Date: 20210720

Files: 566-02-14178 and 14179

 

Citation: 2021 FPSLREB 84

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Sarita Grant

Grievor

 

and

 

treasury Board

(Canada Border Services Agency)

 

Employer

Indexed as

Grant v. Treasury Board (Canada Border Services Agency)

In the matter of individual grievances referred to adjudication

Before: Linda Gobeil, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Erin Sandberg, counsel

For the Employer: Cristina St-Amant-Roy, counsel

Heard at Québec, Quebec,

November 19 and 20, 2019.

(Written submissions filed January 29, March 27, and May 1, 2020.)

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1] On May 5, 2015, Sarita Grant (“the grievor”) filed two grievances. She alleged that the Canada Border Services Agency (CBSA) discriminated against her based on her family status, per article 19 of the collective agreement for the Border Services group between the Treasury Board (“the employer”) and the Public Service Alliance of Canada (“the bargaining agent”) (Exhibit E-1, tab 22). She also alleged that the CBSA failed to accommodate her eldercare situation after she requested a relocation so that she could care for her mother. As for remedy, she asked that “… my rights respected. All expenses paid and pain and suffering.” On May 17, 2017, the grievances were referred to adjudication and notice of the grievances was given to the Canadian Human Rights Commission (CHRC).

[2] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act.

[3] For the reasons that follow, I find that the grievor did not establish that she was discriminated against on the basis of her family status.

II. Summary of the evidence

[4] At the hearing, the parties submitted an agreed statement of facts dated November 19, 2019. They also presented additional evidence. The agreed statement of facts reads as follows:

Agreed Statement of Facts

 

This Agreed Statement of Facts sets out the facts that the Counsel of the Bargaining Agent and Counsel for the Employer acknowledge with respect to Ms. Grant’s grievances referred to adjudication and bearing file numbers 566-2-14178 and 566-02-14179:

 

1. Ms. Victoria Sarita Grant (hereinafter the “Grievor”) was an employee of the Canada Revenue Agency since February 8, 2010 at the SP-03 group and level.

 

2. On May 30, 2014, the Grievor, accepted an offer to participate in the Officer Induction Training Program (OITP).

Officer Induction Training Program (OITP) Acceptance or Refusal Form Intake 4-B, Tab 4 of the Employer’s Book of Documents

 

3. The Grievor reported to the CBSA College in Rigaud, Quebec on July 21, 2014 for a period of 18 weeks to complete the OITP.

 

4. Following the successful completion of the OITP, the Grievor accepted an offer of a full-time indeterminate appointment to the position of CBSA Officer Trainee at the Armstrong, Quebec port location, on November 18, 2014.

Letter from CBSA with attached Apprendix A, Tab 5 of the Employer’s Book of Documents

 

5. On December 15, 2014, the Grievor reported to the Armstrong, Quebec port location and began work.

 

6. On January 21, 2015. the Grievor submitted an Accommodation Request to CBSA, requesting accommodation based on sex (pregnancy).

Form BSF677-E Accommodation Request, Tab 10 of the Employer’s Book of Documents

 

7. The Accommodation Request was submitted with a medical certificate signed by Dr. Pierre Gagné, GMF Chaudière-Ouest and dated January 12, 2015.

Document entitled “Risques à éliminer pour la travailleuse enceinte”, Tab 9 of the Employer’s Book of Documents

 

8. On January 22, 2015, CBSA approved the Accommodation Request via the Accommodation Request Review and Agreement Form.

Form BSF676-E Accommodation Request Review and Agreement Form [redacted], Tab 11 of the Employer’s Book of Documents

 

9. The Grievor’s shift schedule was modified for a day schedule of maximum 40 hours a week with an 8 hours per day.

 

10. On January 29, 2015, the Grievor requested unpaid family related leave for the period beginning February 23, 2015 to March 13, 2015.

Email from Grievor addressed to Marie-Claude Veilleux (cc. Marco Lessard and Grant, Sarita), Tab 13 of the Employe’s Book of Documents

 

11. CBSA agreed to the unpaid family related leave and the Grievor was on unpaid leave from February 23, 2015 to March 13, 2015.

 

12. Prior to the unpaid family related leave, on February 2, 2015, the Grievor submitted a Family Status Information Form requesting accommodation of transfer to Ottawa in order to care for her mother.

Form BSF678-E Family Status Information Form, Tab 12 of the Employer’s Book of Documents

 

13. On March 26, 2015, the Grievor supplied additional information related to the Family Status Information Form following the March 25, 2015 request made by CBSA.

Emails dated March 26, 2015 with attachment, Tab 17 of the Employer’s Book of Documents

 

14. On April 16, 2015, CBSA refused the accommodation request based on family status.

Letter dated April 16, 2015 and signed by Bernard Giguère, Chef des opérations intérimaires, Tab 18 of the Employer’s Book of Documents

 

15. On May 5, 2015, the Grievor filed grievance n° 2015-3921-117984 and grievance n° 2015-392117985.

Grievance n° 2015-3921-117984, Tab 1 of the Employer’s Book of Documents and Grievance n° 2015-3921-117985, Tab 2 of the Employer’s Book of Documents

 

16. The Grievor was on various paid leave (vacations, sick leave, and family obligation leave) approved by CBSA from June 11, 2015 to July 17, 2015.

 

17. On July 19, 2015, the Grievor officially started her maternity leave.

 

18. On July 15, 2016, the Canada Revenue Agency offered a permanent lateral position at the SP-06 group and level (Technical Ministerial Corresp. Officer) in Ottawa (Ontario).

Letter dated July 12, 2016, Tab 20 of the Employer’s Book of Documents

 

19. The parties reserve the right to present additional facts and will present additional information in the context of the hearing, through witnesses and documents.

 

[Sic throughout]

[Emphasis in the original]

 

A. For the grievor

[5] The grievor was an employee of the Canada Revenue Agency (CRA) from February 2010 in Ottawa, Ontario, at the SP-03 group and level. She decided to make a career change. In 2010-2011, she applied to the CBSA’s Officer Induction Training Program (OITP) with a view to be appointed, if successful, to a CBSA officer trainee position after completing the OITP.

[6] At the outset of the selection program, the grievor was told that those who apply must accept an assigned posting “anywhere in Canada”. In cross-examination, she acknowledged knowing about that condition of the selection process and the subsequent employment. It is not in dispute (see the grievor’s written submissions at part 6.5 of paragraph 6 and Exhibits BA-3 to BA-5, BA-6 and B, BA-7, E-1, tab 4, and E-1, tab 5).

[7] The grievor testified that in March and April 2014, just before she was accepted into the OITP, her mother’s health was as good as it could be for someone with cancer. She explained that her mother had been diagnosed with cancer in 2013 and that she then went through treatments like radiation and chemotherapy. While her mother’s state was stable, and she followed her routine during that period, the grievor, who was then still located in Ottawa, helped with medical appointments and house chores.

[8] In cross-examination, the grievor agreed that in March and April 2014, just before she was admitted into the OITP, her mother’s doctor told her about the risks and possible side effects of the cancer treatments.

[9] On May 28, 2014, after changes were made to the recruitment program and after a series of tests and an interview, the grievor, who was then still with the CRA, was accepted into the OITP at the FB-02 group and level. She was told to attend the program in Rigaud, Quebec, and was scheduled to start on July 21, 2014, after completing about 50 hours of online training. The OITP consisted of 18 weeks of training in residence (Exhibits BA-1 to BA-5 and BA-6A and B).

[10] The grievor testified that she and her family were excited that she had been admitted to the OITP and that at that point, “there was no change” in her mother’s health. She explained that while she was managing her mother’s hospital appointments, her mother was still very mobile around the house and still drove and gardened.

[11] In June 2014, just before she left for Rigaud, the grievor’s mother was admitted to intensive care at a hospital for two weeks (Exhibit E-1, tab 12, page 2). Her mother returned home following that hospital visit and the grievor pursued her OITP training. The grievor testified that she went to Rigaud in July 2014 and that she returned every weekend to Ottawa, sometimes even in the evenings, and that during that time, her mother’s health remained stable. The grievor indicated that she told her OITP instructor about her mother’s situation and that she had access to a phone, to manage the medical appointments. According to the grievor, her instructor was supportive of her situation and even directed her to the Employee Assistance Program for additional support. Her mother’s health was not an issue during her 18 weeks in Rigaud.

[12] The grievor completed the OITP successfully. The employer then presented the 12 successful candidates, including her, with a list of duty-placement locations. Those with the best OITP results had first choice of location. The grievor, who is bilingual, ranked 9^th out of 12. Three location choices remained: Armstrong, a border-crossing port between Canada and the United Stated located near Saint-Théophile in the Beauce region of Quebec, which is about 1 hour and 30 minutes by vehicle from Québec; Gillespie in New Brunswick; or Sept-Iles in Quebec.

[13] Toward the end of the training, in October 2014, the grievor chose Armstrong for her first assignment as a CBSA officer trainee. She formally accepted the appointment offer on November 18, 2014. The offer letter was for an officer trainee position at the FB-02 group and level. The letter specified that the grievor agreed to be assigned anywhere in Canada (Exhibit E-1, tabs 5 and 8). She indicated that Armstrong is about a six-hour drive from Ottawa and that since she had been born in Ottawa and is bilingual, she saw that going there was an opportunity for her.

[14] The grievor acknowledged signing the document entitled, Officer Trainee Development Program (Programme de perfectionnement des agents stagiaires) which covers officer trainees’ relocations and movements (Exhibit E-1, tab 24).

[15] The grievor testified that she arrived in Armstrong the week of November 18, 2014, and that she rented a condo. Her husband stayed in Ottawa because of his work obligations. He is a caregiver, but he could not take care of her mother’s personal needs. In addition, the grievor would have had to pay for his services, for which she and her family did not have the financial means. The plan was that he would find work in Armstrong and move there too. However, since he is not bilingual, he could not find employment there.

[16] After three weeks to complete her relocation, the grievor started working in Armstrong on December 15, 2014, as an officer trainee. Around the same time, she found out that she was pregnant. In January 2015, she made a request for accommodation during her pregnancy to Dominic Toulouse, who was the supervisor in Armstrong then. The request was accepted in its entirety (Exhibit E-1, tabs 9, 10, and 11).

[17] The grievor indicated that since she was pregnant, she could not drive from Armstrong to Ottawa, especially in the winter, and that the only other way to travel to Ottawa was by driving to Sainte-Foy in Québec and taking a train from there.

[18] The grievor indicated that her mother’s health began to deteriorate in January 2015 due to the chemotherapy treatments. She had difficulty walking, had to use a walker, and was no longer able to manage her medication by herself. The grievor also continued to manage her mother’s medical appointments.

[19] On January 29, 2015, the grievor submitted a request for three weeks of family related leave from February 23 to March 13, 2015. She indicated that she had to attend important medical appointments for her mother, who could not attend alone. The request was granted.

[20] Immediately after that, on February 2, 2015, which was seven weeks after her arrival in Armstrong, the grievor submitted a Family Status Information Form to the CBSA. Under the description of the needs requiring accommodation, she indicated that (1) she is the primary care giver to her mother who is ill with cancer and heart failure; (2) her husband was unable to relocate due to language barriers; and (3) her pregnancy. As for the accommodation sought, the grievor requested relocation to Ottawa to care for her sick mother and to be close to her husband during and after her pregnancy. The Family Status Information Form asks “Are family responsibilities described above shared with another parent, guardian or family member?”. In response, the grievor listed her father and sister (Exhibit E-1, tab 12 p.2 of the form).

[21] The grievor explained that at that point, her mother became worried and depressed and that she had to be with her mother in Ottawa. The grievor testified that her mother’s doctor had told her that her mother’s situation was going downhill. She explained that her father could not attend to or understand all the medical issues. Her adult sister experienced a car collision in 2005 and still had related medical issues of her own to deal with. While her sister helped with the meals at home, she could not manage all the medical appointments for her mother. As for her brother, he had a family and was not in a position to help. The grievor indicated that she could not move her mother to Armstrong with her since her mother did not speak French. Moreover, the family income was very limited, so there was not enough money to hire help from a private care provider.

[22] In support of her relocation request, the grievor submitted several medical certificates addressing her mother’s medical condition and supporting her transfer. The doctors who signed the certificates did not testify (Exhibit E-1, tab 12).

[23] Following up on her relocation request of February 2, 2015, the CBSA requested additional information on March 25, 2015 (Exhibit E-1, tab 17). It asked the grievor three questions: (1) How has your mother’s situation changed since you were accepted into the OITP program (from the moment you accepted to go to Rigaud); (2) When you accepted the offer to go to Rigaud, how were you planning on dealing with your mother’s situation and how have those plans changed since; and (3) When you accepted the offer to come to Armstrong, how were you planning on dealing with your mother’s situation and how have those plans changed since?

[24] The grievor responded the next day (Exhibit E-1, tab 17). In her response, the grievor explained that, since being accepted into the OITP, her mother had shown major symptoms of debilitation, including fatigue, pain and decreased appetite. The grievor indicated that she believed that her mother required monitoring and help with food preparation to ensure that she maintains a healthy diet, is overwhelmed with the information she receives in appointments when she attends alone and that her morale is decreasing by not having a steady caregiver, which makes her susceptible to depression.

[25] The grievor’s response also stated that, when she went to Rigaud, her mother was stable and she was allowed access to a phone during class hours in case of any urgencies. Being in Rigaud also allowed the grievor to return home on evenings and weekends and attend many of her mother’s appointments and help with the maintenance of the house while her mother was recovering.

[26] In response to the third question, the grievor indicated that she initially chose Armstrong because of the opportunities it would provide and because it was relatively close to her parents with a driving time of approximately 6 hours. Once she found out that she was pregnant, she was no longer able to drive 6 hours to Ottawa alone due to fatigue and pain in her sciatic nerve. In gathering information about medical services nearby for her mother, she found that it was not easy to get services in English. When she contacted the hospital, she was told that there were translators available for English speakers who need treatment. But, according to the grievor’s response, that was not a realistic solution because the amount of information relayed back and forth with doctors was too intensive and would lower the quality of care her mother received. The biggest change since her move to Armstrong was her mother’s deteriorating condition. According to the grievor’s statement, it was impossible for her to give her mother the care that she needs being 6 hours away, she could not rely on others to take care of her mother in the all-encompassing way that she required and, with her mother’s symptoms increasing and her appetite and weight decreasing, she required more and more of the grievor’s help.

[27] On April 16, 2015, the grievor received a negative answer to her transfer request from Bernard Giguère, the acting chief, operations, for the CBSA (Exhibit E-1, tab 18). Mr. Giguère’s letter reads in part:

…

Based on the Policy on the Duty to Accommodate of the Canada Border Services Agency, we analyzed all these and believe that the exposed elements are more a matter of preference than a matter of need.

Although you indicate that your request is based on family status, the issue that appears to be problematic is the fact that you consented to the condition that you could be placed anywhere in Canada after graduating from OITP, while aware of your mother’s situation. Those issues are not “grounds” of discrimination under the Canadian Human Rights Act, since they describe a personal choice that does not attract human rights protection. Therefore your request does not raise the Duty to Accommodate.

…

 

[28] The grievor indicated that the employer had not taken her request seriously and that it assumed that she had known from when she had started in her officer trainee position how her mother’s health would change. The grievor insisted that it was her responsibility to take care of her sick mother; she had no choice. To do so, her preference was to train for her next group and level, FB-03, in Ottawa, but the employer also never offered her any other options with respect to accommodation.

[29] On May 4, 2015, the grievor emailed Mr. Giguère, asking for an explanation as to why her relocation request had been denied. She received no reply (Exhibit BA-8). In May 2015, she raised the issue with Daniel Bernard, who was the director of the CBSA’s East District. In her letter, the grievor reiterated the reasons for her request and, among other things, stated that the CBSA’s previous response accused her of having ulterior motives and that the CBSA has shown no undue hardship in meeting her needs. The grievor testified that while she was embarrassed by the tone of her letter, the information in it still applies (Exhibit BA-9).

[30] The grievor testified that she tried to travel to Ottawa as often as she could, for which she had to go on leave a number of times. The employer always granted the leave she requested. She went to Ottawa for Christmas in 2014, from February 23 to March 13, 2015, from June 11 to July 17, 2015, and then on July 20, 2015, she went there for her maternity leave (Exhibit E-1, tab 19). She never returned to Armstrong after her maternity leave ended. On July 16, 2016, she accepted a lateral move to a CRA position at the SP-06 group and level.

[31] In cross-examination, the grievor confirmed that she suffered no loss of salary or benefits when she transferred into her new CRA position in July 2016 (Exhibit E-1, tab 20).

[32] As of the date of the hearing, the grievor indicated that she had been living in the same house as her parents as her mother’s condition had continued to deteriorate.

[33] Asked why she did not consider requesting compassionate-care leave, as provided under the collective agreement and under which she could have taken up to 17 weeks of leave, the grievor explained that it would have been unpaid and that she could not have afforded it.

[34] The grievor also confirmed that on December 11, 2014, four days before she left for Armstrong, her family doctor signed a medical note addressed to Mr. Toulouse, expressing support for her relocation to Ottawa. She admitted that Mr. Toulouse received the medical note only when she made her formal transfer request; i.e., on February 2, 2015. However, she insisted that in December 2014, her goal was still to work in Armstrong.

[35] Asked to explain why her family doctor was aware that the grievor wanted to relocate to Ottawa, given that she had not even started at Armstrong, she explained that her doctor was concerned about her pregnancy. She also indicated that her bargaining agent representative was also concerned about the fact that she had to manage her mother’s medical situation from a distance. She acknowledged that the other medical certificates she submitted to the employer supporting her transfer to Ottawa were prepared shortly after she arrived at Armstrong.

B. For the employer

[36] In 2014-2015, David Akerley was the manager on an acting basis of the OITP in Rigaud. He explained that his role then was to manage the development of CBSA officer trainees as FB-02s. He indicated that the OITP involves 18 weeks of training in Rigaud and that if successful, a trainee normally becomes an FB-02 and stays at that level for 12 to 18 months.

[37] During those 12 to 18 months, the officer in training is assigned work similar to that of an officer but cannot work alone; he or she is always accompanied by an officer classified FB-03. Mr. Akerley noted that an FB-02 position does not exist for the long term but for a maximum of 18 months and that it no longer exists after that. Therefore, a secondment from one FB-02 to another is not possible since an FB-02 assignment is only temporary. There are about 290 to 450 FB-02 positions in the CBSA at any given time.

[38] In addition, Mr. Akerley’s group also administers the future work locations for those employees. He insisted that all applicants agreed to be posted anywhere in Canada and that failing to means that they will no longer be considered and may be asked to reimburse the CBSA for the costs associated with the OITP (Exhibits BA-7, page 2, and E-1, tab 3, pages 1, 4, and 5).

[39] As to where an officer trainee is posted once the training in Rigaud is completed, Mr. Akerley indicated that it depends on the needs of the different regions in Canada and on whether one needs a bilingual trainee.

[40] On September 30, 2014, all OITP participants in Rigaud attended a presentation about how their port placements would be decided if they succeeded in the OITP (Exhibit E-2, tab 6). Mr. Akerley indicated that the OITP participants received the list of ports available to them based on their scores a week before their assignments. The grievor ranked number 9 out of 12 participants. Therefore, she was left with the choice for her FB-02 training of Armstrong, Gillespie, or Sept‑Iles (Exhibit E-1, tabs 7 and 8).

[41] Mr. Akerley explained that per policy, the CBSA paid all the grievor’s expenses to relocate from Ottawa to Armstrong.

[42] Marco Lessard also testified. He has been employed at the CBSA since 1996 and has been a border services officer, shop steward, and manager. As of the hearing, he was the chief of operations on an acting basis in the East Border District, Operations Branch.

[43] As Mr. Toulouse’s supervisor, Mr. Lessard testified that on January 20, 2015, he was involved in the grievor’s accommodation request due to her pregnancy. Mr. Lessard explained that the CBSA complied fully with the request (Exhibit E-1, tabs 9, 10, and 11). He explained that as a result, the grievor was assigned administrative duties, with a Monday-to-Friday schedule. He also indicated that employees may trade shifts, days of work, or days of rest, provided doing so does not result in additional costs.

[44] On January 29, 2015, the grievor applied for leave without pay from February 23 to March 15, 2015, which was granted (Exhibit E-1, tabs 13 and 14).

[45] On February 2, 2015, before going on leave without pay, the grievor made another accommodation request. She asked to be transferred to Ottawa so that she could take care of her sick mother, because her spouse could not join her as he did not speak French, and because she was pregnant (Exhibit E-1, tab 12).

[46] Mr. Lessard indicated that from June 1 to the end of July 2015, the grievor took many kinds of paid leave, including for family care. He explained that leave for family care is limited to 37.5 hours per fiscal year (Exhibit E-1, tab 19).

[47] As for the grievor’s request to transfer to Ottawa, which was submitted on February 2, 2015, Mr. Lessard testified that he asked Mr. Akerley for advice on February 4, 2015 (Exhibit E-1, tab 15). When asked whether it is the employer’s responsibility to ensure that proposed accommodations are the best possible, Mr. Lessard responded that it is a responsibility shared with the employee and that in this case, the grievor provided no alternative to her request.

[48] Mr. Bernard also testified. He has been the director of the CBSA’s East Border District since 2015. His territory covers 16 border offices, including the one in Armstrong. His district is divided into two parts, which are under the responsibilities of Mr. Lessard and Nigel Bégin, who report to him.

[49] Mr. Bernard explained that he dismissed the grievor’s grievances on May 26, 2016, because after making an analysis and considering both her arguments and her response to the CBSA’s request for more information, he found that her situation did not meet the requirements set out in the CBSA’s accommodation policy (Exhibit E-1, tabs 12, 17, and 21).

[50] Mr. Bernard explained that nothing new arose after the grievor decided to accept the position in Armstrong that would have justified granting her relocation request.

[51] For Mr. Bernard, the grievor decided to relocate to Armstrong with full knowledge of her mother’s health situation, and nothing really changed after the day she agreed to go there. Her mother’s medical condition was known when the grievor accepted the position in Armstrong.

[52] In addition, Mr. Bernard’s view was that the grievor’s spouse, sister, brother, and father were in Ottawa and that they could have worked together and collaborated to support her mother. When she was in Rigaud, the grievor and her family members managed her mother’s care, which did not change once she arrived in Armstrong. Mr. Bernard’s view was that the grievor’s response to the request for additional explanations did not persuade him as to the merits of her transfer request (Exhibit E-1, tab 17).

[53] Mr. Bernard testified that instead of asking for a relocation, the grievor should have opted for the leave opportunities offered through the collective agreement. She knew from the start of the hiring process that by accepting the position, she could be assigned anywhere in Canada.

[54] According to Mr. Bernard, employees can trade shifts and accumulate consecutive leave over a longer period. However, he agreed that the grievor, who had been reassigned to administrative duties due to her pregnancy, could not have traded shifts with an officer who had to carry a weapon.

[55] Mr. Bernard maintained that the collective agreement also provides for several types of leave for public servants who need to take it. Some are paid, others are not. For example, the grievor could have applied for leave without pay for family care, which is for a minimum of three weeks and can last up to five years. Mr. Bernard expressed the opinion that the employer cannot deny the leave request if the eligibility conditions are met.

[56] According to Mr. Bernard, the grievor could have also applied for leave with income averaging, which would have allowed her to be with her family for an extended time. He agreed that it was unclear whether she had specifically been offered that type of leave; however, he pointed out that her bargaining agent representative — who was involved — was quite aware of it.

[57] Mr. Bernard testified that he directed the grievor to speak to her supervisor, Mr. Toulouse, and to go over the opportunities available under the terms of the collective agreement. He stressed that he has always encouraged his managers to be flexible when dealing with family needs. In cross-examination, Mr. Bernard agreed that the response to the grievor’s transfer request, dated April 16, 2015, does not refer to the other options available under the collective agreement (Exhibit E-1, tab 18).

[58] Mr. Bernard indicated that since he oversees several offices in remote areas, he receives many transfer requests from his officers. In some cases, FB-02 trainees may submit them. However, they are not eligible for transfer until they complete their probation, which lasts from 12 to 18 months. When assigned to their new posts, some of those officers signal to the employer early their interest in being transferred when they become eligible.

[59] According to Mr. Bernard, the grievor wanted to “jump the queue”; she did not want to have to wait until the end of her probation to be eligible for a transfer. He indicated that she could have delayed moving to the CBSA by staying at the CRA for the time she needed to look after her mother.

[60] Mr. Bernard acknowledged that the duty to accommodate is set out in the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA). He reviewed the CBSA’s Policy on the Duty to Accommodate (Exhibit E-1, Tab 21, pages 22 to 24). In his view, the employer’s obligation is greater when it comes to accommodating children than when it comes to accommodating parents.

[61] Mr. Bernard admitted that an FB-02 officer trainee in Armstrong had been transferred to another location at his request. According to him, the trainee’s child had a serious disability; religious reasons were also taken into account.

[62] In Mr. Bernard’s view, the obligations of parents to their children and those of children to their parents must be distinguished. They are not the same thing. According to him, the Civil Code of Québec (CCQ-1991) imposes on parents the obligation to attend to and care for their children. He is unaware as to whether that obligation applies to children with respect to their parents.

III. Summary of the arguments

[63] The parties agreed to submit their respective arguments in writing, which was done within the prescribed time frame. They also agreed that were the grievances upheld, they would try to agree as to the proper remedies. In that event, they also agreed that I would remain seized for 90 days if they could not reach an agreement. Therefore, I will summarize the arguments submitted in support of their respective positions.

A. For the grievor

[64] After a review of the facts of the case, the grievor argued that ss. 3, 7, and 10 of the CHRA, as well as article 19 of the collective agreement, prohibit discrimination based on family status in employment.

[65] She also maintained that family status, while not defined in the CHRA, is defined by the CBSA’s Policy on the Duty to Accommodate as including “… the inter-relationship [sic] that arises from bonds of marriage, consanguinity or legal adoption, including, of course, the ancestral relationship …” (Exhibit E-1, tab 21).

[66] The grievor maintained that human rights protection has evolved over time and that the “… notion of family has necessarily evolved beyond the notion of adult parent and underage child.” Therefore, in this matter, the notion of family status includes the grievor’s eldercare obligations to her mother.

[67] The grievor reviewed the legal test for discrimination. She argued that to make a prima facie case of discrimination, she had to show that she had a characteristic protected from discrimination, that she experienced an adverse impact with respect to her employment, and that the protected characteristic was a factor in the adverse impact. Once prima facie discrimination has been shown, the burden then shifts to the employer to rebut that discrimination occurred or to argue that accommodating the grievor would cause it undue hardship.

[68] In her argument, the grievor cautioned against imposing a more demanding test, like the one in Canada (Attorney General) v. Johnstone, 2014 FCA 110, when the ground of family status is involved and stated that tribunals should not establish a “hierarchy” of protected grounds. She maintained that family status should not be seen as less important than other grounds for discrimination. The test to determine discrimination should be the same for family status as it is for any other prohibited ground of discrimination. She referred me to Devaney v. ZRV Holdings Limited, 2012 HRTO 1590, and Misetich v. Value Village Stores Inc., 2016 HRTO 1229.

[69] The grievor submitted that she established a prima facie case of discrimination, that her family status involved the care of her ill mother, that she experienced an adverse impact on her employment as an FB-02 in that she had to leave the program, and that finally, her family status was a factor in the adverse impact.

[70] Alternatively, the grievor argued that if the Board follows the test established in Johnstone when dealing with the subject of family status, and she had to establish that she made diligent efforts to “self-accommodate”, she maintained that the evidence demonstrated that she made efforts in this regard.

[71] For instance, there were no other possible caregivers in her family. The grievor also looked into the possibility of relocating her mother nearer her place of work in Armstrong, which was impossible, due to the language barrier. Also, the grievor and her family had limited financial means that made other options, such as hiring external caregivers, unaffordable.

[72] The grievor stated that while some cases in the jurisprudence applied a narrower test when dealing with the notion of family status, she insisted that only one legal test determines whether she met the prima facie burden of discrimination and that tribunals should not establish “a hierarchy of protected grounds.” She referred me to Devaney, at paras. 115 to 116; and Misetich, at paras. 42 to 48.

[73] The grievor maintained that she was required to attend to her mother’s care and that it was not a matter of “personal choice”, as argued by Mr. Bernard. It is not for the employer to determine which family member is responsible for eldercare. She also stated that the CBSA has an “… archaic vision of both family and family status.” For her, eldercare obligations are part of family status under the CHRA. She referred me to Canada (Attorney General) v. Hicks, 2015 FC 599. She concluded that in this case, the employer chose a narrow interpretation of family status that was contrary to the CHRA and the collective agreement.

[74] The grievor also maintained that the employer limited its analysis of options to accommodate her to only the possibility of relocation to Ottawa. None of the other possible measures to accommodate her situation, as expressed at the hearing, were proposed to her, such as leave without pay for the care of the family or alternative work arrangements.

B. For the employer

[75] In its written submissions, the employer also reviewed the facts and testimonies and maintained that the grievor was informed many times during her hiring process that she could be posted anywhere in Canada. After her training, she received a letter of offer on November 18, 2014, as an FB-02 officer trainee in Armstrong with the starting date of December 15, 2014 (Exhibit E-1, tab 5).

[76] The employer insisted that the grievor obtained a medical note from a doctor supporting her transfer to Ottawa almost three months before she requested the transfer as an accommodation on February 2, 2015. In addition, her accommodation and transfer request to Ottawa was made four days before she arrived at Armstrong, which was her assigned work location. For the employer, it demonstrated that she never intended to relocate to Armstrong and that she used the accommodation request as a means of transferring to the location of her choice, which was Ottawa.

[77] The employer also submitted that in her request made on February 2, 2015, the grievor indicated that her mother had a “life threatening medical situation”, in June 2014, while the grievor was still in training in Rigaud. So, she knew the seriousness of her mother’s health condition before she left for Armstrong.

[78] The employer also argued that no evidence was provided as to the grievor’s affirmation that her mother could not receive the necessary care while the grievor worked in Armstrong. Moreover, no evidence was provided to support her allegation that it would have been too costly to resort to long-term care facilities.

[79] The employer maintained that on April 16, 2015, it refused the accommodation request based on family status since the condition of the grievor’s mother had not changed. Although eldercare is a responsibility which the employer takes seriously, it argues that that responsibility must be rooted in the employee’s legal obligation, as opposed to a personal choice. For the employer, the grievor’s decision to request a transfer to Ottawa was a personal choice. Therefore, this case does not involve human rights protection since the grievor did not establish that the prohibited ground of discrimination alleged under the CHRA and the collective agreement, her family status, is engaged.

[80] The employer submitted that, in order to establish prima facie discrimination, the grievor had to demonstrate not only that she had a characteristic protected from discrimination, that she experienced an adverse impact and that the protected characteristic was a factor in the adverse impact, but she also had to meet the legal test for discrimination on the ground of family status established by the Federal Court of Appeal in Johnstone, at para. 93.

[81] For the employer, the grievor did not establish a prima facie case of discrimination. She did not demonstrate any substantial changes to her mother’s health since the grievor went to Rigaud. Also, she had siblings that lived with her mother or in Ottawa and who were able to care for her mother. No evidence was adduced as to the availability and cost of home care. The duty to accommodate is about removing discriminatory barriers and not, as in this case, to accommodate a grievor’s personal choice. She failed to demonstrate that she experienced discrimination; alternatively, she did not demonstrate that she tried to mitigate the situation.

[82] Reviewing the four Johnstone criteria, the employer essentially concluded that in this case, the grievor had no legal obligation of care and supervision with respect to her mother. Moreover, other family members could have become involved. This criterion should be applied strictly. In this case, involving a parent as opposed to a child, she failed to demonstrate that she could not fulfil any legal obligations toward her mother by pursuing her employment in Armstrong. The evidence did not support the allegation that she could not provide her mother with the necessary care; other siblings in Ottawa could have helped. The grievor’s situation was not unique; many Canadians face the same difficulties, which do not give rise to the duty to accommodate.

[83] The grievor also did not demonstrate that she made efforts to resolve the issue by herself. Moreover, ample examples showed that she always intended to return to Ottawa. Essentially, the employer maintained that a legal obligation on an employee toward a parent is required, not a personal preference. The grievor had to show that no reasonable alternative solutions were available to provide the necessities of life to her mother. The evidence demonstrated that while she was away from Ottawa, other family members took care of her mother. It is not enough to cite family status under the CHRA to create a legal obligation for the employer. While combining family situations and work could be difficult for employees, it does not necessarily trigger the duty to accommodate.

[84] The employer also maintained that even if the grievor demonstrated a prima facie case of discrimination, she still did not demonstrate that discrimination occurred. According to the employer, she could not be accommodated without undue hardship. She did not try to finish her training program in order to be able to apply to another posting in the Ottawa region. She did not demonstrate that other positions for which she was qualified were available in Ottawa. Moreover, the employer’s obligation did not include having to create a position to accommodate her in Ottawa. Finally, she could have considered other types of leave but chose not to.

C. The grievor’s rebuttal

[85] The grievor maintained that the employer was wrong to question her motives and to conclude that she never intended to stay in Armstrong. Moreover, she insisted that it did not adduce evidence showing undue hardship in accommodating her. It also did not propose any alternative measures to her and only examined the possibility of relocation.

IV. Reasons

[86] Both parties commented on the testimonies at the hearing. They presented their written arguments in support of their respective positions.

[87] I would like to point out that even if this case refers to the grievor’s pregnancy and the fact that her husband could not join her, the grievances at issue did not allege discrimination on the basis of the grievor’s pregnancy or marital status, nor on a combination of grounds. The evidence and arguments were about whether the employer discriminated against her on the basis of family status by refusing to accommodate her eldercare.

[88] Sections 3, 7, and 10 of the CHRA read as follows:

3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status ….

…

7 It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

…

10 It is a discriminatory practice for an employer, employee organization or employer organization

(a) to establish or pursue a policy or practice, or

(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment, …

that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

 

[89] This, in part, is clause 19.01 of the collective agreement:

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 ….

 

[90] The jurisprudence is fairly consistent as to what a grievor is required to establish to demonstrate discrimination on most of the grounds cited earlier in this decision. For instance, as decided in Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, the person alleging discrimination must demonstrate a prima facie case:

- that they have a characteristic protected from discrimination;

- that they experienced an adverse impact; and

- that the protected characteristic was a factor in the adverse impact.

 

[91] While the test in Moore has been applied in many cases involving allegations of discrimination, the situation might be less clear when the case is about discrimination on the ground of family status.

[92] At the federal level, in a case involving a discrimination allegation based on the ground of family status and involving the notion of childcare, the Federal Court of Appeal decided in Johnstone, at paragraph 93, that where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show:

(i) that a child is under his or her care and supervision;

 

(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;

 

(iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and

 

(iv) that the impugned workplace rules interfere in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.

 

[93] While some provincial human rights tribunals and other decision-makers have applied the Federal Court of Appeal’s test in Johnstone, as in Ontario Public Service Employees Union (Bharti) v. Ontario (Natural Resources and Forestry), 2015 CanLII 19330 (“Bharti”), and Adair v. Forensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147, in other decisions, they have questioned whether applying a different test to a situation involving family status can lead to inconsistency and have even imposed a more stringent standard to prove discrimination on the ground of family status.

[94] For instance, in Misetich, the adjudicator reviewed the case law post-Johnstone and concluded that there should be one test and that the cases in the jurisprudence that applied the Johnstone-specific test “… have attempted to narrow the ambit of the ground of family status by developing specific tests for discrimination on that basis.” (at para. 42)

[95] In her submissions, the grievor referred me to Devaney and Misetich. She argued that the test in Johnstone is essentially too narrow and stringent when it comes to determining if discrimination occurred on the ground of family status, especially when it involves care for elderly parents. She pointed out the reasons set out in Misetich to support the argument that the Moore test should apply when establishing whether there is prima facie discrimination and that family status should not be subject to a test different from that used for any other grounds of discrimination.

[96] I will examine both Johnstone and Moore in analyzing the grievor’s allegations in this case.

A. Does family status include caring for elderly parents?

[97] Before getting into the applicable tests to determine whether the grievor established a prima facie case of discrimination, I note that there is very little jurisprudence at the federal level on the notion of family status and the care of an elderly parent. In Johnstone, the Federal Court of Appeal dealt with a situation involving the care of a child and the obligations that flowed from that relationship; it did not deal with a situation involving the care of elderly parents.

[98] The CHRA does not define “family” or “family status”. However, in B. v. Ontario (Human Rights Commission), 2002 SCC 66 at para. 4, the Supreme Court of Canada recognized that the broad goal of anti-discrimination statutes is furthered by embracing a more inclusive interpretation of the expression family status. That broad meaning of family status protects against adverse distinctions drawn based on the particular identity of one’s family members or the type of family status one has (see B. v. Ontario (Human Rights Commission) at para. 39).

[99] Recognizing a broad and liberal interpretation of the meaning and scope of family status, the Federal Court of Appeal in Johnstone found that the ground can also include family circumstances (see Johnstone at paras. 53-67). While the family circumstances at issue in Johnstone were with respect to the relationship of a parent towards their child, such family circumstances have also been recognized to exist with respect to other familial relationships, including of a child towards their parent. In cases such as Devaney and Bharti, it was accepted that family status also applies to situations involving the care of elderly parents. Similarly, in upholding a decision of the Canadian Human Rights Tribunal, the Federal Court in Canada (Attorney General) v. Hicks, 2015 FC 599 at para. 71, stated that “… eldercare is an example of family circumstances protected by the prohibition on family status discrimination…”.

[100] While the employer challenges the grievor’s allegations of discrimination, I do not understand it to be challenging that eldercare responsibilities can be protected under the ground of family status. In this case, the definition of “family” in the collective agreement includes, among other things, “… father, mother (or alternatively stepfather, stepmother, or foster parent) …” (at clause 2.01). Similarly, article 43 providing for leave with pay for family-related responsibilities defines family as including “… parents (including stepparents or foster parents) …” (at clause 43.01). The employer can grant such leave “… for the immediate and temporary care of an elderly member of the employee's family…” (at clause 43.03(c)). Clause 41.01 with respect to leave without pay for the care of family also recognizes “… the importance of access to leave for the purpose of the care of family.”

[101] The CBSA’s Policy on the Duty to Accommodate also includes the following definition of “family status” (Exhibit E-1, tab 21, Appendix E):

…

“Family status” refers to the inter-relationship that arises from bonds of marriage, consanguinity or legal adoption, including of course, the ancestral relationship, whether legitimate, illegitimate, or by adoption, as well as the relationships between spouses, siblings, in-laws, uncles or aunts, and nephews or nieces, cousins, etc.

…

 

[102] The same appendix of the policy also refers to situations in which support for family caregiving responsibilities, including eldercare, may require accommodation.

[103] Therefore, I conclude that the prohibited ground of family status includes a protection against discrimination on the basis of family circumstances in caring for elderly parents.

B. Has the grievor established a prima facie case of discrimination in employment on the prohibited ground of family status resulting from eldercare obligations?

[104] As indicated, the parties do not agree on the applicable framework for analyzing the grievor’s allegations: whether I should apply the criteria established in Johnstone or apply the more general prima facie test outlined in Moore. I applied both the Johnstone and Moore tests to the facts of this case, to determine whether a prima facie case of discrimination was made. With each test, I reached the same conclusion that the grievor failed to establish a prima facie case of discrimination, for the reasons that follow.

1. The Johnstone test

[105] As indicated, while Johnstone dealt with a situation involving parents taking care of their children, as opposed to eldercare, nevertheless, I think that the principles enunciated in that decision illustrate what evidence will suffice for the grievor to establish a prima facie case of discrimination in a situation involving the care of elderly parents. The Federal Court of Appeal indicated that prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics and that it is important not to trivialize human rights legislation by extending human rights protection to personal family choices (see Johnstone at paras. 68-69).

[106] As outlined previously, it concluded that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation (see Johnstone at para. 93).

[107] In taking these factors into consideration in this case, I note that the Federal Court of Appeal also indicated that the test must be sufficiently flexible so as to advance the broad purpose of the CHRA and that the specific type of evidence required to meet the factors of the test in any given context will vary with the facts of each case and are to be determined on a case-by-case basis (see Johnstone at paras. 83-84 and 98-99; see also Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2005 FCA 154 at para. 28).

[108] In Johnstone, the court first asked whether the child was under the claimant’s care or supervision. According to the court, “… this requires the individual claiming prima facie discrimination to show that he or she stands in such a relationship to the child at issue and that his or her failure to meet the child’s needs will engage the individual’s legal responsibility.” (Johnstone at para. 94).

[109] Substituting the notion of elderly parents for children, in this case, I fail to see how the grievor’s mother was under the grievor’s care or supervision. While I understand that she was involved and that she tried to help during a very difficult time, the evidence did not establish that the grievor’s mother was under the grievor’s care or supervision, such that the grievor’s failure to provide care would result in her mother’s needs not being met or engage the grievor’s legal responsibility.

[110] The evidence is that her mother, while seriously ill, was autonomous for most of the time the grievor was in Armstrong or otherwise away from home. In the information she provided to the employer in support of her accommodation request and in her testimony, the grievor described the care she provided to her mother as managing her medication, helping with food preparation, attending appointments, maintaining the home and being a steady presence in her mother’s life to keep up her morale. While the grievor asserted that her mother needed help and care and that she felt an obligation to do so, there was no evidence to establish that a failure by the grievor to provide the above care would result in those needs not being met or engage any legal responsibility.

[111] Similarly, the grievor asserted that she could not rely on others to take care of her mother in the all-encompassing way that she required. However, the evidence did not support this claim or establish what all-encompassing care her mother required from the grievor. Her mother lived with her husband and the grievor’s adult sister, and the grievor’s adult brother also lived in Ottawa with his family. On her Family Status Information Form, the grievor listed her father and sister as family members who shared the family responsibilities with her (Exibit E-1, tab 12 p.2 of the form). The grievor testified that her father could not attend to or understand all of her mother’s medical issues. As the grievor put it, “… he does not have the physical or emotional strength to give adequate care to my mother alone ...”. Her sister helped with the meals at home, but the grievor indicated that she could not manage all the medical appointments for her mother. In the grievor’s words, her sister had a “limited ability” to care for her mother. While I understand that perhaps the grievor could not rely exclusively on her father and sister to care for her mother, her evidence would suggest that they could at least, as the grievor indicated on her Family Status Information Form, share the responsibilities (Exibit E-1, tab 12 p.2 of the form). Again, while I accept that the health condition of the grievor’s mother was serious, the evidence did not lead me to conclude that she was under the grievor’s care or supervision.

[112] The Johnstone test also requires that the person claiming a prima facie case of discrimination must demonstrate that the obligation at issue engages the individual’s legal responsibility for a child, or as in this case, the grievor’s mother, as opposed to a personal choice.

[113] In their submissions, both sides raised the issue of whether a legal obligation would have engaged the grievor’s responsibility to care for her mother. The parties referred me for instance to s. 32 of the Ontario Family Law Act (R.S.O. 1990, c F.3), s. 215(1) of the Criminal Code (R.S.C., 1985, c. C-46), and art. 585 of the Civil Code of Québec (CQLR c. CCQ-1991). I must say that in my view, these references were without context as to whether they apply to this case and if they do, to what extent.

[114] For example, while the provisions of the Ontario and Québec legislations generally outline an obligation of support towards parents, the sections that follow those provisions speak of orders and proceedings for support, including financial support. There was no evidence or argument of any such orders or proceedings or how those provisions may be applicable in this case. Section 215(1)(c) of the Criminal Code provides that every one is under a legal duty to provide the necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. As I have determined previously, the grievor did not establish that her mother was under her care or supervision, or that not helping with managing her medication, food preparation, attending appointments, maintaining the home or being a steady presence in her mother’s life to keep up her morale could result in a failure to provide the necessaries of life. Therefore, I cannot conclude that the alleged obligations at issue engage the grievor’s legal liability.

[115] I understand that the grievor, like anyone confronted with the sad reality of a seriously ill parent who lives far away, might have felt the need to be present. I do believe that the grievor, as might anyone, may genuinely feel like she had no choice but to be physically present with her mother. But, as I said, I cannot conclude that the grievor had a legal obligation to be in Ottawa to care for her mother. Throughout the hearing, and in her submissions, she maintained that she had no choice but to be in Ottawa. I think that more than an affirmation to that effect is required and that she had the burden of proving that it was so. As I said, considering all the facts of this case, the grievor did not establish that her mother was under her care or supervision or that she was legally obligated to be in Ottawa.

[116] Again, I sympathize with wanting to be close to an elderly parent, especially when they are ill. There can be a feeling of helplessness, if not guilt, when one cannot be close to their aging parents in those circumstances. While being present may be the preferred option, it does not necessarily create an eldercare obligation protected from discrimination under the ground of family status.

[117] As a third element, the Johnstone test indicates that the person alleging prima facie discrimination demonstrate that they made reasonable efforts to meet the childcare, or in this case eldercare, obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible.

[118] Considering that third condition, I am not satisfied that the grievor made reasonable efforts to find a solution to address her family circumstances that would support her claim that she could not care for her mother and meet her work needs.

[119] While in her testimony the grievor indicated that she was prepared to resort to and examined alternatives solutions, I am not convinced that she really searched for alternatives. For instance, she stated that no English services were available in the Armstrong area for her mother’s care, while repudiating the possibility of having translators assist with any language barriers because of a concern with the possibility that this may affect the quality of care. She also dismissed the possibility of having a third party in Ottawa to provide for the care of her mother on the ground that her family did not have the financial means. However, no evidence was proffered to support these affirmations.

[120] The grievor also affirmed that with respect to potential help from her father and two siblings, her father “… works full time … he does not have the physical or emotional strength to give adequate care to my mother alone. Moreover, in my culture the weight of the responsibility to take care of the aging parents lies on the female children.” Her sister, who also lives in Ottawa, in the grievor’s words has a “limited ability” to care for her mother following a car accident in 2005. Her sister returned to work part-time only five years ago. As for her brother, she stated that he had his own issues to deal with. No additional evidence was adduced in support of these affirmations or in support of what adequate care would be lacking to her mother in the grievor’s absence such that the alternative solutions that were identified were not reasonable.

[121] As to resorting to other types of leave in the collective agreement, the grievor testified that she would have been willing to consider them, provided they had no financial impact on her. Therefore, leave without pay and leave with income averaging were simply not options for her. The grievor also indicated that some of the employer’s proposals, such as compassionate care leave, were hypothetical, while other types of leave, such as leave without pay for family care, or alternative arrangements, such as job sharing, were not proposed to her.

[122] In her submissions, the grievor stated that the employer offered her no alternative options and that she was under no obligation to identify the most appropriate measure of accommodation. I certainly believe that, when the duty to accommodate is at issue, there is a shared responsibility to find an appropriate solution with respect to accommodation. However, the CBSA’s decision on the grievor’s request for relocation related to her family status was that it was a matter of personal choice, that did not attract human rights protection and, therefore, did not raise the duty to accommodate. It was for the grievor to establish that, despite the employer’s decision, her family status did attract human rights protection. Allegations with respect to the search for accommodation measures do not assist the grievor in establishing prima facie discrimination in this case.

[123] While I agree that it is not up to the employer or, for that matter, to an adjudicator to decide who can or should help and be the caregiver in this type of situation, nevertheless, the grievor had to substantiate her affirmations and to demonstrate that she genuinely considered other options such that an alternative arrangement was not reasonably accessible. Her evidence had to be more than a mere affirmation that her siblings were not “… apt to see to her mother’s care” and that other options were inadequate or too expensive. As is known, no matter which test is applied, either the Johnstone or the Moore test, it is ultimately the grievor that has the burden of proving a prima facie case of discrimination.

[124] I now turn to the fourth element of the Johnstone test, which is whether the workplace rule, the requirement to work in Armstrong, interfered in a manner that is more than trivial or insubstantial with the fulfillment of the family obligation, in this case with the grievor’s care for her mother.

[125] In my view, the grievor did not establish that the rule interfered with the fulfillment of a family obligation. Again, I have determined that the grievor did not demonstrate that she had care or supervision of her mother, nor a specific legal obligation in this regard. Similarly, the evidence did not establish the extent to which being in Armstrong interfered with the family obligations that the grievor identified: managing medications, helping with food preparation, attending appointments, maintaining the home and being a steady presence in her mother’s life to keep up her morale. Again, the evidence suggests that, while the grievor’s father and sister could not exclusively care for her mother, these responsibilities could be shared. While being in Ottawa may have made it easier for the grievor to personally fulfill these commitments, there was no evidence that her mother’s care was interfered with when the grievor was in Armstrong.

[126] Taking into account all the grievor’s evidence, and pursuant to the test in Johnstone, I find that the grievor did not establish a prima facie case of discrimination on the prohibited ground of family status resulting from eldercare obligations.

2. The Moore test

[127] In its submissions, the employer referred me to the test that the Federal Court of Appeal established in Johnstone. For her part, the grievor relied on Misetich and urged me to apply the “general” test that the Supreme Court of Canada employed in cases such as Moore.

[128] As already mentioned, the test in Moore states that the person alleging discrimination must establish that:

1- they have a characteristic protected from discrimination;

2- they experienced an adverse impact, and

3- that the protected characteristic was a factor in the adverse impact.

 

[129] In Misetich, the applicant alleged that a proposed change to her work schedule discriminated against her because she had eldercare responsibilities and prepared evening meals for her mother. An adjudicator for the Human Rights Tribunal of Ontario determined that, while the applicant made this assertion, she provided no information to the respondent about the nature of her eldercare responsibilities. The only information that she gave was that she provided evening meals for her mother. The adjudicator found that the applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day by preparing it beforehand.

[130] In making this determination, the adjudicator in Misetich stated that the test for discrimination is the same in all cases: that an applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and that the ground of discrimination was a factor in the adverse treatment. The adjudicator was of the view that decisions like Johnstone have attempted to narrow the ambit of the ground of family status by developing specific tests. She took issue with the legal responsibility and self-accommodation aspects of the Johnstone test. The adjudicator indicated that “[t]here may be many obligations that caregivers have that may not emanate from their legal responsibilities, but are still essential to the parent/child relationship” and that “… to limit human rights protection to legal responsibilities imposes an unduly onerous burden on applicants.” (Misetich at para. 46) In the context of eldercare responsibilities, the adjudicator stated that “… the test of legal responsibility is difficult to apply…” and that an “… adult child’s legal responsibility to provide care for his or her elderly parent is not as clear as a parent’s legal responsibility to care for his or her minor child.” (Misetich at para. 47) The adjudicator also commented that some decisions have conflated the test for discrimination and accommodation. She did not agree that, in order to prove discrimination, an applicant should be required to establish that he or she could not self-accommodate the adverse impact caused by a workplace rule (see Misetich at para. 48).

[131] In order to establish family status discrimination in the context of employment, the adjudicator in Misetich stated, at paragraph 54, that the “the employee will have to do more than simply establish a negative impact on a family need.” Rather, the negative impact “… must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.” (Misetich at para. 54) In terms of assessing that impact, the adjudicator stated that the supports available to an applicant can still be relevant in determining whether they have met the burden of proving discrimination:

[55] Assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the applicant. These supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need. For instance, if the applicant is a single parent, both the family-related need and the impact of the impugned rule on the family-related need may be greater.

[56] Considering the supports available to an applicant may appear to some to be akin to considering whether an applicant can self-accommodate. It is different in a fundamental way. Requiring an applicant to self-accommodate as part of the discrimination test means the applicant bears the onus of finding a solution to the family/work conflict; it is only when he/she cannot that discrimination is established. This is different than considering the extent to which other supports for family-related needs are available in the overall assessment of whether an applicant has met his/her burden of proving discrimination.

 

[132] Applying Moore and Misetich in the context of this case, I note that I have already decided that family status, which can include eldercare, is a protected ground under the CHRA and the applicable collective agreement. Again, in the circumstances of this case, the family-related need for eldercare advanced by the grievor was helping with managing medications, food preparation, attending appointments, maintaining the home and being a steady presence in her mother’s life to keep up her morale.

[133] While I understand that the grievor might have been disappointed and unhappy about the employer’s decision to decline her transfer request to Ottawa, I find that the grievor did not establish that she experience an adverse impact between her family-related needs and the requirement to work in Armstrong. In my view, even without applying the Johnstone requirements strictly, much of my previous analysis with respect to those requirements is still applicable in the Moore framework and its interpretation in the context of eldercare as provided in Misetich.

[134] While undoubtedly the grievor, her mother and the rest of the family would have preferred that the grievor be in Ottawa to be her mother’s primary caregiver, as stated in Misetich, the grievor had to do more than simply establish a negative impact on a family need. As previously determined, the evidence is that the grievor’s mother was autonomous for the most part and that other family supports were available. Despite the grievor’s affirmation that she could not rely on other supports, she did not establish that her mother’s needs with respect to managing medications, food preparation, attending appointments, maintaining the home or keeping up morale were adversely impacted by the grievor being in Armstrong. As described in Misetich, the evidence did not demonstrate a real disadvantage to the parent/child relationship, the responsibilities that flow from that relationship, or to the employee’s work.

[135] In her submissions, the grievor described the adverse impact she experienced as being the fact that she had to leave the CBSA. After her maternity leave, the grievor decided not to return to Armstrong and accepted a lateral move to a permanent position with the CRA. At the hearing, she agreed that as a result, she did not suffer any wage or benefit loss because of the transfer to the CRA. However, she maintained that because of the employer’s decision not to accommodate her, she could not pursue her career goal with it, and that she was forced to choose between her career and her mother. Therefore, she claimed that she suffered adverse treatment and that the reason behind it was her choice to care for her mother.

[136] As mentioned earlier, all OITP applicants must accept being posted anywhere in Canada. This was not only very clear, but also, the grievor agreed to it. And while I agree that this rule certainly does not shield the employer from its human rights responsibilities, it did consider her request to return to Ottawa and requested further information in this regard. The CBSA’s decision on the grievor’s request for relocation was that it did not raise human rights protection or the duty to accommodate. Again, it was for the grievor to establish in this matter that her family status did attract human rights protection. The fact that she left the CBSA because it did not accommodate her does not, on its own, address the family-related need advanced by the grievor in this case or establish the adverse impact of the impugned rule on that need.

[137] In my view, despite the grievor’s difficult situation of being away from her sick mother, she did not establish an adverse impact with respect to the family circumstances she advanced in this case. As mentioned, the grievor did not prove that the requirement to be in Armstrong disadvantaged or adversely impacted her relationship or responsibilities towards her mother. As such, even if I follow the Moore and Misetich framework as argued by the grievor, I arrive at the same conclusion that she did not establish a prima facie case of discrimination on the prohibited ground of family status resulting from eldercare obligations.

C. The employer’s response

[138] I have found that the grievor did not establish a prima facie case of discrimination and will dismiss her grievances on that basis. However, I wish to comment briefly on the employer’s evidence and argument in this case.

[139] The employer put emphasis on the grievor’s motives and the timing of her relocation request. While those elements did not factor into my prima facie analysis of the grievor’s case, I can understand why it took the position that the grievor was looking to be transferred to Ottawa from the very beginning; that is, even before she reached Armstrong. On December 11, 2014, four days before taking up her post in Armstrong on December 15, 2014, she obtained a medical certificate addressed to her supervisor, Mr. Toulouse.

[140] The evidence demonstrated that the grievor did not give the medical certificate to Mr. Toulouse right away. She did so only when she made the relocation request on February 2, 2015.

[141] In her testimony, the grievor testified that the medical certificate of December 11, 2014, was essentially related to her pregnancy. First, I would like to point out that as I stated earlier, this case is not about a refusal to accommodate her on the basis of her pregnancy. She made such a request in January 21, 2015, which the employer accepted without issue. Second, while it is true that the medical certificate also refers to her pregnancy, it certainly appears that it is mainly about the transfer, primarily in relation to the state of health of her mother. The certificate reads in part:

…

I am writing in support of her accommodation request. She is the main caregiver for her mother who has several serious health conditions that are not going to improve. Sarita takes her mother to most of her appointments. She has also recently become pregnant.

Her move out of Ottawa will impact on her physical and mental health as she will not have support during her pregnancy and will be away from her very ill mother.

…

 

[142] One of the reasons for the employer’s refusal to grant the grievor’s transfer request was that her mother’s health did not change after the day on which the grievor agreed to attend the OITP training in Rigaud. In her testimony, she indicated that when she went to Rigaud, and later, Armstrong, her mother’s health was stable; there were no indications that things would deteriorate.

[143] However, I point out that in the grievor’s explanation attached to her Family Status Information Form requesting accommodation and a transfer in February 2, 2015, she refers to a “near death experience” and that the “… most recent life threatening reaction happened in June 2014.” So, clearly, in June 2014, which was before the grievor arrived in Armstrong in December 2014, her mother’s health was sadly not very stable and, as pointed out by the employer, it is unclear how her mother’s health deteriorated such that her mother’s requirements for care changed or required accommodation.

[144] In her submissions, the grievor took exception to Mr. Bernard’s affirmation in his testimony that on looking at the medical certificate dated December 11, 2014, the employer felt that she wanted to “jump the queue” and that basically, she had planned her transfer to Ottawa even before she reported to Armstrong.

[145] The grievor’s response to this argument was that the employer did not seriously consider her request. However, it did ask for details and specifications before making its determination. Given the nature and timing of the request, I can understand why the CBSA requested the additional details that it did from the grievor.

[146] In any event, and despite the employer’s perception of her relocation request, it was for the grievor to establish a prima facie case of discrimination. In the circumstances of this case, the employer’s approach to the situation and its ultimate rejection of her accommodation request do not mean that it did not take her request seriously. Nor does this argument assist in establishing the family-related needs at issue or any adverse impact on those needs in this case.

V. Conclusion

[147] As indicated at the outset of these reasons, whether I apply the Johnstone test or the test that the Supreme Court of Canada set out in Moore, I reach the same conclusion, which is that the grievor did not establish a prima facie case of discrimination. In Adair, the complainant in that case first argued that he had been discriminated against on the basis of his physical disability, and then, he added family status involving childcare as another ground of discrimination. After reviewing the evidence and examining the decision in Johnstone, Moore and Misetich, the adjudicator concluded at paragraph 133 as follows:

[133] Whether I apply the approach taken federally, in Ontario, or in Alberta, I reach the same conclusion. Mr. Adair would be unable to establish discrimination on the basis of his family status because the scheduling did not interfere with his obligation to provide child care or any other legal responsibility for his children, and his ability to continue to perform his job.

 

[148] Similarly, in this case I find that the grievor did not establish discrimination on the basis of her family status resulting from eldercare obligations.

[149] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[150] The grievances are dismissed.

July 20, 2021.

Linda Gobeil,

a panel of the Federal Public Sector

Labour Relations and Employment Board