Canada (Attorney General) v. Johnstone et al., (2014) 459 N.R. 82 (FCA)

• Judge: Pelletier, Mainville and Scott, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 11, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 459 N.R. 82 (FCA);2014 FCA 110

Can. (A.G.) v. Johnstone (2014), 459 N.R. 82 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2014] N.R. TBEd. MY.009

Attorney General of Canada (appellant) v. Fiona Ann Johnstone and Canadian Human Rights Commission (respondents) and Women's Legal Education and Action Fund Inc. (intervener)

(A-89-13; 2014 FCA 110; 2014 CAF 110)

Indexed As: Canada (Attorney General) v. Johnstone et al.

Federal Court of Appeal

Pelletier, Mainville and Scott, JJ.A.

May 2, 2014.

Summary:

Johnstone was a Customs Inspector employed with the Canada Border Services Agency (CBSA) at Pearson International Airport. Johnstone made a complaint to the Canadian Human Rights Commission, arguing that a CBSA policy discriminated against her on the basis of family status. An Investigator recommended that the Commission appoint a conciliator to pursue a settlement and, failing settlement, the appointment of a Human Rights Tribunal to adjudicate the matter. The parties responded to the Investigator's report. The Commission dismissed Johnstone's complaint. Johnstone applied for judicial review.

The Federal Court, in a decision reported at 306 F.T.R. 271, allowed the application and remitted the matter to the Commission for a redetermination on the merits by a new decision- maker. The court awarded Johnstone $1,750 costs. The Attorney General of Canada appealed.

The Federal Court of Appeal, in a decision reported at 377 N.R. 235, dismissed the appeal with costs. The Canadian Human Rights Tribunal found that a prima case of discrimination based on family status had been made out. See 2010 CHRT 20. The Attorney General applied for judicial review of the Tribunal's decision.

The Federal Court, in a decision reported at 426 F.T.R. 163, dismissed the application, subject to the following exceptions: the Tribunal's award of full-time wages and benefits for August 2007 to August 2008 when Johnstone opted for unpaid leave provisions under the Variable Shift Scheduling Agreement to accompany her spouse to Ottawa was referred back to the Tribunal for reconsideration and the portion of the Tribunal order that included Johnstone as a party to be consulted in the development of written remedial policies was struck. The court awarded costs to Johnstone. The Attorney General appealed.

The Federal Court of Appeal allowed the appeal in part to vary the judgment of the Federal Court judge on the subject of two remedial measures flowing from the Tribunal's decision. In all other respects, the court dismissed the appeal with costs in Johnstone's favour.

Civil Rights - Topic 916

Discrimination - Family status - General - Section 3(1) of the Canadian Human Rights Act prohibited discrimination on the basis of, inter alia, "family status" - The Federal Court of Appeal discussed the legal test for finding a prima facie case of discrimination based on family status - The court held that, "in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is 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." - The court discussed the four factors in general terms - See paragraphs 75 to 99.

Civil Rights - Topic 916

Discrimination - Family status - General - The Canadian Human Rights Act (CHRA) prohibited discrimination on the basis of "family status" - Johnstone was employed as a Customs Inspector by Canada Border Services Agency (CBSA) at Pearson International Airport - Johnstone made a complaint to the Canadian Human Rights Commission arguing that a CBSA policy discriminated against her on the basis of family status - The Canadian Human Rights Tribunal found that a prima facie case of discrimination had been made out - The Tribunal's conclusion was upheld on judicial review - The Federal Court of Appeal also upheld the conclusion - Johnstone met the prima facie test for discrimination based on family status - First, Johnstone had one and then two children under her care - Second, both were toddlers for whom she and her husband were legally responsible to provide some form kind of childcare while they were away attending to their work at the CBSA; as a result, Johnstone's childcare obligations engaged her legal responsibilities as a parent towards her children, as opposed to being a personal choice - Third, the Tribunal found as a fact that Johnstone had made serious but unsuccessful efforts to secure reasonable alternative childcare arrangements that would allow her to continue to work the rotating and irregular schedule set out in her Variable Shift Scheduling Agreement (VSSA) - Fourth, the Tribunal found that Johnstone's regular work schedule based on the VSSA interfered in a manner that was more than trivial or insubstantial with the fulfillment of her childcare obligations - Where the CBSA was not asserting any bona fide occupational requirement or an undue burden (second part of discrimination test) in providing Johnstone fixed shifts on a full-time basis, the Tribunal's ruling that Johnstone's complaint under the CHRA was substantiated and had to be upheld - See paragraphs 100 to 109.

Civil Rights - Topic 918

Discrimination - Family status - What constitutes "family status" - The Federal Court of Appeal stated that "It is noteworthy that Parliament chose to use two distinct words for the word 'status' in the French version of sections 2 and 3 of the Canadian Human Rights Act: 'l'état matrimonial' for marital status and the much broader 'situation de famille' for family status. The French word 'situation' is broadly defined in Le Nouveau Petit Robert as '[e]nsemble des circonstances dans lesquelles une personne se trouve' (the whole of the circumstances in which an individual finds himself). In contrast, that same common dictionary defines 'état' as '[m]anière d'être (d'une personne ou d'une chose) considérée dans ce qu'elle a de durable' (state of being of a person or thing considered in its enduring aspects). The distinction is important, and supports a much broader interpretation of 'family status' that includes family circumstances, such as childcare obligations." - See paragraph 67.

Civil Rights - Topic 918

Discrimination - Family status - What constitutes "family status" - Section 3(1) of the Canadian Human Rights Act (CHRA) prohibited discrimination on the basis of, inter alia, "family status" - The Federal Court of Appeal held that "family status" included childcare obligations - However, the court cautioned that "the precise types of childcare activities that are contemplated by the prohibited ground of family status need to be carefully considered. Prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic." - The court concluded that "family status" in the CHRA "includes parental obligations which engage the parent's legal responsibility for the child, such as childcare obligations, as opposed to personal choices. Defining the scope of the prohibited ground in terms of the parent's legal responsibility (i) ensures that the protection offered by the legislation addresses immutable (or constructively immutable) characteristics of the family relationship captured under the concept of family status, (ii) allows the right to be defined in terms of clearly understandable legal concepts, and (iii) places the ground of family status in the same category as other enumerated prohibited grounds of discrimination such as sex, colour, disability, etc." - See paragraphs 53 to 74.

Civil Rights - Topic 983

Discrimination - Employment - What constitutes discrimination - [See both Civil Rights - Topic 916 ].

Civil Rights - Topic 988

Discrimination - Employment - On basis of family, civil or marital status - [See both Civil Rights - Topic 916 ].

Civil Rights - Topic 1164

Discrimination - Remedies - Damages - Johnstone was employed as a Customs Inspector by Canada Border Services Agency (CBSA) at Pearson International Airport - Johnstone made a complaint to the Canadian Human Rights Commission arguing that a CBSA policy discriminated against her on the basis of family status - The Canadian Human Rights Tribunal found a prima facie case of discrimination and ordered that lost wages be paid to Johnstone for, inter alia, the period of December 2005 to August 2007, when CBSA had offered to Johnstone that she work part-time for 34 hours a week - She elected instead to work 20 hours per week - On appeal following judicial review, the CBSA submitted that since Johnstone was only available to work 20 hours per week during this period, she should not be entitled to wages on a full-time basis since there was no causal connection between the award of full time wages for the period at issue and the alleged discrimination - The Federal Court of Appeal disagreed - The Tribunal's decision to award lost wages on a full-time basis during the December 2005 to August 2007 period rested on its finding of fact that had Johnstone been accommodated in her work schedule through static shifts on a full-time basis, as she had initially requested, she would have accepted those hours - A causal nexus was, therefore, established - This finding of fact was supported by the evidence in the record and also by the fact that the CBSA denied Johnstone's request to work three 13 hour shifts per week - See paragraphs 111 to 113.

Civil Rights - Topic 1164

Discrimination - Remedies - Damages - Johnstone was employed as a Customs Inspector by Canada Border Services Agency (CBSA) at Pearson International Airport - Johnstone made a complaint to the Canadian Human Rights Commission arguing that a CBSA policy discriminated against her on the basis of family status - The Canadian Human Rights Tribunal found a prima facie case of discrimination and ordered that lost wages be paid to Johnstone for, inter alia, the periods of December 2005 to August 2007 and August 2008 to August 2010 - The Federal Court upheld the discrimination finding on judicial review, but referred the Tribunal's award of full-time wages and benefits for August 2007 to August 2008 when Johnstone opted for unpaid leave provisions under the Variable Shift Scheduling Agreement (VSSR) to accompany her spouse to Ottawa was referred back to the Tribunal for reconsideration - On appeal, the CBSA argued that where, after the spousal relocation leave had expired and Johnstone then took care and nurturing leave from August 2008 to August 2010, there was no change in Johnstone's situation as compared with August 2007 to August 2008 - She continued to live in Ottawa with her husband under a work leave arrangement - The CBSA argued that the Federal Court should have returned the matter back to the Tribunal for both periods - The Federal Court of Appeal agreed - See paragraphs 113 to 115.

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - Johnstone made a complaint to the Canadian Human Rights Commission (CHRC) arguing that a Canada Border Services Agency (CBSA) policy discriminated against her on the basis of family status contrary to the Canadian Human Rights Act - The Canadian Human Rights Tribunal found a prima facie case of discrimination - It ordered, inter alia, "that CBSA establish written policies satisfactory to Ms. Johnstone and the CHRC to address family accommodation requests within 6 months, and that these policies include a process for individualized assessments of those making such requests" - The Federal Court held that, in ordering the CBSA to develop written policies to address family status accommodation requests that were satisfactory to Johnstone, the Tribunal exceeded its jurisdiction under the Act to order remedial measures - The CBSA appealed - On appeal, the Federal Court of Appeal held that the Tribunal also exceeded its jurisdiction when it made the order respecting the CHRC - The court varied the Federal Court's judgment so as to require the CBSA to develop the policies in consultation with the CHRC - See paragraphs 116 to 122.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - At issue on a judicial review was, inter alia, the standard of review applicable to the issue of whether the Canadian Human Rights Tribunal erred in its interpretation of "family status" in the Canadian Human Rights Act - On appeal, the Federal Court of Appeal concluded that "... in this case, the presumption of reasonableness is rebutted and a standard of correctness is to be applied with respect to the two legal issues before us, namely (a) the meaning and scope of 'family status' as a prohibited ground of discrimination, and (b) the applicable legal test under which a finding of prima facie discrimination may be made under that prohibited ground." - See paragraphs 36 to 52.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - [See both Civil Rights - Topic 1164 ].

Statutes - Topic 1806

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of one version by reference to the other - [See first Civil Rights - Topic 918 ].

Cases Noticed:

Johnstone v. Canada (Attorney General) (2007), 306 F.T.R. 271; 2007 FC 36, refd to. [para. 16].

Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society (2004), 196 B.C.A.C. 236; 322 W.A.C. 236; 240 D.L.R.(4th) 479; 2004 BCCA 260, not folld. [para. 17].

Hoyt v. Canadian National Railway, 2006 CHRT 33, appld. [para. 18].

Brown v. Canada (Department of National Revenue), 1993 CanLII 683 (C.H.R.T.), refd to. [para. 27].

Keith v. Correctional Service of Canada (2012), 431 N.R. 121; 40 Admin. L.R.(5th) 1; 2012 FCA 117, refd to. [para. 36].

Yu v. Canada (Attorney General) (2011), 414 N.R. 283; 2011 FCA 42, refd to. [para. 36].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 36].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 37].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 37].

Kandola v. Canada (Minister of Citizenship and Immigration) (2014), 456 N.R. 115; 2014 FCA 85, refd to. [para. 37].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 38].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 38].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al., [2006] 3 F.C.R. 610; 345 N.R. 374; 2006 FCA 31, refd to. [para. 38].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 40].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 366 D.L.R.(4th) 30; 2013 SCC 67, refd to. [para. 40].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [para. 41].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, consd. [para. 41].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, folld. [para. 42].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 42].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 43].

Insurance Corp. of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 45].

Ontario Human Rights Commission and O'Malley v. Simpson Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 45].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 45].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228; 311 N.R. 313; 2003 SCC 68, refd to. [para. 45].

House of Commons et al. v. Vaid et al., [2005] 1 S.C.R. 667; 333 N.R. 314; 2005 SCC 30, refd to. [para. 45].

Potash Corp. of Saskatchewan Inc. v. Scott et al., [2008] 2 S.C.R. 604; 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, refd to. [para. 45].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 49].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 49].

Minister of National Revenue v. Craig, [2012] 2 S.C.R. 489; 433 N.R. 111; 2012 SCC 43, folld. [para. 52].

Brown, Hoyt, Woiden v. Lynn, 2002 CanLII 8171, refd to. [para. 59].

Closs v. Fulton Forwarders Incorporated and Stephen Fulton, 2012 CHRT 30, refd to. [para. 59].

Richards v. Canadian National Railway, 2010 CHRT 24, refd to. [para. 59].

Whyte v. Canadian National Railway, 2010 CHRT 22, refd to. [para. 59].

Seeley v. Canadian National Railway, 2010 CHRT 23, refd to. [para. 59].

Patterson v. Canada Revenue Agency (2011), 401 F.T.R. 211; 2011 FC 1398, refd to. [para. 59].

Devaney v. ZRV Holdings Ltd. and Zeidler Partnership Architects, 2012 HRTO 1590, refd to. [para. 59].

Callaghan v. 1059711 Ontario Inc., 2012 HRTO 233, refd to. [para. 59].

McDonald v. Mid-Huron Roofing, 2009 HRTO 1306, refd to. [para. 59].

C.D. v. Wal-Mart Canada Corp., 2009 HRTO 801, refd to. [para. 59].

Canada Post Corp. v. Canadian Union of Postal Workers (Sommerville Grievance), 156 L.A.C.(4th) 109, refd to. [para. 59].

Ontario Public Service Employees Union v. Ontario Public Service Staff Union (DeFreitas Grievance), [2005] O.L.A.A. No. 396, refd to. [para. 59].

Action Travail des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 114; 76 N.R. 161, refd to. [para. 61].

Canadian Odeon Theatres Ltd. v. Human Rights Commission (Sask.) and Huck, [1985] 3 W.W.R. 717; 39 Sask.R. 81, refd to. [para. 61].

Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107; 2000 SCC 27, refd to. [para. 62].

Human Rights Commission (Ont.) v. A et al. , [2002] 3 S.C.R. 403; 294 N.R. 140; 166 O.A.C. 1; 2002 SCC 66, refd to. [para. 63].

R. v. Peterson (D.) (2005), 203 O.A.C. 364; 34 C.R.(6th) 120; 201 C.C.C.(3d) 220 (C.A.), refd to. [para. 70].

R. v. Popen (1981), 60 C.C.C.(2d) 232 (Ont. C.A.), refd to. [para. 70].

International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc. (Bender Grievance), [2009] O.L.A.A. No. 447; 186 L.A.C.(4th) 180, refd to. [para. 72].

Morris v. Canada (Canadian Armed Forces) - see Canada (Attorney General) v. Canadian Human Rights Commission et al.

Canada (Attorney General) v. Canadian Human Rights Commission et al. (2005), 334 N.R. 316; 2005 FCA 154, refd to. [para. 83].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 85].

Alberta (Solicitor General) v. Alberta Union of Provincial Employees (Jungwirth Grievance), [2010] A.G.A.A. No. 5, refd to. [para. 89].

Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario) (Thompson Grievance), [2012] O.G.S.B.A. No. 155, refd to. [para. 90].

Wright v. Ontario (Office of the Legislative Assembly), [1998] O.H.R.B.I.D. No. 13, refd to. [para. 90].

Alliance Employees Union, Unit 15 v. Customs and Immigrations Union (Loranger Grievance), [2011] O.L.A.A. No. 24, refd to. [para. 91].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 3(1), sect. 7, sect. 10 [para. 14]; sect. 53(2)(a) [para. 117].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 502, 503 [para. 62].

Counsel:

Christine Mohr and Susan Keenan, for the appellant;

Andrew Raven and Andrew Astritis, for the respondent, Fiona Ann Johnstone;

Sheila Osborne-Brown, Daniel Poulin and Erin Collins, for the respondent, Canadian Human Rights Commission;

Kate Hughes, Danielle Bisnar and Kim Stanton, for the intervener, Women's Legal Education and Action Fund Inc.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant, Attorney General of Canada;

Raven, Cameron, Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the respondent, Fiona Ann Johnstone;

Canadian Human Rights Commission, Legal Services Branch, Ottawa, Ontario, for the respondent, Canadian Human Rights Commission;

Cavalluzzo Shilton McIntyre & Cornish LLP, Toronto, Ontario, for the intervener, Women's Legal Education and Action Fund Inc.

This appeal was heard at Toronto, Ontario, on March 11, 2014, by Pelletier, Mainville and Scott, JJ.A., of the Federal Court of Appeal. Mainville, J.A., delivered the following decision for the court at Ottawa, Ontario, on May 2, 2014.