Executive Summary: Key Legal and Evidentiary Issues

• Two unionized employees filed grievances in 2022 alleging that EPCOR Utilities Inc. discriminated against them on the basis of family status by refusing to accommodate their childcare needs following a change in work location and hours.
   
• An arbitration tribunal allowed the grievances on November 14, 2024, finding that the employees had established prima facie discrimination based on family status.
   
• The Alberta Labour Relations Board dismissed the Employer's application for review on March 27, 2026, finding the arbitration award reasonable and declining to address whether a "materiality" threshold applies to the prima facie test in family status cases.
   
• EPCOR sought permission to appeal to the Alberta Court of Appeal, arguing that the prima facie discrimination test in family status cases should include a "materiality" threshold for adverse impact.
   
• Settled Alberta law, confirmed in United Nurses of Alberta v Alberta Health Services (2021 ABCA 194), applies the uniform three-part Moore framework to all discrimination claims, with no additional qualifiers unique to family status.
   
• Permission to appeal was denied because the proposed question lacked prima facie merit and was not significant to the practice of law in Alberta.

Facts of the case

EPCOR Utilities Inc. (the "Employer") and the International Brotherhood of Electrical Workers, Local 1007 (the "Union") are parties to a collective agreement. In 2022, the Union filed two grievances on behalf of two unionized employees, both married with children between the ages of 4 and 10. Prior to October 2022, the employees' children walked home after school and remained alone for approximately 15 minutes before the employees arrived home from work. Neither employee had requested a formal accommodation during that period, though both expressed unhappiness with the arrangement.

In August 2022, the Employer informed the employees that as of October 2022 they would be reassigned to a different work location with slightly different hours. The combined effect of the new location, changed hours, and a change in the children's school schedules meant the children would now be required to walk home and remain alone for roughly half an hour after school. In September 2022, both employees requested accommodations for childcare reasons. The Employer declined those requests, stating the need for accommodation had not been substantiated. The Union then initiated grievances on behalf of the employees based on the Employer's refusal to accommodate.

Arbitration award and board review

A grievance hearing was held, and on November 14, 2024, an arbitration tribunal issued an award allowing both grievances. The tribunal found that the employees had established prima facie discrimination on the basis of family status resulting from the changes in work location and scheduled hours of work that occurred in October 2022 (Epcor Utilities Inc v International Brotherhood of Electrical Workers, Local No 1007, 2024 CanLII 119276 (AB GAA)). The Employer then applied to the Alberta Labour Relations Board for review. On March 27, 2026, the Board found the arbitration award was reasonable and dismissed the application. The Board declined to address whether the legal test for prima facie discrimination in family status cases includes a requirement to consider the "materiality" of a claimed adverse impact (EPCOR Utilities Inc v International Brotherhood of Electrical Workers, Local 1007, 2026 ALRB 44 (CanLII)).

Legal framework and issues on appeal

The Employer sought permission to appeal the Board's decision to the Alberta Court of Appeal under s. 145.1(1) of the Labour Relations Code, RSA 2000, c L-1, which provides that an appeal lies from a decision of the Board on a question of jurisdiction or law after permission has been obtained. The proposed question on appeal was whether the accepted legal test for prima facie discrimination in family status cases includes adopting a "materiality" threshold to assess whether an adverse impact has been suffered by a complainant.

Reasoning and analysis

Justice Feth considered whether the proposed question merited review by a panel of the Court of Appeal, applying the four-factor test from United Food and Commercial Workers Union, Local No 401 v Sofina Foods Inc, 2019 ABCA 418: (i) significance to the practice; (ii) significance to the action; (iii) prima facie merit; and (iv) whether the appeal would unduly hinder the underlying action.

The Court held that the requirements for prima facie discrimination have been definitively settled by the Supreme Court of Canada in Moore v British Columbia (Education), 2012 SCC 61. Under the Moore framework, a complainant must show: (i) they have a protected characteristic; (ii) they experienced an adverse impact on account of the challenged norm; and (iii) the protected characteristic was a factor in the adverse impact. This Court had already confirmed in United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194, that the Moore framework applies uniformly to all discrimination claims in Alberta, without modifications or additional burdens unique to family status claims. No "materiality" threshold applies when determining whether an adverse impact has been suffered by a family status claimant.

The Court further reasoned that imposing a materiality component — whether as a modification to an existing Moore element or as an additional requirement — would constitute an "evidentiary embellishment" that holds family status claimants to a higher standard than complainants under other protected grounds. Such an approach was expressly rejected in United Nurses, which directed that the debate on this issue "must end." The Employer's argument that developments in British Columbia jurisprudence — specifically British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd, 2023 BCCA 168 — warranted revisiting the issue was rejected; Alberta had already considered and rejected the British Columbia approach when deciding United Nurses.

Ruling and outcome

The Court found that the Employer had not met the test for permission to appeal. Because the proposed question lacked prima facie merit and was not significant to the practice of law in Alberta, permission to appeal was denied. The decision of the Alberta Labour Relations Board — dismissing the Employer's application for review and affirming the arbitration award in favour of the employees — accordingly stands. No monetary award was ordered in this proceeding; the underlying arbitration award is not quantified in the decision before the Court.