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14 April 2021
In Kovintharajah v Paragon Linen and Laundry Services Inc (2021 HRTO 98), the Ontario Human Rights Tribunal found that the employer's failure to accommodate the applicant's childcare obligations had violated the Human Rights Code. In its decision, the tribunal clarified the legal test for family status accommodation cases.
The applicant worked at a commercial laundry facility in a skilled technical position. The applicant lived with his spouse, their three children and his spouse's elderly parents. As of 2017, the children were all under the age of six.
In 2016 the applicant sought a change to his shift schedule that would allow him to leave work early so that he could be home early to care for his children and his spouse's parents. The elderly parents had significant health challenges that prevented them from providing care for the applicant's children. In effect, the applicant and his spouse were required to manage their work schedules so that one of them could always be home.
The employer agreed to the applicant's request and the modified schedule arrangement continued for more than one year without issue. However, in 2017 the employer hired a new manager who began to implement new rules to the laundry facility. The new manager took a one-size-fits-all approach to employee working hours, essentially refusing to allow any employees to leave work early. The applicant's modified shift schedule was revoked without any alternative arrangements being provided.
The applicant's spouse was unable to change her own schedule to account for the sudden revocation of the applicant's modified shift schedule. The applicant was forced to continue leaving work early to care for his children, resulting in several written warnings before progressing to a suspension and ultimately termination of employment.
The Canadian courts and tribunals have set out several different tests when it comes to establishing family status-based human rights discrimination. Some of these tests have created additional steps or factors that must be considered in family status accommodation cases when compared to non-family status accommodation cases. However, in Kovintharajah, the tribunal confirmed that Ontario's approach to family status accommodation is no different than any other ground protected by the Human Rights Code:
 In Misetich, at paras. 42-48, the Tribunal held that the test for discrimination on the basis of family status is no different than for other grounds under the Code. See also Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273 ("Linklater") at paras. 35-39. Similarly, the question of whether the parties have met their obligations under the duty to accommodate is the same for family status as any other Code ground that could give rise to accommodation.
In a family status accommodation case, an employee's obligation is to participate in the accommodation process and that includes considering alternative options for caregiving. As noted above, other jurisdictions have created more onerous steps and factors for family status accommodation cases. The tribunal in Kovintharajah was clear that these steps and factors are not a different test, but rather are components of an employee's duty to participate in the accommodation process.
In this case, the tribunal had little problem finding that the employer had breached the Human Rights Code. When the employer's new manager made the shift schedule change in 2017, the employer refused to engage in discussions about potential alternatives and instead moved forward almost immediately with disciplinary measures up to and including termination. The tribunal held that by refusing to participate in the accommodation process, the employer had violated the Human Rights Code.
Given its finding, the tribunal awarded the applicant C$29,724.39 for lost wages and C$20,000 in general damages for injury to the applicant's dignity.
Childcare is a critical consideration for many Canadians currently, given the school closures necessitated by the COVID-19 pandemic. Although the facts underlying this case pre-dated the pandemic, the insight provided by the tribunal is instructive – family status accommodation is no different than any other Human Rights Code ground and employers must give proper consideration to requests for accommodation.
For further information on this topic please contact Lisa Cabel, Richelle Pollard, Kaley Dodds or Derek Klatt at KPMG Law by telephone (+1 416 777 8000) or email (firstname.lastname@example.org, email@example.com, firstname.lastname@example.org or email@example.com). The KPMG Law website can be accessed at www.kpmg.com.
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