Human Rights Office

Human Rights Office
Human Rights Office

 A.B. v. The City of Yellowknife, 2016 NT HRAP 19718 (CanLII) 

Summary

The complainant has a child with special needs related to autism and used to work about twenty hours per week as a cashier-receptionist for the City of Yellowknife from 2006 to 2010. In September 2011, the complainant moved to the position of full-time booking clerk and during the summer and Christmas school break she was approved the entire period off to take care of her child. Even though there was not a specific agreement, there was a general understanding that the respondent would accommodate the complainant.

On March 28, 2012, the complainant met with the respondent to discuss her request for the summer of 2012 off. She was granted a partial accommodation, and when the complainant indicated that working evenings and weekends would leave her too stressed and tired, the Human Resources Officer said she would have to get a doctor’s note to explain why she could not work. On April 19, 2012, the complainant met with the respondent with letters from Dr. Ewan Affleck, supporting her request on the basis that requiring the complainant to work as proposed would have a “deleterious impact” on the child, and another letter from the Northwest Territories Disabilities Council stating that they could not support the child in its summer camps because of the child’s complex needs and behavioural risks.

The complainant described how working evening and weekends would affect her quality of life. She had been unable to have dates with her husband and working would prevent her from having a family vacation. The Human Resources Officer perceived the complainant’s comments as an admissions that the complainant felt entitled to summer vacation and “date nights”. On June 19, 2012, the complainant met again with the respondent with a letter from Dr. Nicole Radziminski, which explained the child’s need for a routine and proximity to “people he is comfortable with and who are capable of managing his needs”.

The respondent deemed the letters provided by the complainant insufficient, since they did not come from the complainant’s own doctor or establish her own medical need. The complainant resigned in mid-July after using the last of her annual leave.

 

Question to be Determined

  1. Did the complainant establish a prima facie discrimination based on family status?
  1. Did the respondent establish a bona fide occupational requirement for the complainant to work evenings and weekends?
  1. Did the respondent accommodate to the point of undue hardship?

 

Findings:

  1. Did the complainant establish a prima facie discrimination based on family status?

YES

  1. 2. Did the respondent establish a bona fide occupational requirement for the complainant to work evenings and weekends?​

NO

  1. Did the respondent accommodate to the point of undue hardship?

NO

 

Reasoning

In this case, the respondent dismissed the complainant’s reasons for having a structured routine, even though she presented several letters supporting her testimony:

There is conflicting evidence about comments made by the complainant during one of the earlier meetings. The complainant described how working evening and weekends would affect her quality of life. She had been unable to have dates with her husband and working would prevent her from having a family vacation. The Human Resources Officer perceived the complainant’s comments as clear admissions the complainant felt entitled to summer vacation and “date nights”. (para. 12)

The complainant and educational workers presented evidence regarding the complainant’s childcare situation in 2012. She was fully prepared to take care of her child and she was the most suitable person to fill his specific needs. But the respondents were not aware of all the extra care the child would need, even though the Human Resources Manager had taken special training on accommodation and Human Rights.

On top of that, The City did not have a policy specific to accommodation based on family status. It has accommodated employees on this basis, mainly with minor scheduling changes. And even though the complainant asked for the summer and Christmas break off the previous year, the City did not make any arrangements to take care of the situation in 2012.

The test for discrimination on the basis of family status is set out in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) at para. 95: 2016 CanLII 19718 (NT HRAP)7

…the individual advancing the claim must show (i) that a child 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. (para. 19)

 In this case the Court decided that all of these criteria had been met, specially the second one, because the Court established that, for the complainant, having the evenings and weekend off was a legitimate need in order to keep taking care of her child. Furthermore, the respondent’s proposed schedules were not reasonably accessible, and they did not prepare any accommodation for 2012, knowing that in 2011 A.B. was granted full-time accommodation during the Christmas break and summer time period.

The complainant’s childcare needs were no less in 2012 than they were in 2011. The respondent’s circumstances had not changed in terms of the number of employees on staff, hiring practices or operational needs. The City had an employee who was granted full accommodation in 2011 and expected the same in 2012, notwithstanding differing views as to whether there was an agreement.

The City nonetheless waited for the complainant to raise the issue before beginning to discuss alternatives to full accommodation. In the meantime, the respondent did nothing to address problems with the student by considering another substitute or training a replacement. The only party that could have done anything about the operational need for effective bookings was the respondent. The circumstances were not new, and should not have come as a surprise. (para. 47 & 48)

Finally, the court determined that the complainant’s request for the 2012 summer off would not have imposed an undue hardship on an organization with the size and capacity of the City; therefore, the respondent’s inflexibility prevented it from taking a remedial approach incurring in a Human Rights violation.

 

Remedy

The following is a summary total of the monetary remedies outlined in these reasons for decision:

a.      $35,213.47 for lost income and benefits;

b.      $129.07 for hearing expenses;

c.      $15,000.00 for injury to dignity, feelings and self-respect; and

d.      $5,000.00 in exemplary damages;

Total:      $55,342.54