Case Summary and Analysis: Simpson v Prananjen Group Ltd. o/a Nimigon Retirement Home
ARCH’s most recent blog post analyzed the unsettled state of the law for the test for family status discrimination. In particular, the post analyzed the development of the test in different jurisdictions leading up to the recent British Columbia Court of Appeal decision, Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46 (Suen). That case confirmed that the test for family status discrimination in British Columbia is whether a change in a condition of employment caused a “serious interference with a substantial parental or other family obligation,” despite many decision-makers over the years criticising this test as creating a higher threshold for family status discrimination as compared to other kinds of discrimination.
A relatively recent decision from the Human Rights Tribunal of Ontario, Simpson v Prananjen Group Ltd. o/a Nimigon Retirement Home, (Simpson), confirms that the debate over the correct test for discrimination on the ground of family status remains a live issue, even in Ontario. This post will provide a summary of the decision and a brief analysis of the current test for family status discrimination in Ontario.
Simpson v Prananjen Group Ltd. o/a Nimigon Retirement Home
The applicant in Simpson alleged that her former employer, Prananjen Group Ltd., discriminated against her when it terminated her employment after she was unable to be more flexible with her work hours due to her childcare obligations.
Ms. Simpson commenced her employment with the respondent as a Personal Support Worker (PSW) in or around 2013. Her usual shift was from 7:00 am to 3:00 pm. Ms. Simpson is married with two children. At the time of the incidents, her children were aged 2 and 5. Her eldest child has autism and required a caregiver to be at home when the child was dropped off by the school bus each day.
At the time of the incidents, Ms. Simpson’s spouse worked full time, usually to 5:00 pm or 6:00 pm at night. Her parents-in-law were able to provide some limited childcare support, but due to their own employment and physical restrictions this support was only available until mid-afternoon. In 2017, only Ms. Simpson was available to meet her child at the school bus each day. The respondent was aware of Ms. Simpson’s childcare obligations.
In March 2017, the respondent began to discuss changing Ms. Simpson’s regular 7:00 am to 3:00 pm shift to 3:00 pm to 11:00 pm. Ms. Simpson advised her employer that she was unable to work the later shift because of her children’s schedule. In the meantime, Ms. Simpson placed her name on childcare waitlists, attempting to secure outside childcare to meet the needs of her children. Further, she notified the respondent that she had heard that the midnight shift might be coming available and that she would be willing to take on that shift instead. Management confirmed that the midnight shift would be available to her starting in May 2017.
In the end of April 2017, Ms. Simpson took a sick day. She notified her supervisor at work and her manager, as she had done for any prior sick day. Her manager immediately responded by telling her that she was in breach of policy and that she had “neglected her responsibilities” to find a replacement herself. Ms. Simpson had only ever taken 3 or 4 sick days over the course of her employment and had never been required to secure a replacement in those instances.
In May 2017, instead of giving Ms. Simpson the midnight shift, the respondent terminated Ms. Simpson. The reasons for termination were, “attendance,” “failure to follow instructions,” “conduct,” “creating disturbance,” “performance,” and “work quality,” without further explanation.
Ms. Simpson filed an application at the HRTO alleging discrimination on the basis of family status. The respondent did not file responding materials and did not participate in the hearing.
In considering this matter, the Vice-Chair reviewed the case law on the test for discrimination on the ground of family status. She looked to the test as set out by the Federal Court of Appeal in Canada (Attorney General) v Johnstone which required the claimant, among other things, to demonstrate that no other childcare solutions are reasonably accessible and that the workplace rule interfered with her childcare obligations in a way that was more than trivial or insubstantial (para 93).
The Vice-Chair noted that this approach had been questioned in Ontario. Namely, she noted that in Power Stream Inc. and IBEW, Local 636 (Bender) (Re), (2009) 186 LAC (4th) 180 (Power Stream), an adjudicator described the principles developed in Johnstone as “self-accommodation” because the onus was on the employee to demonstrate that they made reasonable efforts to meet the childcare obligations.
The Vice-Chair also reviewed the Tribunal’s decision in Misetich v Value Village Stores Inc. (Misetich). In that case, the Tribunal noted that it did not agree with Johnstone to the extent that it required the applicant to “self-accommodate the adverse impact caused by a workplace rule.” In declining to follow the test in Johnstone, the Tribunal looked to the test for prima facie discrimination as set out in Moore v British Columbia (Education) (Moore), which had been largely been understood as the test applicable to all prohibited grounds of discrimination. In Misetich, the Vice-Chair concluded that “the test for discrimination is the same in all cases. An applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment. There is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination alleged.” (para 43)
In Simpson, the Vice-Chair concluded that, even if it would be wrong for the Tribunal to apply a different test than Johnstone, she concluded that it did not matter in this case because Ms. Simpson made out her case on both tests. In applying Johnstone, the Vice-Chair found that Ms. Simpson had tried to “self-accommodate” by placing her name on childcare waitlists, and that the “expectation that the applicant work in the late afternoon interfered in a manner that is more than trivial or insubstantial with the fulfillment of the applicant’s childcare obligation.”
In applying the prima facie test for discrimination, the Vice-Chair found that the respondent’s “rejection of the applicant’s need for certain shifts to allow her to care for her children was at least a factor in the termination of her employment, if not the only factor.”
Consequently, the Vice-Chair found that the respondent had discriminated against Ms. Simpson and awarded her $30,000 in compensation for injury to dignity, feelings and self-respect.
Simpson provides a timely example of how the test for family status discrimination remains an unsettled issue across all jurisdictions in Canada, with many decision-makers thinking critically about what tests like Johnstone mean for applicants who have faced discrimination on the basis of family status. As discussed in ARCH’s last post, this is especially the case in light of the BCCA’s decision in Suen, which similarly grappled with which test to apply to discrimination complaints based on the ground of family status.
It is evident that in Ontario, there is still a cloud of confusion. The application of Johnstone in Simpson is similar to that of Campbell River in Suen, in that both cases have created multiple tests for discrimination on the basis of family status where arguably only one test – Moore – would suffice. In part, the result is the introduction of a burden of “self-accommodation” that is, to some extent, unique to the ground of family status.* In this way, family status has acquired a higher threshold to make out discrimination, which sits uneasily with many decision-makers who are concerned about the creation of hierarchies of human rights. Perhaps the only clarity brought by Simpson is that the issue of the test for family status discrimination is begging for comment and guidance from the Supreme Court of Canada.
*N.B. It is necessary to note here that self-accommodation also often comes up in applications filed on the ground of disability. However, this is a different topic for a different blog post.