Written by Richa Sandill, Staff Lawyer, Scarborough Community Legal Services
In its recent decision of Kovintharajah v. Paragon Linen & Laundry Services Inc., 2021 HRTO 98, the Human Rights Tribunal of Ontario has provided much-needed clarity on the test for family status under the Ontario Human Rights Code as well as awarding one of its highest ever total remedies amounts for a family status case. I, along with the amazing and tireless team at Scarborough Community Legal Services, had the privilege of representing the Applicant in this case.
The Applicant worked in a technical position at a commercial laundry facility. He worked day shifts for the entirety of his employment. He and his wife were the primary caregivers for three young children, who at the time of the events in Application were all under the ages of six. The couple were also caregivers for the Applicant’s elderly parents-in-law, both of whom had significant health challenges. The parents-in-law were unable to care for the youngest child for more than a few minutes. As such, he and his wife both had to balance their schedules around each other to ensure someone was at home at all times.
To facilitate this, the Applicant requested a modified schedule to allow him to leave work early so that his wife could work in the evening. This request was granted and continued without problem for over a year until a new manager was hired. This manager took a unified approach towards employees’ hours. It was announced that employees would no longer be allowed to leave work early without 48 hours’ notice, and that too would only be permitted twice a month – no exceptions. To put it in the Respondent’s words, employees were essentially told that the “gravy train was ending”.
As a result, the Applicant’s accommodations were suddenly revoked. He explored with his spouse whether she could change her shift, but her employer advised that it would take some months to do so. In the interim, the Applicant began receiving written warnings, followed by a five-day suspension, in rapid succession for leaving per his normal time which the employer considered to be a violation of its new scheduling policy. A mere few weeks later, he was terminated for cause for violating the scheduling policy.
The Tribunal found that the Respondent failed to participate in the procedural and substantive element of the duty to accommodate and had discriminated against the Applicant.
The major takeaway from this case is found at para. 50 of the decision, where the Tribunal succinctly confirms that family status discrimination is no different than other Code grounds:
 In Misetich, at paras. 42-48, the Tribunal held that the test for discrimination on the basis of family status is no different than for other grounds under the Code. See also Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273(“Linklater”) at paras. 35-39. Similarly, the question of whether the parties have met their obligations under the duty to accommodate is the same for family status as any other Code ground that could give rise to accommodation.
This is welcome clarity considering the confusion that has arisen since Canada (Attorney General)v. Johnstone2014 FCA 110, which required onerous steps on the part of an employee seeking family status accommodation. The Tribunal in Kovintharajah instead confirms the simple, unified approach in Misetich v. Value Village 2016 HRTO 1229.
Kovintharajah is also helpful in understanding employees’ obligations in family status accommodation. Many past cases at the Tribunal have looked at whether the accommodation requested arises from a legal caregiving obligation, rather than a preference. They have also looked at other steps that the requesting employee may have taken in the past, e.g. availability of other alternatives, daycare, etc. Kovintharajahclarifies that these considerations do not form a separate test for family status or an additional burden for this specific ground. Rather, they are part of employees’ overall, well established duty to cooperate in the accommodation process.
Thirdly, the remedies amount is also noteworthy. In total, the Applicant was awarded nearly $50,000.00, comprising of $20,000.00 general damages and $29,724.39 in lost wages. The closest comparable amount for pure family status discrimination would be last year’s Simpson v. Pranajen Group Ltd. 2019 HRTO 10. This case saw $30,000.00 in general damages for a family status discrimination case, but no lost wages.
A few other points stand out. For one, the Tribunal clarified that post-termination offers of accommodation will not change a finding that a termination was discriminatory. For another, the Tribunal stated that for the Code to apply, a person does not need to be a member of a “group” in the workplace that identify with a Code characteristic. Having a Code protected characteristic is enough to engage Code protection, notwithstanding language in section 11 of the Code that says that a neutral workplace rule is discriminatory when it applies to a “group of persons of whom an individual is a member.”
Finally, the Tribunal’s conclusion also suggests that failure to participate in the procedural stage of the accommodation inquiry means that an employer cannot then rely on a substantive refusal to accommodate a Code need.
When we were arguing this case in February 2020, we had no idea just how much more relevant family status protection would become in the year that followed. The courage and resiliency of this Applicant and his family in their daily effort to just make things work is a reflection of what so many working caregivers right now are going through. As the pandemic and its shutdowns continue, this decision is a reminder for employers of how important it is to check in on those trying balance family status responsibilities, and to meaningfully engage in accommodation processes. Family status needs are just as real as any other Code-based need. They deserve to be taken just as seriously.
Richa Sandill, “Kovintharajah v. Paragon Linen & Laundry: When a Failure to Accommodate Child Care Needs is “Family Status” Discrimination” Canadian Law of Work Forum (February 24 2021): https://lawofwork.ca/13360-2/