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Federal agents entitled to fixed shifts due to child care, appeal court rules

The Federal Court of Appeal has sided with a Pearson airport customs officer who was denied the fixed schedule she needed to work around child care.

On Friday, the court unanimously upheld an earlier Canadian Human Rights Tribunal decision which found the Canada Border Services Agency (CBSA) had discriminated against employee Fiona Johnstone based on her family status.

Johnstone had asked the CBSA for three fixed 13-hour shifts so she could arrange for daycare. Both she and her husband, also a customs officer, were required to be available for rotating shifts which could start at random times any day of the week.

Eventually she agreed to three 10-hour shifts per week — part-time hours — in line with CBSA policy.

“Despite accommodating the request of a set shift for other workers, who made the request based on religious or medical grounds, the CBSA refused to do so for Johnstone, on the basis that her decisions related to childcare are in the realm of personal choice,” said the Women’s Legal Education and Action Fund (LEAF), whose pro bono lawyers argued Johnstone’s case during the appeal.

“Evidence before the tribunal indicated that the CBSA could easily have accommodated her request (as they had for other employees) and that it would not have cost the employer any money to do so.”

Johnstone, who now lives in Ottawa, complained to the Canadian Human Rights Commission and the tribunal awarded damages for lost benefits and pension. After the Federal Court upheld that decision, the CBSA appealed.

The case, which only has bearing on federal agencies, could affect all employers if it goes to the Supreme Court of Canada.

Legal experts say the circumstances — both parents in the same job and with a highly unpredictable schedule — are rare. Also, parents would have to meet strict requirements and the onus would be on them to prove discrimination.

Still, LEAF has called the matter “a case of significant national importance for caregivers across Canada.”

“[We recognize] the profound lack of affordable, quality daycare in Canada as well as the challenges we all face in caring for our family members at all stages of life.”

With files from Amanda Ferguson

Johnstone v. Canada Border Services Agency