View cases - Stewart McKelvey

48c) Has a prima facie case of discrimination on the basis of family status been made out?[169] After considering all the evidence, the Tribunal, applying the Hoyt approach, concludesthat the Complainant has made out a prima facie case of discrimination on the basis of familystatus. As a result of her family obligation she lost her employment while other employees didnot.[170] The evidence establishes that the Complainant is divorced and that she has the primarycustody of her two children who in July of 2005 were 10 and 11 years old. The Divorce Orderand custody agreement stated that the two parents would have joint and shared custody of thechildren, the Complainant providing the primary residence for them. It was further ordered thatneither party was to reside outside Jasper with the children, without giving the other party ninety(90) days written notice of the move.2010 CHRT 24 (CanLII)[171] In 2005, the Complainant was on lay-off status with CN. In February 2005, she was askedby CN how long it would take her to report to a shortage in Vancouver. As already noted, thecustody order obligated her to provide ninety (90) days notice should she want to relocate herchildren away from their father. Given the unknown length of time the shortage would last andthe difficulties involved in uprooting her children from their schools, their father, friends andcommunity, she testified that it was impossible for her to go to Vancouver to cover the shortage.[172] The Complainant wrote to CN explaining her family situation and the difficulties relatedto her family status. She told CN that she could not report to Vancouver and asked for a“compassionate leave of absence.” On March 18 th , 2005, she again wrote to CN explaining thatalthough the thirty (30) days would be adequate for a notice to her present employer, herdifficulties and unique circumstances as a single mother would not allow her to report toVancouver. In another letter dated May 1 st , 2005, she explained the circumstances of her familyand child care situation directly to Mr. Torchia and stated that to move her children to Vancouverwas not an option.