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Her husband also worked for CBSA on a rotating schedule.Claiming that her shift work made it difficult for the couple to secure child care for their two children, Ms.Ultimately, CBSA decided that it was unable to accommodate her request, despite other alternatives suggested by the employee. Johnstone filed a claim of discrimination on the basis of family status with the Canadian Human Rights Tribunal.While the Tribunal noted that having children is a personal choice, it found that the Canadian Human Rights Act granted protection against discrimination based on such personal choices.Employers must consider each request on its own unique facts, but proactive programs, including flexible work arrangements and on-site or employer-sponsored daycare, may limit exposure to human rights complaints on the basis of family status. Theinformation provided in this article is necessarily of a general nature and must not be regarded as legal advice.For more information about Mathews Dinsdale & Clark LLP, please visit In applying this high threshold, BC has been out of step with the rest of the country, and judges in other provinces have criticized and expressly rejected the BC approach as too narrow and limiting. In a second decision, the Tribunal found that an employee who was a single mother had suffered discrimination on the basis of family status when the employer terminated her employment based on assumptions made about her ability to work on account of her status as a single mother (Cavanaugh v. Although this is still the state of the law until the Court of Appeal reconsiders the issue, if the identified trend continues and the Tribunal continues to find creative ways around this high threshold, employers may have to be prepared to demonstrate that they have accommodated an employee’s family status to the point of undue hardship. Johnstone, a mother of two young children, was employed full-time as a Border Services Officer by the Canada Border Services Agency (CBSA).
The Tribunal found that rotating shift work was not a bona fide occupational requirement for the Employer and accommodating the employees request would not have caused CBSA undue hardship.But, like many fairy-tale villains, perhaps the mother-in-law is just misunderstood.We all know motherhood is a sacred position, so it's natural for any woman to inwardly and sometimes (to our chagrin) outwardly express some fear about losing her son to another woman.Johnstone and her husband both work rotating shifts that included weekends, overtime, and different days or nights, was “one of the most difficult childcare situations” imaginable. She advises both employers and employees in all aspects of labour and employment law, including human rights. This article is reprinted with permission from Sara Forte.This case potentially raises significant issues pertaining to the extent an employer is required to accommodate an employee as it relates to childcare obligations. Additional information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP (March 2013).