Human Rights Office

Queen's University
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Human Rights Office

Clark v. Bow Valley College, 2014 AHRC 4 (CanLII)

Summary:

Ms. Clark was employed as a nursing instructor by Bow Valley College. While she was pregnant she became ill and went on an approved sick leave in November 2009. She requested and was approved for maternity leave from February 1, 2010 through January 31, 2011. During the course of her maternity leave the College placed Ms. Clark on the instructor schedule for return to work beginning January 3, 2011. Within two weeks of learning of this news Ms. Clark contacted the College and asked that her return to work be delayed till February 1, 2011. In her request Ms. Clark indicated that she had tried to arrange childcare for January 1, 2011 but was unsuccessful and had no options for childcare until February. When Ms. Clark did not report to work by January 13, 2011, the College considered that she had resigned and terminated her employment. The College believed that by providing Ms. Clark with the names of alternative childcare providers they had accommodated her childcare concerns. In this case it was found that Ms. Clark was discriminated against on the basis of family status. In addition, the College’s actions of terminating Ms. Clark’s employment were neither reasonable nor justifiable. Bow Valley College did not accommodate Ms. Clark to the point of undue hardship.

Question(s) to be Determined:

1.    Was prima facie discrimination on the basis of family status established?



2.    If prima facie discrimination is established, were Bow Valley College’s actions of terminating Ms. Clark’s employment reasonable and justifiable? Did Bow Valley accommodate Ms. Clark to the point of undue hardship?



3.    If discrimination is found, what is the appropriate remedy?

Findings:

1.    Was prima facie discrimination on the basis of family status established?



YES



2.    If prima facie discrimination is established, were Bow Valley College’s actions of terminating Ms. Clark’s employment reasonable and justifiable? Did Bow Valley accommodate Ms. Clark to the point of undue hardship?



NO



3.    If discrimination is found, what is the appropriate remedy?

Reasoning:

1.    In this case a prima facie case of discrimination on the basis of family status was established. In this case the criteria outlined in Moore v. British Columbia (Education) were used to establish a prima facie case of discrimination. “A complainant is required to show three elements: they have a characteristic protected from discrimination; they have experienced an adverse impact with respect to employment; and the protected characteristic was a factor in the adverse impact” (para 42). In addition, this case relied heavily on previous decisions regarding childcare in relation to family status (Canada (Attorney General) v. Johnstone (Johnstone 2014) and Canadian National Railway Company v. Seeley (Seeley 2014). Using the above noted criteria it was found that:



i)    Ms. Clark was clearly in a legal relationship with her baby and had a bona fide childcare problem thus satisfying a protected ground of family status;

ii)    the neutral rule of “returning to work on January 3, then January 10” adversely impacted Ms. Clark; she was effectively told to deal with her childcare issues and subsequently terminated from her employment on the basis of abandonment, and;

iii)    the only reason for Ms. Clark’s absence was her childcare problem, thus satisfying the relational factors or connection of the adverse impact to the protected ground.



In light of the above, prima facie discrimination has been established on the ground of family status. This gives rise to Bow Valley having a duty to accommodate Ms. Clark’s bona fide childcare problem arising out of her family status.



2.    In this case Bow Valley College’s actions of terminating Ms. Clark were neither reasonable nor justifiable. In addition, it was found that Bow Valley College did not accommodate Ms. Clark to the point of undue hardship. Bow Valley College’s decision to terminate Ms Clark was not reasonable or justifiable for the following reasons: “Bow Valley did not ever explore anything but an “all or nothing” approach involving only a full time return to work. Bow Valley did not invite a collaborative approach or even explore alternatives with Ms. Clark. Bow Valley told Ms. Clark they needed her to work and that she should avail herself of childcare services. Given the manner in which Bow Valley responded to Ms. Clark's situation, the responsibility lies fully with Bow Valley for not exploring alternatives. I do not accept Bow Valley’s argument that Ms. Clark’s communication did not open the door for a discussion. There is no evidence that Ms. Clark was unwilling to meet with Bow Valley or discuss alternatives” (para 71).



Citing staffing constraints Bow Valley College stated that they could not accommodate Ms. Clarke’s later return to work date. Bow Valley College also indicated that it could not accommodate Ms. Clark by allowing her to enter into a shared instructor situation until she was able to return to work full-time in February 2011. In the decision these assertions by Bow Valley College were disregarded. “On all of the evidence, I do not accept that it would have been an undue hardship for Bow Valley to have implemented a shared instructor situation for Ms. Clark. They clearly still implement this practice. The schedule Bow Valley tendered as an exhibit referenced instructors being not available during clinicals; this would necessitate instructors sharing clinicals. As these two examples of instructors sharing clinicals occur after January 2011, it can clearly occur. Especially the recent occurrence where the nursing faculty was three times the number it was in January 2011. Bow Valley's position of an operational requirement of one instructor for “consistency” for students cannot withstand scrutiny based on their own evidence” (para 79). “Bow Valley owed Ms. Clark a duty to accommodate her and they failed to accommodate her to the point of undue hardship. The staff shortage and Bow Valley’s stated concerns about consistency do not constitute bona fide occupational requirements in this circumstance, nor do they constitute a reasonable and justifiable basis for taking the steps they did” (para 80).

Remedies:

In this case Ms. Clark was awarded $15,000 as general damages for injury to dignity. In addition, Ms. Clark was awarded lost wages from the date of termination, January 7, 2011 until May 1, 2011. “I award lost wages for the period from the date of termination, January 7, 2011 (in Exhibit 31) until May 1, 2011. As the director and the respondent both referenced an annual salary of $56,513.16 there appears to be agreement on the benchmark. I ask the parties to calculate the wage loss amount for the period awarded but retain jurisdiction to decide the actual amounts if agreement cannot be reached” (para 85).