Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

Canada (Attorney General) v. Johnstone (2013 FC 113)


This is a federal decision regarding a 2010 decision by the Canadian Human Rights Tribunal which found that the Canada Border Services had discriminated against one of its workers, Fiona Ann Johnstone, by refusing to accommodate her childcare requirements.  What she wanted was to get out of the full-time shift work schedule and work a three-day full-time work schedule.  While the employer had accommodated employees for medical and religious reasons, it refused to accommodate employees for childcare issues which it did not consider to be a human rights issue.  The tribunal found that childcare was a family status issue and that employers had the duty to accommodate employees with childcare issues.  It found that the applicant established prima facie discrimination and that the respondent had failed to establish that its scheduling requirements were a BFOR.  Please read a detailed account of that decision


  1. Did the Tribunal err in interpreting the term “family status” in section 3 of the Act to include childcare responsibilities
  2. Did the Tribunal err in finding the prima facie case of discrimination was established?
  3. Did the Tribunal err in making its remedial orders?


  1. No
  2. No
  3. In part


  1. Whereas the applicant argued that family status did not include childcare responsibilities, the Court established that indeed it was reasonable to find it did:" {} It is difficult to have regard to family without giving thought to children in the family and the relationship between parents and children. The singular most important aspect of that relationship is the parents’ care for children. It seems to me that if Parliament intended to exclude parental childcare obligations, it would have chosen language that clearly said so.  In result, I conclude the Tribunal’s conclusion that family status includes childcare obligations is reasonable.  It is within the scope of ordinary meaning of the words; it is in accord with decisions in related human rights and labour forums; it is in keeping with the jurisprudence; and it is consistent with the objects of the Act." 
  2. The Court dismissed the applicant’s view that 1) family status requires the establishment of a higher threshold compared to other grounds and that 2) Johnstone had failed to provide evidence supporting that she needed accommodation. In its decision, the judge stated:  "In my view, the serious interference test as proposed by the Applicant is not an appropriate test for discrimination on the ground of family status. It creates a higher threshold to establish a prima facie case on the ground of family status as compared to other grounds. Rather, the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way. (128) As for the question of evidence, it would that the Tribunal’s finding was reasonable: “ On the evidence before it, the Tribunal found Ms. Johnstone was a parent who had substantial childcare obligations and despite her best efforts could not find daycare for her children. The Tribunal also found on the evidence that accommodating Ms. Johnstone would not have caused undue hardship to the CBSA. [143]” The court, referring to the Dunsmuir standard, concluded that the Tribunal’s finding was reasonable:  “In Dunsmuir the Supreme Court stated that “a court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, justification, transparency and intelligibility, but it is also concerned with whether the decision falls within a range of possible acceptable outcomes defensible in respect of the facts and the law”. […] The Applicant prefers certain facts and interpretations of these facts but the substance of the matter is the Tribunal had evidence before it that support the outcome it arrived at. In doing so, the Tribunal’s decision falls within a range of possible outcomes[145]      The Tribunal’s finding that Ms. Johnstone had established a prima facie case of discrimination pursuant to ss. 7 and 10 of the Act. I am satisfied its findings are supported by the evidence and are within the range of reasonable outcomes.
  3. Two parts of the remedies proposed by the Tribunal were found not to be reasonable 1 The Tribunal’s order that the Employer create a human rights policy that was to the complainant’s satisfaction and 2: The Tribunal’s order that the Employer compensate the employee for a one-month period when she had opted to be on paid-leave