View cases - Stewart McKelvey

28wrong in law.” (Johnstone, supra, at para.29). The Court also found that the “serious interferencetest” which the Court viewed as the approach apparently adopted by the CHRC for not sendingthe matter to the Tribunal, “fail[ed] to conform with other binding authorities which have clearlyestablished the test for a finding of prima facie discrimination.” (Johnstone, supra, at para. 30.)[102] The Federal Court’s decision in Johnstone was upheld by the Federal Court of Appeal,although the Court of Appeal stated that it was not expressing an opinion on the proper version ofthe test in relation to prima facie discrimination on the ground of family status. Instead theFederal Court of Appeal based its reasoning on the finding that the failure of the CHRC to clearlyidentify the test it applied was “a valid basis for finding the decision of the Commission to beunreasonable. ([2008] F.C.J. No. 427, at para. 2).2010 CHRT 23 (CanLII)[103] The Tribunal has recently rendered its decision in the Johnstone matter (see Johnstonev. Canada Border Services, 2010 CHRT 20). In that decision the Tribunal held:[220] This Tribunal agrees that not every tension that arises in the context ofwork-life balance can or should be addressed by human rights jurisprudence, butthis is not the argument put forward in the present case. Ms. Johnstone’s argumentis that such protection should be given where appropriate and reasonable given thecircumstances as presented.[221] As discussed above, we are addressing here a real parent to young childrenobligation and a substantial impact on that parent’s ability to meet that obligation.It is not before this Tribunal to address any and all family obligations and any andall conflict between an employee’s work and those obligations.[…][230] […] this Tribunal finds nothing in Section 2 that creates a restrictive andnarrow interpretation of ‘family status’.[231] To the contrary, the underlying purpose of the Act as stated is to provide allindividuals a mechanism “to make for themselves the lives that they are able andwish to have and to have their needs accommodated, consistent with their dutiesand obligations as members of society…” It is reasonable that protections soafforded include those naturally arising from one of the most fundamental societal