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Family Status Includes Eldercare Obligations under Canadian Human Rights Act
September 17, 2015
Author(s): Erin S. White

The Federal Court recently confirmed that the prohibited discrimination ground of “family status” under the Canadian Human Rights Act includes eldercare obligations.

An employee, Mr. Hicks, held a position with Human Resources and Skills Development Canada in Nova Scotia. When his position became redundant, he accepted the employer’s offer of a new position in Ottawa. His offer letter provided that relocation expenses would be reimbursed in accordance with the employer’s policy. Mr. Hicks accepted the new position, and commenced work in Ottawa. His wife, however, stayed in Nova Scotia for approximately one year due in part to her mother’s ailing health. As a result, Mr. Hicks submitted an expense claim for temporary dual residence assistance pursuant to the employer’s relocation policy.

The employer denied his claim in part on the basis that his mother-in-law did not qualify as a dependant under the employer’s policy since she did not reside at the Hicks’ residence. In response, Mr. Hicks filed a human rights complaint alleging discrimination based on family status and disability. In concluding that Mr. Hicks had established prima facie discrimination on the basis of family status, the Canadian Human Rights Tribunal determined that the employer’s benefits were under-inclusive and discriminatory. The Tribunal also found that the employer had not established a bona fide occupational requirement defence.

On judicial review, the Federal Court upheld the Tribunal’s award. In particular, the Court confirmed that the family status ground of discrimination should be interpreted broadly to include family circumstances. Further, since non-fulfillment of eldercare duties can attract civil and criminal responsibility, the Court determined that the rationale underlying the inclusion of childcare obligations under family status can similarly be applied to the analysis of eldercare obligations.

For employers, this decision serves as a reminder that human rights legislation may apply to the provision of benefits to employees and, further, that the definition of “family status” is expanding in Canadian jurisdictions.

Canada (Attorney General) v. Hicks, 2015 FC 599 

Questions relating to the content of this article may be directed to Lindsie Thomson.