Fiona Johnstone began a long odyssey through Canadian courts when she encountered difficulties in finding childcare for her two toddlers so that she could continue to work for Canada Border Services. A childcare expert testified that Ms Johnstone faced a very difficult work environment: different shifts at different times and different days including weekends, overtime, shifts at all hours of the day and night, and a husband in a similar situation. She alleged discrimination under the Canadian Human Rights Act on the grounds of family status resulting from childcare obligations. The Federal Court of Appeal listed four factors a complainant must meet to prove this type of discrimination:
- a child is under his or her care and supervision;
- the childcare obligation engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- he or she has made reasonable efforts to meet those childcare responsibilities through reasonable alternative solutions, and that no such alternative resolution is reasonably accessible; and
- the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
In Ms Johnstone’s case the Court ruled that she met all four requirements. The Court of Appeal upheld most of the earlier Tribunal decisions about lost wages, agreed that Canada Border Services had acted in a wilful and reckless manner, ordered the Agency to develop policies in consultation with the Canadian Human Rights Commission to prevent further incidents of discrimination, and awarded Ms Johnstone her costs.