In a recent decision of the Canadian Human Rights Tribunal (the “Tribunal”), Hicks v. Human Resources and Skills Development Canada, the Tribunal found that “family status” protection under the Canadian Human Rights Act (the “Act”) can extend to eldercare responsibilities for “in-laws.”
The Complainant was employed by Human Resources and Skills Development Canada (“HRSDC”) when he was relocated from Sydney, Nova Scotia to Ottawa, Ontario for work. The Complainant’s spouse remained in Nova Scotia in order to care for her ailing mother. As a result, the Complainant and his wife maintained dual residences.
The Complainant made an expense claim for Temporary Dual Residence Assistance (“TDRA”) under HRSDC’s Relocation Directive. This Relocation Directive, which was found to form part of the governing collective agreement, provided that financial assistance was available to offset the costs associated with maintaining a second residence during the initial stages of a relocation. In order to qualify for the benefit, one of the two residences must have been occupied by a “dependant due to a temporary illness” (among other prescribed reasons). “Dependant” was defined as an individual “who has been living with the employee prior to relocation.” The Complainant’s claim under the Relocation Directive was denied on the basis that the Complainant’s mother-in-law did not live in either of the two residences, but rather in a full-care nursing home. Further still, HRSDC denied the Complainant’s claim under the Relocation Directive because his mother-in-law was not temporarily ill but was suffering from a chronic condition.
The Tribunal found that the Complainant had established a prima facie case of discrimination. Although the Relocation Directive did not create a conflict between the Complainant’s work and family obligations, the eligibility rules under the Relocation Directive were nonetheless discriminatory. These rules created a distinction between persons who were permanently residing with the employee prior to the relocation and those who were not. It also distinguished between family members suffering from temporary illnesses and those suffering from permanent conditions. These distinctions served to exclude the Complainant from the TDRA benefit on the basis of these family characteristics.
The Tribunal found that no “legitimate work-related objective or affirmative evidence to the point of undue hardship” was advanced by HRSDC which would justify the prima facie discrimination. As such, the Tribunal found in favour of the Complainant and held that HRSDC had discriminated against him on the basis of family status contrary to the provisions of the Act.
On the issue of remedy, the Tribunal awarded the Complainant compensation in the amount of $15,000 for pain and suffering, and $20,000 (the maximum allowable under the Act) for engaging wilfully and recklessly in a discriminatory practice (e.g. by relying on the Relocation Directive’s strict eligibility rules). The Tribunal stated that “the Respondent showed disregard and indifference for the Complainant’s family status and for the consequences that its decision to deny the TDRA would have in this regard.” The Tribunal left it to the parties to determine the quantum of the allowable TDRA claim.
This case serves in part as a reminder to employers of the importance of their procedural obligations under human rights legislation. Employers must make appropriate inquiries to obtain sufficient information when an employee has requested accommodation based on family care needs. They should also engage in a meaningful discussion with the employee before it is determined whether the duty to accommodate applies and, if so, what accommodation measures might be appropriate.