New developments in the area of discrimination on the basis of family status.

• Author: McKay-Panos, Linda
• Position: Human Rights Law

Note: a portion of this article is reproduced with permission from Ahlawg.ca "Accommodation for Family Status Required by Federal Human Rights Tribunal for Three Alberta Women"

--Ablawg December 22, 2010

All provinces and territories, and the federal government, have human rights legislation to address discrimination. The ground of family status is relatively new.

It was thought that "family status" was fairly straightforward--a person is discriminated against on the basis that they are related to another person. However, recent case law indicates that there are issues surrounding what discrimination on the basis of "family status" actually entails. The issues also illustrate a tension that has developed in the law of discrimination about whether it is a law or entity that is discriminating or whether it is "just the way our society operates and the choices people make" that have the effect of discriminating against a person. The Seeley case (Canadian National Railway v.Denise Seeley and Canadian Human Rights Commission, 2013 FC117 (Seeley, Fed Ct)) demonstrates these developments.

Denise Seeley, Cindy Richards and Kasha Whyte all lived near their home terminal in Jasper, Alberta. Kasha Whyte was a single parent with sole custody of her (then) five-year-old son; Cindy Richards was the divorced parent of two children, then aged 12 and 11; and Denise Seeley was married with two children, then aged six and twenty-one months.

In February 2005, CNR experienced a severe shortage of employees in its Vancouver terminal. The complainants were asked to work in Vancouver pursuant to their Collective Agreement, which provided that "non-protected employees" could be required to work at another terminal in the Western region upon 30 days' notice, unless there was a satisfactory reason for them to fail to do so. The Complainants were required to move to Vancouver for the duration of the shortage, which was to be of unknown length.

Each Complainant received a recall notice, which provided that they had 1 5 days to report to Vancouver, contacted CNR communicating her inability to cover the Vancouver shortage due to parental responsibilities; and asked to be excused from the transfer on a compassionate basis. CNR ordered them to report to the Vancouver terminal by July 2, 2005 or they would forfeit their seniority rights and their employment with CNR would be terminated. All three Complainants failed to report to Vancouver and were fired on July 4, 2005.

The...