Part of The Executive II

From a decision by the Human Rights Tribunal of Ontario (per Vice-Chair Jennifer Scott) in Misetich v. Value Village Stores, 2016 HRTO 1229:

[34] The Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) (“Johnstone”), held that the ground of family status in the Canadian Human Rights Act includes the status of being in a parent/child relationship, as well as the obligations that flow from that relationship. This is how the ground of family status has been applied under the Code…

[35] …I would note that the Tribunal is not bound by decisions from other administrative decision-makers and courts from outside Ontario.

[36] In Johnstone at para. 93, the Federal Court of Appeal developed a specific test for establishing family status discrimination. The Court of Appeal held that in order to establish discrimination, in the context of childcare, a claimant must prove:

a. The child is under his or her care and supervision;

b. The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;

c. The individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

d. The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation…

[45] …in Johnstone, the Court of Appeal held the childcare obligation at issue must engage the individual’s legal responsibility for the child, as opposed to a personal choice. The Court of Appeal stated the obligations that are covered are those that a parent cannot neglect without engaging his or her liability. In other words, to neglect those obligations would result in legal sanctions.

[46] There may be many obligations that caregivers have that may not emanate from their legal responsibilities, but are still essential to the parent/child relationship. I agree with the submissions of the Commission [the Ontario Human Rights Commission was granted intervenor status] that to limit human rights protection to legal responsibilities imposes an unduly onerous burden on applicants…

[48] …some of the cases have conflated the test for discrimination and accommodation. In Johnstone, the Federal Court of Appeal held a claimant had to prove he or she made reasonable efforts to meet childcare obligations through reasonable alternative solutions and that no alternative solution was reasonably accessible, as part of the test for discrimination. …I do not agree that in order to prove discrimination, an applicant must establish that he or she could not self-accommodate the adverse impact caused by a workplace rule.

An appeal from a decision of the Human Rights Tribunal of Ontario is to the Ontario Divisional Court, primarily on questions of law. No administrative Tribunal can establish legal precedents. As noted in “An Applicant’s Guide to Judicial Review” of a decision of the Ontario Human Rights Tribunal:

An application for judicial review of a decision of the Tribunal is made to the Divisional Court, a branch of the Ontario Superior Court of Justice (Court)…

The purpose of judicial review is to ensure the Tribunal has complied with the law in reaching its decision. The Court is usually concerned with determining whether the Tribunal had the authority to make the decision it made (i.e., its jurisdiction) or whether the Tribunal properly exercised that authority (i.e., applied or interpreted the law correctly). The Judicial Review Procedure Act (JRPA) provides that a court has the power to set aside a decision for an error of law, an absence of evidence or where the exercise of the power is unauthorized or invalid.

The main task of the Tribunal is to make findings of fact based on the oral and documentary evidence before it and then to apply those facts to the law.

In this case, nobody is going to make an application for judicial review since determination as to the law favoured the applicant, who was claiming discrimination by the employer in allegedly not accommodating her caregiving responsibilities to a parent. The applicant then lost based on the quality of evidence filed.

[82] The applicant took an intransigent position regarding her human rights. When the respondent attempted to move the applicant to less physically demanding work in retail and schedule her on a variety of shifts, the applicant took the position that it could not do so because of her family status. The applicant believed that all she needed to do was to assert her family status and that would be the end of it. The applicant was wrong. The applicant was required to provide sufficient information to substantiate her eldercare responsibilities. She failed to do so.

So Value Village is not going to apply for judicial review here, but rather wait until a finding of fact in a later case is not in its favour.

One question is why the Ontario Human Rights Commission was granted intervenor status before the Human Rights Tribunal of Ontario, given that they are both branches of the same executive. It is comparable to a minister making submissions to himself or herself.

What has happened here would seem to be akin to an Ontario minister saying that he or she is not bound by a decision of the Federal Court of Appeal, and chooses, as a matter of difference in legal interpretation, as opposed to policy, to adopt an approach to human rights inconsistent with that judicially determined under comparable federal legislation.

Reinforcing the constitutional point that human rights within a province are a matter of provincial jurisdiction and development, including judicial development.


About brucelarochelle
This entry was posted in Administrative Law, Employment Law, Human Rights. Bookmark the permalink.

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