Family Status Discrimination: Tribunal Rejects Johnstone Test

The Human Rights Tribunal of Ontario’s recent decision in Misetich v. Value Village is precedent setting. In this decision, the Tribunal confirmed that the Federal Court of Appeal’s decision in Johnstone v. Canada Border Services – which set out a four-part test to establish discrimination on the basis of family status– will not be applied by the Tribunal. 

The Tribunal confirmed that the test for discrimination is the same in all cases. An applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment.

The Tribunal also confirmed that the assessment of whether an applicant had made reasonable efforts to meet family status obligations by seeking out reasonable alternative solutions conflates the test for discrimination with the test for accommodation. In order to prove family status discrimination, an applicant is not required to self-accommodate