The applicable test for prima facie discrimination on the basis of family status varies across jurisdictions, creating uncertainty in the absence of definitive guidance from the Supreme Court of Canada. This panel will critically examine how decision-makers address the growing range of family status claims and explore emerging trends in this area of law. Specifically, panelists will address:
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- What are the various tests for establishing prima facie discrimination based on family status in Canada — including the Moore, Johnstone, Misetech, and Campbell River tests — and in which jurisdictions are they applied?
- What approach do decision-makers take to family status discrimination cases in Ontario? What is the Johnstone test and is it still good law? What is the impact of the Ontario Human Rights Tribunal’s Misetech v. Value Village Stores Inc. decision? What approach have decision-makers taken post Misetech?
- What is the current legal approach to family status discrimination in British Columbia? What impact has the B.C. Court of Appeal’s Gibraltar Mines decision had on family status discrimination claims in the province?
- What forms of caregiving fall under the scope of family status protection? Which relationships are protected? What types of activities, responsibilities, and obligations flowing from these relationships give rise to legal protection?
- What constitutes a serious interference with a family obligation such that it will amount to family status discrimination? How can employers and unions distinguish between protected family responsibilities and personal preferences?
- What kinds of accommodations have courts recognized as reasonable accommodations? What qualifies as “undue hardship” for an employer when it comes to family status accommodation?
- What are the emerging trends in damage awards for discrimination, failure to accommodate, and reprisals relating to family status claims?
