Many employers and practitioners of human rights law in British Columbia (like us) have been following the Federal Court of Appeal decision in Canada (Attorney General) v Johnstone, expecting that, as in Alberta and Ontario, the BC Human Rights Tribunal may adopt Johnstone‘s broader federal human rights test for family status discrimination, which would displace the narrower BC test from Health Sciences Association of B.C. v. Campbell River and North Island Transition Society (Campbell River). Although Johnstone was not raised directly in the decision, the BC Human Rights Tribunal recently declined an invitation to reconsider the … Continue Reading
Human Rights Tribunal found nanny was sexually assaulted, isolated and underfed by employer
Where an employer fails to meet its human rights obligations, the damages awards for the “injury to dignity” component of damages are becoming increasingly significant. The recent decision of the British Columbia Human Rights Tribunal in PN. v. FR and another (No. 2), is an example of the scale of penalty an employer can face where the breach of human rights obligations is at the extreme end of the scale.
The complainant, a domestic worker from the Philippines, was placed with the respondents as a housekeeper … Continue Reading
While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?
The Legal Framework
First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care. Employers do not have the discretion to … Continue Reading
What is an employer’s duty to accommodate an employee’s child care obligations? This topic continues to be a hot one in the workplace, as employers try to balance the need to retain talent and ensure a productive workplace.
Part of the problem is that “family status” is not defined in either the British Columbia Human Rights Code or the Canadian Human Rights Act. As a result, different approaches to what family obligations, if any, are protected by human rights legislation have emerged in various Canadian jurisdictions. As we have discussed in previous posts here and here, the British … Continue Reading
The Federal Court has weighed in on the side of broader application of family status discrimination. Employers can expect more requests for accommodation of the choices their employees make about how they will meet their childcare responsibilities.
We have discussed this issue and reviewed the competing theories in an earlier post. This most recent case (Johnstone) finds in favour of the mother who sought a fixed day schedule instead of the standard rotating shifts set by her employer, the Canada Border Services Agency. Her request was to fit her work schedule to the childcare that was available … Continue Reading
The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts.
Visit the summary here.
Controversy over the proper test for finding discrimination on the basis of family status continues. The main contenders are
- a change imposed by the employer causing serious interference with a substantial duty (the Campbell River test); and
- any adverse effect (the Johnstone test).
To compare the difference in practical terms, consider childcare obligations. The first test will create a duty to accommodate only when an employee has a child with some special need which requires the personal involvement of the employee. The second test creates a duty to accommodate any parent who has any kind of childcare responsibility.
The first … Continue Reading
The Ontario Court of Appeal has created a new cause of action. It is now possible to sue for damages for a breach of privacy.
Tsige and Jones were employees at different branches of the Bank of Montreal. They did not know each other, but Tsige had a relationship with Jones’s ex-husband.
Tsige looked at Jones’s bank records 174 times over a four year period to see if the ex-husband was paying child support. She was able to see Jones’s bank transaction details, date of birth, marital status and address. She did not disclose or record the information. There was … Continue Reading