm to accommodate
breastfeeding my son until March 2014.
That based on the effective date of March 4,
2013 (my original return to work date), I be compensated for any lost wages and benefits that resulted
due to the denial of my request and having to accept leave without pay during
the time that an acceptable accommodation solution could have been arranged.
That I be made whole again for any and all
losses.
(ibidem at page 146)
[14]
In the end, the facts reveal that the applicant
weaned her son sooner that she had planned to and returned to work on October
1, 2013.
III.
The Board’s decision
[15]
Having considered the grievance and the current
state of the jurisprudence, the Board opined that four issues needed to be
addressed:
a) Is discrimination on the basis of
breastfeeding discrimination on the basis of sex or family status or both?
b) What is necessary to establish a prima facie case of
discrimination on the basis of breastfeeding, and did the grievor meet it in
this case?
c) If the grievor did establish a prima facie case of
discrimination, did the employer accommodate her to the point of undue
hardship?
d) If it did not, then what is the
remedy?
[16]
In view of my proposed conclusion, the first two
questions will be the focus of my analysis. This said, I return to the Board’s
decision.
[17]
I start by saying a few words about the scope of
the grievance. The applicant contends that the Board’s first error is that it
determined that the scope of the grievance prevented it from considering events
that occurred after the filing of the grievance, i.e. March 22, 2013, mostly the
on-going discussions between the parties to find a suitable arrangement
allowing the applicant to continue breastfeeding her child for another year.
[18]
Indeed, it is the applicant’s view that the
Board confounded the substance of the grievance with the corrective measures she
sought. More specifically, the applicant writes at paragraphs 60-63 of her
Memorandum of Fact and Law:
60. Moreover, contrary to the Panel’s
assertion that the Applicant’s original request to telework five days per week
in November of 2012 somehow limited the scope of the grievance as filed in
March of 2013, the Applicant submits that the content of discussions between
the parties before the filing of any grievance cannot serve to limit the scope
of any subsequently filed grievance. A party filing a grievance is simply not
constrained in this way.
61. Further, it is evident from the
discussions before and, indeed, throughout the grievance procedure, that the
Applicant communicated to the employer that while she required a change in the
manner in which she worked to accommodate her son’s breastfeeding schedule, she
was more than willing to propose and consider different ways in which
satisfactory accommodation could be made. The gravamen of the grievance was the
employer’s discrimination and failure to accommodate.
62. The statutory duty to accommodate
is an ongoing duty. It does not disappear when a grievance is filed.
Arbitrators have held that an employer’s potential accommodation liabilities
under human rights legislation cannot be said to have finally crystallized when
a grievance is filed. Indeed, where one of the issues in a grievance is
management’s accommodation as required by human rights legislation, this gives
rise to an exception to the privilege normally attached to grievance procedure
discussions. As such, it is proper to consider evidence of discussions that may
have arisen post-grievance or during the grievance procedure.
63. The Applicant submits that no
meaningful consideration of the employer’s accommodation efforts, or lack
thereof, could have been made without regard to events that occurred following
March 22, 2013. The Applicant continued to propose a number of alternative
solutions, all of which were rejected by the employer. Given the employer’s
ongoing duty to accommodate, the events which occurred after March 28, 2013,
ought to have been considered by the Panel.
[19]
In my view, this ground of complaint
cannot succeed and I will dispose of it immediately. To start with, the Board
heard all of the evidence, including the evidence dealing with the parties’
negotiations before and after the filing of the grievance. It also noted the
employer’s objection to the introduction of this evidence because it
constituted privileged information. The Board allowed the evidence in on a
provisional basis because it “might be relevant”
(Board’s reasons at paragraph 63). In the end, however, “…having considered all the issues and the evidence [the
Board was] satisfied that the post-grievance evidence was not relevant” (Board’s
reasons at paragraph 64), mostly because the applicant’s original request in
November 2012 was to telework from her home 5 days per week. It is the request that
ultimately grounded the grievance that was filed in March 2013. The Board wrote
at paragraph 100 of its reasons:
It is true that
between those dates, the grievor did suggest that she might be prepared to
telework fewer days, provided certain other changes were made to her work
schedule. However it remains the case that in the end, she backed away from
those proposals and returned to her original request in its original form. Had
she grieved simply that she had not been accommodated, she would have left open
the possibility of some form of accommodation other than five days of
teleworking. But that is not what she did. She grieved that the accommodation
on her breastfeeding required a specific, particular and precise form of work.
(Board’s reasons at paragraph 100).
[20]
Assessing the scope of the grievance and assessing
the evidence and affording it the weight that it deserves is within the province
of the Board. Absent an unreasonable determination, this Court will not
intervene.
[21]
Having carefully examined the material on
record, I have not been persuaded that the Board erred when it concluded that
the grievance with which it was concerned was “…the one
that was filed, which stated that the employer failed to accommodate the [applicant’s]
desire to breastfeed her child by permitting her to telework five days per week”
(ibidem). The record amply
supports the Board’s view that the crux of the grievance is that the employer
would not accommodate the applicant so that she could work her 37.5 hours per
week from her home.
[22]
Coming back to the Board’s analysis of the first
issue, I note its conclusion “…that discrimination on
the basis of breastfeeding, if it is discrimination, is discrimination on the
basis of family status rather than sex or gender” (ibidem at paragraph
157).
[23]
Although the Board acknowledges that to
lactate is a physical condition – an immutable characteristic, it is of the
view that breastfeeding is different. “It is a subset
of and an expression of a larger complex of factors stemming from the
relationship between a parent and an infant” (ibidem at paragraph 150).
[24]
As for the second issue, the Board asked itself
what was necessary to establish a prima facie case of discrimination on the basis of family status. It chose to
follow the test enunciated by this Court at paragraph 93 of Canada (Attorney
General) v. Johnstone, 2014 FCA 110, [2015] 2 F.C.R. 595 [Jonhstone].
Paragraph 93 reads as follows:
[93] I conclude from this analysis that in
order to make out a prima facie case where workplace discrimination on the prohibited ground of
family status resulting from childcare obligations is alleged, the individual
advancing the claim must show (i) that a child is under his or her care and
supervision; (ii) that the childcare obligation at issue engages the
individual’s legal responsibility for that child, as opposed to a personal choice;
(iii) that he or she has made reasonable efforts to meet those childcare
obligations through reasonable alternative solutions, and that no such
alternative solution is reasonably accessible, and (iv) that the impugned
workplace rule interferes in a manner that is more than trivial or
insubstantial with the fulfillment of the childcare obligation.
[25]
Having so concluded, the Board found that the
applicant’s evidence fell short on the second and third factors of the Johnstone
test (Board’s reasons at paragraphs 182-183). As a result, the Board could have
stopped its analysis. But in case it erred in deciding that the applicant had
not established a prima facie case of discrimination, it went on asking itself whether the
employer accommodated the applicant to the point of undue hardship. In short,
its answer was yes. As stated earlier, in view of my conclusion it will not be
necessary to address this particular issue.
IV.
Analysis
[26]
Whether sex or family status are alleged as
grounds of discrimination, complainants are required to present first a prima facie case
disclosing that they have a characteristic protected from discrimination, that
they encountered an adverse impact with respect to employment and that the
protected characteristic was a factor in the adverse impact. If this
demonstration is successful, the employer must show that the practice or policy
is a bona fide occupational
requirement and that those affected cannot be accommodated without undue
hardship in order to rebut the allegation (Johnstone at paragraph 76).
[27]
At the hearing of this application, both parties
agreed as to how to apply this test. The issue of prima
facie discrimination should be decided in light of
the factors enunciated in Johnstone, no matter the basis on which the
alleged discrimination is examined, i.e., sex or family status. I agree.
[28]
This said, these factors should not be applied
blindly without regard to the particular circumstances of the applicant whose
situation differs greatly from that of Ms. Johnstone. The application of the
facts to this test is dispositive of the grievance keeping in mind that the
test that concerns prima facie discrimination “is necessarily flexible and
contextual because it is applied in cases with many different factual
situations involving various grounds of discrimination” (Johnstone
at paragraph 83). The Johnstone factors should also be applied
contextually.
[29]
Indeed, Ms. Johnstone had complained that her
employer had discriminated against her on the ground of family status by
refusing to accommodate her childcare needs through scheduling arrangements.
Ms. Johnstone’s work schedule, as well as that of her husband, was built around
a rotating shift plan with no predictable patterns such that neither could
provide the necessary childcare on a reliable basis. In other words, Ms.
Johnstone was unable to meet her parental legal obligation to care for and
protect her child. Under these circumstances, she easily met the two first
factors of the Johnstone test: (a) the child was under her care and
supervision; and (b) she had the legal obligation to care for her child. This
was not a personal choice.
[30]
She also met the last two factors of the Johnstone
test: (c) she had made reasonable efforts to meet her legal obligation through
reasonable alternative solutions, and (d) her workplace schedule interfered
substantially with that obligation.
[31]
In the case at bar, there can be no doubt that
the applicant’s young son is under her care and supervision. But I have not
been persuaded that the applicant has met her burden on the second and third
factors. The applicant has been arguing that the equivalent for her of Ms.
Johnstone legal obligation to care for her child is her “legal obligation to nourish her son by breastfeeding him”
(applicant’s Memorandum of Fact and Law at paragraph 96)
[32]
Here, this comparison is inapt. I accept that
there could be cases where breastfeeding is seen as part of a mother’s legal
obligation to care, and more precisely, to feed her child. As a result, I also
accept the applicant’s position that breastfeeding can fall under both
prohibited grounds of discrimination. Here, and without adopting all of its
reasoning, I can find no error in the Board’s ultimate conclusion that Ms.
Flatt was breastfeeding her child out of a personal choice and that discrimination
on that basis, if it was discrimination, was discrimination on the basis of
family status. I do not share the applicant’s view that the Board
misapprehended Johnstone and misapplied the Johnstone factors. I
need not further discuss the Board’s analysis of case law dealing with the
question of whether work requirements that impact an employee’s breastfeeding
schedule constitute discrimination on the basis of sex or family status.
[33]
It seems to me that to make a case of discrimination
on the basis of sex or family status related to breastfeeding, an applicant
would have to provide proper evidence, foreseeably divulging confidential
information. For example, such information may address the particular needs of a
child or particular medical condition requiring breastfeeding; the needs of an
applicant to continue breastfeeding without expressing her milk; and the
reasons why the child may not continue to receive the benefits of human milk
while being bottle-fed. This list of examples, of course, is not exhaustive.
The purpose of such evidence would be to establish that returning to work at
the workplace is incompatible with breastfeeding.
[34]
Here, such information about the young infant is
absent from the record but for a medical note from Doctor Josephine Smith, stating
that she supports the applicant’s choice to continue breastfeeding her child for
a second year (applicant’s Record, Tab 10 at page 167, note of December 18,
2012). A second note states that due to the applicant’s inability to pump her
milk, breastfeeding should occur twice over a 8-hour period to ensure that the
milk supply is maintained (ibidem, Tab 18 at page 191, note of May 28, 2013). The applicant also
wrote in one of her emails that she wanted to breastfeed the child past her
one-year maternity leave because her second child had had health issues and she
felt that her young son’s immune system would benefit from breastfeeding (ibidem, Tab 11 at page 168, email of
January 25, 2013)
[35]
Having carefully examined the record, I conclude
that the applicant’s evidence does not meet the second factor of Johnstone.
In her particular circumstances, breastfeeding during working hours is not a
legal obligation towards the child under her care. It is a personal choice.
[36]
Moreover, the applicant has made no reasonable
effort to find a viable solution. As mentioned earlier, she never addressed the
employer’s reasonable concerns with her proposal to leave the office twice a
day for 45 minutes to breastfeed her child during paid hours and simply
reverted to her original position. She does not meet the third factor of Johnstone.
[37]
I therefore conclude, as did the Board, that the
applicant has not made her case of prima facie discrimination and that the Board’s application of the facts to the
Johnstone factors was reasonable. I need not discuss the second stage of
the test for discrimination dealing with the employer’s answer.
[38]
Before concluding, I must make one final
comment. I do not wish these reasons to be understood as trivializing
breastfeeding. The medical profession and numerous health organizations
encourage mothers to breastfeed babies, praising, inter
alia, the benefits of human milk on the immune
system of young children. The applicant chose to breastfeed her children and
respect must be had for her decision. This case is not about that choice but
rather about the difficulties of balancing motherhood and career. It is about
balancing the rights of mothers and that of employers having regard to the
basic principle that one must be at work to get paid. The test for establishing
prima facie discrimination
is well entrenched in Canadian jurisprudence. In the case of breastfeeding, the
onus is on working-outside-the-home mothers to make a prima
facie case of discrimination. Unfortunately in this
case, the applicant failed.
V.
Proposed disposition
[39]
Consequently, I propose that this application for
judicial review be dismissed with costs in the amount of $4600 inclusive of
disbursements and taxes.
"Johanne Trudel"
“I agree.
A.F. Scott J.A.”
“I agree.
Mary J.L.
Gleason J.A.”
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