Daigle Appeal Rejects Johnstone / Clarifies Family Status Discrimination

By: Sarah Coderre

Published: 18 June 2021

Pregnant woman under stress from employer.

In United Nurses Association v Alberta Health Services, 2021 ABCA 194 (called the “Daigle Appeal”), the Alberta Court of Appeal re-examined the test for discrimination on the basis of family status. The Daigle Appeal is a particularly important decision given the struggles that many parents have had over the pandemic with meeting their employment obligations and supervising their children who were participating in online school, or whose childcare facilities were closed due to the COVID-19 pandemic.

Prior to the Daigle Appeal, there had been some confusion in the law on the issue of whether parents had to show that they had taken proper steps to look for alternate childcare before establishing a case of discrimination. The Alberta Court of Appeal did not hold back, and it called out prior decisions that had provided incorrect criteria for assessing discrimination, which had resulted in unfairness and created further barriers to equality for parents (and women in particular, who are often tasked with responsibility for childcare).


Ms. Daigle was a Registered Nurse who worked in an emergency department in a major acute care facility in Alberta. She was married and had two young children when she was hired by Alberta Health Services. Her husband had a shift work schedule with his job, and one of their children was deaf and had additional caretaking needs as a result. When she was first hired, Ms. Daigle had worked what is known as a firefighter’s shift: four consecutive 12-hour shifts (two day shifts, followed by two night shifts), followed by four consecutive days off. Her husband’s shift work complemented her schedule, and so they were able to cover their shared caretaking responsibilities for their children without needing to pay for or retain external childcare.

About two years into Ms. Daigle’s employment, changes were made to the collective bargaining agreement that outlined the terms of her employment. One of the changes made was the transition of the shift schedule from four on/four off, to four on/five off. The extra day added into the shift cycle set Ms. Daigle’s shift in conflict with her husband’s, which created gaps in their childcare coverage on evenings and weekends. Ms. Daigle requested an exemption from the new shift schedule and asked to maintain her original shift schedule twice. Her requests were denied by AHS on the grounds that it was more convenient to have everyone on the same shift schedule. No steps were taken by AHS to explore possible accommodations for Ms. Daigle’s schedule. After exploring various childcare options, Ms. Daigle concluded that the four on/five off schedule would not work for her family, particularly as there was difficulty in finding reliable childcare on evenings and weekends, considering the additional needs of her deaf child. Ultimately, Ms. Daigle requested a transition from full-time hours to a casual position so that she could meet her childcare obligations. The United Nurses Association filed a grievance with AHS on her behalf.

The Test for Discrimination

The legal test for establishing discrimination was set out by the Supreme Court of Canada in Moore v British Columbia (Education), 2012 SCC 61 (“Moore”). The Supreme Court stated that in order for a complainant to establish discrimination, the complainant needs to establish on a balance of probabilities:

  1. That he/she had a protected characteristic under the relevant human rights legislation;
  2. That the complainant suffered an adverse impact; and
  3. That the complainant’s protected characteristic was a factor or was connected to the adverse impact that was experienced.

If the complainant can meet these criteria, then a prima facie case of discrimination will be established, and the burden of proof will shift to the respondent to show that their acts, policies, or practices were not discriminatory because they were unable to accommodate the complainant to the point of undue hardship. If the respondent cannot show that it would cause undue hardship to accommodate the complainant, then the case of discrimination stands and the complainant is entitled to damages for discrimination.

The Supreme Court further clarified in British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 (“Meiorin”) that while the respondent has the duty to accommodate the complainant up to the point of undue hardship, the process of accommodation requires involvement from both parties. The complainant will be required to provide the respondent with information about their characteristics that are in conflict with the respondent’s practice or policy in order to both parties to explore feasible solutions. In cases where the protected characteristic is family status, this will necessarily involve the complainant providing information regarding their childcare situation, and the respondent exploring possible options for accommodation with them.

Daigle Appeal Case History

When Ms. Daigle’s grievance came before the Arbitration Board, the Board did not use the test from Moore to assess whether the changes to the collective bargaining agreement were discriminatory. Instead, the Board applied a modified test that had been used by the Federal Court of Appeal in Canada (Attorney General) v Johnstone, 2014 FCA 110 (“Johnstone”). In Johnstone, the Federal Court of Appeal considered whether a complainant had been discriminated against on the basis of family status due to impacts that the respondent’s policies had on the complainant’s ability to maintain their employment while meeting their childcare responsibilities. In addition to the criteria outlined in Moore, the Federal Court of Appeal added on a fourth criterion in Johnstone: that the complainant needed to demonstrate that they had sought out reasonable alternative childcare arrangements unsuccessfully and remained unable to meet their childcare obligations, in order to establish discrimination. The Federal Court of Appeal reasoned that if the complainant could not show that they had looked for reasonable alternative childcare, then there was no discrimination, and instead the inability to balance work and childcare obligations was a matter of choice for the complainant.

Applying the Johnstone decision to Ms. Daigle’s case, the majority of the Board held that no discrimination had occurred because Ms. Daigle had not taken reasonable steps to look for alternative childcare; she had essentially given up without turning over every stone, and AHS had no obligation to accommodate her because any hardship she and her family were experiencing over the change in schedule was essentially self-inflicted so there was no discrimination. One lone Board member (notably, a female Board member) dissented from the majority, as she found that the Moore test was the correct test, not Johnstone. The dissenting Board member held that in applying the Moore test to Ms. Daigle’s case it was clear Ms. Daigle had been discriminated against, and there was no evidence that AHS had tried to accommodate her at all.

Understandably, UNA requested that the Board’s decision be judicially reviewed by the Alberta Court of Queen’s Bench. At the Court of Queen’s Bench, the reviewing Justice found that the Board had erred in applying the Johnstone test to Ms. Daigle’s circumstances. The reviewing Justice held that the Moore test should have been applied in Ms. Daigle’s grievance arbitration, and they referred the matter back to the Arbitration Board for re-consideration.

AHS appealed the Court of Queen’s Bench’s ruling to the Alberta Court of Appeal.

Daigle at Alberta Court of Appeal

The Alberta Court of Appeal upheld the decision of the Court of Queen’s Bench. The Court of Appeal clearly, and bluntly, stated that the test outlined in Johnstone was incorrect. The fourth criterion that had been added by the Federal Court of Appeal was not supported in the Moore decision, and the Court of Appeal held that by adding on that additional criterion, the Federal Court of Appeal had improperly shifted the burden on accommodation from the respondent to the complainant. By requiring a complainant to show that they had taken reasonable steps to accommodate or work around a practice or policy that was creating an adverse impact, the Johnstone decision allowed employers whose policies were otherwise discriminatory to be let off the hook. The Court of Appeal held that not only was that a repugnant result from a public policy perspective, but it was just plainly wrong in law.

The Alberta Court of Appeal further clarified that the only stage in which possible accommodations should be considered is in the second stage of the Moore analysis, when the burden shifts to the employer to show that it cannot accommodate the employee to the point of undue hardship. The argument from Johnstone that finding alternative childcare arrangements was “choice” for an employee was also rejected by the Alberta Court of Appeal, and it stated as follows:

[72] […] when one has a child or children and is employed, not only is childcare not a “true choice”, but choice is irrelevant to the question of discrimination.

What You Need to Know From Daigle Appeal

The Daigle Appeal is important because it clarifies and affirms that there is only one test for establishing discrimination under the law in Canada. When an employee believes that he or she is being discriminated against because they have childcare conflicts with their work schedule or work duties, as Ms. Daigle had, it is understandable that they will probably want to take steps to resolve the problem on their own and work around their employer’s discriminatory policies or practices before making a complaint.

However, as the Court of Appeal pointed out in the Daigle Appeal, an employee does not need to prove that their own efforts at working around the problem have failed in order to establish a prima facie case of discrimination. The Moore test is the correct test, and what the employee can reasonably do or may try to do to resolve the conflict between their work duties and childcare responsibilities is irrelevant to the issue of whether the employee has been discriminated against. Possible options for accommodation is only something to consider after a case for discrimination has been established on the three-part test from Moore, when the burden shifts to the employer to rebut the presumption that its policy or practice is discriminatory by showing that it cannot accommodate the employee to the point of undue hardship.

The Daigle Appeal can be found at the following link on CanLii: https://www.canlii.org/en/ab/abca/doc/2021/2021abca194/2021abca194.html?autocompleteStr=2021%20ABCA%20194&autocompletePos=1