View cases - Stewart McKelvey

49[230] Both parties rely on their own interpretation of Section 2 of the Act as it relates to theirarguments, but this Tribunal finds nothing in Section 2 that creates a restrictive and narrowinterpretation of ‘family status’.[231] To the contrary, the underlying purpose of the Act as stated is to provide all individuals amechanism “to make for themselves the lives that they are able and wish to have and to have theirneeds accommodated, consistent with their duties and obligations as members of society…” It isreasonable that protections so afforded include those naturally arising from one of the mostfundamental societal relationships that exists, that of parent to child. The fact that the language ofSection 2 mentions “lives that they are able and wish to have” carries with it theacknowledgement that individuals do make separate choices, including to have children, and thatthe Act affords protection against discrimination with respect to those choices.2010 CHRT 20 (CanLII)[232] CBSA relies on Schaap v. Canada (Canadian Armed Forces), [1988] F.C.J. (Schaap), acase dealing with marital status discrimination in the assigning of military housing, and quotedJustice Marceau from page 3 of that decision in its final submissions. Taking some of the samequotations used by CBSA, this Tribunal interprets them for purposes of this complaint differently.His Lordship stated that “decisions are to be made on the basis of individual worth or qualitiesand not of group stereotypes. He went on to posit as follows: “…is not this in perfect keeping withthe purpose of all human rights enactments….to prevent the victimization of individuals on thegrounds of irrelevant characteristics over which they have no control, or with respect to whichtheir freedom of choice is so vital that it should in no way be constrained by the fear of eventualdiscriminatory consequences…”[233] This Tribunal finds that the freedom to choose to become a parent is so vital that it shouldnot be constrained by the fear of discriminatory consequences. As a society, Canada shouldrecognize this fundamental freedom and support that choice wherever possible. For the employer,this means assessing situations such as Ms. Johnstone’s on an individual basis and workingtogether with her to create a workable solution that balances her parental obligations with herwork opportunities, short of undue hardship.