Johnstone v. Canada Border Services

Johnstone v. Canada Border Services

The Tribunal found the Complainant established a prima facie case that CBSA engaged in adverse differentiation on the ground of family status by applying an unwritten policy that forced childcare-accommodation seekers into part-time status; CBSA failed to demonstrate a bona fide occupational requirement or undue hardship and did not undertake individualized reasonable accommodation efforts; accordingly the complaint was substantiated and remedial orders (systemic policy development, individualized assessment, compensation and damages) were required.

Citation
2010 CHRT 20
Parties
Complainant: Fiona Ann Johnstone; Commission: Canadian Human Rights Commission; Respondent: Canada Border Services
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
6 August 2010
Procedural Posture
Canadian Human Rights Tribunal Family Status Discrimination / Final Decision
Outcome
Complaint substantiated; respondent ordered to cease discriminatory practices and implement remedial measures
Legal Topics
Family Status Discrimination, Duty to Accommodate, Bona Fide Occupational Requirement and Undue Hardship, Systemic Workplace Policy, Collective Agreement/shift Scheduling, Remedies and Damages
Source Language
English
Human Rights Law Employment Law Administrative Law Family Status Discrimination Duty to Accommodate Bona Fide Occupational Requirement and Undue Hardship Systemic Workplace Policy Collective Agreement/shift Scheduling +1 more

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Parties

Fiona Ann Johnstone

Complainant

Canadian Human Rights Commission

Commission

Canada Border Services

Respondent

Procedural Posture

Canadian Human Rights Tribunal Family Status Discrimination / Final Decision

Legal Issues

  1. 1 Whether CBSA’s unwritten policy and practice of requiring employees seeking childcare accommodation to accept part-time status constituted adverse differentiation on the prohibited ground of family status under s.7 and s.10 of the CHRA
  2. 2 Whether the Complainant established a prima facie case of family status discrimination
  3. 3 Whether CBSA met its onus to prove a bona fide occupational requirement or undue hardship such that accommodation was not required

Ratio Decidendi

The Tribunal found the Complainant established a prima facie case that CBSA engaged in adverse differentiation on the ground of family status by applying an unwritten policy that forced childcare-accommodation seekers into part-time status; CBSA failed to demonstrate a bona fide occupational requirement or undue hardship and did not undertake individualized reasonable accommodation efforts; accordingly the complaint was substantiated and remedial orders (systemic policy development, individualized assessment, compensation and damages) were required.

Court Disposition

Complaint substantiated; respondent ordered to cease discriminatory practices and implement remedial measures

Orders

  • Cease discriminatory practices against employees seeking childcare accommodation based on family status
  • Consult with the Canadian Human Rights Commission under s.53(2)(a) and develop a plan to prevent further family status discrimination