Date Issued: September 27, 2024

File: CS-001216

Indexed as: Obsniuk v. Greater Victoria Public Library Board, 2024 BCHRT 276

2024 BCHRT 276 (CanLII)

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before

the British Columbia Human Rights Tribunal

BETWEEN:

Tracy Obsniuk

COMPLAINANT

AND:

Greater Victoria Public Library Board

RESPONDENT

REASONS FOR DECISION

APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)

Tribunal Member: Theressa Etmanski

On their own behalf: Tracy Obsniuk

Counsel for the Respondent: S. Michelle Blendell

I INTRODUCTION

Tracy Obsniuk alleges that the Greater Victoria Public Library Board [Library]
discriminated against her in the area of employment on the ground of family status, contrary to

2024 BCHRT 276 (CanLII)

s. 13 of the Human Rights Code [Code]. Specifically, she alleges that the Library changed her
shift schedule in a manner that interfered with her childcare obligations, and refused to provide
her with reasonable accommodation.

The Library denies discriminating and applies to dismiss the complaint under s. 27(1)(c)
of the Code. They argue that Ms. Obsniuk’s complaint has no reasonable prospect of success
because she has not demonstrated that the new standardized schedule caused a substantial
interference with her parental obligations, and they therefore did not owe her a duty to
accommodate. In the alternative, they say that if there was a duty to accommodate, they met
that duty by allowing the complainant to take leave to fulfill her childcare obligations over a
sufficient period that she could have made alternative arrangements. They say Ms. Obsniuk has
not demonstrated that she made sufficient efforts to find alternative childcare during this time.

Ms. Obsniuk disagrees that the schedule change did not cause a substantial interference
with her parental obligations. She says she exhausted all efforts to find alternative childcare,
and the options offered to her by the Library were not reasonable in the circumstances.

To decide this application, the issues I need to decide are:

a. Did the Library cause an adverse impact to Ms. Obsniuk that rose to the level of a
serious interference with a substantial family duty or obligation?

b. Would it have caused the Library undue hardship to allow the complainant to
work a modified schedule? And,

c. Was the interim plan offered to the complainant a reasonable accommodation in

the circumstances?

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 For the following reasons, I deny this application. To make this decision, I have
considered all the information filed by the parties. In these reasons, I only refer to what is
necessary to explain my decision.

2024 BCHRT 276 (CanLII)

II BACKGROUND

The following information is taken from the materials provided by the parties. I make no
findings of fact.

Ms. Obsniuk is employed by the Library as a Library Assistant. The branch of the Library
where she works is open from 10 a.m. to 6 p.m. on Mondays, Wednesdays, Fridays and
Saturdays, and 10 a.m. to 7 p.m. on Tuesdays and Thursdays.

During the relevant period of this complaint, Ms. Obsniuk had a five-year old child who
attended afterschool care. She is the sole legal guardian for her child.

On April 29, 2019, the Library implemented a standardized schedule for staff working in
library services. As a result, Ms. Obsniuk’s schedule changed from 9 a.m. to 5 p.m., Tuesday to
Saturday, to 10 a.m. to 6 p.m. the same days.

Prior to the implementation of the standardized schedule, Ms. Obsniuk discussed the
issues that the change in her working hours would have on her childcare obligations with the
Library. She provided information about the last pick-up times for her child’s afterschool care
(5:45 p.m. or 6 p.m., depending on the day) and seasonal camps (5:30 p.m.), and explained that
she would not be able to pick up her child on time with the new schedule. She also described
the availability of other family members who could help with childcare two out of her five
working days each week. She requested that her schedule be modified to 9:15 a.m. to 5:15
p.m., which would allow her to pick up her child before the childcare centre closed. The Library
denied this request.

Instead, the Library offered Ms. Obsniuk an “interim plan’, in which she would be
permitted to leave work early on the days she had to pick up her child. This arrangement was

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initially offered to her for three months, with the expectation that she make alternative
childcare arrangements following that time period.

In June 2019, the Library and Ms. Obsniuk met to discuss her schedule. Ms. Obsniuk

2024 BCHRT 276 (CanLII)

provided information about the efforts she had made to find alternative afterschool care for
her child but explained that there were no options that would be open past 6 p.m. The Library
told her that the she could continue to leave early without pay to pick up her child until
September 2019, or the complainant could also use vacation time for this purpose.

The Library and Ms. Obsniuk next met in November 2019 to discuss her schedule. She
says she reiterated the efforts she had made to find childcare facilities that were open past 6
p.m. She says she informed the Library that the stress accompanying her change of schedule
was negatively impacting her health. At the end of the meeting, Ms. Obsniuk says the Library
said they would meet again in January 2020 to discuss the next steps.

Ms. Obsniuk went on medical leave from December 19, 2019, to January 8, 2020. She
states this was in part due to the stress caused by the change in her work schedule and the
impact it had on her childcare obligations.

On January 10, 2020, Ms. Obsniuk and the Library had another meeting to discuss her
schedule. The Library presented the complainant with three options moving forward: (1) stay in
her permanent Library Assistant position and work the standardized schedule; (2) resign from
her current position and accept an on-call Circulation Assistant position; or (3) take a two-
month unpaid leave to make alternative childcare arrangements. The Library informed Ms.
Obsniuk that after two months she would no longer be permitted to use unpaid leave or
vacation time to modify her schedule. Ms. Obsniuk selected to stay in her current position and
work the standardized schedule.

The Library closed from March 17, 2020, to June 26, 2020, due to the COVID-19
pandemic.

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 The parties agree that Ms. Obsniuk continued to have occasional conflict between her
work schedule and childcare obligations following the re-opening of the Library in June 2020;
however, those issues are beyond the temporal scope of this complaint.

2024 BCHRT 276 (CanLII)

Sometime in 2020, Ms. Obsniuk’s common-law partner secured new employment which
allows him to assist her with her childcare obligations. She appears to no longer require a
modified work schedule.

III DECISION

Section 27(1)(c) – No reasonable prospect of success

The Library applies to dismiss Ms. Obsniuk’s complaint on the basis that it has no
reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Library to establish the
basis for dismissal.

Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to
remove complaints which do not warrant the time and expense of a hearing.

The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks
at the evidence to decide whether “there is no reasonable prospect that findings of fact that
would support the complaint could be made on a balance of probabilities after a full hearing of
the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at
para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the
materials filed by the parties, and not on speculation about what evidence may be filed at the
hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.

A dismissal application is not the same as a hearing: Lord v. Fraser Health

Authority, 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2
SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal
application, a complainant does not have to prove their complaint or show the Tribunal all the
evidence they may introduce at a hearing. They only have to show that the evidence takes their

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complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011
BCCA 49 at para. 27.

Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient

2024 BCHRT 276 (CanLII)

reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC
1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint
must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.

To prove their complaint at a hearing, Ms. Obsniuk will have to prove that she has a
characteristic protected by the Code, she was adversely impacted in her employment, and her
protected characteristic was a factor in the adverse impact: Moore v. British Columbia
(Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Library to
justify the impact as a bona fide occupational requirement. If the impact is justified, there is no
discrimination.

The Library says Ms. Obsniuk has no reasonable prospect of successfully proving that
she experienced an impact in employment that was serious enough to invoke the protection of
the Code. In the alternative, the Library says Ms. Obsniuk has no reasonable prospect of
success because they will be able to establish that the standardized schedule is a bona fide
occupational requirement.

For the following reasons, I am not persuaded that the Library has established that Ms.
Obsniuk has no reasonable prospect of success should the complaint go to a hearing on the
merits.

The first element of Moore requires that the complainant have the protected
characteristic of family status. There is no issue that a person with family caregiving
responsibilities has a “family status”. However, the protection from family status discrimination
is not about all family caregiving, but rather about “substantial” family duties or obligations:
British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 [Gibraltar] at
para. 101. Whether the nature of the responsibility or interest at issue falls within the scope of
family status is a question of fact. The definition is meant to be flexible and developed on a

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case-by-case basis depending on the facts of a given case: Gibraltar at para. 91. Whether
particular conduct amounts to discrimination on the basis of family status will depend on the
particular circumstances of each case: Health Services Assn. of British Columbia v. Campbell
River and North Island Transition Society, 2004 BCCA 260 [Campbell River] at para. 39.

2024 BCHRT 276 (CanLII)

“Substantial” family duties or obligations does not mean that only “out of the ordinary”
situations are protected under the Code. This would be inconsistent with a large and liberal
interpretation of the Code, as well as the principle recognized in Gibraltar that “the
discrimination inquiry is concerned with the impact of the employment term on the employee”
(at para. 73), not with how commonplace that impact might be. Further, the Moore test
requires a discriminatory impact, not an “out of the ordinary” impact.

In this case, Ms. Obsniuk’s family care responsibilities are about care for her young child
while she is at work. Childcare is a substantial obligation where the child’s safety and well-being
are at stake. The Library has not advanced any arguments to the contrary. In these
circumstances, I am not persuaded that there is no reasonable prospect that Ms. Obsniuk will
be able to prove that her family status was engaged in this complaint.

The second step of the Moore test requires consideration of whether the employee has
experienced an adverse impact. In the context of family status discrimination, that impact must
be one that results in a serious interference with a substantial family duty or obligation:
Gibraltar at paras. 96 and 101. Assessing whether an adverse impact is serious requires a
contextual analysis. This may include consideration of the nature of the impact on the
protected interest or family duty or obligation, as well as the nature of the impact on the
employee’s work or their ability to fully, and with dignity, access employment.

Here, Ms. Obsniuk argues that the Library caused her an adverse impact when it
changed her work schedule by one hour, which interfered with her ability to pick up her child
from after school care. She says the Library refused her request of a modified schedule as an
accommodation, and instead she says the Library required her to take time off without pay or
vacation leave for any time she had to leave early to pick up her child. Eventually, she says the

6
Library said she had to decide between working her assigned shift, taking a two-month leave of
absence to find suitable child care, or accepting an auxiliary circulation assistant position with
lower pay and no guaranteed shifts. Ms. Obsniuk says the Tribunal could find at a hearing that
this constitutes a serious interference with a substantial parental obligation.

2024 BCHRT 276 (CanLII)

The Library agrees that it provided Ms. Obsniuk with these options, but says the
negative impacts on her parental obligations stemming from this conduct do not rise to the
level of a serious interference with a substantial parental obligation.

The Library says that only changes to the terms and conditions of employment that
result in a serious interference with a substantial parental or other family duty or obligation can
amount to discrimination: Campbell River para. 39; Envirocon Environmental Services ULC v.
Suen, 2019 BCCA 46, at paras. 22, 25 and 30. The Library argues that a complainant must make
significant attempts to arrange childcare before the Tribunal will find a serious interference
with a substantial parental obligation in cases where there is a conflict between an employee’s
hours of work and their ability to provide care for their child. The Library notes that the Tribunal
has previously dismissed complaints where complainants have made insufficient attempts to
arrange childcare when the employer has required them to work hours that negatively
impacted their ability to care for their children: Evans v. University of British Columbia, 2007
BCHRT 348 at para. 32; Sawchuck v. Hastings Entertainment Inc., 2009 BCHRT 407; Goa v.
Minco Mining and Minerals Corp., 2010 BCHRT 204 at para. 63; Ziegler v. Pacific Blue Cross,
2020 BCHRT 125 at paras. 66-68.

In this case, the Library says that Ms. Obsniuk will not be able to establish a serious
interference with a substantial parental duty, as she did not investigate all of the options
available to her to arrange for childcare to enable her to work the hours the Library set for her.
For example, she did not contact any licensed “Family Child Care” programs or investigate the
option of hiring a babysitter or nanny to pick up her child from after school care. Further, the
Library says the evidence presented to them by Ms. Obsniuk shows that she did not conduct an
ongoing search for alternative childcare arrangements. Rather, she seems to have conducted a
search between April and June 2019, but had not continued to search past that time period.

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The Library says this shows that Ms. Obsniuk was insisting on maintaining her preferred and
existing childcare arrangements, without conducting an adequate search for alternatives.

Ms. Obsniuk denies that the Library was not aware that she was conducting ongoing

2024 BCHRT 276 (CanLII)

searches for alternative childcare. In particular, she says she presented evidence in November
2019 that her common-law partner was seeking alternative employment which would allow
him to provide the care required, as the other options were not open late enough to
accommodate her new schedule. She further says that the alternative options suggested by the
Library were not feasible in her particular circumstances.

I am mindful that the BC Court of Appeal issued its decision in Gibraltar after the parties
provided their submissions on this application. Gibraltar has had a significant impact on how
the legal test for proving family status discrimination related to childcare responsibilities in the
employment context is understood. It clarified some elements of the legal test set out in
Campbell River. Of note, the Court in Gibraltar held at para. 74 that a complainant does not
need to prove that an employer changed a term or condition of employment to prove family
status discrimination regarding family caregiving responsibilities. Rather, the question is
whether the complainant experienced an adverse impact which results in “real disadvantage”
to parental responsibilities and impacts the parent/child relationship in a “significant” way. For
example, “a workplace rule may be discriminatory if it puts the employee in the position of
having to choose between working and caregiving or if it negatively impacts the parent/child
relationship and the responsibilities that flow from that relationship in a significant way”:
Misetich v. Value Village Stores Inc., 2016 HRTO 1229 at para. 54 as cited in Gibraltar at para.
97.

In consideration of the principles articulated in Gibraltar, I am not persuaded that Ms.

Obsniuk has no reasonable prospect of establishing that the requirement that she take unpaid
leave or use vacation benefits to ensure that her child was picked up before the childcare
centre closed was not a real disadvantage that affected her parental responsibilities in a
significant way. As mentioned, childcare, or lack there of, may engage the safety of the child,
and Ms. Obsniuk’s child was still young at the time of these events. I am also not persuaded

8
that Ms. Obsniuk must demonstrate that she took all reasonable steps to avoid that adverse
impact to meet the second element of Moore; although this factor may be relevant later in an
accommodation analysis. An approach that places an undue burden on parents is inconsistent
with the Moore framework as set out in Gibraltar at paras. 60-61.

2024 BCHRT 276 (CanLII)

To satisfy the third step of the Moore test, Ms. Obsniuk must show that her protected
characteristic was a factor in the adverse impact she experienced. The Library has not argued
that she will not be able to do so.

For these reasons, I am not persuaded that there is no reasonable prospect that Ms.
Obsniuk will be able to prove her complaint at a hearing.

If Ms. Obsniuk does succeed in establishing her case, the burden will shift to the Library
to show that the complaint has no reasonable prospect of success because they are reasonably
certain to prove a defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117
at para. 50.

To justify the adverse impacts at a hearing, the Library would have to prove that: (1)
they adopted the standardized schedule for a purpose rationally connected to the function
being performed, (2) they adopted the standard in an honest and good faith belief that it was
necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably
necessary to the accomplishment of that legitimate purpose. This third element encompasses
their duty to accommodate Ms. Obsniuk to the point of undue hardship: British Columbia
(Public Service Employee Relations Commission) v. British Columbia Government and Service
Employees' Union (Meiorin Grievance), [1999] 3 SCR 3 [Meiorin] at para. 54.

Based on the information before me, even if the Library were to establish the first two
elements of the Meiorin test, I am not satisfied at this stage that they are reasonably certain to
establish that they considered all reasonable options to accommodate Ms. Obsniuk to the point
of undue hardship.

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 The Library says the complainant’s preferred accommodation of a modified schedule
would have caused the Library undue hardship as she would have started work at 9:15 a.m., 45
minutes before the Library opened, when there was no work for her to do. The Library says the
duty to accommodate did not require the Library to assign the complainant hours of work that

2024 BCHRT 276 (CanLII)

did not correspond to the periods for which it required work to be done, or to pay her for
periods of time in which there was no work to be done. They say there is no obligation on an
employer to accommodate an employee by “making work”, such as assigning unproductive
work of no value: Klewchuk v. Burnaby (City), 2020 BCHRT 97, at paras. 55-56; Kelly v. Saputo
Dairy Products Canada, 2017 BCHRT 225 at paras. 161-162. The Library says the standardized
schedule is reasonably necessary for the purpose of improving service to its patrons, as the role
of the Library Assistant is to provide in-person customer service and programming. The Library
says it would have caused undue hardship to require it to pay the complainant for time when
there were no public facing duties to perform.

Ms. Obsniuk has provided information that contradicts the Library’s description of the
work performed by Library Assistants, and says that there was meaningful work she could
perform before opening hours. First, she says that around 2016, she was given an office to work
in, away from the public, alongside the librarians where she prepares programs, orders
Interlibrary loans, assists the librarians and liaises with community partners along with other
duties. She says she can go days without having “in-person face-to-face” patron interaction
outside the programs she delivers.

Next, Ms. Obsniuk disputes that a Library Assistant’s job is only to provide customer
service to Library patrons in person. She says the Library’s statements fail to address that
services are delivered through various means such as virtual reference, email and telephone, as
outlined in the Library Assistant Job Description. She says these tasks, among others, can be
carried out before opening hours. Further, she says that before the implementation of the
standardized schedule, staff including herself were scheduled to work an hour before opening
and there was always work to do. In addition, when the Library re-opened from the COVID-19
closure, staff worked from 9 a.m. to 5 p.m., even though the Library was only open from 11

10
a.m. to 4 p.m. Ms. Obsniuk says this demonstrates that her work is not contingent on the
library being open, and allowing her to start 45 minutes early would not have negatively
effected service to the public.

2024 BCHRT 276 (CanLII)

Finally, she says that the Library never arranged to cover for her despite knowing
months in advance that she would be leaving work before 6 p.m. to pick up her child. She
further says that her position is never covered when she takes vacation time or statutory day in
lieu entitlements. This suggests that it was not necessary for her to stay until the end of the
standardized schedule each day.

I am unable to make the necessary findings of fact to resolve this conflicting information
on this preliminary application. This conflict goes to a fundamental issue of whether it would
have caused the Library undue hardship to allow the complainant to work 45 minutes before
the Library opened to the public.

I am also not persuaded on the information before me that the Library is reasonably
certain to show that it met its duty to accommodate the complainant to the point of undue
hardship by providing her with the ability to leave work early without pay, or to use paid
vacation leave through the “interim plan”. The Library says it gave Ms. Obsniuk nearly one year
to arrange alternative childcare that would permit her to work the standardized schedule;
however, she did not avail herself of that opportunity and instead demanded that she be
granted her preferred accommodation, the long-term alteration of her hours of work. In
contrast, Ms. Obsniuk’s evidence is that there were no alternative childcare options available
that would meet her needs, and she presented proof to the Library that she had exhausted all
alternatives. Ultimately, she says her common-law partner was required to leave a job that that
he had held for over a decade in order to provide necessary childcare, as the Library decided it
would no longer allow Ms. Obsniuk to leave her scheduled shift early to do so.

The Library correctly says that complainants are not entitled to their ideal or perfect
accommodation. Rather, they must accept reasonable accommodation proposed by their

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employers: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970. What is
reasonable will turn on the specific circumstances of a particular case.

In these circumstances, I am not persuaded that the Library is reasonably certain to

2024 BCHRT 276 (CanLII)

show that Ms. Obsniuk was insisting on perfect accommodation when reasonable
accommodation was available. Specifically, on the record before me, I am not persuaded that
the Library is reasonably certain to prove that the accommodation it offered the complainant
was reasonable. Ms. Obsniuk was regularly required to take unpaid leave, or to use her
vacation benefits, to meet her childcare obligations. There is evidence before me that Ms.
Obsniuk informed the Library that this would cause her significant financial hardship. The
Library appears to have refused her request for a modified schedule on the assumption that she
would be able to find alternative childcare arrangements if sufficient time was provided.
However, I am not persuaded on the evidence that such an assumption was reasonable in the
circumstances, considering the information Ms. Obsniuk provided to them about her
unsuccessful efforts to seek out alternative arrangements. It is not apparent what
consideration, if any, the Library gave to Ms. Obsniuk’s evidence that she had exhausted all
alternative options. The Library relies on the fact that Ms. Obsniuk did not contact any licensed
“Family Child Care” programs as alternative care options, however they have not provided
evidence that these were viable alternatives at the time. Ms. Obsniuk says her understanding
was that these facilities did not service the school her child attended.

While a modified schedule may have been Ms. Obsniuk’s preferred accommodation, I
am not persuaded that the Library is reasonably certain to prove that they considered this
option in light of the complainant’s individual circumstances, or that this option was not
reasonable or appropriate. I am not persuaded on the evidence that the Library is reasonably
certain to prove that Ms. Obsniuk’s proposed modified schedule would have caused the Library
undue hardship.

Finally, I note that the evidence before me indicates that the Library was working under
the mistaken opinion that in order for a duty to accommodate to arise with respect to Ms.
Obsniuk’s childcare obligations, her child must have had a health issue that required

12
accommodation. As discussed above, there is no such requirement to engage family status
protection under the Code.

In these circumstances, I am not persuaded that the Library has established that it is

2024 BCHRT 276 (CanLII)

reasonably certain to prove that the standardized schedule was a bona fide occupational
requirement.

IV CONCLUSION

The Library’s application is denied. The complaint will proceed to a hearing.

I encourage the parties to make use of the Tribunal’s mediation services to try to resolve
this complaint.

Theressa Etmanski
Tribunal Member

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