Eldercare duties falling within “family status”

August 18th, 2014 by

Michelle Stephenson, Summer Law Student

In Hicks v. Human Resources and Skills Development Canada (“HRSDC”) a government employee (Hicks) was relocated from Sydney, Nova Scotia to Ottawa, Ontario. His wife continued to live in their home in Sydney to help care for her disabled mother who was in an assisted-living facility nearby and was unable to travel. To help with this added financial strain, Hicks applied for temporary dual residence assistance from his employer under the Treasury Board of Canada’s Temporary Dual Residence Assistance Directive (the “Directive”).

His claim was denied on the basis that Directive stated that financial assistance could only be claimed in respect of a “dependant” and defined dependant as someone who had been living with the employee. Because his mother-in-law was in an assisted-living home, she fell outside of this definition.

His subsequent grievance and initial complaint with the Canadian Human Rights Tribunal alleging discrimination were similarly denied based on this definition of “dependant” and on the basis that his allegations were not linked to a prohibited ground of discrimination. However, the Federal Court ordered that the Canadian Human Rights Commission (the “Commission”) should consider his complaint on the basis of its merits, because a broader view of family status had been employed recently case-law.

Hicks alleged that the denial of his claim amounted to discrimination on the basis of family status and physical disability because it was connected to his eldercare responsibilities.

HRSDC, on the other hand, argued that the Directive was intended to allow dependant family members to continue to live in the employee’s previous residence until they are able to join the employee, not to facilitate care-giving arrangements for non-dependent family members. It also stressed that a primary goal of the directive was the efficient use of public resources.

The Commission found that the HRSDC discriminated against Hicks on the basis of family status under the Canadian Human Rights Act. It was determined that eldercare duties fall within the ground of family status, and that his claim was denied precisely due to the characteristics of his family.

Additionally, the HRSDC had over-emphasized the aim of using public resources efficiently, while ignoring the other aim of the Directive, which is to minimize detrimental effects on the transferred employee and their family. They further failed to demonstrate that denying the claim was based on a legitimate work-related purpose or that paying it would have constituted undue hardship on them.

For these reasons, Hicks’ claim was allowed. In addition to his initial claim, he was also awarded $15,000 for pain and suffering, as the move and subsequent legal battle had led him to develop stress-related health problems, and $20,000 for his employer’s willful and reckless discrimination.

$20,000 is the maximum amount available under the Canadian Human Rights Act as compensation for willful or reckless discrimination. It was held that the maximum award was appropriate in this situation as the employer had chosen to strictly interpret the old Relocation Directive, without care for the difficult family situation Hicks had been placed in, and without any indication that they had even considered their duty to accommodate him up to the point of undue hardship.


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