Childcare Obligations and Self-Accommodation in Alberta
By Myrna El Fakhry Tuttle
Under Alberta human rights laws, what do employees have to show in a case of family status discrimination relating to childcare obligations?
Provincial, territorial and federal human rights legislation in Canada prohibits discrimination against employees based on family status. This protection includes an employee’s childcare obligations. However, the family status discrimination test has developed in different ways across Canada. And employers often do not know their duty to accommodate an employee’s childcare needs is triggered.
Alberta Human Rights Act
Section 4 of the Alberta Human Rights Act (the Act) protects individuals from discrimination based on different protected grounds including family status. The Act defines family status as the “status of being related to another person by blood, marriage or adoption” (section 44(1)(f)).
Family status protections allow employees who are parents to ask for an appropriate accommodation to be able to look after their children. It also requires employers to accommodate their employees’ family status needs up to the point of undue hardship.
Employees must try to find suitable childcare to adjust childcare obligations with work obligations. However, if no reasonable options for childcare are available, employers must modify work requirements to allow employees to manage childcare obligations. Modifications must not constitute undue hardship for the employers.
The big question is: to prove discrimination, do employees have to demonstrate they made reasonable efforts to meet their childcare obligations before requesting accommodation? We call this the “obligation of self-accommodation”.
The Test for Discrimination
In the 2012 case of Moore v British Columbia (Education), the Supreme Court of Canada (SCC) established a test for prima facie discrimination in human rights cases (at para 33). The complainant must prove the following:
the complainant has a characteristic protected from discrimination,
the complainant experienced an adverse impact, and
the protected characteristic was a factor in the adverse impact.
The SCC stated:
Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. (At para 33)
In the 2014 case of Canada (Attorney General) v Johnstone, the Federal Court of Appeal (FCA) extended the general test for discrimination to include self-accommodation in family status cases. The FCA said the complainant must show they have made reasonable efforts to solve the issue on their own.
The FCA asserted:
… 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. (At para 93)
The decision introduces the obligation of self-accommodation in the third step of this test. The FCA explained further:
A complainant will, therefore, be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or alternative arrangement is not reasonably accessible to them so as to meet their work needs. In essence, the complainant must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis in regard to all of the circumstances. (At para 96)
This test differs from the three-part test laid out by the SCC in Moore. Unlike Johnstone, Moore does not require the complainant to prove self-accommodation to satisfy the test for prima facie discrimination. These two approaches have led to inconsistencies in court decisions on whether or not a demonstration of self-accommodation is required to make out a prima facie case for discrimination in family status cases.
What is the situation in Alberta?
In the 2021 case of United Nurses of Alberta v Alberta Health Services, the Alberta Court of Appeal (ABCA) decided that the proper test for establishing a case of prima facie family status discrimination in Alberta is the three-part test described in Moore.
The ABCA ruled:
While the Supreme Court of Canada has not yet specifically applied the Moore test to the protected ground of family status, the test has nevertheless been adopted in Canada as the leading framework for establishing prima facie discrimination. Until the Supreme Court expressly alters the test for prima facie discrimination in family status cases, the Moore test governs in such matters. (At para 65)
Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie discrimination are wrong, and inappropriately hold family status claimants to a higher standard than other kinds of discrimination. (At para 99)
The ABCA followed the Alberta Court of Queen’s Bench in SMS Equipment Inc v Communications, Energy and Paperworks Union. It decided the applicable test for establishing a prima facie case of family status discrimination in Alberta is the three-part test set out in Moore. Therefore, a complainant in Alberta is not required to prove self-accommodation.
Conclusion
In 2022, the SCC dismissed an application for leave to appeal the ABCA’s decision in United Nurses of Alberta v Alberta Health Services. As a result of this dismissal, there continues to be no consistent test for determining prima facie discrimination in all cases. Each jurisdiction – provincial, territorial, and federal – in Canada can decide their own appropriate tests for prima facie discrimination in family status cases. Therefore, employers that have operations in different jurisdictions will have to apply different tests for assessing family status discrimination.