Alberta Court of Appeal Confirms the Test for Family Status Discrimination

Written by: Kyle Hunter, Summer Student

In United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194, the Alberta Court of Appeal considered an employer’s obligation to accommodate employees based on family status. The subject matter of the initial grievance involved an employer’s duty to accommodate an employee based on childcare obligations. Beginning in June 2011, the grievor worked a shift rotation of four days on and four days off. While working this rotation, she experienced difficulty coordinating childcare with her husband who also performed shift work.

On May 15, 2013, the grievor was informed that she would be placed on a new shift rotation effective September 23, 2013. This new rotation would create additional gaps in childcare. Accordingly, the grievor wrote to her manager requesting to remain in her previous rotation. This request was denied because it was a “non-union compliant” rotation.

Subsequently, the grievor requested to remain in her previous rotation under a “Family Status Accommodation”. Her request was again denied by the employer. Ultimately, due to her childcare issues, the grievor was transferred to casual status, which led to reduced hours and lost benefits.

In considering the appeal, the Court of Appeal relied upon the three-part test for prima facie discrimination established in Moore v. British Columbia (Ministry of Education), 2012 SCC 61. Specifically, the Court held that an employee must prove the following three elements to establish a prima facie case for discrimination:

  1. The employee has a characteristic that is protected from discrimination;
  2. The employee experienced an adverse impact; and
  3. The protected characteristic was a factor in the adverse impact.

If all of the aforementioned factors are established, the onus then shifts to the employer to prove the discriminatory practice is a bona fide occupational requirement.

A more onerous and slightly varied version of the Moore test was applied in Canada (Attorney General) v Johnstone, 2014 FCA 110. It required the employee also establish that they have “sought out reasonable alternative childcare arrangements unsuccessfully, and remain unable to fulfill [their] parental obligations”. This factor created a higher threshold to establish prima facie discrimination as it added an element of self-accommodation.

Two of the three members of the Arbitration Board found that the grievor’s situation fulfilled the three factors of the Moore test. However, she had not sought out all reasonable alternative childcare arrangements, which they believed to be required as per Johnstone. The Arbitration Board’s decision was reversed on appeal to the Court of Queen’s Bench where it was held that Johnstone did not apply.

Subsequently, the Court of Appeal unanimously held that Johnstone is not the law in Alberta. Thus, the three-part test in Moore is the only applicable test for discrimination of any type. Further, the Court found the Johnstone test presented a serious departure from the low evidentiary threshold established in Moore. The more stringent requirements of Johnstone also lowered workforce participation.

Key Takeaways

The law regarding family status discrimination in Alberta is now clear. Employers have an obligation to accommodate shift requests up to the point of undue hardship in the event an employee raises family status obligations. Employees no longer need to prove that they have unsuccessfully made attempts to secure childcare around their shift schedule. Accordingly, employers should consider ways in which they may accommodate employees with childcare obligations, including flexible work schedules and remote work arrangements.

If you have any questions regarding accommodation related issues, please contact a member of our Labour & Employment practice group.


Disclaimer: This article is to be used for educational and non-commercial purposes only. Parlee McLaws LLP does not intend for this article to be a source of legal advice. Please seek the advice of a lawyer before choosing to act on any of the information contained in this article.