mother‑in-law. His request was refused –
and subsequent grievances dismissed – on the basis that the mother-in-law was
not a dependent who lived in the same principal residence.
[2] Mr. Hicks then turned to
the Canadian Human Rights Commission (the Commission), lodging a complaint as
follows:
I
am making a complaint under the Human Rights Act that [the denial of financial
assistance] was discrimination against me due to my family/marriage situation
and the age and disability of my family member. The employer’s interpretation
of the Relocation Directive discriminates against employees who have family
members who are unable to live at home but, due to their disability, must live
in accommodation suited to their condition.
[3] In a letter dated
October 26, 2007, the Commission advised Mr. Hicks that it had decided,
pursuant to s. 41(1)(c) of the Canadian Human Rights Act, R.S.C. 1985,
c. H-6 (the Act or CHRA), that it would not deal with his complaint
because “the allegations are not linked to a prohibited ground of
discrimination identified in section 3 of the Act.”
[4] Mr. Hicks seeks judicial
review of this decision. It should be clarified that Mr. Hicks does not ask
that this Court make any finding on the merits of his case; he asks only that
the complaint go forward for a full inquiry by the Commission.
II. Issues
[5] There is one overarching
issue. Did the Commission err by concluding, at this preliminary stage, not to
deal with Mr. Hicks’s complaint?
III. Background
[6] Given that no
investigation was carried out in relation to the substance of Mr. Hicks’s
complaint, the allegations contained in the complaint form must be taken as
true (see Michon‑Hamelin v. Canada (Attorney-General), 2007 FC
1258; [2007] F.C.J. No. 1607 (Q.L.) at para 23). In this case the facts
disclosed by the complaint are simple and not in dispute.
[7] As noted, Mr. Hicks
relocated from Sydney to Ottawa to take up a position
with the public service. The government has established policies to provide
compensation for employees who are relocated. Mr. Hicks’s move was covered by
the Relocation Directive applicable to relocations begun before March 2003. As
stated in the document:
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It is the
policy of the government that in any relocation, the aim shall be to relocate
the employee in the most efficient fashion, that is, at the most reasonable
cost to the public yet having a minimum detrimental effect on the transferred
employee and family.
|
La
politique du gouvernement est la suivante. Dans toute réinstallation, il faut
viser à réinstaller l'employé de la façon la plus efficace, c.-à-d. au coût
le plus raisonnable pour l'État tout en causant le moins d'ennuis possible à
l'employé muté et à sa famille
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[8] The Directive is deemed
to be part of collective agreements (see “General” Section of the Directive).
[9] In certain circumstances
where an employee continues to maintain a residence in the original location,
an employee may receive financial assistance. Such assistance is referred to as
Temporary dual residence assistance (TDRA). The relevant portion of Clause 2.11
of the Directive provides as follows:
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2.11.1
Financial assistance is intended to offset the cost of maintaining the second
residence. The employee remains responsible for one set of household
expenses.
2.11.2
Financial assistance towards living expenses can be obtained in situations
when two residences are temporarily maintained during the initial stages of a
relocation, i.e.:
(a) when one
of the residences is occupied by dependant(s) (a term which includes a
spouse):
-
for reasons of
temporary illness, or
-
in order for a
dependant(s) (who has been living with the employee prior to relocation) to
attend an educational institution in order to avoid disruption of the school
term . . .
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2.11.1 L'aide
financière accordée vise à compenser les frais rattachés à la deuxième
résidence. L'employé continuera d'assumer les frais rattachés à une
résidence.
2.11.2 L'employé
peut obtenir une aide financière à l'égard des frais de subsistance lorsqu'il
doit occuper temporairement deux résidences au début de la période de
réinstallation, c.‑à‑d.:
a) si l'un des
logements est occupé par une ou plusieurs personnes à sa charge, ce qui
comprend le conjoint:
-
à cause
d'une maladie temporaire, ou
-
pour
permettre à toute personne à charge (qui vivait chez l'employé avant la
réinstallation) de fréquenter un établissement d'enseignement donné afin de
ne pas perturber son année scolaire,
|
[10]
Dependant
is defined, in the Directive, as:
|
. . . any
person who lives with the employee or appointee and is either the employee's
spouse, a person for whom the employee can claim a personal exemption under
the Income Tax Act, or an employee's (or a spouse's) unmarried child,
step-child, adopted child or legal ward who cannot be claimed as an income
tax deduction but is in full-time attendance at school. A family member who
is permanently residing with the employee, but who is precluded from
qualifying as a dependant under the Income Tax Act because the family
member receives a pension, shall also be considered as a dependant under this
directive;
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. .
. toute personne qui habite avec l'employé ou la personne nommée et qui est,
soit son conjoint soit la personne à l'égard de laquelle l'employé peut
réclamer une exemption personnelle aux termes de la Loi de l'impôt sur le
revenu, soit un enfant célibataire, un enfant né d'un mariage antérieur,
un enfant adoptif ou sous la tutelle légale de l'employé (ou de son conjoint)
qui ne fait pas l'objet d'une déduction d'impôt et qui fréquente une école à
plein temps. Un membre de la famille qui réside en permanence avec l'employé
mais auquel cette définition ne s'applique pas aux termes de la Loi de
l'impôt sur le revenu parce qu'il reçoit une pension est aussi considéré
comme une personne à charge en vertu de la présente directive
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[11]
Mr.
Hicks requested 12 months of TDRA in respect of his mother-in-law and his son
(the request for support for the son’s situation is not in issue before me).
His request was denied. In a subsequent grievance, the request was once again
denied on the basis that the mother-in-law was not living with Mr. Hicks in the
principal residence in Sydney and, as such, was not a
“dependant” under the Directive. Mr. Hicks then took his request to an
adjudicator of the Public Service Labour Relations Board (PSLRB), who dismissed
the grievance. The principal ground for the dismissal was that Mr. Hicks’s
mother-in-law did not meet the definition of “dependant” in the Directive; any
“temporary illness” must be that of the dependant living in the principal
residence. At the hearings before the adjudicator, Mr. Hicks argued that the
employer’s actions were discriminatory. The adjudicator stated that, “I have no
jurisdiction to address any human rights aspects of this grievance”.
IV. The CHRA Complaint and Statutory
Provisions
[12]
Mr.
Hicks then brought his complaint to the Commission arguing that “the employer’s
interpretation of the Relocation Directive discriminates against employees who
have family members who are unable to live at home but, due to their
disability, must live in accommodations suited to their condition”. In other
words, Mr. Hicks claims that the Directive discriminates against him on two
grounds – family status and disability – that are prohibited grounds of
discrimination identified in s. 3(1) of the CHRA.
|
3. (1) For all
purposes of this Act, the prohibited grounds of discrimination are race,
national or ethnic origin, colour, religion, age, sex, sexual orientation,
marital status, family status, disability and conviction for which a pardon
has been granted.
|
3.
(1) Pour l’application de la présente loi, les motifs de
distinction illicite sont ceux qui sont fondés sur la race, l’origine
nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation
sexuelle, l’état matrimonial, la situation de famille, l’état de personne
graciée ou la déficience
|
[13]
Mr.
Hicks’s complaint also rests on ss. 7 and 10 of the CHRA:
|
7. It is a
discriminatory practice, directly or indirectly,
. . .
(b) in
the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
10. It is a
discriminatory practice for an employer, employee organization or employer
organization
(a) to
establish or pursue a policy or practice, or
(b) to enter
into an agreement affecting recruitment, referral, hiring, promotion,
training, apprenticeship, transfer or any other matter relating to employment
or prospective employment,
that deprives
or tends to deprive an individual or class of individuals of any employment
opportunities on a prohibited ground of discrimination
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7. Constitue un acte
discriminatoire, s’il est fondé sur un motif de distinction illicite, le
fait, par des moyens directs ou indirects :
. . .
b) de le défavoriser en cours d’emploi.
10.
Constitue
un acte discriminatoire, s’il est fondé sur un motif de distinction illicite
et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un
individu ou d’une catégorie d’individus, le fait, pour l’employeur,
l’association patronale ou l’organisation syndicale :
a)
de fixer ou d’appliquer des lignes de conduite;
b)
de conclure des ententes touchant le recrutement, les mises en rapport,
l’engagement, les promotions, la formation, l’apprentissage, les mutations ou
tout autre aspect d’un emploi présent ou éventuel.
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[14]
Under
s. 41 of the CHRA, the Commission is obliged to deal with a complaint, except
in certain circumstances. The situation of interest to this application is s.
41(1)(c):
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41(1). Subject
to section 40, the Commission shall deal with any complaint filed with it
unless in respect of that complaint it appears to the Commission that
. . .
(c) the
complaint is beyond the jurisdiction of the Commission
|
41.
(1) Sous réserve de l’article 40, la Commission statue sur
toute plainte dont elle est saisie à moins qu’elle estime celle-ci
irrecevable pour un des motifs suivants :
. . .
c)
la plainte n’est pas de sa compétence;
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V. The Advisor’s Report
[15]
As
is the practice of the Commission, and Early Resolution Advisor (the Advisor)
prepared an Analysis Report. The Advisor recommended that the Commission not
deal with the complaint, stating the following reasons:
The
allegations in the complaint do not appear to raise a link to the grounds of
marital status or age. The allegations as described do not suggest that the
complainant’s marital status or age of his mother-in-law were factors in the
respondent’s decision to deny his TDRA claim.
It
appears that the denial of the complainant’s application for TDRA was due to
the fact that his situation did not meet the definition of “dependant” in that
his mother-in-law did not reside with him at the time of his relocation. The
definition of “dependant” in the TDRA Directive specifically contemplates
family members, thus it is evident that the fact that the complainant’s
‘dependant’ was his mother-in-law was not itself the reason that his TDRA claim
was denied. The complainant appears to be challenging the residency criteria of
the TDRA Directive, which he would like to see broadened to include circumstances
such as his where a dependant family member does not reside in the family home.
Given that the key issue in the complainant’s situation is residency, and that
the status of the complainant’s relative as his mother-in-law was not the
obstacle for her being considered a “dependant” under the TDRA Directive, it
does not appear that the complainant’s allegations demonstrate a link to the
ground of family status.
The
complainant has also alleged that he was discriminated against because of the
disability of his mother-in-law. The circumstance alleged by the complainant
does not support a link to the ground of disability as the disability in this
case is a characteristic of the complainant’s mother-in-law and not of the
complainant himself. Moreover, as stated above, it is evident that the
complainant’s TDRA claim was denied due to the residency criteria that forms
part of the definition of “dependant” in the TDRA Directive.
Since
the complainant’s allegations do not demonstrate a link to a prohibited ground
of discrimination under the CHRA, it is recommended that the Commission not
deal with the complaint for lack of jurisdiction.
VI. Mr. Hicks’s Response
[16]
Mr.
Hicks was provided with an opportunity to respond to the recommendations of the
Advisor. In a letter dated September 4, 2007, Mr. Hicks provided his response.
The key points raised by Mr. Hicks can be summarized as follows:
·
Mr.
Hicks asserts that he was denied an employment benefit because of: (a) his
family status, that of needing his wife to stay behind to care for her elderly
and disabled mother; (b) marital status, that of being married to a woman with
a mother who needs her care; and (c) age and disability, that of having an
elderly family member who is disabled and frail and needs to live in a special
home for the aged;
·
The Advisor
applied too narrow an interpretation to “family status”, which is inconsistent
with recent jurisprudence (citing, Health Sciences Assoc. of B.C. v.
Campbell River and North Island Transitional Society, 2004 BCCA 260, [2004]
240 D.L.R. (4th) 479; Hoyt v. Canadian National Railway,
[2006] C.H.R.D. No. 33; Johnstone v. Canada (Attorney General), 2007 FC 36; Canada (Attorney General) v.
Mossop,
[1993] 1 S.C.R. 554);
·
The
fact that a complainant was adversely affected by an employer’s policy is
sufficient to establish a prima facie case of discrimination (Hoyt,
above, at para.31);
·
Mr.
Hicks disagrees with the comment of the Advisor that the disability must be
that of the employee and cannot be that of a family member (with no
jurisprudence cited in support); and
·
In
sum, the employer failed to provide any form of accommodation to help lessen
the burden faced by the Applicant
VII. The Commission’s Decision
[17]
The
Commission’s decision was brief. On the issue of jurisdiction, it consisted
simply of a statement that the Commission had decided, pursuant to s. 41(1)(c)
of the CHRA, that it would not deal with the complaint because “the allegations
are not linked to a prohibited ground of discrimination identified in section 3
of the Act”. While the actual letter decision provides no reasons for the
Commission’s conclusion, the Advisor’s Report is taken to form part of the
reasons of the Commission (see, for example, Michon-Hamelin, above, at
para. 17; Sketchley v. Canada (Attorney-General), 2005 FCA 404 at para.
37).
VIII. Analysis
[18]
The
parties disagree on the appropriate standard of review. The Commission argues
that the standard of review is reasonableness (see, for example, Comstock v.
Public Service Alliance of Canada, 2007 FC 335, 310 F.T.R. 277, aff’d 2008
FCA 197). Mr. Hicks asserts that the standard should be correctness due to the
fact that the question at issue was a legal one (see, for example, Sketchley
v. Canada (Attorney General), above).
[19]
There
is no question that the Commission should be afforded significant deference (Canada
Post Corp. v. Canada (Canadian Human Rights Commission) (1997) 130 F.T.R.
241 (T.D.); aff’d [1999] F.C.J. No. 705 (F.C.A.) (Q.L.); Comstock,
above) wherever there is a factual component to the Commission’s decision.
However, there also seems to be acknowledgement in the jurisprudence that a
legal question should be reviewed on a standard of correctness (Comstock,
above, at para. 34; Johnstone, above, at para. 18).
[20]
What
then is the nature of the question that was before the Commission? The question
was not one of fact; Mr. Hicks and the Commission appear to have no
disagreement on the facts of his
case. As I read the submissions of Mr. Hicks,
particularly in reply to the Advisor’s Report, he was asking the Commission to
investigate the following:
·
Does
the TDRA impact negatively on Mr. Hicks’s family duties and obligations, such
that it is contrary to s. 3 of the CHRA?
·
Does
the TDRA, by refusing to provide a benefit in respect of Mr. Hicks’s disabled
mother-in-law or by not recognizing Mr. Hicks’s family status, have a negative
impact on his “employment opportunities”, as prohibited under ss. 7 and 10 of
the CHRA?
[21]
Underlying
these questions are serious legal issues related to the meaning of family
status and employment opportunities. In my view, this particular s. 41(1)(c)
determination attracts a higher level of judicial scrutiny – that is, a
standard of correctness. However, if I am wrong in this conclusion and as
discussed below, I am also satisfied that the decision would not stand on a
reasonableness standard.
[22]
The
Commission, at this early screening stage, should only decide not to deal with
a complaint in “plain and obvious” cases (see Canada Post, Trial
Division, above, at para. 3; Michon-Hamelin, above, at para. 16). Thus,
the Commission’s duty was to identify whether it was “plain and obvious” that
there was no prima facie discrimination. In rejecting Mr. Hicks’s
complaint, the Commission was, in effect, making a final determination that the
TDRA was not discriminatory – that it was “plain and obvious” that the TDRA was
not contrary to ss. 3, 7 and 10 of the CHRA.
[23]
On
any standard of review, the Federal Court may grant relief if it is satisfied
that a tribunal made its decision without regard for the material before it (Federal
Courts Act, R.S.C. 1985, c F-7, s. 18.1(4)). As the Federal Court of Appeal
concluded in Johnstone v. Canada (Attorney General) 2008 FCA 101 at para
2, the failure of the Commission, in that case, to clearly identify and
consider what legal test it was applying was a valid basis for finding the
decision of the Commission to be unreasonable.
The
reasons given by the Commission for screening out the complaint indicate that
the Commission adopted a legal test for prima facie discrimination that
is apparently consistent with Health Sciences Association of British
Columbia v. Campbell River & North Island Transition Society, [2004]
B.C.J. No. 922, 2004 BCCA 260, but inconsistent with the subsequent decision of
the Canadian Human Rights Tribunal in Hoyt v. C.N.R., [2006] C.H.R.D.
No. 33. We express no opinion on what the correct legal test is. We say only
that the Commission's reasons raise a serious question as to what legal test
the Commission actually applied in deciding as it did. In our view that is
a valid basis for finding the decision of the Commission to be unreasonable,
and justifies the order of Justice Barnes referring the matter back to the
Commission for reconsideration. [Emphasis added]
[24]
The
main problem that I have with the Commission’s decision is that it does not
address any of the arguments made by Mr. Hicks in his reply of September 4,
2007. In his reply, Mr. Hicks made extensive submissions on the topic of
jurisdiction, with reference to case law that seems to apply a less narrow view
of family status and disability than was apparently taken by the Commission. I
do not know if the Commission had regard to the issues raised in the reply or,
if it did, why the Commission found these arguments to be without merit.
[25]
The
situation before me is very similar to that in Johnstone. I acknowledge
the arguments made by the Commission before me that the human rights protected
by the CHRA do not extend as far as posited by Mr. Hicks. The Commission may be
right. However, on the record before me, I am not able to say with confidence that
the arguments of Mr. Hicks were heard and considered. In other words, I am not
persuaded that it is plain and obvious that there is no discrimination. Thus,
whether viewed on a standard of reasonableness or of correctness, I find that
the decision cannot stand.
IX. Conclusion
[26]
In
conclusion, I find that the Commission’s decision to dismiss Mr. Hicks’s
complaint should not stand. I will set aside that decision and remit the matter
back to the Commission for a determination on the merits. Specifically, I am
directing that the Commission accept that Mr. Hicks has provided sufficient
argument to warrant an investigation into his complaint.
[27]
I
wish to make it clear that I express no opinion on whether Mr. Hicks’s position
on discrimination has merit. It may be that, after that investigation, the
Commission concludes that the complaint is not linked to a prohibited ground or
that it has no merit. That will be for the Commission to determine.
[28]
The
application for judicial review will be allowed, with costs to Mr. Hicks.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The application for
judicial review is allowed, with the matter to be remitted to the Commission
for a re-determination by a new decision-maker.
2.
Costs are awarded to
the Applicant.
“Judith
A. Snider”
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