We have written before on the decision of the Federal Court of Appeal in Johnstone v Canada (Border Services) (see our update here), which helpfully crafted a clear and balanced test for family status discrimination in the context of childcare (the “Johnstone test”).  The Ontario Superior Court has released the first reported decision in Ontario to apply the “Johnstone test” in the context of a wrongful dismissal action.

Despite the negative result for the employer in the case, the Court’s application of the test bodes optimistically for employers in Ontario, who have been starving for clear guidance in this developing area of the jurisprudence.

Johnstone test

In Johnstone, the Federal Court of Appeal held that in order for a claimant to show a prima facie case of discrimination in a situation involving childcare obligations, she must demonstrate the existence of four factors:

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

Partridge v Botony Dental Corp

In Partridge v Botony Dental Corp, the plaintiff was hired at a dental office as a Dental Hygienist.  She gradually transitioned into a role as Office Manager, a position for which she earned a higher rate of pay.  During the course of her employment, she took two pregnancy/maternity leaves.  At the end of the second set of the leaves, the plaintiff was told to return to her position of Dental Hygienist.  She refused, citing her entitlements under the Employment Standards Act to return to her pre-leave position.  The employer advised her that she would nonetheless be returning to the Dental Hygienist position, and that she would be assigned a significantly altered schedule.

The plaintiff did not return on the first day following her leave and was terminated for cause.  She sued alleging wrongful dismissal, violations of the Employment Standard Act, and discrimination in employment based on family status under the Human Rights Code.

The Defendant advanced several grounds to support a finding of just cause – the Court rejected all of them, citing insufficient evidence.

As well as finding that no just cause existed, the Court found that the employer violated the Employment Standards Act when it failed to reinstate the plaintiff to her former or comparable position.  The evidence was that the Office Manager position remained unoccupied at the time of the plaintiff’s return, and there was no objective business justification for the significant change to her schedule.

The Court also addressed the human rights implications of the plaintiff’s dismissal.  By virtue of a provision in the Human Rights Code (the “Code”) a court dealing with a wrongful dismissal claim may determine if there were any violations of the Code, and award appropriate damages, even though the courts have no free-standing jurisdiction to hear human rights complaints.

The Court applied the Johnstone test to determine whether the change in schedule had been discriminatory.  The plaintiff had a clear legal obligation to her children and provided evidence of the hardship that she faced securing childcare that accommodated the revised schedule.  The Court found that the complex nature of the childcare arrangements required was simply not sustainable.  Moreover, given that the employer had failed to prove the new schedule was a bona fide occupational requirement, the Court ruled that imposing the new schedule constituted a bad faith reprisal for the plaintiff’s exercise of her rights under the Employment Standards Act.

The Court awarded the Plaintiff $20,000 in general, human rights damages in addition to 12 months’ pay in lieu of notice.  Parenthetically, a 12-month notice period seems relatively high for a 36 year old dental office manager with seven years’ service, even when taking into account the “status” of her position.  However, the defendant is, in our view, unlikely to undertake the cost of an appeal if a small revision to the notice period alone were at stake.

Partridge in context

Partridge highlights the importance of careful compliance with the leave reinstatement provisions under the Employment Standards Act.  Absent an objective, bona fide business case for altering an employee’s positon or conditions of employment upon return from a statutorily protected leave, employers may be exposed not only to allegations of statutory breach and reprisal, but also to allegations of human rights discrimination.  But even with such bona fides, a change may constitute a discriminatory constructive dismissal if the employer failed to take into account the employee’s family status concerns.  In such a case the employer may face not only wrongful dismissal damages, but also human rights damages (which are not subject to any mitigation, even if the discrimination was unintentional).

Will the Johnstone test survive?

Partridge is the first reported Ontario decision to apply the Johnstone test in the context of a wrongful dismissal action.  Technically, because Johnstone was decided by the Federal Court of Appeal, the decision is not automatically binding on matters outside Federal jurisdiction – which includes most employment matters. Partridge confirms that Johnstone is the law of Ontario, at least for now.

Just prior to the release of decision in Partridge, the Ontario Human Rights Commission was granted leave to intervene in a human rights application before the Human Rights Tribunal of Ontario, Misetich v Value Village Inc. et. al..  The Commission apparently intends to challenge the Johnstone test as “unreasonable and unworkable”.  Notably, Partridge, like Johnstone, concerned allegations of family status discrimination involving child care responsibilities. Misetich concerns allegations of family status discrimination involving elder care responsibilities.

Although it is unclear from the preliminary decision in Misetich granting intervenor status what specifically the Commission intends to argue, it seems likely that it takes issue with the second branch of the Johnstone test, which requires the complainant to demonstrate that the employment condition or rule engages the claimant’s legal responsibility.  For childcare, there are numerous statues and a body of caselaw to permit relatively clear evaluation whether a “legal” obligation is engaged.  For elder care, very few positive “legal” obligations are statutorily prescribed.  As such, if the Johnstone test were applied to elder care scenarios likely very few circumstances would meet the “legal” obligation branch of the test.

Partridge was a trial level decision of the Superior Court.  As such, it is not binding on the Human Rights Tribunal.  Moreover, the Superior Court in Partridge applied the Johnstone test without analyzing (at least not in writing) whether it ought to be applied, and given the distinguishing feature of Misetich, being about elder and not child care, the Tribunal will virtually have carte blanche to reconsider the logic of the Johnstone test as it may apply to family status generally, and particularly in cases involving elder care.

The Tribunal’s eventual decision in Misetich may lay the foundation for a new test, or set of tests. In our view, in the meantime, employers would be prudent to follow the Johnstone test when engaged in accommodation situations involving child care responsibilities; but, when engaged in accommodation situations involving elder care responsibilities, focus the analysis on the dependency of an elder and necessity of the care, rather than the existence of a strict legal obligation.