September 2016 - The OHRC intervened in Misetich v. Value Village, a case before the Human Rights Tribunal of Ontario (HRTO), involving allegations of discrimination on the basis of family status. The OHRC intervened to ensure that the Federal Court of Appeal's decision in Johnstone v. Canada Border Services - which set out an onerous and unique test for establishing discrimination on the basis of family status - was not adopted in Ontario and to ensure that the analysis used to assess family status discrimination remains responsive to claims relating to eldercare responsibilities.
The OHRC’s submissions on the test for family status discrimination were adopted by the HRTO. The HRTO agreed with the OHRC’s submissions that the Federal Court of Appeal's formulation of the test, which requires applicants to demonstrate that their caregiving obligations engage a "legal responsibility" imposes an unduly onerous burden on applicants and is especially unworkable in the context of eldercare. The HRTO's decision reiterated that there is only one test for discrimination, and the test does not change depending on the Code ground.
The HRTO also accepted the OHRC’s argument that an assessment of whether a claimant had made reasonable efforts to meet family status obligations (i.e. to self-accommodate) does not belong at the prima facie discrimination stage. The HRTO stated: “I do not agree that in order to prove discrimination, an applicant must establish that he or she could not self-accommodate the adverse impact caused by a workplace rule”.
While the Application was not ultimately successful based on the facts of the case, this decision nonetheless sets a precedent for an expansive interpretation of the Code in cases involving discrimination on the basis of family status.