View cases - Stewart McKelvey

39117 Discrimination on this ground has been judicially defined as '... practices orattitudes which have the effect of limiting the conditions of employment of, or theemployment opportunities available to, employees on the basis of a characteristicrelating to their ... family.' (Ontario (Human Rights Commission) v. Mr. A et al[2000] O.J. No. 4275 (C.A.); affirmed [2002] S.C.J. No. 67].118 This Tribunal has considered the evidentiary requirements to establish a primafacie case in a decision that predates the Ontario case, though is clearly consistentwith its definition:"... the evidence must demonstrate that family status includes the statusof being a parent and includes the duties and obligations as a memberof society and further that the Complainant was a parent incurring thoseduties and obligations. As a consequence of those duties andobligations, combined with an employer rule, the Complainant wasunable to participate equally and fully in employment with heremployer" (Brown v. Canada (Department of National Revenue,Customs and Excise) [1993] C.H.R.D. No. 7, at p. 13. See also Woidenet al v. Dan Lynn, [2002] C.H.R.D. No. 18, T.D. 09/02)2010 CHRT 22 (CanLII)[150] However, a different enunciation of the evidence necessary to demonstrate a prima faciecase was articulated by the British Columbia Court of Appeal in Health Sciences Assn. of BritishColumbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922, atparagraphs 38 and 39, a decision on which CN put a lot of weight during its closing arguments. Inthat decision the British Columbia Court of Appeal decided that the parameters of family status asa prohibited ground of discrimination in the Human Rights Code of British Columbia should notbe drawn too broadly or it would have the potential to cause “disruption and great mischief' in theworkplace”. The Court directed that a prima facie case is made out “when a change in a term orcondition of employment imposed by an employer results in serious interference with asubstantial parental or other family duty or obligation of the employee.” (The underlining ismine.) Low, J.A. observed that the prima facie case would be difficult to make out in cases ofconflict between work requirements and family obligations.[151] In Hoyt, this Tribunal did not follow the approach suggested in the Campbell River case.The Tribunal summarized its position in regards to that case as follows: