Employee’s need to care for sick child

Giving unpaid leave to care for kids
By Brian Kenny
|Canadian Employment Law Today|Last Updated: 02/19/2014

Question: Is there a risk of family status discrimination if an employee is only given unpaid leave to care for a sick child?

Answer: Canadian jurisprudence is clear that childcare obligations are within the scope of the definition of family status, which was defined in Brown v. Canada (Department of National Revenue - Customs & Excise) as “a parent’s right and duty to strike that balance (between work obligations and child rearing) coupled with a clear duty on the part of an employer to facilitate and accommodate that balance.” In fact, the ground of family status is included in human rights legislation in most provinces across Canada and has been in the Canada Human Rights Act since 1984.

With respect to the test for family status discrimination, courts and tribunals across the country have taken varying views on this issue. The leading British Columbia authority on discrimination based on family status is Campbell River & North Island Transition Society v. H.S.A.B.C., which found employees are required to prove a change in employment which results in serious interference with a substantial family obligation. In contrast, federal labour arbitrators and the Canadian Human Rights Tribunal have rejected the Campbell River approach and found in favour of employees when a rule or practice has the effect of limiting the conditions or opportunities of employment on the basis of a characteristic relating to their family. These decisions have suggested the broad approach to family status is consistent with human rights principles that protect against any discrimination based on a prohibited ground.