In Canada (Attorney General) v. Hicks, the Federal Court recently confirmed that the ground of family status in the Canadian Human Rights Act can protect eldercare responsibilities.
Mr. Hicks worked for the federal government in Nova Scotia. He was relocated to a new position in Ottawa when his previous position became redundant.
Mr. Hicks’ wife did not move with him, in part due to her mother’s serious health problems. While the mother’s health necessitated that she live in an assisted living apartment and eventually move to a full-care nursing home, Mr. Hicks’ wife still provided care to her mother, as third party caregivers could not adequately provide all necessary support (which included shopping, meal preparation, laundry, etc.). As a result, Mr. Hicks and his wife maintained dual residences after he was transferred to Ottawa.
At the time of his transfer, Mr. Hicks was offered relocation expenses via a formal offer letter, which read: “Relocation Expenses will be reimbursed at public expense according to the Treasury Board  Relocation Directive.” Under this Directive, Mr. Hicks made an expense claim for temporary dual residence assistance (TDRA). His claim was denied, however, because his mother-in-law did not reside with Mr. Hicks or his wife, and so was not considered a “dependent” under the Directive.
Mr. Hicks filed a complaint with the Canadian Human Rights Commission, alleging discrimination on the basis of family status and disability arising from his employer’s denial of payment of the TDRA.
The Tribunal found that the Directive’s definition of “dependent” created a distinction between persons that permanently resided with the employee and those that did not, and that that distinction was harmful to Mr. Hicks: it resulted in the denial of his TDRA claim, it made him feel as though his mother-in-law was not considered part of his family, and it created stress that resulted in physical health problems and a 40-day stress leave.
In considering whether this adverse distinction was based on Mr. Hicks’ family status, the Tribunal drew the following conclusions:
- Although family status is not defined in the Canadian Human Rights Act, the jurisprudence recognizes this ground as protective of: the absolute status of being or not being in a family relationship, the relative status of who one’s family members are, the particular circumstances or characteristics of one’s family, and the duties and obligations that may arise within the family. The ground of family status could thus be considered as protective of eldercare responsibilities;
- In the instant case, characteristics of Mr. Hicks’ family included his eldercare responsibilities toward his mother-in-law who, because of a permanent disability, could not live with him in the family home; and
- The denial of the TDRA benefit to Mr. Hicks was based on his above-noted family characteristics.
Therefore, the Tribunal concluded that there was a prima facie case of discrimination under the prohibited ground of family status, and that the employer had failed to meet its onus to establish a bona fide occupational requirement or that it had accommodated to the point of undue hardship. The Tribunal ordered damages in the amount of $15,000 for the pain and suffering experienced by Mr. Hicks as a result of the discriminatory practice, and $20,000 as a result of the employer’s reckless discriminatory practice.
On judicial review, the Court upheld the Tribunal’s decision and confirmed that eldercare is covered under the ground of family status as protected by the Act, stating as follows:
The prohibited ground of discrimination of family status should encompass the eldercare obligation because whose non-fulfillment can attract not only civil responsibility (Maintenance and Custody Act), but also criminal responsibility if not exercised properly (Peterson). Eldercare obligation is entrenched in Canadian societal values. It demonstrates the adult children’s responsibility to their elderly parents.
In light of a revised 2009 Directive that expanded the definition of “dependent” to include both a person “permanently residing with the employee” and “a person who resides outside the employee’s residence and for whom the employee has formally declared a responsibility for assistance and/or support”, the Court found the TDRA does intend to provide assistance to relocated employees irrespective of whether their dependant resides with them. Hence, it was reasonable for the Tribunal to conclude that the denial of the TDRA to Mr. Hicks constituted an under-inclusive benefit that justified a finding of discrimination.
Federal employers should thus note that the duty to accommodate under the Act now clearly encompasses eldercare accommodations. As in the present case, failure to accommodate will not be taken lightly by courts and tribunals, and may result in awards for damages. Therefore, when drafting benefits and accommodation policies, federal employers should be mindful of this decision and its interpretation of the ground of family status.
While this decision was made in accordance with federal human rights legislation, Ontario employers also have a well-established obligation to accommodate eldercare responsibilities. The decision in Hicks was in fact based in large part on the reasoning of the Human Rights Tribunal of Ontario in a 2012 eldercare accommodation case, Devaney v. ZRV Holdings.