View cases - Stewart McKelvey

38strike that balance coupled with a clear duty on the part of the employer to facilitate andaccommodate that balance within the criteria set out by the jurisprudence. The Tribunal addedthat “to consider any lesser approach to the problems facing the modern family within theemployment environment is to render meaningless the concept of “family status” as a ground ofdiscrimination.”[142] The Tribunal also considered “family status” as a ground of discrimination in Hoytv. Canadian National Railway, [2006] C.H.R.D. No. 33. In this decision, the Tribunal referred toa judicial definition of the term “family status”, as well as to prior decisions of the Tribunal whichset forth requirements to establish a prima facie case of discrimination based on that ground.The Tribunal specifically stated :2010 CHRT 24 (CanLII)117 Discrimination on this ground has been judicially defined as '... practices orattitudes which have the effect of limiting the conditions of employment of, or theemployment opportunities available to, employees on the basis of a characteristicrelating to their ... family.' (Ontario (Human Rights Commission) v. Mr. A et al[2000] O.J. No. 4275 (C.A.); affirmed [2002] S.C.J. No. 67].118 This Tribunal has considered the evidentiary requirements to establish a primafacie case in a decision that predates the Ontario case, though is clearly consistentwith its definition:"... the evidence must demonstrate that family status includes thestatus of being a parent and includes the duties and obligations as amember of society and further that the Complainant was a parentincurring those duties and obligations. As a consequence of thoseduties and obligations, combined with an employer rule, theComplainant was unable to participate equally and fully inemployment with her employer" (Brown v. Canada (Department ofNational Revenue, Customs and Excise) [1993] C.H.R.D. No. 7, atp. 13. See also Woiden et al v. Dan Lynn, [2002] C.H.R.D. No. 18,T.D. 09/02)[143] However, a different enunciation of the evidence necessary to demonstrate a prima faciecase was articulated by the British Columbia Court of Appeal in Health Sciences Assn. of BritishColumbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922,at paragraphs 38 and 39, a decision on which CN put a lot of weight during its closing arguments.In that decision the British Columbia Court of Appeal decided that the parameters of family status