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Human Resources Professionals Association of

March 14, 2011 Northwestern Ontario

HR Wise
Inside this Message from the President of HRPANO
issue:
Bill 138 – Registered Human Resources Professionals Association Act -2010
Message from 1
the President Hello HRPANO members. It is with great pride and enthusiasm that I take on the role of Presi-
of HRPANO dent of our local chapter. I would like to congratulate Nadine Doucette for a remarkable job in her
term as President (2009-2011) and welcome her continued support as Past President.
Work-Life 2
Balance
Well, what a way to start a term – controversy, with the introduction and reading of Bill 138.
Article
There have been a number of e-mails and information circulated recently with respect to the legis-
Northern Con- 4 lation. I think it may be helpful to provide a bit of background on the legislation and leave it to
ference—
you, our members, to decide on your next steps.
Change of Date
The initial piece of legislation covering our profession was actually introduced and implemented
over 20 years ago, with the Human Resources Professionals Association of Ontario Act,
1990. This is a private act. With the passing of the original act, we have been a regulated body.

However, there seems to be a lot of conversation and controversy regarding the proposed legislation. To view the legis-
lation, please click on or copy and paste the link below.

View Bill 138: http://www.ontla.on.ca/bills/bills-files/39_Parliament/Session2/b138.pdf

Recently, a group called HRinontario.org has released an email communication to many members of HRPA. Their con-
cerns pertain to a lack of consultation with our member group and the content of the legislation when compared to the
previous bill. To better understand their concerns, you may wish to consider their e-mail summary as well as contact-
ing them directly via e-mail: info@hrinontario.org.

HRPA also has provided the following links:

Bill 138 Consultation: http://www.hrpa.ca/Documents/Bill%20138%20Consultation%20Chronology.pdf

“Side by side” comparison: http://www.hrpa.ca/Documents/Side-by-sideacts.pdf

Bill 138: Independent Expert Opinion:

http://www.hrpa.ca/Documents/Bill%20138/Independent_Expert_Opinion_on_Bill_138.pdf

Bill 138: Annual Conference Presentation Feb 2, 2011

http://www.hrpa.ca/Documents/Bill%20138/Bill_138_Presentation_at_Annual_Conference.pptx

Bill 138: Fact vs. Fiction

http://www.hrpa.ca/OfficeOfTheRegistrar/Pages/Bill138FictionandFact.aspx

In my professional capacity, I cannot be seen as taking a position with respect to political matters. However, I would
strongly encourage each of our members to become acquainted with the legislation and whether or not there is an im-
pact to you. Both the HRPA and HRinontario.org will be reaching out to you to sign a petition or letters of support. The
choice in your next steps is up to you.

Other news: Please mark the date Friday, May 13, 2011 for our one-day conference. (advertisement on last page)
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Human Resources Professionals Association of Northwestern Ontario

WORK-LIFE BALANCE – Accommodating the Scheduling Needs of Working Parents

The working parent is a staple of the Canadian workforce. The discrimination laws are designed to ensure such individuals
equal opportunity. As an HR director, you no doubt have great sympathy for employees trying to balance their job responsibilities
and obligations as parents. You might even be a working parent yourself. But how flexible do you have to be to accommodate the
needs as working parents?
WHAT THE LAW REQUIRES
There are 2 things an employee must show to prove family discrimination.
1. The Policy Discriminates
In just about any discrimination lawsuit, after employees present their evidence, employers ask the court to dismiss the case
there and then. To survive early dismissal, the court must decide if the employee has made out what’s called a “prima fa-
cie” (pronounced “PRIME a FAY see,” and Latin for “first view”) case.
This the critical point. If there’s no prima facie case, the court will throw out the lawsuit without letting a jury (or the judge
herself) rule. If, on the other hand, the court rules that the employee does have a prima facie case, the employer faces a dilemma: Pay
the employee enough to settle the case out of court or take its chances with a jury.
There are 2 competing standards covering what an employee has to do to make out a prima facie case of family status discrimination:
The Pro-Employer ‘Substantial Obligation’ Standard: The pro-employer standard comes from a 2004 BC case in-
volving a social worker who complained after a shift change. She claimed she needed late afternoon hours off so she could look after
her behaviorally-challenged son after school. The employer asked the court to dismiss the case. The question: Did the social worker
make out a prima facie case that the employer’s scheduling demands constituted family discrimination?
Clearly, the policy affected the social worker’s family obligations. But just about all employment policies are bound to con-
flict with an employee’s family obligations to some degree, the BC Court of Appeal explained. So finding a policy discriminatory
merely because it affects family obligations would be unrealistic and “unworkable.”
So the Court laid down a stricter standard. To make out a prima facie case of family discrimination, the employee must prove that:
(1) the employer imposed a change in the terms of employment; and (2) the change resulted in “serious interference” with a
“substantial” family obligation [Health Sciences Assoc. of BC v Campbell River & North Island Transition Society, 2004 BCCA 260
CanLII, May 10, 2004].
Campbell River is also the rule in Saskatchewan (Palik v. Lloydminster Public School Div. No. 99, [2006] 58 C.H.R.R.D/149
(Sask. H.R.T.)—not discriminatory to fire employee for taking 2 days off to attend her diabetic son at hockey tournament without
company’s permission), and Nova Scotia (C.S.U. v. C.U.P.E., [2006] N.S.L.A.A. No. 15—OK not to consider employee who can’t relo-
cate due to family obligations for promotion).
The Pro-Employee ‘Adverse Effects’ Standard: Campbell River has been criticized as requiring employees claiming
family status discrimination to meet higher standards than employees alleging other forms of discrimination. Consequently, a rival
standard that makes life much easier on employees emerged starting with a 2007 federal court ruling called Johnstone v. Canada
(Attorney-General) [2007] F.C.J. No. 43, aff’d 2008 FCA 101].
Johnstone differs from Campbell River in 2 key ways: (1) it covers all policies, not just changes in policies; and (2) employees need
only show that the policy had an adverse effect on them to make out a prima facie case. The Alberta Human Rights Tribunal applied
a similar standard in a 2006 case holding that an employee required to work evening shifts after the birth of her third child even
though she couldn’t make childcare arrangements had made out a prima facie case of discrimination [Rennie v. Peaches and Cream
Skin Care Ltd., [2006] 59 C.H.R.R. D/42 (Alta. H.R.P.)].
2. The Policy Doesn’t Accommodate the Employee
If employees can’t make out a prima facie case that the employer’s scheduling policies discriminate against families, the
case is over. But if this hurdle is cleared, the case shifts to whether the employer met its duty to accommodate the employee.
According to guidelines issued by the Ontario Commission of Human Rights, employers must display “flexibility” in rules, policies
and procedures so that employees who have to care for children get a fair opportunity to succeed in the workplace, the Ontario Hu-
man Rights Commission explains. But you don’t have to make accommodations that would impose “undue hardship.”
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Human Resources Professionals Association of Northwestern Ontario
Human Resources Professionals Association of Northwestern Ontario

HOW TO COMPLY
Here are some guidelines from the cases.
1. Changes Are More Problematic than Existing Policies
In BC or any other jurisdiction that follows Campbell River, the policy won’t be considered prima facie discriminatory unless
it’s a change in policy and is imposed by the employer unilaterally.
Example: Making a single dad work overtime was OK where the company’s overtime requirements weren’t a new policy and
the employee had worked overtime many times without objecting about his childcare situation. The fact that he chose to bring up the
issue now suggested that he had an ulterior motive such as dislike of the work, according to the BC Tribunal [Falardeau v. Ferguson
Moving, [2009 BCHRT 272, (CanLII), Aug. 11, 2009].
Existing policies may be more problematic than new ones even in jurisdictions that don’t follow Campbell River especially
when employees have accepted them without objection in the past and their childcare arrangements haven’t changed substantially in
the interim. Of course, new births or family demands that didn’t exist before could make it impossible for the employee to continue in
her previous schedule and prompt the demand for changes.
2. Special Needs Require More Flexibility than Ordinary Ones
Family-status discrimination is supposed to apply equally to all parents regardless of the kinds of needs their kids have. But
as a practical matter, courts expect employers to do more to accommodate employees whose kids have special needs.
Example: In the Nova Scotia CUPE case above, the arbitrator acknowledged that moving to Halifax would create some family compli-
cations. But the employee’s children weren’t disabled; they just wanted their dad to be at home with them each night. Employers
shouldn’t be forced to accommodate “individual employee preferences arising from everyday marital and family commitments,” the
arbitrator concluded.
3. You Don’t Have to Impose Hardship on Other Employees
The duty to accommodate one employee doesn’t require you to fire, demote or interfere with important rights of another.
According to the Supreme Court of Canada: Accommodating schedule changes doesn’t require “placing an additional stress on other
employees” or hiring additional staff the company can’t afford [Board of School Trustees, School District No. 23 (Central Okanagan)
and the Canadian Union of Public Employees v. Renaud (Renaud)], [1992] 2 S.C.R. 970, Sept. 24, 1992].
4. Accommodations Must Be Reasonable, Not Perfect
Employees can’t hold out for a Cadillac when a Chevy will suffice. Employees are entitled to reasonable accommodations, not
optimal ones.
Example: Although she already had daycare arrangements in place, an employee refused to return from maternity leave
unless she could get her kid into the daycare centre of her choice. The employer lost patience and fired her. The federal Human Rights
Tribunal found that accommodating the employee didn’t extend to meeting “her own personal preferences for daycare” [Wight v. On-
tario (Office of the Legislative Assembly), [1998] 33 C.H.R.R. D/191].
Parents don’t necessarily have final say on what caregiving arrangements are reasonable.
Example: In the Palik case from Saskatchewan above, a hockey mom made a decision: that taking her son to a hockey tourna-
ment for 2 days was so essential to his well-being that it was worth defying her employer’s orders to work those days. Morally, it might
have been the right decision; but it didn’t prevent the employer from firing her for disobeying its leave policy.
5. Parents Must Cooperate in Accommodation Attempts
Courts will dismiss the accommodation claim if they determine that the employee didn’t cooperate with the employer to find
a mutually acceptable solution.
Conclusion
The decision to work almost invariably entails some sacrifice of parental obligations. Protection from family discrimination
and the right to accommodation is not supposed to eliminate that sacrifice or ensure that working parents can be “just as good” as “full
-time parents.” Nor is it a licence for working parents to set aside the interests of their employers in favour of their kids. The sole point
of family discrimination laws is to ensure that parents who are prepared to sacrifice their caregiving obligations have the opportunity
to do so. Accommodations become necessary when the only way to ensure this opportunity is to force employers to show flexibility
with regard to scheduling and other employment policies.

The original story can be found at the following link :

http://www.hrcomplianceinsider.com/homepage/work-life-balance-accommodating-the-scheduling-needs-of-working-parents
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Human Resources Professionals Association of Northwestern Ontario

Upcoming Events

*NEW DATE*
SAVE THE DATE
Friday, May 13, 2011
Strategic Partners in Human Resources &
Business Conference 2011
Da Vinci Centre, 340 Waterloo Street S., Thunder Bay, Ontario
Hosted by Human Resources Professionals
of Northwestern Ontario (HRPANO)

Stakeholders from across the region will meet in Thunder Bay to explore, create and innovate around
strategic partnerships in human resources through a comprehensive, strategic, skill building and fun 1-day
conference program.
This year's conference promises to be a whole new experience. The program is being designed to
cater to variety of practitioners and sectors. We look forward to developing partnerships to sustain future ini-
tiatives and to build on the expertise and experiences of all who come to the table. The 2011 Strategic Part-
ners in Human Resources and Business aims to be a conference where practical applications will be shared;
best practices will be explained and developed; and future partnerships will be shaped.
Please stay tuned for more information on our exciting conference program for 2011. Don't miss out
on this regional conference where innovative partnerships will meet renowned northern hospitality.
www.hrpano.org
If you are interested in an exhibitor booth please e-mail:
Jeff Hebert: jeff.hebert@hrpanwontario.ca or