Canada: Parents Of Young Children Asked To Relocate Must Be Accommodated To The Point Of Undue Hardship, Says Canadian Human Rights Tribunal

The Canadian Human Rights Tribunal (CHRT) recently found that the Canadian National Railway (CNR) discriminated against three employees by failing to accommodate their family situation. In parallel decisions (Whyte v. CNR, Seeley v. CNR and Richards v. CNR), the CHRT ordered CNR to reinstate three female employees who had been terminated after they declined to accept transfers because they had young children. The complainants were also awarded damages for lost earnings, pain and suffering and wilful and reckless conduct.

These cases each involved employees of CNR who were based in Jasper, Alberta. All three employees were "running trade employees", a job category which includes locomotive engineers and conductors. These employees were unionized, and their collective agreement stated that they must be available, given 15 days notice, to cover certain shortages at any CNR terminal. In February 2005, the Vancouver CNR terminal experienced a significant shortage, and 19 running trade employees were required. The three employees were among those that were called upon to cover off this shortage.

Each of the applicants had similar but distinct issues related to their family situation. Cindy Richards is a divorced mother of two, whose divorce order stated that neither party could reside outside of Jasper with the children without providing the other party 90 days of notice. Kasha Whyte is a single parent of a boy who suffers from respiratory difficulties, and was being treated by specialists in and around Jasper. Denise Seeley is a married mother of two young children whose husband was also a railroad employee with "long absences and an unpredictable schedule." Ms. Seeley indicated to CNR that she would only be able to find and maintain childcare as long as she remained based out of the Jasper terminal.

Each employee informed CNR that relocation from Jasper to Vancouver was not possible on such short notice due to family care concerns. Furthermore, CNR was not able to give the employees any indication of the duration, exact location or hours of the work in Vancouver. Although CNR entertained some discussion and an extension of the 15 day timeline, CNR ultimately required each employee to make the transfer. When the employees refused, they were terminated.

Application of the law related to family status

In response to the human rights complaint, CNR argued that family status "as a prohibited ground of discrimination ... should not be drawn too broadly or it would have the potential to cause 'disruption and great mischief in the workplace'" as found by the BC Court of Appeal in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society. However, after an extensive review of the case law regarding family status, the CHRT found that all grounds of discrimination should be treated equally based on its recent decision in Johnstone v. Canada Border Services as upheld earlier by the Federal Court of Appeal.

On the facts, the CHRT found that CNR had discriminated against each of the employees, and had failed to accommodate their needs by: (i) never formally meeting with the complainants; (ii) never allowing them an opportunity to present and explain their needs; and (iii) never asking any questions to help understand each employee's needs. As well, CNR did not consult its HR department, which the CHRT concluded would have initiated a response under CNR's own discrimination policy.

The finding of discrimination was virtually identical for all three employees, and the fact that Ms. Seeley was married did not affect the finding of discrimination in her case. The CHRT held that the evidence provided that Ms. Seeley was a parent, and her duties and obligations as a parent did not enable her to participate equally and fully in her employment with CNR. The evidence that her husband also had a busy and unpredictable schedule further emphasized their need for accommodation.

CNR claimed that they had accommodated the three employees to the point of undue hardship in that (i) they provided the employees extra time to report to Vancouver; (ii) all employees of CNR who were parents could claim "super-seniority" based solely on their status as parents; and (iii) there were significant economic concerns in accommodating the three employees. These defences were soundly rejected by the CHRT. For example, the CHRT stated that economic cost factor would amount to undue hardship "only if it would alter the essential nature or substantially affect the viability of the enterprise responsible for the accommodation."

Furthermore, the CHRT did not specifically address the wording of the collective agreement which set out the 15 day condition on rolling stock employees to report for work to cover a shortage. Given the findings, the wording of the collective agreement also did not afford a defence to CNR.

Decision and Damages Award

The employees were successful, and the remedies awarded by the CHRT included reinstatement, damages for lost wages, and individual damage awards of $15,000 for pain and suffering and $20,000 for wilful or reckless conduct by CNR. In the aggregate, each employee was awarded damages in the range of $80,000. Additionally, CNR was ordered to review its accommodation policy and process.

Our Views

The decisions stand for the proposition that that no single ground of discrimination can be treated differently, or as "less important" than any other under Canadian human rights law and reinforces the governing significance of "family status" as a protected characteristic. Employers must ensure to take complaints based on any ground of discrimination seriously, and make all efforts, to the point of undue hardship, to accommodate the employee's needs.

However, it should be noted that CNR has applied to the Federal Court of Canada for review of this decision. At the time of this blog post, the review had not been heard by the court. Stay tuned for an update to this important issue when it is heard and decided by the higher court.

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