FPSLREB Decisions

Heard at Saint John, New Brunswick,
July 7 and 8, 2015.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        Corey Fleming (“the grievor”) was hired by the Canada Border Services Agency (CBSA) as a border services officer (BSO) in the General Technical Group at the FB-03 group and level effective June 2, 2008. His job was located at the St. Stephen 3rd Bridge Port of Entry (“St. Stephen PoE”) in St. Stephen, New Brunswick.

2        On July 19, 2011, the grievor filed an accommodation request with his employer in which he requested a transfer to a position in Charlottetown, Prince Edward Island, on the grounds of marital and family status.

3        On September 29, 2011, the employer denied the grievor’s request, stating that his family situation did not meet the criteria to support it.

4        On October 17, 2011, the grievor filed a grievance against the rejection of his accommodation request and as relief asked that it be approved and that he be made whole. His grievance was denied at the first, third, and final levels of the grievance process, and on January 15, 2013, he referred it to the Public Service Labour Relations Board (PSLRB) for adjudication under s. 209(1)(a) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”).

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Act before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

6        The grievor testified on his own behalf, and the employer called one witness, Debra Thompson, who, at the time of the hearing, was the acting district director for the CBSA’s Southern N.B. and P.E.I. District.

7        The employer submitted a brief of documents containing 25 tabs. The brief was accepted and marked as an exhibit with the understanding that all the documents in it would be either identified by a witness in the ordinary course of the hearing under the rules of evidence or agreed to by the grievor. At the end of the hearing, all but three documents were accepted into evidence, and those three were removed and returned to counsel for the employer.

8        The grievor’s terms and conditions of employment are governed in part by a collective agreement entered into between the Treasury Board and the Public Service Alliance of Canada for the Border Services Group, all employees, which expired on June 20, 2011 (“the collective agreement”). Article 19 is entitled “No Discrimination”, and clause 19.01 states as follows:

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

9        Ms. Thompson has been in the acting district director position on and off since September 2014. Her substantive position is the chief of operations at the St. Stephen and the St. Croix, N.B., ports of entry. She has been in her substantive position since June 2009; in it, she is responsible for all day-to-day operations at both ports of entry. The grievor reports to her indirectly, through a supervisor. In her acting position, she was responsible for executive oversight of 13 ports of entry in N.B. and P.E.I. in addition to those at St. Stephen and St. Croix.

10        Depending on the route, the St. Croix Port of Entry is between 50 and 65 kilometres north of St. Stephen, N.B., on the Maine border.

11        On May 9, 2008, the grievor received an offer of part-time indeterminate employment from the CBSA as a BSO at the FB-03 group and level at the St. Stephen PoE in its Southern N.B. and P.E.I. District, effective June 2, 2008. The position was English essential and required him to work 15 hours per week. In addition, the offer of employment set out the following conditions:

• the grievor was to report to the St. Stephen PoE office on June 5 and 6;
• he was subject to a 12-month period of probation in accordance with s. 61 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13);
• he had to be willing to accept deployments or a series of work assignments within the CBSA’s district or region;
• he had to be willing to work different shifts on rotation, on weekends, and on statutory holidays; and
• he had to be willing to work overtime as required.

12         On Thursday, May 29, 2008, the grievor signed and accepted the terms and conditions of the offer of employment.

13        The grievor is not bilingual.

14        At the time the grievor received and accepted the offer of employment:

• he had been married for almost four years;
• he was father to two children, a two-and-a-half-year-old boy and a one-and-a-half-month-old girl;
• he and his spouse owned their own home in Stratford, Queens County, P.E.I., where they lived;
• his parents lived in Charlottetown;
• his in-laws lived in Cardigan, Kings County, P.E.I.;
• his spouse was employed as a teacher with a school board in P.E.I. and had been for seven or eight years;
• his spouse was on one year of maternity leave;
• it was his spouse’s intention to follow up the one year of maternity leave with a year of care and nurturing leave; and
• he was employed in Charlottetown but not with the CBSA or the federal public service.

15        The grievor testified that in June 2008, upon commencing his employment with the CBSA, he, his spouse, and their two children moved to St. Stephen, where they rented an apartment. They retained ownership of their family home in Stratford, albeit they rented it out to a couple for a year (the lease expired on June 30, 2009). His spouse did not give up her job with the school board in P.E.I. The grievor was not specific as to when exactly his family moved to N.B.

16        The grievor testified that during the summer of 2008, he attended the CBSA training facility in Rigaud, Quebec, for nine weeks of BSO training.

17        The grievor testified that his spouse and children did not spend a lot of time in St. Stephen between June and September 2008, and that during that time, they often went back to P.E.I. He stated that his spouse wanted him to travel back and forth from P.E.I. to St. Stephen.

18        The grievor testified that in or about June or July 2008, while he was in training at Rigaud, he made his first request to deploy to P.E.I.

19        The grievor stated that in September 2008, his spouse and children moved back to P.E.I. permanently; as the family home was leased, he said that his spouse and children moved in with his in-laws. He was not specific as to when exactly they moved.

20        Produced as evidence at the hearing was a draft copy of a separation agreement (SA) between the grievor and his spouse. According to him, while the copy in evidence is not executed, the signed copy of it is in fact the same. The date on the draft SA was identified as January 2009.

21        In cross-examination, the grievor was brought to clause 22 of the SA (titled “Independent Legal Advice (ILA)”) and was asked about it. He stated that he and his spouse used the same lawyer, who was a mediator and had put the agreement into writing. Clause 22 states as follows:

22      INDEPENDENT LEGAL ADVICE

(1)      [Name omitted] and Corey each acknowledge that he or she:

a) has had independent legal advice or has been informed of the importance of obtaining such advice and has elected not to obtain same;

b) understands the rights and obligations established by this Agreement; and

c) is signing this Agreement voluntarily

22        In cross-examination, the grievor agreed that his rights and obligations pertaining to his spouse and children are as set out in the SA, which is the entire agreement.

23        According to information at the beginning of the SA, the grievor and his spouse had been living separate and apart since on or about October 25, 2008; however, in his testimony before me, he stated that it actually began sometime in September 2008, when his spouse moved back to P.E.I. permanently.

24        The grievor testified that after he and his wife separated, he made a second request to deploy to P.E.I.

25        Produced as evidence at the hearing was a list the district director kept for the CBSA’s Southern N.B. and P.E.I. District that identified employees who wanted to deploy either into or out of the District (“the transfer list”). The information maintained on the transfer list about each employee, in addition to their identities and contact information, included the date the deployment was requested, the language proficiency, the requested work location, the reason for the request, and the status of the request. The grievor’s name appears on the transfer list, and the dates of his requests to deploy to P.E.I. are listed as July 15, 2008, and October 19, 2009.

26        Produced as evidence at the hearing were copies of two letters. The first is dated September 15, 2008, and informs the grievor that effective October 16, 2008, his hours of work would change from 15 to 22.50 hours per week. The second is dated April 1, 2009, and informs him that effective April 6, 2009, his hours of work would change from 22.50 to 37.50 hours per week.

27        The grievor stated that while he was working full-time at the St. Stephen PoE, he worked shifts. He worked five days on and three days off. The shifts there are from 8:00 a.m. to 5:00 p.m. (day shift), 3:00 p.m. to 12:00 midnight (evening shift), and 11:00 p.m. to 8:00 a.m. (night shift).

28        On August 30 and September 1, 2010, the grievor and Ms. Thompson exchanged the following emails:

[Mr. Fleming to Ms. Thompson; August 30, 2010, at 6:41 a.m.]

I’m writing this to request my position be changed to a seasonal position.

Over the last two years, I have been driving back and forth to PEI, to see my kids. Each time I go, it’s getting harder and harder to come back.

With the winter months approaching and already having one experience of landing in the ditch and [name of child omitted] starting school, it’s going to be very hard to spend that much time with him working shift work and only getting two weekends off out of eight.

I have thought about this for a while and I feel like I have exhausted all other routes.

[Ms. Thompson to Mr. Fleming; August 30, 2010, at 8:44 a.m.]

Good Morning Corey, I want to make certain that I am understanding your request correctly. Are you asking to have your position here changed from Full time to seasonal and simply not work your off season or are you requesting the change in hopes of deploying to PEI?

[Mr. Fleming to Ms. Thompson; September 1, 2010, at 11:47 p.m.]

I’m looking to have my position here changed to seasonal. As much as I would like something in PEI, I don’t think it’s going to happen for a while. I just want to be able to spend more time with [names of children omitted].

I hope you understand.

29        The grievor testified that he withdrew the request to change to a seasonal position before the CBSA had acted on it.

30        Produced as evidence at the hearing is an email exchange dated March 30, 2011, through May 17, 2011, between Ms. Thompson and Charlotte Demers-Doiron. Ms. Demers-Doiron was, at that time, the chief of operations for the P.E.I. ports of entry. Ms. Thompson testified about the email exchange, and the grievor testified about its subject matter. Given that the grievor had made a request to deploy to P.E.I. and that his children were living there, a potential option was being discussed, which proposed that he exchange his full-time indeterminate position in St. Stephen for a seasonal position in Charlottetown. According to Ms. Thompson, there was a vacancy in Saint John, N.B., and a seasonal BSO who worked in Charlottetown was prepared to take that position, which in turn would have created a vacant position in Charlottetown, where she proposed to deploy the grievor.

31        Neither Ms. Thompson nor Ms. Demers-Doiron had the delegated authority to authorize the move. It was held by Don Collins, who at the time was the district director of the Southern N.B. and P.E.I. District. Ms. Thompson conveyed to the grievor that while they were hopeful that they could arrange the move, they could not make any assurances to him.

32        Ms. Thompson testified that at or about that time, Mr. Collins requested from Ms. Demers-Doiron a “resource review” for her area of responsibility, which is done to ensure that in a particular region, the CBSA has the appropriate resources deployed where they are needed.

33        The plan to deploy the grievor to Charlottetown did not happen as the amount of work at the Port of Charlottetown had been declining and was continuing to steadily decline. The following is the email between Ms. Thompson and Ms. Demers-Doiron from May 17, 2011:

[Ms. Thompson to Ms. Demers-Doiron, at 4:46 p.m.]

Hi Charlotte, we haven’t spoken about this in a bit and Corey has been into see me a couple of times in the past week or so. I understand that Don had asked for a resource review before making any moves is there anything new to report?

[Ms. Demers-Doiron to Ms. Thompson, at 4:55 p.m.]

At this time, I can not move [name omitted] to Saint John as a full-time so I guess we will have to wait. Also, the flight volume has decrease from the previous years so I have enough staff.

[Sic throughout]

34        Produced as evidence at the hearing was the organizational structure for the Southern N.B. and P.E.I. District. The Port of Charlottetown consisted of operations to clear mainly cruise ships and other private boats that docked during the cruise ship season and flights at Charlottetown’s airport if an airline scheduled international flights during the winter travel season.

35        Produced as evidence at the hearing was the organizational chart for the Port of Charlottetown dated June 23, 2015, as well as a list of staffing at Charlottetown showing the positions, the individuals in them, and the positions’ language profiles, from May 2007 to December 2014. According to this chart, there are five BSO positions and one CBSA officer trainee position (classified FB-02), which are supervised by a superintendent (classified FB-05). Ms. Thompson testified that

• of the five BSO positions, only three were filled;
• the two vacant positions are going to remain unfilled due to the declining level of work in Charlottetown; and
• the superintendent for the Port of Charlottetown is not physically located in P.E.I. but is stationed at the Port of Moncton, in N.B.

36        Produced as evidence at the hearing was a chart created by Ms. Thompson setting out the staffing history at the Port of Moncton from April 30, 2010, to December 19, 2011. She stated that the grievor could not have been posted there as he did not have the required language profile.

37        On June 20, 2011, the grievor emailed Mr. Collins, stating as follows:

…

I heard that there is an English speaking seasonal position in Charlottetown, that’s not being filled. I’m just wondering if this is accurate and if it is, due to my family obligations, that I be considered for this position.

I’m just looking to be with my kids more. I am just mentally, physically and financially drained. I had even put in a request to take a year off for personal needs but it was denied for operational requirements.

I’m just wondering if you can update me or provide me with any news.

…

38        On June 21, 2011, Mr. Collins replied as follows:

I can appreciate that you are in a difficult situation and until I either get a vacancies [sic] in Charlottetown or increased flights, I am adequately staffed to provide service. I will discuss again with Charlotte about any further potential. We really want you to continue your employment with this agency and believe me we have discussed this many times.

Have you considered working as a seasonal in St. Stephen and being back in PEI for 6 months until something opens in Charlottetown? It may be an option that we could look at if you are interested.

…

39        On June 21, 2011, the grievor replied as follows:

I have [sic] thought of that last year but things are really tight. So even being seasonal on PEI I would have to save money during the summer to survive the winter. Being seasonal here I just wouldn’t be able to financially make it. Being seasonal here as well I wouldn’t be able to have split custody.

Thanks for the option; if something changes I will let you know.

40        On July 19, 2011, the grievor filed an accommodation request with the CBSA. In it, he requested a permanent accommodation based on both marital status and family status. He requested that he have a position and that he work in Charlottetown.

41        By letter dated September 29, 2011, the employer denied the grievor’s request for accommodation. Despite that, it noted in that correspondence that it in no way affected the grievor’s previous requests for deployment and that should an opportunity or a vacancy arise, his request would be taken into consideration.

42        Ms. Thompson testified that despite that denial, the employer attempted to find ways to deploy the grievor and help him find other potential positions in other government departments or organizations (OGDs). Produced as evidence at the hearing were several examples of such steps and assistance as well as emails Ms. Thompson sent him with respect to job postings that he might have been qualified for or interested in either in P.E.I. or closer to Charlottetown than St. Stephen.

43        Sometime before January 25, 2012, the BSOs in Charlottetown were canvassed as to whether any of them would be interested in moving to St. Stephen. Ms. Demers-Doiron confirmed in an email on January 25, 2012 that none was.

44        Between May 28 and 31, 2012, the grievor and Mr. Collins, who at that time was still the district director, exchanged emails, which were copied to Ms. Thompson. The email exchange was as follows:

[Mr. Fleming to Mr. Collins; May 28, 2012]

I’m writing in regards to my transfer request.

My union rep informed me not long ago, that a BSO in Charlottetown might be taking a position in Rigaud, and that if he does that would leave a position available.

In a conversation a year ago, with my Chief Thompson, she informed there was a position not being filled in Charlottetown.

From what I have been told, that Charlottetown lost a position. Which still should leave one position, and I am requesting to be placed in this position.

[Mr. Collins to Mr. Fleming; May 31, 2012]

Small ports such as Charlottetown are staffed according to client demand and volumes. In 2008, we estimated a staffing level for that port based on the airport having 16/7 hrs of service and other activities. Unfortunately, the business there has not met the expected levels in the Airports business plan and actually is less busy now than it was in 2009 and 2010. Our current staffing at Charlottetown is 3 Indeterminate full time and 3 seasonal. All of these positions are encumbered. There are no vacancies available at this time to place you in.

Also, under the Deficit Reduction Action Plan, CBSA will be changing the processing procedures for Cruise ships and in 2013 Charlottetown will now longer be a designated Cruise Ship port. We will be required to show savings as a result of this and therefore even if a position became available, I couldn’t commit that it would be filled given current volumes.

Your request for deployment is on file and will be considered if something should become available in Charlottetown. I am sorry that I can’t give you better news or hope but I have to present you with the situation as it is now. I would also suggest that in future you may want to ask questions about the staffing situations rather than drawing conclusions on pieces of information gathered from different sources.

[Sic throughout]

45        The grievor testified that he was on sick leave for a couple of months during the summer of 2012.

46        The grievor took a year’s leave without pay (LWOP) from November 1, 2013, to October 30, 2014. When he returned to work on November 1, 2014, he had been working on assignment out of the St. Croix Port of Entry, where the shifts are four days on and four days off and where there are only two shifts per day, each of 12 hours.

47        Clause 1(b) of the SA states that the family home is the home located in Stratford.

48        Clause 2 of the SA states that the law that governs it is the law of P.E.I.

49        Clause 5 of the SA is entitled “Custody and Access”. Clause 5(a) states that the grievor and his spouse shall have joint custody of the children of the marriage, with his spouse having day-to-day care and control of them and the grievor having liberal and reasonable access based on reasonable notice and mutual agreement, taking into consideration his employment schedule and the ages of the children, who were at the time of the request for accommodation 5 and 3 years old, respectively.

50        Clause 5(b) of the SA provides that the grievor’s visitation schedule for his younger child shall become more liberal as she gets older. He testified that when he and his spouse separated, their younger child was an infant and was still nursing; as such, the time he could have her for a visitation was limited. This has changed since as of the time of the hearing, she was 7 years old.

51        Clause 5(f) of the SA provides that the grievor’s visitation shall take place within either P.E.I. or N.B. and at mutually agreed-upon times.

52        Clause 5(g) of the SA provides that the grievor shall have up to two weeks of visitation with the children during July and August in addition to any regularly agreed-upon schedule between him and his spouse. At the time the SA was entered into, there was a further proviso limiting the summer visitation periods to not more than four days at a time; it appears to have expired as of the time the grievor’s youngest child reached the age of 5, which has since passed.

53        Clause 5(h) of the SA provides that the grievor and his spouse each agree to consult each other as necessary by phone, mail, or email or in person to discuss parenting plans and arrangements for the children.

54        Clause 5(l) of the SA provides that the grievor and his spouse shall each have reasonable contact with their children, including daily contact when the children are with the other parent.

55        The grievor testified that he and his spouse are amicable in their relationship. He has daily contact with the children, and there are no issues with respect to access and visitation rights. He also confirmed that he and his spouse consult each other with respect to the children’s parenting needs. He said that when he took the one year of LWOP, the children spent about 40% of their time with him and 60% with his spouse and that when they were with him, he was responsible for their care. He looked after them and ensured they got to and from their school and activities. He stated that after his one year of LWOP, he wanted to secure custody of his children.

56        Produced as evidence at the hearing was a Statistics Canada analytical paper authored by Marie Sinha of the Social and Aboriginal Statistics Division, dated February 2014 and entitled “Parenting and Child Support After Separation or Divorce” (“the StatCan paper”). Two charts are at pages 10 and 11. They refer to non-resident parents, which in the context of the charts is the parent that a child does not reside with. “Child” refers to one or more children.

57        Chart No. 2, on page 10 of the StatCan paper, sets out the percentage of non-resident parents who spent either no time or less than 3 months with their child over a 12-month period. According to it, 18% of non-resident parents spent no time in a 12-month period with their child, and 44% of non-resident parents spent some time but less than 3 months with their child. According to comments found on page 10 and in Chart No. 3 on page 11, 22% of non-resident parents lived more than 2 hours’ drive from their child’s place of residence.

58        Ms. Thompson testified about the CBSA’s “First Port of Arrival” initiative and identified a CBSA memo dated May 28, 2013, and signed by Pierre Sabourin, the vice-president of the Operations Branch, and Martin Bolduc, the associate vice-president of that branch, about the sites for de-designation as part of the First Port of Arrival initiative.

59        The First Port of Arrival initiative was to require cruise ships to clear customs at the first port they enter when coming to Canada. The CBSA designated those ports. It did not mean that cruise ships could not go to other ports, just that all ports that cruise ships wished to stop at were no longer ports of entry for customs purposes for them; they would have to clear customs at a designated port. The initiative dealt with services for cruise ships at certain operational ports in southern Ontario, Toronto, Quebec, and the Atlantic region (which includes the Southern N.B. and P.E.I. District). The initiative, which became effective on June 1, 2013, de-designated certain ports, including Charlottetown. In essence, it meant that while cruise ships could still come to the Charlottetown port, they had to clear customs elsewhere, and that no BSOs would be available to clear them in Charlottetown.

III. Summary of the arguments

A. For the grievor

60        The grievor referred me to Canada (Attorney General) v. Johnstone, 2014 FCA 110, which states at paragraph 74 as follows:

74 … the ground of family status in the Canadian Human Rights Act includes parental obligations which engage the parent’s legal responsibility for the child, such as childcare obligations, as opposed to personal choices. Defining the scope of the prohibited ground in terms of the parent’s legal responsibility (i) ensures that the protection offered by the legislation addresses immutable (or constructively immutable) characteristics of the family relationship captured under the concept of family status, (ii) allows the right to be defined in terms of clearly understandable legal concepts, and  (c) [sic] places the ground of family status in the same category as other enumerated prohibited grounds of discrimination such as sex, colour, disability, etc.

61        The grievor submitted that family status as set out in paragraph 74 of Johnstone is different from what is described at paragraph 72 of that same decision, in which it differentiates between legal obligations and personal choices. Extracurricular activities do not trigger a claim to discrimination.

62        The grievor referred me to clause 5(g) of the SA and submitted that this is not what occurred when he was off work for the year of LWOP, in which he had the children 40% of the time and his spouse had them 60% of the time.

63        The grievor also submitted that it is contemplated that he would have the children for more time than the SA sets out.

64        The grievor is not just dropping in on the children; he has parental legal responsibilities and childcare obligations. He is responsible for them, which conflicts with his work schedule. Working four days on and four days off or five days on and three days off means he is unable to fulfil his childcare obligations under the 60-40 split.

65        The CBSA cannot look at the SA and state that the grievor’s situation does not meet the definition of family status. The CBSA said first that he does not have care and control, and then it considered the schedule. The grievor is trying to secure split custody of the children.

66        The grievor submits that his work schedule is preventing him from fulfilling his childcare obligations. He referred me to paragraphs 81 and 82 of Johnstone, which state as follows:

81 I agree that the test that should apply to a finding of prima facie discrimination on the prohibited ground of family status should be substantially the same as that which applies to the other enumerated grounds of discrimination. There should be no hierarchies of human rights. However, though the test should be substantially the same, that test is also necessarily flexible and contextual, as aptly noted by the Canadian Human Rights Commission in its submissions before this Court.

82 The starting point of the test to establish a prima facie case of discrimination is set out in Ontario Human Rights Commission v. Simpsons-Sears, above at p. 558, where McIntyre J noted that the complainant in proceedings before a human rights tribunal must show a prima facie case of discrimination, and such a “prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.”

67        The grievor submits that because his marital status changed, a prima facie case is established, and that it is up to the employer to determine if a bona fide occupational requirement exists.

68        The grievor referred me to paragraph 94 of Johnstone, which sets out the first factor for determining whether the grievor meets the prima facie test, which is showing that a child is under his care and that his failure to meet the child’s needs engages his legal responsibility. He submitted that he is the children’s father and that when they are under his care, he is responsible for them.

69        The grievor referred me to paragraph 95 of Johnstone, which sets out the second factor, which is demonstrating an obligation that engages the individual’s legal responsibility for the child. If the grievor’s 60-40 time split with the children’s mother, their ages, and his active involvement with them are considered, then an obligation and a responsibility are demonstrated.

70        The grievor referred me to paragraph 96 of Johnstone, which sets out the third factor, which is whether the grievor has expended reasonable efforts to meet his childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible. The grievor submitted that he has a separation agreement that clearly spells out his obligations. Considering the time he spent in P.E.I. when he was on LWOP for a year demonstrates the efforts he expended to meet his obligations. His request to change his position from indeterminate to seasonal shows that he made a reasonable effort to meet his childcare obligations.

71        The SA is about the best interests of the children. It is not in their best interests if their father is away from them for an extended period. Prolonged periods away from their father are not healthy for the children.

72        The grievor referred me to paragraph 97 of Johnstone, which sets out the fourth and final factor, which is that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with fulfilling the childcare obligation. The grievor submits that he works shifts and that the distance from his children and the failure to accommodate him have interfered with fulfilling his childcare obligations under the 60-40 split that he engaged in when he was on LWOP for a year.

73        The grievor submits that he meets the criteria set out in Johnstone such that I have the authority to make a declaration that he should be accommodated.

74        The grievor submits that the accommodation he wishes granted is that he be placed on a priority list.

75        It is also the grievor’s position that by not being provided with a seasonal indeterminate position, he took a year’s leave. The grievor requests a year of salary.

B. For the employer

76        The grievor submits that the CBSA has not granted him a position in Charlottetown and that it has not changed his shift schedule; the actual accommodation request was to be moved to Charlottetown and to have a position there.

77        The employer referred me to Babiuk v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 51 at para. 51, which states that it is fundamental that the subject matter that gives rise to a grievance be made perfectly clear. The employer also referred me to Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 (T.D.) (QL) at paras. 15 and 26, in which the Federal Court points out that the wording of the grievance is important as it gives jurisdiction. One cannot alter a grievance to make a new one. In this vein, I was also referred to Flatt v. Treasury Board (Department of Industry), 2014 PSLREB 02, which states that the grievance to be dealt with is the one that was filed.

78        The CBSA submits that the test that I must apply to determine the grievance is set out in Johnstone, at paras. 94 to 97, and is as follows:

1. the children are under the grievor’s care and supervision;
2. the childcare obligation or obligations engage legal responsibility versus a personal choice;
3. the grievor has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and
4. The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

79        With respect to the burden of proof, the employer referred me to paragraphs 109 and 119 of Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, which state that the burden to prove discrimination lays with the party claiming it and not with a respondent to disprove it. The onus is on the grievor to lead sufficient evidence to, if believed, support a finding of discrimination, and once this has been done, an evidentiary burden to rebut the discrimination may shift to the CBSA.

80        The employer submits that the grievor must prove all four factors set out in Johnstone to prove that prima facie discrimination exists.

81        With respect to the first factor, which is that the child is under the grievor’s care and supervision, the employer agrees that the grievor has certain legal obligations to his children when he is exercising access to them and that he has support obligations. He has not demonstrated that he cannot fulfil his legal obligation by virtue of his employment.

82        With respect to the second factor, which is that the childcare obligations engage legal responsibility versus personal choice, the employer submits that the grievor is relying on the times when he is not working and has greater access to the children than when he is at work, which is fundamentally different from what the Court contemplated in Johnstone. That case dealt with CBSA employees whose work involved 56-day rotating variable shifts; the schedules were inconsistent and unpredictable, which made it impossible to arrange childcare for two children. The Court states that a childcare obligation must be identified, which if not fulfilled would engage the individual’s legal responsibility to provide for that child.

83        Johnstone, at para. 68, stated that childcare activities contemplated by the prohibited ground of family status are those which have immutable or constructively immutable personal characteristics and that they must be carefully considered. At paragraph 70, the Court stated that the childcare obligations should be those that have an immutable characteristic such as those that form an integral component of the legal relationship between the parent and the child. Such childcare obligations are those that a parent cannot neglect without engaging his or her legal liability; thus, for example, a parent cannot leave a young child at home unsupervised to pursue work since this would constitute a form of neglect.

84        The Court in Johnstone expanded on the meaning of fulfilling legal obligations by providing examples of what triggers a claim of discrimination resulting in an obligation to accommodate by an employer. At paragraph 71, the Court stated that parental obligations, the fulfilment of which is protected by the Canadian Human Rights Act (R.S.C. 1985, c. H-6), are those that if unfulfilled engage a parent’s legal responsibility to a child.

85        The employer submits that the grievor’s desire to have a different custody and access arrangement than the one in place does not engage a legal obligation by not fulfilling it. Paragraph 5 of the SA does not create a legal obligation within the meaning contemplated by Johnstone. The grievor’s desire to spend more time with his children is a laudable goal, but it is not an imposed legal obligation.

86        Clause 5(g) of the SA allows up to two weeks of summer vacation with the children in addition to an agreed access schedule (which is not defined in the SA). When he is not working, the grievor appears to have a more liberal access schedule than when he is working, which is good but does not place him in legal peril. It just means he sees his children less when he is working.

87        The grievor spoke of a 60-40 split; yet, that is not the only reasonable choice, and there is no evidence to support such a proposition.

88        The grievor identified the following issues with his work, which he submits are a detriment to both him and the children:

• access to his children (who are in P.E.I.; he is in N.B.) requires a lengthy commute;
• winter weather may make the commute more difficult;
• rotating shifts mean that his days of rest do not always coincide with weekends; and
• he is unable to exercise access to his children to the extent that he would like.

89        None of the issues with his work is evidence that he cannot provide his children with the necessities of life or any other obligation that he is required to fulfil. In contrast, the evidence has established the following:

• the grievor is meeting all his obligations under the SA that he negotiated;
• he has an amicable relationship with his spouse, and she facilitates his access to the children;
• he regularly exercises his access;
• he has two weeks of vacation with the children as per the SA, and sometimes more;
• special access is arranged for events and holidays;
• he has a healthy relationship with the children;
• when the children are with their mother, the grievor can and does communicate with them daily;
• he is an active participant in parenting plans for the children; and
• he meets his support obligations.

90        The grievor’s situation raises sympathy but is no different from that of many other Canadian families. It does not give rise to a duty to accommodate; nothing brought forward in the hearing gave rise to a responsibility for the employer to accommodate him.

91        Flatt involved an allegation of a failure to accommodate on the basis of family status when the employer refused an employee a telework accommodation following her year-long maternity leave; her request was based on the fact that she was breastfeeding her child. At paragraph 181, the Board held that a parent’s legal obligation was to nourish his or her child; how a parent fulfils that responsibility is a question of choice, and breastfeeding is one such choice, but not the only one. The Board did concede that at times, many choices may shrink to only one, and in such cases, it is no longer a choice but a legal responsibility.

92        I was also referred to paragraphs 14 and 42 of Ontario Public Service Employees Union v. Ontario (Natural Resources and Forestry), 2015 CanLII 23821 (“Bharti”). In that case, it was held that there was no requirement to personally administer what the grievor in this case asserted. However, he did not suggest that he could not provide the necessities of life.

93        The employer referred me to International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc. (2009), 186 L.A.C. (4th) 180, which held that a change to a workplace rule that forces parents to alter a carefully constructed custody agreement to their detriment to accommodate that workplace rule may be found discriminatory. However, I was also referred to Saroyan v. Deco Automotive, 2011 HRTO 236, in which a change to a workplace rule was found not discriminatory because the employee involved did little to pursue possible changes to an access arrangement, and in fact, it was not clear that the employee pursued any substantive discussions with his spouse about altering their access agreement.

94        With respect to the third factor, which is that the grievor has made reasonable efforts to meet his childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible, the evidence did not disclose that either he or his spouse could not meet the childcare obligations. There must be an enforceable legal responsibility for which no reasonable alternate arrangement exists. The key word as set out by the Court in discussing this third factor is “alternate”, which was the focus in Flatt, at para. 178.

95        The grievor requested a change to a seasonal position from a full-time indeterminate position but later withdrew it. He also requested a deployment to P.E.I. He requested and was granted a one-year LWOP. The evidence clearly shows that the employer was actively involved in attempting to secure a solution to his family situation problem.

96        The grievor entered into the SA voluntarily; he understood that the children would be living in P.E.I., that he would be living in N.B., and that commuting would be required. There is no evidence that the grievor explored any alternatives or that this situation was impossible or unreasonable.

97        The grievor provided no evidence of any employment searches that he carried out looking for alternative solutions to the situation with the CBSA or other OGDs or that the positions that were referred to him by the CBSA were not available to him.

98        It is clear that the grievor hoped to return to PEI; when he and his family moved to St. Stephen in June 2008, they retained ownership of their home in PEI and only rented an apartment in St. Stephen. The grievor’s spouse did not give up her employment in PEI nor was there evidence proffered that the grievor’s spouse sought out employment opportunities in NB, or that none were available. Indeed, the grievor applied for a deployment while on training in Rigaud.

99        The CBSA referred me to Bharti, at paragraphs 47 through 52, which set out that when the grievor in that case was not at home, his spouse or children would take care of his parents; this established that there were alternative options to the grievor in that case and as such he was unable to demonstrate the third criteria set out by Johnstone that there were no alternative options.

100        The CBSA referred me to Canadian Staff Union v. Canadian Union of Public Employees (Reynolds Grievance), [2006] N.S.L.A.A. No. 15, which is a Nova Scotia case based on a British Columbia decision which develops a similar line of reasoning as the factors set out in Johnstone. The arbitrator states at paragraph 141 as follows:

Did the Grievor’s “family status” and “marital status” effectively preclude him from moving to Halifax? Having found that the Employer’s behaviour here did not amount, prima facie, to discrimination on the basis of marital or family status, logically, I need not answer this question as a separate issue. However, if I am wrong in accepting the sort of limitation placed on the concept to prima facie discrimination by the British Columbia Court of Appeal in Health Sciences Association of British Columbia v. Campbell Rive North Island Transition Society [2004] B.C.J. No. 922, alternatively I base my Award here on the facts. I find that the family commitments of the Grievor in the Grievance before me here were not commitments upon which a finding of discrimination under either the Collective Agreement or any applicable human rights legislation can be based. As wrenching as the choices faced by Mr. Reynolds and his family are, they are choices; and they are not new or rare choices for family people, particularly where both spouses work. Aged parents have always been, and will continue to be, a responsibility and concern for everybody, including people in the workforce.

101        At paragraph 142 of Reynolds the arbitrator found that while living apart is stressful, countless couples do so because of job commitments. At paragraph 143 the arbitrator stated that if the grievor’s family in that case could not move, he could have moved and then commuted periodically, at his own cost. Flatt at paragraph 183 talks about the cost factor of alternatives. Here the Board stated as follows:

I turn now to the third condition outlined in the FCA-Johnstone test … The grievor’s evidence was that she had located an available daycare spot that was close to the Burlington office. The fact that, as the grievor said, she “would be working to just cover the cost of daycare” does not alone establish that it was not a reasonable alternative. Life- whether alone or with family dependants – and the choices associated with it always entail certain costs that one works to cover. Moreover, such choices are generally the result of a cost-benefit analysis that includes but is not always restricted to their economic costs. The fact then that one might have to work to cover the cost associated with a particular choice is not in and of itself sufficient to make that choice unreasonable.

102        With respect to the issue of the commute, the CBSA referred me to Halfacree v. Deputy Head (Department of Agriculture and Agri-Food), 2012 PSLRB 130, which states at paragraph 188 that long commutes can be a fact of life; and the long commute itself coupled with a family status situation does not alone trigger the duty to accommodate.

103        Finally, with respect to the fourth factor: that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation, the grievor has not identified a child care obligation that he is unable to fulfill, therefore there is no rule that can interfere with that obligation. The grievor did not lead any evidence of this.

104        The CBSA requests that the grievance be dismissed.

105        In the alternative, the CBSA submits that if the Board finds that there was a prima facie case of discrimination, then the evidence discloses that the CBSA has shown that it cannot accommodate the grievor without incurring undue hardship. In this regard the CBSA has referred me to Canada (Attorney General) v. Cruden, 2013 FC 520 and Canada (Human Rights Commission) v. Canada (Attorney General), 2014 FCA 131.

106        While the grievor suggested that there was a position available for him in PEI, the evidence from the CBSA was that there was no position in PEI. While the grievor was on a list for deployment to PEI if anything came up, the port of Charlottetown was small with declining workloads. The evidence disclosed that during the relevant time periods when the grievor was seeking deployment to PEI there were no vacant positions in PEI and when a position was left vacant no one was hired to fill it, due to a lack of work. The only exception was when there was no longer any bilingual officers in Charlottetown did they fill that position; the grievor was not bilingual and as such could not fill a bilingual position in Charlottetown. In Moncton, which was closer to PEI than St. Stephen, all of the positions were bilingual imperative.

107         The evidence also disclosed that the employer solicited employment opportunities for the grievor unfortunately he did not qualify for them. There was no evidence that there was any position that the grievor was qualified for that the employer did not post him to.

108        The CBSA submits there is no basis upon which the request made for one year of salary can be maintained.

C. The grievor’s reply

109        With respect to the submission of the CBSA regarding undue hardship, the grievor submits that it would not have been undue hardship to create a seasonal position and place the grievor in it.

110        With respect to the first factor in Johnstone, he cannot fulfil his legal obligations when he is exercising access; by mutual agreement, the grievor and his spouse had split the care giving obligations 60-40. The child care obligation is the grievor’s not his spouse. In that regard his spouse is not required to fulfil his child care obligations. There is an arrangement that is 60-40 that they had agreed upon that he now has to give up due to his inability to be able to fulfill.

IV. Reasons

111        The grievor alleged that the CBSA has, by failing to deploy him to PEI, breached the no-discrimination clause of the collective agreement (article 19), as it pertains to family status. The grievance simply states that his application for duty to accommodate based on family status was denied, and as relief, he asked for his application to be approved and that he be made whole. In his accommodation request, he specifically asked to work in Charlottetown.

112        The grievor and his spouse were married in the summer of 2004. They lived and worked in or around Charlottetown. Both their extended families also lived and continue to live in or around Charlottetown. The grievor’s spouse was, and as far as this Board is aware continues to be, employed as a teacher with a school board in the vicinity of Charlottetown. She and the grievor owned a home located in Stratford, near Charlottetown. They have two children, one born in late 2005, and one in the spring of 2008.

113        In May 2008, the grievor was offered an indeterminate position as a BSO at the St. Stephen PoE of 15 hours per week. He stated that he started to work in June 2008 and that he spent nine weeks in Rigaud at the CBSA training facility. However, his letter of offer stated that the first two days, June 5 and 6, 2008, were to be at the St. Stephen PoE. He also did not testify as to the exact time he was at Rigaud. Based on the information provided, I can assume only that he was not actually fully trained and working in St. Stephen until, at the earliest, late July or perhaps sometime in August 2008.

114        While the grievor stated that upon starting his job at the CBSA, his spouse and children moved with him to St. Stephen, it was not clear from his evidence if they moved as of the beginning of June or if they moved after he returned from his nine weeks of training in Rigaud. He also stated that his spouse and children did not spend a lot of time in St. Stephen during the summer of 2008 and that they (his spouse and children) moved back to P.E.I. in September 2008. The grievor did not say how much time they spent in St. Stephen during June, July, and August 2008 and when exactly they moved back to P.E.I., whether at the beginning or end of September. Clause 14 of the SA states that the family home was leased. That lease expired on June 30, 2009. The grievor testified that it was leased for a year. Based on this information, I assume that the house was leased at the beginning of July 2008.

115        According to the SA, the grievor and his spouse were permanently separated by the end of October 2008. However, again, the exact date of the separation was not provided, and when the grievor testified, his evidence on this point was ambiguous. As stated, his evidence suggested that his spouse and children left St. Stephen for good in September 2008, but exactly when they left was not clear. He also did not say if he went back and forth to P.E.I. in the period of September and October 2008; nor did he mention if he was with his family in the summer of 2008 when they were not in St. Stephen and he was not either at Rigaud or working.

116        Clause 5(a) of the SA provides that the grievor and his spouse have joint custody of the two children, with day-to-day care and control in his spouse’s hands. His spouse and children have resided in the vicinity of Charlottetown since they returned there in September 2008. He and his spouse used the same lawyer to negotiate the SA, which is governed by the laws of P.E.I. The grievor agreed in evidence that the SA is the entire agreement governing his and his spouse’s rights and responsibilities with respect to each other and to the children.

117        The grievor stated in his evidence that he and his spouse are amicable with one another; he enjoys liberal access to the children, and when he was on LWOP, he testified that his children spent 40 percent of their time with him. He confirmed in his evidence that he and his spouse consult each other with respect to the children’s parenting needs.

118        Currently the grievor is working at St. Croix, where the shifts are more conducive to him being able to travel to P.E.I. to visit his children.

119        The CBSA submitted and the grievor did not dispute that the burden of proof to establish a prima facie case of discrimination is with the party claiming it, which in this case is the grievor (see Tranchemontagne).

120        Johnstone is the definitive case in this area. At paragraph 93, it sets out the four-part analysis that a court or tribunal must consider to make a determination of whether a prima facie case of workplace discrimination on the prohibited ground of family status resulting from childcare obligations is established. To establish that prima facie case, the grievor had to show the following:

1. that a child or his children are under his or her care and supervision;
2. that the childcare obligation at issue engages his legal responsibility for the children, as opposed to a personal choice;
3. that he has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and
4. that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with fulfilling the childcare obligation.

121        Each of the four factors set out in Johnstone acts as a stepping stone to the next, which means that when claiming discrimination based on family status, the claimant must meet each and every factor, starting with the first one. And if in the course of the analysis, the claimant fails to meet what is necessary to satisfy a factor, he or she will fail to establish a prima facie case.

122        Each part of the four-part analysis is further defined in paragraphs 94 through 97 of Johnstone. For the reasons that follow, I find that the grievor has not established a prima facie case of discrimination as set out in Johnstone, and as such, his grievance is dismissed.

123        The first factor in the analysis requires the claimant to show that the children are actually under his or her care and supervision. This requires that the person claiming that he or she is being discriminated against by virtue of family status show that he or she stands in such a relationship to the child or children at issue and that his or her failure to meet the child’s needs will engage his or her legal responsibility. In the case of parents, this will normally flow from their status as parents. In the case of a single parent with custody, it is simple, as that parent has sole custody and responsibility for the child or children.

124        However, while the grievor is a parent and does have some legal responsibilities for his children, they are spelled out and limited by the terms and conditions of the SA, which he freely negotiated and entered into with his spouse. At clause 5(a) of the SA, the day-to-day care and custody of the children are set as being with his spouse, who lives in P.E.I. The children live with her and go to school in P.E.I. The grievor’s responsibilities are largely financial, and while he does have responsibilities when he is exercising access to his children, the day-to-day responsibilities for them are with his spouse; as such, he does not meet the first factor set out in Johnstone.

125        The second factor in the analysis requires that the claimant demonstrate that an obligation engages his or her legal responsibility for a child or children. This requires that the claimant show that the child has not reached an age at which he or she can reasonably be expected to care for himself or herself during the parent’s work hours. It also requires demonstrating that the childcare need at issue flows from a legal obligation as opposed to resulting from personal choices.

126        The second factor is closely linked to the first. The grievor has not demonstrated that there are childcare needs at issue that flow from his legal obligation to the children. The evidence disclosed that neither his work location nor his schedule interfere with any childcare or daycare issues. I was not provided with the specifics of his spouse’s work schedule; however, they are irrelevant, as there is no evidence that she does not manage to take care of the children and see to their day-to-day needs, including any childcare, if necessary.

127        The grievor submitted that when considering whether he has satisfied the prima facie test as set out in Johnstone, I should consider the arrangement as it existed when he was not working because he was on LWOP for a year, during which time he and his spouse split the care arrangements for their children on a 60-40 percent basis and that I should extrapolate that as if he had been working. While he may want that (a 60-40 percent split of care and custody), it is not the reality; his spouse has day-to-day custody and control of the children as set out and agreed to by him in the SA. As such, it is not an appropriate premise upon which he can establish that the first and second factors of the Johnstone test are met.

128        The third factor in the analysis requires the grievor to demonstrate that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible. A grievor will be called upon to show that neither the grievor nor his or her spouse can meet their enforceable childcare obligations while continuing to work and that an available childcare service or alternative arrangement is not reasonably accessible to them, to meet their work needs. In other words, the grievor must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis, accounting for all the circumstances.

129        The evidence in this case in fact demonstrates the opposite. In the grievor’s situation, there is no need to even consider alternative solutions because the legal responsibility for the children is being appropriately addressed by their mother. There is no evidence otherwise. If I am incorrect with respect to factors one and two of Johnstone, the grievor’s case would still fail with respect to factor three, because there is no evidence that he has considered any reasonable alternative solutions. I also suspect that part of the fact that the grievor cannot establish the third factor is that his case also fails when I consider the fourth Johnstone factor.

130        The fourth and final factor in the analysis requires that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with fulfilling the childcare obligation. The underlying context of each case in which childcare needs conflict with a work schedule must be examined to ascertain whether the interference is more than trivial or insubstantial.

131        Factor four finally considers the workplace rule that is creating the problem in the first place. Without the problematic rule or workplace situation, all the other factors become redundant. In this case, no workplace rule or situation is creating a problem. It is difficult to consider all the other factors if no rule is creating a situation that as the Court said in Johnstone creates a conflict with fulfilling a childcare obligation that engages a legal liability.

132        The grievor’s problem is his work location; while it is a problem for him, it does not meet the definition in Johnstone, which is a workplace rule or policy that is interfering with the delivery of an obligation that engages a legal liability.

133        In short, the work location is a problem because the grievor wants to live closer to his children and wants his job to be closer to them. While it is certainly an admirable desire, it does not satisfy the fourth factor of Johnstone.

134        I conclude that the grievor has not established a prima facie case of discrimination and, as such, there is no need to address whether the employer met its duty to accommodate. However, I note the following with respect to accommodation efforts by the parties.

135        Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, sets out the now well-recognized principles in duty-to-accommodate cases. The Supreme Court of Canada stated as follows:

…

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

…

…The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.

…

136        The grievor’s representative submitted that the CBSA could have created a seasonal position in P.E.I. I found this submission both disingenuous and troubling.

137        The evidence before me demonstrated that the CBSA’s work in P.E.I. is limited and in decline. Empty positions that would otherwise be filled and that the grievor could fill are being left empty because there is simply not enough work. I suspect that had there originally been a position in P.E.I. when the grievor applied for his job with the CBSA, he would have applied for it. There was no such evidence, and all the evidence disclosed a work decline in P.E.I. Creating a seasonal position for the grievor would only have taken work away from the BSOs already in P.E.I., which could well have led to grievances being filed if their hours were cut back. Those grievances would have been advanced by the same bargaining agent that represented the grievor.

138        The evidence before me also demonstrated that the grievor’s superiors took a number of steps to try to deploy him to P.E.I. because his spouse had moved back there with the children. They even tried to get him closer by looking at options in Moncton. All the positions at the Port of Moncton are bilingual imperative; the grievor is unilingual English. He did not meet the criteria for those jobs.

139        I also heard evidence that the grievor’s supervisor sent him information about other jobs both within the CBSA and in OGDs. I was not provided any evidence from him of any steps he took to try to secure employment in P.E.I.

140        For all of the above reasons, the Board makes the following order:

V. Order

141        The grievance is dismissed.

September 23, 2016.