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Legal Developments in Human Resources Law

Appeal Court Confirms that Employer’s Financial Circumstances Not a Factor in Determining Reasonable Notice

Posted in Employment Law

Are an employer’s financial circumstances a relevant consideration in determining the period of reasonable notice to which a wrongfully dismissed employee is entitled?

This is the question the Court of Appeal for Ontario was asked to decide in Michela v. St. Thomas of Villanova Catholic School, where the motion judge had reduced damages in lieu of reasonable notice owing to the plaintiff employees because of the poor financial position of their former employer. The Court answered the question in the negative – an employer’s financial circumstances are not a relevant consideration in calculating a reasonable notice period.

The three employees in this case were dismissed from employment as teachers with their employer, a school. Following the dismissal, the employees filed a claim for wrongful dismissal and sought damages for pay in lieu of reasonable notice. The employer initially took the position that the teachers were employed on fixed term contracts and were not entitled to reasonable notice.

The matter proceeded by way of summary judgment. The motion judge found the teachers were in fact employed for indefinite periods (a finding which was not appealed) and were therefore entitled to reasonable notice at common law. With respect to the appropriate notice period, the motion judge held that the poor financial circumstances of the employer was a component of the plaintiffs’ “character of employment” and therefore a relevant consideration in fixing the reasonable notice period. Accordingly, the notice periods were reduced from the plaintiffs’ proposed 12 months’ notice to 6 months.

The plaintiffs appealed and took that the position that the financial health of their former employer was irrelevant in determining the appropriate reasonable notice period. The Court of Appeal agreed. It confirmed the relevant factors in determining the reasonable notice period are those set out in Bardal, which focus on the circumstances of the employee, not the employer: age, years of service, the character of employment and the availability of similar employment.

The Court accepted that an employer’s financial circumstances may well be the reason for a termination and therefore the event which gives rise to an employee’s right to reasonable notice. However, financial circumstances are not relevant in determining what that notice period will be – “they justify neither a reduction in the notice period in bad times nor an increase when times are good.”

Because there has been some confusion in the case law with respect to the relevance of an employer’s financial situation on the calculation of the notice period, the Court stated:

[22]                It is important to emphasize, then, that an employer’s poor economic circumstances do not justify a reduction of the notice period to which an employee is otherwise entitled having regard to the Bardal factors. […]

[23]                 Thus, even assuming that the respondent was suffering financial difficulties when it dismissed the appellants, the motion judge erred in concluding that the period of notice to which the appellants were entitled should be reduced as a result. That conclusion is neither required by the case law nor consistent with the nature and purpose of an employee’s right to notice.

With this decision, the Court has clarified any prior uncertainty in the case law as to whether an employer’s financial circumstances are an appropriate consideration in the reasonable notice analysis: they are not.


Appeal Court Decision Underscores Importance of Clear Terms of Hire at Outset

Posted in Employment Law

In a recent decision, Holland v. Hostopia.com. Inc., the Court of Appeal for Ontario found that a termination provision in an employment agreement purporting to limit the appellant’s entitlements upon termination of employment to the statutory minimums under the Employment Standards Act, 2000 (“ESA”) was unenforceable due to lack of consideration.

The appellant had commenced employment with the respondent pursuant to an offer letter. That letter did not contain a termination provision; however, it stated that the appellant would be required to sign a separate employment agreement. Nine months later, the appellant was presented with and signed an employment agreement which contained a termination provision purporting to limit his entitlements upon termination to the statutory minimums. In addition, the employment agreement purported to increase the duration of the non-competition and non-solicitation provisions, which had been outlined in a Code of Business Conduct and Proprietary Rights Agreement that had been presented to the appellant nine months earlier. The appellant was terminated from his employment with the respondent after seven years’ service, found similar work three months later and sued for wrongful dismissal.

The Court of Appeal found that the employee received no consideration for signing the employment agreement, and therefore that it was unenforceable. It found that the trial judge’s conclusion that the offer letter and employment agreement together formed one contract was incorrect. The Court held instead that the employment agreement contained a term inconsistent with the offer letter – namely the amount of reasonable notice (or pay in lieu) that would be provided upon termination of employment. Given that the two documents were inconsistent in at least this respect, they could not be considered one contract:

[49]    […]     [T]he two documents were not consistent. They differed in at least one very material respect. Once accepted, the Offer Letter constituted a complete contract of employment. The appellant was employed pursuant to the Offer Letter for some nine months before he signed the Employment Agreement. It was an implied term of the Offer Letter that he was entitled to reasonable notice prior to the termination of his employment […]

[50]    […]     Instead of providing for reasonable notice, [the Employment Agreement] limited the appellant’s entitlement to notice of termination to the statutory minimum set out in the ESA. There was no evidence of any discussion of the subject prior to the appellant’s acceptance of the Offer Letter, no evidence that he was told that the Employment Agreement would contain terms inconsistent with the Offer Letter and no evidence that he agreed to waive his right to reasonable notice of termination when he signed the Offer Letter. Accordingly, the Employment Agreement introduced a new, very material term, into the existing contract of employment – a term to which the appellant had not previously consented and for which he received no consideration.

The Court concluded that, having failed to provide the appellant with fresh consideration for signing the employment agreement, the employer could not rely upon the termination provision contained in it. In other words, the implied term of reasonable notice in the offer letter could not be displaced without the employer providing something of benefit to the appellant in exchange for him signing the employment agreement.

This case serves as an important reminder to employers that, when hiring employees, all terms of employment should be presented to the individual before he or she commences employment. Fresh consideration should also be provided for any new contract(s) or contract amendment(s). Failure to do so may mean those new terms are unenforceable – an outcome the employer may not have contemplated or budgeted for.

Is an Employer Required to Accommodate an Employee’s “Personal Choice” to Breastfeed?

Posted in Human Rights

In Flatt v. Canada (Attorney General)a case that has garnered media attention, the Federal Court of Appeal upheld a decision that found an applicant who requested accommodation to breastfeed her child during working hours failed to meet the test for establishing prima facie discrimination. The Court held this request involved the applicant’s “personal choice” – not a legal obligation towards a child under her care as required by the applicable legal test. Moreover, the applicant had made no reasonable effort to find a viable solution.

The matter arose from a decision of the Public Service Labour Relations and Employment Board. Following her third maternity leave, the applicant requested permission to telework from her home in order to continue breastfeeding her child; the applicant and the employer had agreed to a similar arrangement after her previous maternity leaves. Despite several exchanges, the parties failed to establish a suitable work schedule that would meet both of their needs. The applicant reverted to requesting that she be allowed to telework on a full-time basis; the applicant’s request was denied. Since the applicant was unionized, she filed a grievance claiming that the failure to accommodate was discriminatory on the basis of sex and family status and contrary to the Canadian Human Rights Act and the collective agreement. The grievance was denied.

In dismissing the application for judicial review, the Court held, among other things, that there was no prima facie case of discrimination based on the evidentiary record and the facts of the case, for the following reasons:

  • The Johnstone test applied, whether the alleged discrimination was based on sex or family status.
  • Breastfeeding during work hours was a personal choice made by the applicant, not a legal obligation towards the child under her care for the purposes of the second branch of the Johnstone test.
  • The applicant made no reasonable effort to find a viable solution, as required under the third branch of the Johnstone test. In particular, the employer had “generally agreed” with one of the proposals, but raised reasonable concerns. The applicant failed to address these concerns and abandoned that possible arrangement entirely, reverting instead to her original request of teleworking from her home on a full-time basis.

The Court noted that there may be circumstances where there could be a prima facie case of discrimination related to breastfeeding:

It seems to me that to make a case of discrimination on the basis of sex or family status related to breastfeeding, an applicant would have to provide proper evidence, foreseeably divulging confidential information. For example, such information may address the particular needs of a child or particular medical condition requiring breastfeeding; the needs of an applicant to continue breastfeeding without expressing her milk; and the reasons why the child may not continue to receive the benefits of human milk while being bottle-fed. This list of examples, of course, is not exhaustive. The purpose of such evidence would be to establish that returning to work at the workplace is incompatible with breastfeeding. [para. 33]

Additionally, the Court did not wish its reasons to be understood as “trivializing breastfeeding”:

The medical profession and numerous health organizations encourage mothers to breastfeed babies, praising, inter alia, the benefits of human milk on the immune system of young children. The applicant chose to breastfeed her children and respect must be had for her decision. This case is not about that choice but rather about the difficulties of balancing motherhood and career. It is about balancing the rights of mothers and that of employers having regard to the basic principle that one must be at work to get paid. The test for establishing prima facie discrimination is well entrenched in Canadian jurisprudence. In the case of breastfeeding, the onus is on working-outside-the-home mothers to make a prima facie case of discrimination. Unfortunately in this case, the applicant failed. [para. 38]

As the first decision from the Federal Court of Appeal on this issue, it will likely have implications across Canada at the federal and provincial levels. It is important for employers to realize that this case does not state that breastfeeding is a personal choice in all circumstances; rather, each such request should by analyzed on a case-by-case basis.

The Court has confirmed that breastfeeding accommodation can be based on the protected ground of family status or sex. As such, requests for breastfeeding accommodation should be managed by employers in the same way that other accommodation requests based on family status or sex are managed, including continued discussions between the parties and creating reasonable solutions to meet both parties’ needs, up to undue hardship.

For more information about the Johnstone test, please see our FTR Now on the case, Federal Court Of Appeal Upholds Johnstone, Clarifies Nature And Scope Of Family Status Protections.

Supreme Court of Canada on Prima Facie Discrimination and a Plaintiff’s Burden of Proof

Posted in Human Rights

The Supreme Court of Canada recently overturned a decision of the Québec  Human Rights Tribunal (“Tribunal”) which found that Bombardier had discriminated against a pilot, Mr. Latif, by refusing to provide him with training on certain Bombardier aircraft after U.S. authorities denied his security clearance. The unanimous Court found that there was insufficient evidence to establish that Mr. Latif’s ethnic or national origin played a role in the decision made by U.S. authorities.

Mr. Latif had filed a complaint against Bombardier, arguing that the U.S. authorities’ decision was the result of racial profiling and that Bombardier discriminated against him by relying on that decision, contrary to the Québec Charter of human rights and freedoms (“Québec Charter“).

The issue before the Court was whether or not the Tribunal had sufficient evidence to establish a connection between Bombardier’s denial and a prohibited ground of discrimination. The key evidence before the Tribunal included:

(i)      an agreement between the parties that Bombardier’s refusal to provide training to Mr. Latif was based solely on the fact that the U.S. authorities had not issued him a security clearance; and

(ii)    expert evidence showing that the U.S. authorities had engaged in racial profiling since September 11, 2001.

The Tribunal found that the U.S. authorities’ decision with respect to Mr. Latif was made in the context of racial profiling, and that Bombardier’s denial thus had the effect of creating a distinction based on one of the prohibited grounds under the Québec Charter. It concluded on this basis that there was prima facie proof of discrimination, and ordered Bombardier to “cease applying or considering the standards and decisions of the U.S. authorities in ‘national security’ matters when dealing with applications for the training of pilots under Canadian pilot’s licences.”

However, the Québec Court of Appeal found that the Tribunal erred in finding that there was a causal connection between the exclusion and a prohibited ground because there was no proof that the U.S. authorities’ decision was itself discriminatory, and set the decision aside.

On further appeal, the Supreme Court of Canada considered the degree of proof needed to establish prima facie discrimination, and whether the order against Bombardier was justified. The Court set out the following test to establish a case of prima facie discrimination under the Québec Charter:

  • Differential Treatment – The plaintiff must prove that a decision, measure or conduct affects him or her differently from others to whom it may apply.
  • Connection – The plaintiff must establish that the distinction, exclusion or preference in question is “based” on one of the protected grounds of discrimination. In discussing this branch of the test, the Court concluded that the term “causal connection” is no longer appropriate in the discrimination context – all that is required is that the plaintiff show a “connection” or “factor” between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains. The Court then went on to find that while the proof required of a plaintiff is of a simple “connection” or “factor” it must still be proven on a balance of probabilities.
  • Affect – The plaintiff must show that the distinction, exclusion or preference affects the full and equal exercise of a right or freedom guaranteed to the plaintiff.

The Supreme Court of Canada upheld the Québec Court of Appeal’s decision, finding that there was insufficient proof that Mr. Latif’s ethnic or national origin was a factor in the U.S. authorities’ decision.

The Court’s decision in this case clarifies that the standard of proof which normally applies in civil cases also applies to establishing a prima facie case of discrimination – in other words, there is no relaxation of the complainant’s obligation to prove his or her case and meet the applicable standard of proof. In determining whether or not a complainant has established a prima facie case of discrimination, the Tribunal will require evidence that is tangibly related to the impugned decision or conduct. Accordingly, presumptions based on social context alone will be insufficient when analyzing a decision against a single member of the group.

In discussing these issues, the Court cautioned against a company blindly complying with discriminatory decisions of a foreign authority or third party. Although this was not the case here, blind compliance to discriminatory decisions may expose an organization to liability under human rights legislation where there is evidence of a connection between the prohibited ground and the foreign decision in question.

Arbitrator Upholds Discharge of Long Service Employee with Clean Record for Theft

Posted in Labour Relations

In a recent arbitration decision involving a case of petty theft in the workplace, an arbitrator provided very useful guidance on workplace theft and the mitigating factors an employer should take into account in determining the penalty.

The decision involved the discharge of an employee with 17 years of service and a clean disciplinary record for stealing from the company’s cafeteria. The grievor engaged in three acts of premeditated petty theft within a four-day period. When confronted, he refused to admit wrongdoing, specifically denied the thefts and attempted to deflect responsibility by making several false accusations. Even after he became aware that his employment was going to be terminated, he continued to lie and deny the thefts.

Approximately one hour after he was terminated, the grievor confessed. He also admitted stealing items on multiple prior occasions. At the arbitration hearing, the union put great emphasis on the low value of the stolen goods; however, the arbitrator was not moved by this given the grievor’s conduct and the surrounding circumstances. In particular, the arbitrator noted that while the value of items stolen was low, there was an established pattern of misconduct over a substantial period of time, and the thefts were simply “business as usual” for the grievor. The arbitrator accepted that he was genuinely remorseful (for both his misconduct and the consequences thereof); however, that was “too little, too late.”

The arbitrator noted that the timely willingness to take responsibility and accept the consequences for an act of theft, and the demonstration of sincere remorse for the misconduct (as opposed to remorse for the consequences) would have been particularly important because these steps would be a “window to true character and offer clues to the extent to which the employee can truly be trusted again.” Here, the grievor did not do this – his actions undermined the mutual trust that is fundamental to the employment relationship. Therefore, the arbitrator decided that there was ample cause to discipline the grievor, that it would be “inappropriate” to return him to the workplace, and that it was not just and reasonable to substitute a lesser penalty.

The arbitrator’s comments regarding factors in favour of mitigating the employer’s penalty are instructive. Some of the most salient comments are:

  • Workplace-related theft is universally considered to be a serious employment offence which merits a significant disciplinary response. Once theft is proved, discharge remains a prima facie appropriate penalty and the union bears the onus to demonstrate that a less severe penalty is just and reasonable.
  • While relevant, the following will not, by themselves, be generally compelling:
    • an employee’s age or personal circumstances that are not significantly distinguishable from those of any other discharged employee;
    • seniority; and
    • contrition at the hearing.
  • The most significant factors are those which speak to the employee’s character and “trust rehabilitation” potential:
    • whether the theft was premeditated, a single incident or a pattern of behaviour; and
    • the employee’s reaction when confronted with the allegation.

The decision in this case is an important reminder of the critical role trust plays in any employment relationship. Accordingly, in determining whether the penalty imposed for such misconduct was appropriate, arbitrators will engage in a careful assessment of the surrounding circumstances, including the presence or absence of mitigating factors. Employers are therefore well advised to ensure that they approach each incident of theft, including an employee’s post-theft conduct, with the same degree of attention.

This case was argued successfully by Hicks Morley lawyer Martin Addario.

Messier-Dowty Inc v International Association of Machinists and Aerospace Workers, Local Lodge 905, 2015 CanLII 56078 (ON LA)



Court Awards Consultant 8 Months’ Notice for 2 Years of Service

Posted in Employment Law

A recent case demonstrates that despite an agreement characterizing the relationship as one involving an independent contractor, there is always the risk upon termination that the relationship may ultimately be found to require reasonable notice of termination.

At the time of termination, the plaintiff, Lewis Cassar, owned the other plaintiff, Tetra Consulting. The defendant, Continental Bank, contracted with Tetra Consulting to provide services. Tetra invoiced consulting fees on a monthly basis. After a two-year period, the parties were in the process of drafting a contract by which Mr. Cassar would become an employee of the Bank when the Bank decided to end the relationship. When this occurred, the plaintiffs sued for wrongful dismissal.

The Court, on a summary judgment motion, determined that Ms. Cassar was either an employee or a dependent contractor, and that either status entitled him to reasonable notice of termination. The factors on which the Court came to this conclusion included: he worked for the Bank exclusively for a two-year period for approximately 60-70 hours per week, he had an office at the Bank and email address, used the Bank’s tools, represented himself to others as an employee and was subject to the Bank’s control.

Given Mr. Cassar’s age (61), length of service (two years), and senior position, the Court held that eight months was the appropriate notice period.

This case demonstrates that despite an agreement that the individual is an independent contractor, a court may set that aside that agreement if the relationship in reality more closely resembles one between an employer and employee. Employers should be cognizant of the risks, such as tax liability and wrongful dismissal, associated with inappropriately characterizing an individual as an independent contractor.

Tetra Consulting v Continental Bank, 2015 ONSC 4610 (CanLII)

Ontario Court Issues Significant and Conservative Decision on Scope of Privacy Tort

Posted in Information and Privacy

On August 31st, the Ontario Superior Court of Justice issued a significant decision on the scope of the common law privacy tort – both declining to recognize a cause of action based on “public disclosure of private facts” and articulating how the protection granted by the recognized “intrusion” tort is circumscribed by the interest in free expression.

The case involved a claim against the CBC that the plaintiff – a researcher and professor at Memorial University in Newfoundland – framed both in defamation and breach of privacy. The claim arose out of an investigative journalism program that the CBC aired about the plaintiff’s ethics. The plaintiff alleged wrongs arising out of the words the CBC used in its broadcast and the CBC’s “investigative techniques.” These techniques included receiving and using a confidential report from an anonymous source.

Justice Mew first declined to recognize a claim based on the alleged public disclosure of private facts (or false light publicity). He reasoned that the law of defamation adequately addressed the wrong at issue in the case before him in a manner that carefully balanced the competing interests at stake. He said:

The CBC defendants submit, and I agree, that to expand the tort of invasion of privacy to include circumstances of public disclosure of embarrassing private facts about a plaintiff, would risk undermining the law of defamation as it has evolved and been pronounced by the Supreme Court. To do so would also be inconsistent with the common law’s incremental approach to change.

Justice Mew did, however, allow the jury to consider the whether the CBC committed an intrusion upon the plaintiff’s seclusion because, unlike a defamation claim, an intrusion claim “focuses on the act of intrusion, as opposed to dissemination or publication of information.” This finding left the jury with a difficult exercise in balancing competing rights. In instructing the jury, Justice Mew articulated a kind of immunity for receiving confidential information from whistle-blowers (without the use of unlawful means) and drew upon the defamation defences to circumscribe the intrusion tort as follows:

If you conclude that the actions of the CBC did not breach any laws, were not actuated by malice, or did not fall outside the scope of responsible communication, there would be no basis upon which you can find the CBC defendants liable for invasion of privacy. As to what constitutes malice and responsible communication, you should apply the same considerations that pertain to the defences of fair comment and responsible communication described by me earlier in relation to the defamation claim. If you have considered those questions (4 and 5) and have concluded that the defence of responsible communication should succeed, then you should answer “No” to question 8, since it would be inconsistent with the recognition of the place of responsible communication in the balancing exercise that I mentioned just now if a journalist whose actions benefit from the protection of that defence in a defamation claim were to remain exposed to a claim for invasion of privacy arising from her journalistic activities. Put another way, the prerequisite that there must be no lawful justification for the invasion of a person’s private affairs or concerns will be hard, if not impossible, to satisfy if there has been a finding that such an invasion occurred during the course of responsible journalistic activities.

Chandra v CBC, 2015 ONSC 5303 (CanLII)

(Reproduced from All About Information, Dan Michaluk)

Ontario Court of Justice Dismisses OHSA Charges Where Worker’s Unauthorized Act Led to Injury

Posted in Health and Safety

In a recent decision, R. v. ABS Machining Inc., the Ontario Court of Justice dismissed Occupational Health and Safety Act (“OHSA”) charges against an employer where the injured worker’s unexpected and unauthorized act led to his injury.

The decision confirms that employers can succeed in defending charges on the basis of due diligence when workers act in unforeseen ways. Employers will not necessarily be held responsible for their workers’ conduct if they have made reasonable efforts to prevent foreseeable injuries. The Court also provides helpful comments that it is not reasonable to require supervision of workers at all moments, for all things, and that an inspector’s failure to issue a stop work order may be relevant. With sound safety measures and procedures in place, employers can increase their chances of defending against OHSA charges laid against them, and avoiding the ensuing penalties.

In this case the worker, who was not responsible for rotating a large piece of equipment, used an overhead crane to rotate a large spindle that weighed about 10,000 pounds. When he used improper equipment to do so, the spindle fell off its stand and onto his foot, which had to be amputated. The Ministry of Labour charged the employer with failing to ensure that the spindle was moved safely and failing to properly train the injured worker.

The Court concluded that the injured worker’s supervisor had not instructed him to rotate the spindle. It also concluded that a reasonable employer could not have foreseen that the injured worker would rotate the spindle on his own and do it in the manner that he did, for the following reasons:

  • there was no evidence that a junior employee had ever previously tried to move a large piece of equipment like the spindle before;
  • there was a protocol in place which the injured worker acknowledged that he understood;
  • the way in which the worker rotated the spindle was contrary to his training; and
  • the worker attempted to rotate the spindle even though someone in his role would never be responsible for such work.

The injured worker conceded that he had failed to follow his training. Evidence of the worker’s training and protocols the employer had in place was key to the due diligence defence.

The Court concluded that the employer had established due diligence: it took every reasonable precaution in the circumstances, and could not have anticipated that the injured worker would rotate the spindle. The OHSA charges were dismissed.

Employer Investigations Held to Standard of Reasonableness, not Correctness or Perfection

Posted in Human Rights

In a recent decision, Zambito v. LIUNA Local 183, the Human Rights Tribunal of Ontario (“Tribunal”) provided some useful guidance on internal employer investigations. It reiterated that while it is extremely important for employers to respond seriously and promptly to all allegations of discrimination and harassment, they will be not be held to a standard of correctness or perfection in their response. Rather, the standard is one of reasonableness.

The decision is also of some assistance when dealing with a complainant who is insisting on a particular remedy, as the Tribunal makes clear that an employer may determine the appropriate outcome, provided that it is reasonable.

In this case, the applicant alleged discrimination principally on the basis that the employer failed to investigate his complaint that he had been subjected to harassment as the result of nationality and family.

The Tribunal applied the following three-part test to determine whether the employer’s response to the complaint was reasonable:

  1. Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees?;
  2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act?; and
  3. Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
    (per Laskowska v. Marineland at para. 59)

In this case, the Tribunal found that all three elements of the test had been satisfied. First, it was clear that the employer was aware of the alleged harassment. Second, the investigator’s testimony with respect to the post-complaint conduct was reasonable, logical and coherent. Third, by meeting individually with the applicant and the alleged harasser to discuss the investigation report, the respondent had provided a satisfactory resolution to the complaint. There was no obligation for the respondent to bring both parties together and require the harasser to apologize or to shake hands. Reviewing the report with the parties was sufficient.

Federal Court Confirms “Family Status” Applies to Mother-in-Law

Posted in Human Rights

In Canada (Attorney-General) v. Hicks, the Federal Court held that the Canadian Human Rights Tribunal (“CHRT”) did not err when it found that Human Resources and Services Development Canada (“HRSDC”) discriminated against Mr. Hicks in refusing to approve expenses associated with maintaining temporary dual residences after a relocation from Halifax to Ottawa. After Mr. Hicks relocated, his wife remained in Halifax for a period of approximately one year to care for her ailing mother who lived in a nursing home. HRDSC denied his request for reimbursement of expenses. The policy regarding temporary dual residence required that a dependant reside in the home for which the expenses were being sought. As the mother-in-law did not reside in the home in Halifax, the expenses were not approved.

The Federal Court decisively confirmed that the protected ground of “family status” includes eldercare obligations. The Court likened eldercare to childcare in that non-fulfillment can attract both civil and criminal responsibility if not exercised properly.

Perhaps more concerning is that this decision confirms that discrimination may be found even where the employee does not incur a conflict between work and family status obligations. Indeed, the Federal Court upheld a finding by the CHRT that the benefit at issue was “under-inclusive” in failing to provide expense reimbursement for maintaining temporary dual residences for dependants who reside outside of the home. In particular, the Court accepted that discrimination can be found where benefits offered to employees will differ based on a protected ground.

Given this finding, it is worthwhile for all employers to consider whether the benefits they offer to employees could be at risk of being found to be under-inclusive as a result of making a distinction based on criteria which could relate to any protected ground.