View cases - Stewart McKelvey

42apply the Hoyt approach. In Chantal Rajotte v. The President of the Canada Border ServicesAgency et al, 2009 PSST 0025, the PSST stated that “the proper approach to be followed is theone set out in Hoyt which is also recognized by the Federal Court in Johnstone.” (para. 127.)The PSST further stated:Accordingly, the evidence must demonstrate that the complainant is a parent, thatshe has duties and obligations as a member of society, and further that she was aparent incurring those duties and obligations. As a consequence of those duties andobligations, combined with the respondent’s conduct, the complainant must proveshe was unable to participate equally and fully in employment. ( para 127.)[151] A review of some recent cases out of the British Columbia Human Rights Tribunal(the “BCHRT”) demonstrates that the decisions of that Tribunal are not consistently following theapproach in Campbell River. For example, it has not been found to be applicable in the case ofprovision of services (Stephenson v. Sooke Lake Modular Home Co-operative Association, 2007BCHRT 341). It has also been distinguished in two BCHRT decisions involving an employmentsituation (Haggerty v. Kamloops Society for Community Living, [2008] BCHRT 172, par. 17 andMahdi v. Hertz Canada Limited, [2008] BCHRT 245, paras. 60 and 61).2010 CHRT 24 (CanLII)[152] In Falardeau v. Ferguson Moving (1990) Ltd., dba Ferguson Moving and Storage et al.,2009 BCHRT 272, the BCHRT referred to the Campbell River, Hoyt and Johnstone decisions,and also to another of its decision in Miller v. BCTF (No. 2), 2009 BCHRT 34. The BCHRTpointed out that in Miller, it had stated that Campbell River applied only in the context fromwhich it arose. It cited the following statement from Miller: “The [Campbell River] formulationof what is necessary to establish discrimination on the basis of family status in the context ofcompeting employment and family obligations is not applied mechanically in all cases of allegeddiscrimination on the basis of family status.” (Falardeau, at para. 29.)[153] The issue in Falardeau concerned whether an employee, who had refused to do overtimebecause of child care responsibilities for his son, had been discriminated against on the ground offamily status. The Tribunal found that the complainant had not established a prima facie case.The Tribunal stated at paras 31 and 32: