Johnstone v. Canada (Attorney General), 2007 FC 36

• Judge: Barnes, J.
• Court: Federal Court (Canada)
• Case Date: November 27, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2007 FC 36;(2007), 306 F.T.R. 271 (FC)

Johnstone v. Can. (A.G.) (2007), 306 F.T.R. 271 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JA.047

Fiona Johnstone (applicant) and Attorney General of Canada (respondent)

(T-1523-05; 2007 FC 36)

Indexed As: Johnstone v. Canada (Attorney General)

Federal Court

Barnes, J.

January 16, 2007.

Summary:

Johnstone was a Customs Inspector employed with the Canada Border Security Agency (CBSA) at Pearson International Airport. Her husband was a Customs Superintendent at Pearson. A full-time employee at Pearson worked 37.5 hours weekly. Johnstone returned to work after a year's maternity leave. Because Johnstone and her husband worked differing shift schedules, it was essentially impossible for them to find a childcare provider with matching availability. Therefore, Johnstone requested accommodation in the form of three fixed 12-hour shifts weekly. CBSA accommodation policy provided for fixed shifts, but only up to 34 hours weekly. In accordance with its policy, the CBSA offered Johnstone fixed shifts of up to four days weekly but not exceeding 10 hours per day to a maximum of 34 hours per week. Johnstone considered the expenses required to attend at Pearson for a half day of paid employment and concluded that the additional four hours of available work weekly would not be cost-effective. Therefore, she settled on three 10 hour shifts weekly. Johnstone made a complaint to the Canadian Human Rights Commission, arguing that the CBSA policy that required that she accept part-time employment in return for obtaining fixed shifts 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 were allowed to and did respond to the Investigator's report. The Commission dismissed Johnstone's complaint. Johnstone applied for judicial review.

The Federal Court 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.

Administrative Law - Topic 547

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When required - Johnstone was a Customs Inspector employed with the Canada Border Security Agency (CBSA) at Pearson International Airport - A full-time employee at Pearson worked 37.5 hours weekly - Johnstone returned to work after a year's maternity leave - Because Johnstone and her husband worked differing shift schedules, it was essentially impossible for them to find a childcare provider with matching availability - Therefore, Johnstone requested accommodation in the form of three fixed 12-hour shifts weekly - CBSA accommodation policy provided for fixed shifts, but only up to 34 hours weekly - In accordance with its policy, the CBSA offered Johnstone fixed shifts of up to four days weekly but not exceeding 10 hours per day to a maximum of 34 hours per week - Johnstone considered the expenses required to attend at Pearson for a half day of paid employment and concluded that the additional four hours of available work weekly would not be cost-effective - Therefore, she settled on three 10 hour shifts weekly - Johnstone made a complaint to the Canadian Human Rights Commission, arguing that the CBSA policy that required that she accept part-time employment in return for obtaining fixed shifts 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 were allowed to and did respond to the Investigator's report - The Commission dismissed Johnstone's complaint - Johnstone applied for judicial review - The Federal Court held, inter alia, that the Commission erred in not providing reasons for concluding that Johnstone had accepted the accommodation terms proposed by the CBSA - The absence of any reasons by the Commission for rejecting the Investigator's finding on this point placed the reviewing court in a position of marked disadvantage - The court was unable to draw an inference as to how the Commission came to this conclusion and Johnstone would be left to speculate as to the Commission's reasons - Therefore, the Commission's decision was unreasonable and deficient for failing to provide a rational basis for the conclusion that Johnstone voluntarily accepted the CBSA's accommodation terms - See paragraphs 19 to 24.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions - [See Administrative Law - Topic 547 and first Civil Rights - Topic 7115 ].

Civil Rights - Topic 916

Discrimination - Family status - General - The Federal Court stated that "While family status cases can raise unique problems that may not arise in other human rights contexts, there is no obvious justification for relegating this type of discrimination to a secondary or less compelling status ... I would also add that to limit family status protection to situations where the employer has changed a term or condition of employment is unduly restrictive because the operative change typically arises within the family and not in the workplace (e.g. the birth of a child, a family illness, etc.). The suggestion by the Court in Campbell River, above [2004, BCCA], that prima facie discrimination will only arise where the employer changes the conditions of employment seems to me to be unworkable and, with respect, wrong in law." - See paragraph 29.

Civil Rights - Topic 916

Discrimination - Family status - General - Johnstone was a Customs Inspector employed with the Canada Border Security Agency (CBSA) at Pearson International Airport - Johnstone returned to work after a year's maternity leave - Because Johnstone and her husband worked differing shift schedules, it was essentially impossible for them to find a childcare provider with matching availability - Johnstone made a complaint to the Canadian Human Rights Commission, arguing that the CBSA policy that required that she accept part-time employment in return for obtaining fixed shifts 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 were allowed to and did respond to the Investigator's report - The Commission dismissed Johnstone's complaint - Johnstone applied for judicial review - The Federal Court stated that "The law is not well settled with respect to the balancing of competing workplace interests insofar as family status accommodation is concerned. For instance, it is probably a safe assumption that many employees would consider rotating shift work to be an undesirable feature of their employment. In the result, some employers pay a shift premium to compensate their employees for the less desirable working conditions. If that was the situation facing Ms. Johnstone, she would have considerable difficulty claiming a wage premium that she had not earned. That is so because the law is clear that providing different levels of compensation to employees providing different levels of service is not considered discriminatory ... In this case, though, the CBSA's policy relegated Ms. Johnstone to part-time status in consideration for obtaining fixed shift employment. That policy appears not to have been designed to motivate the non-accommodated workforce. Instead, its purpose seems to have been to discourage employees like Ms. Johnstone from seeking accommodation in the form of fixed shifts. The purpose of an employment policy or stan-dard can be an important consideration in determining whether it is discriminatory" - See paragraphs 33 and 34.

Civil Rights - Topic 983

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

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - [See second Civil Rights - Topic 916 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - The Federal Court stated that a decision by the Human Rights Commission to dismiss a complaint without convincing reasons and contrary to the findings and recommendation of the Commission's investigator warranted a particularly careful review - See paragraph 13.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - Johnstone was a Customs Inspector employed with the Canada Border Security Agency (CBSA) at Pearson International Airport - Johnstone returned to work after a year's maternity leave - Because Johnstone and her husband worked differing shift schedules, it was essentially impossible for them to find a childcare provider with matching availability - Johnstone made a complaint to the Canadian Human Rights Commission, arguing that the CBSA policy that required that she accept part-time employment in return for obtaining fixed shifts 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 were allowed to and did respond to the Investigator's report - The Commission dismissed Johnstone's complaint - Johnstone applied for judicial review - The Federal Court noted that the Commission was not convinced that the loss of hours suffered by Johnstone brought about by the CBSA's fixed shift policy constituted "a serious interference" with her parental duties or that it had a discriminatory impact on the basis of family status - This characterization of the CBSA's employment policy as non-discriminatory was based on a discrete and abstract question of law and, as such, was reviewable on the correctness standard - See paragraphs 12 to 18.

Cases Noticed:

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 12].

Bell v. Canada (Canadian Human Rights Commission) - see Cooper v. Canadian Human Rights Commission.

Coupal v. Canada (Attorney General) (2006), 288 F.T.R. 140; 2006 FC 255, refd to. [para. 12].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87 (F.C.A.), refd to. [para. 13].

Gee v. Minister of National Revenue (2002), 284 N.R. 321; 2002 FCA 4, refd to. [para. 13].

Kidd v. Greater Toronto Airports Authority (2004), 252 F.T.R. 277; 2004 FC 703, affd. (2005), 332 N.R. 380; 2005 FCA 81, refd to. [para. 13].

Sketchley v. Canada (Attorney General), 2004 FC 1151, affd. (2005), 344 N.R. 257; 2005 FCA 404, refd to. [paras. 13, 15].

Gardner v. Canada (Attorney General) (2005), 339 N.R. 91; 2005 FCA 284, refd to. [para. 16].

MacLean v. Canadian Human Rights Commission et al. (2003), 243 F.T.R. 219; 2003 FC 1459, refd to. [para. 16].

Megerdoonian v. Canadian Imperial Bank of Commerce (2004), 260 F.T.R. 20; 2004 FC 1063, refd to. [para. 16].

Moore v. Canada (Attorney General) (2005), 267 F.T.R. 298; 2005 FC 13, refd to. [para. 24].

Brown v. Canada (Department of National Revenue, Customs and Excise), [1993] C.H.R.D. No. 7, refd to. [para. 26].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 27].

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, disagreed with [para. 29].

Hoyt v. Canadian National Railway Co., [2006] C.H.R.D. No. 33, refd to. [para. 29].

Ontario Nurses' Association v. Orillia Soldiers Memorial Hospital et al. (1999), 117 O.A.C. 146; 42 O.R.(3d) 692; 169 D.L.R.(4th) 489 (C.A.), refd to. [para. 29].

Canadian Human Rights Commission v. Minister of National Revenue et al., [2004] 1 F.C.R. 679; 242 F.T.R. 175; 2003 FC 1280, refd to. [para. 30].

Canada (Attorney General) v. Canadian Human Rights Commission et al. (2005), 334 N.R. 316; 2005 FCA 154, refd to. [para. 30].

Morris v. Canada (Canadian Armed Forces) - see Canada (Human Rights Commission) v. Minister of National Revenue.

Counsel:

Andrew Raven, for the applicant;

Joseph Cheng, for the respondent.

Solicitors of Record:

Raven, Cameron, Ballantyne and Yazbeck LLP/s.r.l., for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on at Ottawa, Ontario, on November 27, 2006, by Barnes, J., of the Federal Court, who delivered the following decision on January 16, 2007.