Anyone who has litigated human rights, or who has done research for said litigation, understands the challenges of putting together a claim for discrimination. However, that challenge becomes even more difficult when filing a claim for discrimination on the ground of family status. According to a relatively recent article in Canadian Lawyer Magazine (http://www.canadianlawyermag.com/), human rights tribunals, labour arbitrators and the courts will be faced more and more frequently with cases revolving around issues such as workplace flexibility and discrimination on the basis of family status, as families increasingly find themselves struggling to balance work and personal responsibilities. Unfortunately, the case law has not been very helpful, nor has it been very forgiving to these families.

In a 2004 British Columbia Court of Appeal case, Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, the court held that in order to meet the prima facie threshold for discrimination on the basis of family status, it must be the employer who changes a term of employment resulting in serious interference with a substantial parental or other family obligation. At that point, the employer must prove that the change was a bona fide occupational requirement. However, the article points out that a “serious interference” isn’t required for a finding of discrimination on other grounds.

The Federal Court, and the Federal Court of Appeal, agreed in Hoyt v. Canadian National Railway, that, “The suggestion by the court in Campbell River…that prima facie discrimination will only arise where the employer changes the conditions of employment seems to be…unworkable and, with respect, wrong in law.” Meanwhile, Quebec’s human rights legislation doesn’t protect against discrimination based on family status, meaning that employers in Quebec have no duty to accommodate families hoping for flexibility in the workplace.

The article also suggests that the challenge becomes greater for human rights advocates when employers use the downturn in the economy as a defence for the termination of an employee. It has become easier for employers to argue that accommodation on the basis of family status would involve undue hardship. And, despite the conflicting case law across jurisdictions, the theme in many cases is that it is the responsibility of parents to make external arrangements for child care. In other words: get to work.

Cited from:

Glenn Kauth, “Accomodating for Family Status” (August, 2009) Canadian Lawyer Magazine.

OC Transpo drivers, dispatchers, and maintenance workers are expected to walk off the job at 12:01am this Wednesday. Last week, members of the Amalgamated Transit Union Local 279 voted overwhelmingly against the City’s offer.

The University of Ottawa has notified all students that the impending strike will have no effect on scheduled exams. It reminds students of its carpooling directory and reduced parking rates for the holiday/exam season. OC Transpo has also issued some advice for getting around town during a strike (although I’m more likely to study from home than to “Consider Cycling as an alternative” in December.)

Little distinguishes this dispute from others: as always, public opinion varies but all hope that a contract can be reached soon.

This week was a busy week in the newspapers for labour relations. Many newspapers ran articles on how unions and employees who are now in the process of bargaining renewal agreements are reacting in light of the oncoming (or some might say present) economic situation. Here’s a few of the exciting - and thought provoking - articles written this past week:

• A tale of two contracts: public service and Canada Post, The Ottawa Citizen. Speaks about the recent settlement between Treasury Board and Public Service Alliance of Canada (PSAC) as well as the current strike of PSAC workers at Canada Post
• Strike ban proposal ‘atrocious,’ unions say, The Ottawa Citizen. Discusses the proposal by the government to introduce a strike ban, roll back wages, and cap future wage increases
• Pay cuts won’t fix sick auto industry, CAW say, The Globe and Mail. Discusses the need of unions and auto manufacturers to work together to help turnaround the auto industry at the Big 3 manufacturers
• Farm workers’ inability to bargain violates Charter: OCA, The Lawyer’ Weekly. Discusses the Ontario Court of Appeal’s recent finding that Farm Workers in Ontario are being denied their right to collective bargaining under s.2(d) of the Canadian Charter of Rights and Freedoms.

These articles raise important questions about the role of unions in difficult economic times, the balancing of management interests, union interests, and the public interest, and of course the rights of unions under the newly expanded s.2(d) freedom of association rights of the Canadian Charter of Rights and Freedoms. It will be interesting to see in the next few weeks how all these issues play out, and where labour relations will go in the new year.