United Nurses of Alberta v Alberta Health Services: Test for discrimination in family status cases remains unsettled
Does the test for prima facie discrimination need to be altered in family status cases to avoid disruptions in the workplace? The Supreme Court of Canada (“SCC”) has declined to answer this question for now, dismissing the application for leave to appeal United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194 [UNA 2021]. At the centre of UNA 2021 is an unsettled point in the case law, with one set of decisions imposing an additional evidentiary requirement for claims based on family status, and another finding this approach inconsistent with past SCC jurisprudence. This case comment suggests the Alberta Court of Appeal persuasively ruled in favour of the latter. Should the SCC provide an authoritative ruling at a later time, it will promote the rule of law by providing future decision-makers with greater certainty in the adjudication of family status cases.
This case concerns a grievance brought under a Collective Agreement between the United Nurses of Alberta (“UNA”) and Alberta Health Services (“AHS”). The grievor, Ms. Daigle, started as a full-time worker with Alberta Health Services in 2011 (UNA 2021, para 12). At first, she worked a “fireman’s shift,” four days on, four days off. In May 2013, she received notice that the structure of shift rotations would change to four days on, five days off, pursuant to the new Collective Agreement (UNA 2021, paras 13, 21).
The new schedule created gaps in Ms. Daigle’s childcare arrangements in a way that had not previously been an issue. With both parents being shift workers, they determined that these gaps could not be adequately addressed through alternative childcare arrangements owing to constraints in time (i.e., the need for 24-hour care), expense, and the special needs of one of the children (UNA 2021, paras 12, 22).
In light of this, Ms. Daigle requested to stay on the old rotation schedule as an accommodation for family status (UNA 2021, para 13). Management denied the request, citing non-compliance with the Collective Agreement (UNA 2021, para 13). After initiating a grievance through the UNA, Ms. Daigle was permitted to drop down to casual status for childcare reasons (UNA 2021, paras 15-16). The shift to casual status cost her in employment benefits, like pension eligibility, sick leave and guaranteed hours (UNA 2021, para 24).
The grievance was filed pursuant to Article 6 of the Collective Agreement between the UNA and AHS. Article 6 mirrors the prohibition on employment discrimination under section 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5 [AHRA]. Like section 7, Article 6 prohibits the Employer (here, AHS) from engaging in discrimination against an Employee (here, Ms. Daigle) on the grounds of family status, except where such treatment is based on a bona fide occupational requirement (UNA 2021, para 9).
Discrimination is Assessed in Two Stages
Human rights complaints proceed in two stages. First, the complainant must establish a prima facie case of discrimination by showing three things:
- They have a protected characteristic,
- They experienced an adverse impact, and
- Their protected characteristic was a factor in the adverse impact.
These requirements comprise the legal test established by the SCC in Moore v British Columbia, 2012 SCC 61 [Moore]. If satisfied, the onus then shifts to the person responsible for the adverse treatment to show they have taken reasonable steps towards accommodation of the complainant, up to the point of undue hardship (Ont Human Rights Com v Simpson-Sears,  2 SCR 145). Provided reasonable efforts were made, the complaint will be dismissed.
Labour Arbitration Board Decision
A majority of the labour arbitration board (“Board”) dismissed the grievance, concluding that the complainant had failed to establish prima facie discrimination.
Citing the test from Moore, a majority of the Board found that Ms. Daigle was protected from discrimination on the grounds of family status (UNA 2021, paras 26-27). The Board then considered two decisions with divergent views on the evidentiary requirements for family status cases. In the first case, Canada (Attorney General) v Johnstone, 2014 FCA 110 [Johnstone], the Federal Court of Appeal (“FCA”) held that complainants alleging discrimination on the basis of family status must show reasonable efforts to self-accommodate before they can establish prima facie discrimination (UNA 2021, para 30). In the second, SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 [SMS], the Court of Queen’s Bench of Alberta found that the requirement to show self-accommodation was inconsistent with the Moore test.
The majority of the Board dismissed the analysis in SMS as obiter and opted for the test as it was articulated in Johnstone instead (UNA 2021, paras 28-30). An application of the additional factor of self-accommodation led the majority to conclude that Ms. Daigle had put forward insufficient evidence of her search for reasonable childcare alternatives (UNA 2021, para 32). As a result, prima facie discrimination was not made out and her grievance failed at the first stage of the analysis.
One member of the Board dissented. She held that self-accommodation is not part of the Moore test, but rather belongs in the second stage where the employer bears the justificatory burden (UNA 2021, paras 33-34). Based on her review of the evidence, she would have allowed the grievance to succeed (UNA 2021, paras 37-40).
Lower Court Decision
In United Nurses of Alberta v Alberta Health Services, 2019 ABQB 255 [UNA 2019], the Board’s decision was quashed on judicial review and the matter was remitted for a full rehearing by a newly constituted panel. Justice Hollins of the Court of Queen’s Bench held that the majority’s decision was unreasonable. In reaching this conclusion, she reviewed both Johnstone and SMS in considerable detail.
Justice Hollins points out that Johnstone expressly rejects imposing the higher evidential standard of “serious interference” that the B.C. Court of Appeal suggested in a separate case (UNA 2019, paras 31, 37). Nevertheless, she goes on, Johnstone introduced a higher standard when it moved consideration of self-accommodation to the first stage in the analysis (UNA 2019, paras 36-37). The FCA described this as merely a flexible and contextual application of the test for prima facie discrimination, one intended to address the fact that conflicts between work requirements and family obligations are pervasive and inevitable. Thus, if any level of conflict can amount to discrimination, it would be highly disruptive to the workplace (UNA 2021, para 69).
Justice Hollins disagreed. She found that the FCA was not, as it claimed, simply offering guidance on the kinds of evidence that could be relevant. Rather, the court had significantly increased the evidentiary threshold the complainant must meet (UNA 2019, paras 38-39). Per Justice Ross in SMS, the self-accommodation requirement created “an entirely different test” (UNA 2019, para 46). Justice Hollins then quoted SMS’ explanation why the additional requirement is both unnecessary and contrary to the objects of human rights law:
It is unnecessary because a finding of discrimination does not automatically follow once a prima facie case is established. … It is contrary to the objects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases … The search for accommodation is intended to be a ‘multi-party inquiry’, involving the employer, the union and the complainant … Converting this multi-party inquiry into a one-sided investigation could certainly deter complainants from pursuing claims for discrimination based on family status, and thus detract from the policy goal of removing discriminatory barriers to full participation in the workforce. (UNA 2019, para 46; internal citation omitted)
Justice Hollins held that it was unreasonable to dismiss this analysis in SMS as obiter when it was directly relevant to an issue before the Board and clearly intended as guidance in a contested area of law (UNA 2019, paras 51-55). At minimum, the Board ought to have explained how the Johnstone approach could be reconciled with the SCC authorities relied upon in SMS (UNA 2019, para 55).
The Alberta Court of Appeal (“the Court”) dismissed the appeal. The central issue before the Court was whether self-accommodation must be considered at the first stage of a human rights complaint in order to establish prima facie discrimination in family status cases. It answered affirmatively, ruling that the differential treatment of family status is inconsistent with a broad, purposive interpretation of human rights law and the goal of removing barriers to the full participation of all individuals in society (UNA 2021, para 91).
The Court reviewed the Board’s decision on a standard of correctness. This was in light of the new rules for determining the standard of review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (UNA 2021, para 51). Even on a stricter standard, the Board’s decision was unjustified as it had applied the wrong legal test when it included a requirement to show self-accommodation. The Court held that the three-factor test in Moore is the authoritative framework for prima facie discrimination on all prohibited grounds (UNA 2021, para 61). It stressed that until the SCC decides to alter the test in family status cases, there is no room for an additional factor (UNA 2021 para 65).
The Court found that the Johnstone approach conflates prima facie discrimination with the duty to accommodate (UNA 2021, para 71). It explained that the question of alternative arrangements to mitigate the adverse impact is simply not relevant until the second stage of the analysis. At this point, a multi-part inquiry takes effect, as described by SMS. The Court observes at paragraph 83 that requiring the complainant to bear the onus of proving self-accommodation creates uncertainty – what makes an alternative reasonable? How far do they need to go to show that all reasonable alternatives are exhausted? How intrusive must the inquiry be? What level of detail is required about their finances, personal relationships, cultural preferences, etc.? And so on.
In addition, the added burden of proving self-accommodation at the first stage of a human rights complaint is contrary to the goals of substantive equality. The Court writes that this requirement would inappropriately shift the focus away from discriminatory impacts to the complainant’s efforts to avoid those impacts (UNA 2021, para 86). This could dissuade complainants from pursuing claims, which disproportionately affects women as they continue to bear the burden of care obligations (UNA 2021, para 86).
The Court did not interfere with the lower court’s remedy (UNA 2021, para 106).
It is unfortunate that the SCC denied leave to appeal UNA 2021. The court has yet to provide a fulsome analysis of family status discrimination, whether under human or equality rights. Most recently, in Fraser v Canada, 2020 SCC 28 [Fraser], the SCC declined to consider whether parental or family status ought to be accepted as an analogous ground under section 15 of the Canadian Charter of Rights and Freedoms [Charter]. Instead, that case was decided on the grounds of sex discrimination through “a robust intersectional analysis of gender and parenting” and the “uneven division of childcare responsibilities … [accorded] to women in Canadian society” (Fraser, para 16).
After noting the insufficient record and submissions on the issue of family status, Justice Abella observed that provincial human rights statutes offered little in the way of guidance precisely because of the jurisprudential debate on prima facie discrimination canvassed here (Fraser, paras 117-19). Indeed, Johnstone is cited as one of the cases contributing to that debate (Fraser, para 118). It is somewhat ironic, then, that the SCC passed on an opportunity to provide an authoritative ruling precisely on this point.
The SCC has also passed on an opportunity to affirm Vavilov and the new rules for determining the standard of review. Last time the SCC considered the test for prima facie discrimination in any great detail was in Stewart v Elk Valley Coal Corp, 2017 SCC 30. One of the issues in that case was whether the complainant needed to show an element of arbitrary or stereotypical treatment to succeed at the first stage of the claim (UNA 2019, para 16). Under the pre-Vavilov framework, the Alberta Court of Appeal held that the standard of review was correctness, reasoning that a question about the test for discrimination is an extricable question of law of central importance to the legal system as a whole (UNA 2019, para 17). The SCC disagreed, finding that the human rights tribunal had “at least noted” settled legal principles, leaving the application of those principles to the specific facts as the main issue before the court (UNA 2019, paras 18-20). If the same reasoning applies post-Vavilov, it is likely that the Alberta Court of Appeal erred in applying a standard of correctness as the Board did at least cite the three-factor test from Moore.
In the meantime, Ontario is on the verge of becoming the last province to sign an agreement with the federal government to subsidize childcare. The purpose of the agreement is to reduce the cost of childcare to $10/day by the end of 2026, to create jobs, and to support parents, especially mothers, in participating fully in the workforce. Much has been written about the disproportionate impact the pandemic has had on women, with job insecurity and the distribution of care work acting as compounding forces of disadvantage. Systemic problems need systemic solutions. Robust protection for human rights is undoubtedly a good in itself, but the issue UNA 2021 surfaces is less the stage in the analysis that parents need to show a lack of reasonable alternatives than it is the lack of those alternatives in the first place.
Note: This post was originally published on March 17, 2022. It was brought to the attention of the Managing Editors that the author had mistakenly written that the SCC had granted leave to appeal the decision. Corrections have now been made.
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