View cases - Stewart McKelvey

29relationships 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 havechildren, and that the Act affords protection against discrimination with respect tothose choices.[…][233] This Tribunal finds that the freedom to choose to become a parent is so vitalthat it should not be constrained by the fear of discriminatory consequences. As asociety, Canada should recognize this fundamental freedom and support thatchoice wherever possible. For the employer, this means assessing situations suchas Ms. Johnstone’s on an individual basis and working together with her to create aworkable solution that balances her parental obligations with her workopportunities, short of undue hardship.2010 CHRT 23 (CanLII)[104] Recently the Public Service Staffing Tribunal (the “PSST”) considered whether to followthe approach to family status set out in Hoyt or in Campbell River and determined that it wouldapply 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.)[105] 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).