HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cheryl Tomlinson
Applicant
-and-
Runnymede Healthcare Centre
Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Tomlinson v. Runnymede Healthcare Centre
INTRODUCTION
1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 15, 2014, and alleges discrimination in employment on the basis of family status.
2In her Application, the applicant explains that she is a sole support parent with two young children. The applicant alleges that, after returning to work following a maternity leave, she asked the respondent to accommodate her on straight day shifts, because her daycare closes at 6:15 p.m. She alleges that the respondent granted her request for 3 months, but denied her later request to extend the accommodation for 6 months. She also alleges that she does not have any family members who can assist her with childcare, and that she tried to but could not find other daycare arrangements.
3This Interim Decision addresses the applicant’s Request for Interim Remedy, filed on December 16, 2014. The applicant requests, as an interim remedy, that the Tribunal order the respondent to continue to schedule her on straight day shifts until this matter is resolved. The respondent has not responded to the request, and the time for doing so has passed.
INTERIM REMEDY
4A declaration, signed by the applicant, was included with the Request for Interim Remedy. In the declaration, the applicant states that she has been employed by the respondent for 6 years as a Registered Practical Nurse. She is the sole support mother of her two children. One child is 2 years of age and the other is 9 months. Before she went on her first maternity leave, she worked a 2-week rotating shift schedule, alternating between day and evening shifts (7:00 a.m. to 3:00 p.m. and 3:00 p.m. to 11:00 p.m.). When she returned from her first maternity leave, she found a co-worker who agreed to work her evening shifts. The respondent agreed to this arrangement, and it lasted approximately 5 months, until the applicant went on her second maternity leave.
5The applicant states that she returned from her second maternity leave early, due to financial circumstances, and that she has her children in a subsidized daycare. The daycare’s hours are from 6:30 a.m. to 6:15 p.m., Monday to Friday. The applicant states that she asked the respondent to schedule her for straight day shifts as an accommodation under the Code, on the ground of family status, and her request was granted from September 15 to December 15, 2014.
6The applicant states that she attempted to find child care that would allow her to work the evening shift. She does not have family members who can assist her, as her mother has medical conditions, and her sisters have jobs that require them to work shifts. Her children’s father left the family unit in December 2013 and is not involved in any way. She contacted around 20 daycares near her and none of them are open in the evening.
7The applicant states that, on October 12, 2014, she asked the respondent for a 6-month extension of her accommodation and was refused. She found a co-worker who was willing to change shifts with her so that she could work straight day shifts. When she suggested this to the respondent’s Director of Human Resources, he refused to allow it. She started a grievance on October 23, 2014, and continued with that process until November 19, 2014, when the Director told her and her union representative that they would have to take the matter to arbitration. She is, therefore, expected to return to a rotating shift as of December 16, 2014, but booked vacation until December 29, 2014.
8The applicant states that she is making a request for an interim remedy so that she will not be put in the untenable position of choosing between caring for her children and either losing half her income or her job. She is actively seeking other solutions to the conflict between her parental and workplace obligations.
9In her Request for Interim Remedy, the applicant submits that other employees work straight shifts based on their personal preferences, rather than any Code-related accommodation need. She submits that her request for accommodation is based on her legal obligations to her children, and not personal preference. She submits that it would not be undue hardship for the respondent to continue to accommodate her on straight day shifts until this matter can be resolved.
10The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:
The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
11In TA v. 60 Montclair, 2009 HRTO 369 at paras. 15-27, the Tribunal stated that, since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”
12Normally, the Tribunal’s power to order respondents to do, or refrain from doing something, is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: See TA at paras. 28-29.
13With respect to the three factors set out in Rule 23.2 of the Tribunal’s Rules, above, the Tribunal in TA indicated as follows:
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (at paras. 30-32).
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (at paras. 33-34).
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (at para. 35).
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (at para. 36).
14Tribunal is also more reluctant to order a proposed interim remedy that would create a new state of affairs, than one which would preserve an existing state of affairs. See Cochrane v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8. It is also a relevant factor if the result of the interim remedy would be to grant the applicant part of the final remedy sought. See Vella v. Toronto (City), 2011 HRTO 1831.
15Having regard to the various principles set out above, I find that it is appropriate to grant the applicant’s Request for Interim Remedy, at this stage of the proceeding. Having considered the applicant’s materials, and in the absence of any response from the respondent, I am satisfied that the applicant has met the significant onus of establishing that an interim remedy should be awarded.
16With respect to whether the Application raises an arguable case, I note that the Federal Court of Appeal held in Canada (Attorney General) v. Johnstone, 2014 FCA 110, that in order to make out a prima facie case of workplace discrimination on the ground of family status resulting from childcare obligations, a claimant must show: (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
17In the present case, the applicant submits that she is a sole support mother of two young children, and she cannot leave her young children on their own. She submits that she has made reasonable efforts to reconcile the conflict between her family and workplace responsibilities, and that she has tried to find alternative childcare that would allow her to work the evening shift, but she has not been successful.
18With respect to accommodation, the applicant submits that the respondent allows other employees to work straight shifts based on their personal preference, and that she found a co-worker who was willing to work her evening shift, but the respondent refused to allow the arrangement. She submits that it would not be undue hardship for the respondent to continue to accommodate her on straight day shifts.
19As set out above, to satisfy the first element of the test for an interim remedy, an applicant need only show that there is an arguable case. The question of whether the applicant has shown discrimination because of family status is a matter to be determined at hearing on the merits. In my view, based on the applicant’s materials, the applicant has an arguable case and the Application appears to have merit.
20With respect to the balance of harm or convenience, the applicant submits that if the request for an interim remedy is denied she will be in the untenable position of choosing between her job and her children’s care. She submits that, naturally, she will choose her children’s care, and the consequence will be that she either loses half of her income because she will only be able to work half of the shifts that are assigned to her, or she will lose her job altogether. She submits that, as the sole support mother of two young children, the economic consequences to her family will be significant.
21The applicant also submits that the respondent has been providing accommodation for the past 3 months, and if the interim remedy is granted, it will be a continuation of the status quo. She submits that, while the respondent may be minimally inconvenienced by this, the respondent does allow other employees to work straight shifts based on their preferences.
22I also note that the applicant stated in her declaration that, when she returned from her first maternity leave, she found a co-worker who agreed to work her evening shifts. She states that the respondent agreed to the arrangement, and it lasted approximately 5 months, until the applicant went on her second maternity leave. She also states that, more recently, she found a co-worker who was willing to change shifts with her so that she could work straight day shifts, but when she suggested this to the respondent’s Director of Human Resources, he refused to allow it.
23Based on the materials before me, it appears that the balance of harm or convenience favours permitting the applicant to continue to work straight day shifts. The respondent allowed the applicant to work straight day shifts for approximately 5 months between her first and second maternity leave, and again provided her with straight day shifts when she returned from her second maternity leave. In my view, the potential consequences for the applicant and her children, if the interim remedy is not granted, outweigh any apparent harm or inconvenience to the respondent if it is subsequently determined that there was no violation of the Code.
24I also find that it is just and appropriate to grant an interim remedy in the circumstances. I am satisfied that an interim remedy is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances, particularly in light of the consequences for the applicant and her children if an interim remedy is not granted. I note that the applicant stated that she returned to work early during her second maternity leave for financial reasons. In the circumstances, it appears likely that if the applicant is required to work evening shifts, but is not able to because of her childcare responsibilities, at a minimum, she will not have sufficient income from her employment with the respondent to support her family as a sole support parent. If that were the case, the applicant may be unable to continue her employment with the respondent.
25I find that the applicant has met the heavy onus to justify an interim remedy, as ordered below. The applicant is required to advise the respondent immediately if she obtains childcare that would enable her to return to the rotating shift schedule, at which point the order to provide the applicant with straight day shifts will cease.
26While the respondent did not respond to the Request for Interim Remedy, as directed, I note that the Application and the Request for Interim Remedy were delivered to the respondent, and the respondent was directed to respond, during the holiday season. In light of these circumstances, should the respondent wish to provide an explanation for their failure to respond to the Request for Interim Remedy, and dispute the interim remedy ordered below, the respondent may deliver and file submissions within 14 days of the date of this Interim Decision. If the respondent files submissions within 14 days of the date of this Interim Decision, the applicant may file reply submissions within a further 7 days of receipt of the respondent’s submissions. The Tribunal will have regard to any submissions filed and may take such action it determines appropriate, including re-visiting the Request for Interim Remedy and the order granted below.
ORDER
27The Tribunal orders that the respondent continue to schedule the applicant on straight day shifts. This order is effective immediately and remains in effect until: the Application is concluded by way of settlement or adjudication; the applicant advises the respondent that she has obtained childcare that enables her to return to the rotating shift schedule; or, further order of the Tribunal.
28I am not seized of this matter.
Dated at Toronto, this 2nd day of January, 2015.
“Signed by”
Brian Eyolfson
Vice-chair