When Legal Strategy Crosses the Line: Family Status Accommodation Lessons from Marks v PepsiCo Canada

Imagine being fired because you can’t find childcare for an evening shift that ends at midnight.

Now imagine bringing a human rights claim — and your employer responding by calling your abusive ex-partner as a surprise witness, who then submits a video of you allegedly “cooking drugs” in your own kitchen.

That’s not a hypothetical. It’s the defence strategy that PepsiCo employed in a 2024 Nova Scotia Human Rights Board of Inquiry decision released last week — a strategy that, in my view, was both ethically troubling and deeply retraumatizing for the complainant.

The Family Status Case: Marks v PepsiCo Canada (2024 NSHRBOI)

The complainant, a single mother, alleged family status discrimination after losing her job when she couldn’t find childcare after being switched to an evening shift ending at midnight. PepsiCo denied the claim — but its defence tactics raised serious questions about fairness, proportionality, and ethics in human rights litigation.

1. The Surprise Witness: A Safety Violation

The complainant had previously obtained peace bonds against her ex-partner — clear evidence of legitimate fears for her safety, her child, and/or her property.

Although the most recent peace bond had expired by the time of the hearing, she had not seen or spoken to her ex in years. His sudden appearance as a witness ambushed her during the proceedings, causing understandable distress and impairing her ability to participate effectively.

The Board noted that this affected her cross-examination. And, applying a trauma- and violence-informed lens, I would add that the move likely retraumatized her as well — with impacts that extended far beyond the hearing itself.

2. The Drug Video: Irrelevant and Inflammatory

The employer also introduced a recording allegedly showing drug "cooking" and use, claiming it undermined the applicant’s credibility.

But the Board rightly dismissed this as irrelevant bad character evidence. The recording had no bearing on the real issues — whether the employee faced adverse treatment based on her family status, and whether PepsiCo fulfilled its duty to accommodate.

Its inclusion appeared designed not to clarify facts, but to embarrass and discredit the complainant in a public forum.

3. The Harm Beyond the Hearing

By eliciting an admission of “hard drug use” under oath — now recorded in a public decision — PepsiCo’s tactics risked long-term repercussions for the complainant, including her child custody arrangements.

The Board noted that fear of custody loss was something her ex had explicitly used as a threat — and which she feared throughout the hearing.

This approach raises fundamental questions about ethics in advocacy: when does a legitimate defence cross the line into re-victimization?

A Pattern: Two Cases, Two Strategies

This decision comes just weeks after another case involving a single mother working evening shifts — Bombardier v. Unifor — where the employer demanded deeply intrusive financial disclosures, including savings, debts, and discretionary spending, as part of a family status accommodation request.

Both cases reveal a concerning pattern: large employers usingadopting tactics that appear aimed less at defending on the merits and more at undermining or embarrassing the complainant. Whether intended to pressure settlement or discredit a witness, these strategies carry serious reputational and ethical risks.

Other Legal Takeaways from Marks v. PepsiCo

⚖️ 1. The Johnstone test rejected:The Board followed the Ontario and Alberta line of cases rejecting the stricter Johnstone test for family-status discrimination. Instead, it applied the same test used for all other protected grounds under human rights law.

⚖️ 2. Grounded in gender equity:The Board explicitly based this approach on gender equity principles, recognizing that stricter legal tests would disproportionately affect women.

⚖️ 3. Expanded interpretation of childcare barriers:The Board treated fear of losing custody as a reasonable basis for declining night shifts — broadening the typical analysis beyond mere childcare logistics.

Further Reading

• Marks v PepsiCo Canada (2024 NSHRBOI)

• Bombardier v Unifor (2025 ON LA)

Ready to Take Action?

I help employers navigate family status accommodation requests from a trauma- and violence-informed point of view. That means protecting your legal interests while ensuring equitable process for the employee. Please reach out to learn more. I'd love to work with you!