In Canada (Attorney General) v. Hicks, 2015 FC 599 (CanLII) the Federal Court heard an appeal concerning the validity of a Canadian Human Rights Tribunal (“CHRT”) decision which held that the Human Resources and Skills Development Canada (“HRSDC”) discriminated against its employee on the basis of family status. The Court reasoned so because the HRSDC did not allow the employee Temporary Dual Residence Assistance (“TDRA”) under the Treasury Board’s Relocation Directive (“RD”) to assist him with moving expenses associated with relocating and maintaining temporary dual residences when the employee moved from Nova Scotia to Ontario because of his job with the HRSDC.
The employee, Mr. Hicks (“Mr. Hicks”) received a letter from the HRSDC in January 2002 indicating that he is to be relocated to a new position in Ottawa, Ontario. The letter advised him that any expenses incurred during relocation will be covered in accordance with the Treasury Board’s RD.
On September 16, 2002 Mr. Hicks began working at his new post, and on October 17, 2002, Mr. Hicks officially relocated to Ottawa. His wife did not come with him, as she remained behind in Nova Scotia to care for her ailing mother. Mr. Hicks’ mother-in-law eventually moved into a full care nursing home on October 9, 2002.
On September 22, 2004, Mr. Hicks made a claim for TDRA under the RD for “the first twelve months of the relocation period” which claim was denied. Mr. Hicks filed a grievance challenging the denial of his claim for TDRA which was denied for two distinct reasons: Mr. Hicks was not an owner, but a renter, of the residence where he and his wife resided and his mother-in-law was not living with him or his wife and as such could not be considered a “dependant” under the RD.
Mr. Hicks’ claim was refused and referred to adjudication with the Public Service Labour Relations Board (“PSLRB”). The PSLRB denied Mr. Hicks’ grievance for the same reasons as the TDRA. Mr. Hicks then pursued his claim with the Canadian Human Rights Commission (“the Commission”). The Commission then referred Mr. Hicks’ matter to the CHRT. Mr. Hicks’ claim was finally heard by the CHRT in the wake of the expansion of the definition of “dependent” under the RD to include “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 TRIBUNAL’S DECISION
The CHRT found that the distinction made between dependents who reside permanently with the employee and those who do not was clearly harmful to Mr. Hicks.
The CHRT then clarified that the issue at bar was the denial of a benefit and, as such, the deleterious effects must be balanced against the efficiency sought. The CHRT determined that the benefit was not given precisely because of a factual characteristic of Mr. Hicks’ family – namely that his mother in law was so severely disabled that she could not reside with his wife for the full-time care she required. The CHRT then noted, “eldercare duties fall within the protection against discrimination on the basis of family status and that the applicant’s denial of the respondent’s expenses claim under the TDRA constitutes a…discriminatory practice.”
After clearly establishing the existence of discrimination, the CHRT proceeded onto the next step – that is an assessment of the HRSDC’s reasons for denying the benefit and whether they present a cogent and reasonable claim to balance their discriminatory actions. The CHRT determined that HRSDC did not substantiate their reasons adequately, failing to explain its renter/owner distinction and to provide evidence for why they must prioritize their resources as they had. As such, the CHRT ruled in favour of Mr. Hicks allowing for compensation of $15,000 .00 for pain and suffering, and $20,000.00 (the maximum allowed) for wilful or reckless discriminatory practice.
THE FEDERAL COURT OF APPEAL
The HRSDC appealed the decision, and on appeal the Federal Court narrowed the issues. The concerns were five-fold: (1) What is the applicable standard of review? (2) Does family status include eldercare obligations? (3) Was there discrimination at all then? (4) Was the two-part test the CHRT used applied correctly? and (5) were the awards reasonable?
The Federal Court stressed that the standard of review to be employed when assessing the legal issues involved in this case, being the interpretation of family status as well as the legal test for discriminatory practices, would be correctness. This standard is strict and involves a clear analysis of whether the CHRT applied the legal principles correctly.
The Federal Court explained that in terms of more factual issues the standard to be employed would be reasonableness. This standard allows for more deference to the CHRT’s decision, as it considers their experience in dealing with such matters crucially relevant to a determination of the facts. As such, the standard of reasonableness can be seen more as a question of whether the CHRT acted in a “transparent, justifiable, and intelligible” manner.
On the second issue the Federal Court affirmed the CHRT’s decision that an interpretation of “family status” needs to remain “flexible” in order to adapt to the unique circumstances of various cases. Further, the Federal Court stressed that eldercare is entrenched in Canadian societal values, the neglect of which can lead to criminal responsibility. As such, the Federal Court determined that “eldercare is an example of family circumstances protected by the prohibition on family status discrimination”.
On the third and fourth issues the Federal Court first clearly outlined the test to be used for discriminatory practices in such situations. The test consists of two parts. There must be a determination that discrimination existed in the first place. This is then followed by an analysis of the legitimacy of such discrimination as part of the business practices of the employer. The legitimacy of such discrimination is seen as balanced against any undue hardship that would arise upon the accommodation of those discriminated.
The Federal Court found that the CHRT applied the test correctly to the facts of the case, initially establishing discrimination and then assessing any difficulties the employer would face if they would accommodate those discriminated. In its affirmation of the CHRT’s ruling, the Federal Court clarified that discrimination in such cases exists when benefits are provided in accord with a set purpose and yet differ based on “characteristics that are not relevant to the purpose”.
Furthermore, the Federal Court agreed with the CHRT with regard to the monetary damages awarded. It assessed the issue on a standard of reasonableness and was satisfied that the CHRT made its determination in a justifiable and transparent manner.
This case firmly establishes that the protected ground of family status includes eldercare obligations. Secondly, the Federal Court further confirms that in order for an employee to claim discrimination based on family status, the event need not be confined to circumstances such that the employee’s position or job were threatened. The Federal Court upheld the CHRT’s decision that a denial of an employee benefit (in this case a refund for relocation expenses) may be grounds for discrimination.
Therefore, as the law sits now (at least in the federal context), employers need to be mindful of the benefits they provide to employees and the denial of those benefits. If the employer denies benefits to employees which could be construed as a denial based on a protected ground (such as family status) then that could be considered a discriminatory practice.
An employee may claim discrimination in circumstances not simply limited to conflicts that threaten their position or job but may also include benefits. Employees need to be mindful that if a benefit is denied to them based on a protected ground (such as family status) that this might actually a discriminatory practice that can be rectified by legal intervention.