Docket: T-1726-13
Citation:
2015 FC 599
Ottawa, Ontario, May 7, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
|
BETWEEN:
|
|
ATTORNEY GENERAL OF CANADA
|
|
Applicant
|
|
and
|
|
LESLIE HICKS
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, the Attorney General of Canada,
acting on behalf of Human Resources and Skills Development Canada (HRSDC)
submitted this application for judicial review of a decision made by the Canadian
Human Rights Tribunal (the Tribunal) in respect of the respondent, Leslie
Hicks’ claim for temporary dual residence assistance (TDRA) under the Treasury
Board’s relocation directive (RD).
[2]
The applicant seeks an order setting aside the Tribunal
decision, an order for its costs in this matter and such further and other
relief as this Court may deem just or appropriate.
I.
Background
[3]
As an employee of the HRSDC, the respondent
relocated from Sydney, Nova Scotia to Ottawa, Ontario, for a new position
because his previous position as the principal advisor for the Coal Mining
Safety Commission became redundant. The following is a timeline of events.
[4]
On January 21, 2002, the respondent received a
formal letter of offer dated January 14, 2002 for relocation. The letter
states, “Relocation Expenses will be reimbursed at
public expense according to the Treasury Board Relocation Directive.”
[5]
On February 18, 2002, a revised letter was sent
to the respondent informing him of the condition of his deployment (February
letter). The respondent accepted the revised offer by email on February 21,
2002.
[6]
On February 27, 2002, a confirmation letter was
sent to the respondent advising him that the deployment of his new position is
full time indeterminate as an industrial safety engineer for the applicant’s
Labour Branch, Occupational Health and Safety and Injury Compensation Division.
The new position would start as of March 4, 2002 in National Headquarters in Hull, Quebec (NHQ).
[7]
On September 16, 2002, the respondent began work
at NHQ. He officially relocated to Ottawa on October 17, 2002. His wife did not
move with him due in part to her mother’s ailing health; hence, the respondent
and his wife maintained dual residences. During this time, his mother-in-law
moved to an assisted living apartment in May 2002 and later moved to a full
care nursing home on October 9, 2003.
[8]
On September 22, 2004, the respondent made an
expense claim for temporary dual residence assistance under the RD in the
amount of $21,247, covering the first twelve months of the relocation period
from October 1, 2002 to September 20, 2003. This claim was denied on November
23, 2004.
[9]
On December 2, 2004, the respondent filed a
grievance challenging this denial. His first level grievance was denied on
February 10, 2005. The reason for denial is that the respondent was “not eligible for the Temporary Dual Residence Assistance
since he was a renter and not the owner of a house in Sydney.”
[10]
On June 17, 2005, the respondent’s grievance was
denied at the second level. His claim for his mother-in-law could not be approved
because she was not living with him in the principal residence and as such,
could not be considered a dependant pursuant to the 1993 RD. Under the 1993 RD,
“dependant” means a family member who is “permanently” residing with the
employee.
[11]
On March 15, 2006, the respondent’s grievance
was denied at the third level before the National Joint Council (NJC) for the
same reasons as at the second level. On July 18, 2006, his grievance was then
referred to adjudication before the Public Service Labour Relations Board (PSLRB).
[12]
On July 19, 2006, the respondent filed the
instant complaint with the Canadian Human Rights Commission (the Commission).
[13]
On January 13, 2007, the respondent’s
mother-in-law passed away in the nursing home.
[14]
On February 2, 2007, the PSLRB denied the
respondent’s grievance for the same reasons as at the third level.
[15]
On October 26, 2007, the Commission advised the
respondent that it would not deal with his complaint pursuant to paragraph
41(1)(c) of the Canadian Human Rights Act, RSC 1985, c H-6 [the Act or
CHRA]. The respondent sought judicial review of the Commission’s refusal from
this Court and his application was allowed on September 19, 2008.
[16]
On April 1, 2009 the definition of “dependant”
under the RD was expanded from “permanently residing
with the employee” 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 2009
Directive).
[17]
After the Federal Court’s decision, the
Commission commenced investigation of the respondent’s complaint and
recommended conciliation in its investigation report of July 12, 2010.
Conciliation took place but was unsuccessful.
[18]
On November 9, 2011, the Commission referred the
matter to the Tribunal.
II.
Decision Under Review
[19]
The hearing was held from April 15 to 17 and on
May 7, 2013 in Ottawa, Ontario. The Tribunal’s decision dated September 18,
2013 ruled in favour of the respondent, Mr. Hicks.
[20]
The Tribunal was asked to determine the
respondent’s claim under the prohibited grounds of family status and
disability. The Tribunal cited sections 3, 7 and 10 of the Act and stated the
nature of the complaint was whether the applicant’s decision to decline payment
of the TDRA was discriminatory. It determined subsection 7(b) applies to the
instant complaint under the prohibited ground of family status discrimination.
[21]
First, the Tribunal determined the distinctions
under the 1993 RD between persons who are “permanently
residing with the employee” and those who are not, were harmful to the
respondent.
[22]
Second, the Tribunal determined whether the
adverse distinctions created by the 1993 RD were based on his family status. It
noted although the term family status is not defined in the Act, legal
jurisprudence recognizes this ground to protect the absolute status of being or
not being in a family relationship, the relative status of who one’s family
members are, the particular circumstances or characteristics of one’s family
and the duties and obligations that may arise within the family. For support,
it cited B v Ontario (Human Rights Commission), 2002 SCC 66, at
paragraphs 39 to 41 and 57, [2002] 3 S.C.R. 403 and Canada (Attorney General) v
Johnstone, 2013 FC 113, at paragraphs 104 to 113, [2013] FCJ No 92 [Johnstone].
[23]
The Tribunal noted the nature of the present
complaint is not “a conflict between the Complainant’s work
and family obligations, but relates to the denial of a benefit.” It
examined the purpose of the benefit plan which was to assist transferred
employees with relocating their lives and to recognize that efficiency must be
balanced against detrimental effects. The Tribunal noted the respondent’s
mother-in-law was cared for by his wife. It determined the denial was based on
a characteristic of the respondent’s family; that is, he and his wife cared for
his mother-in-law who, because of a permanent disability, could not live with
them in the family home. It found 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 prima
facie discriminatory practice because the TDRA was under-inclusive and
discriminatory. The Tribunal referenced Brooks v Canada Safeway Ltd,
[1989] 1 S.C.R. 1219, [1989] SCJ 42 [Brooks]; and Battlefords and
District Co-operative Ltd v Gibbs, [1996] 3 S.C.R. 566, [1996] SCJ No 55 [Gibbs].
[24]
After being satisfied of the respondent’s case
in demonstrating prima facie discrimination on the ground of family
status, the Tribunal proceeded to examine the applicant’s arguments. It
summarized the applicant’s arguments for bona fide occupational
requirement as follows: 1) the respondent’s mother-in-law could not be
considered a “dependant” under the 1993 RD because she resided separately from
the respondent; 2) she was considered as a permanently disabled person and not
as a temporary ill person; 3) the applicant was a renter not an owner of his
residence in Nova Scotia; and 4) the applicant prioritized in accordance with
the efficient use of public resources.
[25]
The Tribunal found the applicant’s bona fide
occupational defence did not stand because the applicant failed to provide
reference to its renter owner distinction and did not provide evidence to
substantiate its argument on the prioritization of resources. It quoted Johnstone
v Canada (Border Service Agency), 2010 CHRT 20, at paragraphs 348 to 351,
[2010] CHRD No 20 for support.
[26]
Then, the Tribunal examined remedies requested
by the respondent.
[27]
First, the Tribunal found issue estoppel does
not apply because the quantum of the respondent’s TDRA claim has not been previously
decided by the PSLRB.
[28]
Second, with respect to the compensation for the
respondent’s expenses, the Tribunal acknowledged it did not have sufficient
information to make an informed decision on the interpretation and application
of the TDRA and to determine the actual quantum of the TDRA claim. It left the
amount to the parties to determine and retained jurisdiction for three months
in the event that the parties were unable to reach an agreement.
[29]
Third, with respect to compensation for pain and
suffering, the Tribunal noted the respondent provided substantiation for sick
leave but did not file any medical report for his claim of stress, frustration
and disappointment. The respondent claimed that his stress was caused by the
unsettled nature of his problem with his employer and the ongoing struggle
involved with filling a series of grievances. The Tribunal noted the respondent
asked for $20,000 which is the maximum the Tribunal could award. It awarded
$15,000 as a result of the discriminatory practice.
[30]
Fourth, the Tribunal examined compensation under
wilful or reckless discriminatory practice. It noted the respondent seeks
$20,000 which is the maximum award reserved for the very worst cases. It
observed that the applicant did not seem to have considered the CHRA in its
adherence to a rigid application of the 1993 RD. Further, it found the
applicant did not consider its duty to accommodate to the point of undue
hardship when faced with a difficult family situation and a request for
compassion. It found the applicant showed disregard and indifference for the
respondent’s family status and for the consequences of the denial for TDRA.
Hence, the Tribunal awarded $20,000 based on these findings.
[31]
Lastly, the Tribunal awarded interest in
accordance with Rule 9(12) of the Tribunal’s Rules of Procedure, which is
simple interest calculated on a yearly basis at the Bank of Canada rate.
III.
Issues
[32]
The applicant raises the following issues:
1.
Did the Tribunal err in holding that the
prohibition against discrimination on the basis of family status includes
“family characteristics discrimination”?
2.
If the prohibition against discrimination on the
basis of family status includes “family characteristics discrimination”, did
the Tribunal err in holding that HRSDC denied the respondent’s claim for TDRA
because of a family characteristic and that it breached the Act because of the applicant’s
failure to take into account the respondent’s family circumstances?
3.
If the applicant’s decision to deny the
respondent’s claim for TDRA constitutes a discriminatory practice, did the Tribunal
err in awarding compensation for pain and suffering on the higher end of the
scale and in awarding compensation for wilful and reckless conduct?
[33]
The respondent raises the following issues:
1.
What is the appropriate standard of review?
2.
Did the Tribunal err in understanding the nature
and scope of the respondent’s human rights complaint?
3.
Did the Tribunal repurpose the Relocation
Directive by ignoring the fact that a dependant must be suffering from a
“temporary illness” as a condition to the receipt of the TDRA?
4.
Did the Tribunal err in concluding that the
prohibition against family status discrimination bars differential treatment
based on family characteristics?
5.
Did the Tribunal err in concluding that the
employer denied the respondent’s TDRA claim because of his family’s
characteristics?
6.
Did the Tribunal err in concluding that the
employer failed to establish undue hardship?
7.
Did the Tribunal err in awarding the respondent
$15,000 for pain and suffering?
8.
Did the Tribunal err in awarding the respondent
$20,000 for the employer’s reckless conduct?
[34]
In my view, there are five issues:
A.
What is the standard of review?
B.
Did the Tribunal commit a reviewable error in
concluding that family status includes eldercare obligations?
C.
Did the Tribunal commit a reviewable error in
identifying the legal test for finding a prima facie case of
discrimination on the ground of family status?
D.
Did the Tribunal commit a reviewable error in
applying the legal test to the facts in the instant case?
E.
Were the Tribunal’s remedy awards reasonable: a)
award for pain and suffering, and b) award for wilful and reckless conduct?
IV.
Applicant’s Written Submissions
[35]
The applicant submits the proper standard of
review applicable to the determination of the scope of family status as a
protected ground of discrimination was correctness prior to Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]; but post Dunsmuir,
this issue has been reviewed under the standard of reasonableness with a narrow
range of acceptable and defensible outcomes (see Canada (Canadian Human
Rights Commission) v Canada (Attorney General), 2011 SCC 53 at paragraphs
23 and 24, [2011] 3 S.C.R. 471). It states the test for prima facie
discrimination is correctness (see Sketchley v Canada (Attorney General),
2005 FCA 404, [2006] 3 FCR 392). It submits the Tribunal has less room to
manoeuvre where the matter involves equality law (see Canada (Attorney
General) v Canadian Human Rights Commission, 2013 FCA 75 at paragraph 14,
[2013] FCJ No 249 [CHRC]) and hence, there should be a reduced level of
deference by this Court in examining this matter.
[36]
The applicant first reviews the purpose and
scope of the RD. It highlights the following information. The purpose of the RD
is to help relocate employees 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. The RD provides for TDRA in respect of
employees’ dependants in order to achieve this purpose. Under the eligibility
criteria for TDRA, section 2.11.3 states assistance is not given “for the voluntary separation of the family for personal
reasons.” The applicant acknowledges that on April 1, 2009 a new RD
expanded the definition of “dependant” 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.”
[37]
Under the applicant’s first issue, it submits the
following arguments: i) the Tribunal conducted a flawed legal analysis on the
interpretation of “family status” in the context of the CHRA; and ii) family
status excludes family characteristics.
[38]
Here, the Tribunal found the RD neither
distinguished on the basis of the respondent’s absolute status of being in a
family relationship nor the relative status of who his family members are;
rather the RD turns to whom the respondent can claim TDRA, requiring his mother-in-law,
the dependant, to reside with him for reasons of temporary illness.
[39]
The applicant submits although the respondent
only made his claim under the definition of dependant in the RD, the Tribunal
erroneously extended his claim to family characteristics. It argues the Tribunal
allowed the respondent to amend his complaint to include the ground of
temporary illness which was conceptually unrelated to a complaint under the
definition of dependant. Then, the Tribunal rewrote the RD to permit TDRA
claims for the purpose of subsidizing the cost of maintaining a second home for
someone who is chronically ill, where the RD’s originally stated aim is to
offset the cost of maintaining a second residence when one of the residences is
occupied by a dependant for reasons of temporary illness.
[40]
The applicant argues the Tribunal made a flawed
legal analysis by re-introducing an expanded version of “family obligations
discrimination” under the guise of “family characteristics discrimination” by
concluding the latter ground also protects the duties
and obligations within Mr. Hicks’ family.
[41]
Then, the applicant submits the ground of family
status excludes family characteristics. It cites Gonzalez v Canada
(Employment and Immigration Commission), [1997] 3 FC 646, [1997] FCJ No 790,
a case where this Court reviewed a provision of the Unemployment Insurance
Act that entitles parents to five additional weeks of parental benefits if
their child arrived home after reaching the age of six months and suffered from
a condition requiring a longer period of parental care. In that case, this
Court found the six-month rule constituted a discriminatory practice. The
applicant argues this Court, in that case, was not fully alive to the complex
issues raised by the ground of discrimination under family status. It then
references Johnstone and Canada National Railway v Seeley, 2013
FC 117, [2013] FCJ No 97 [Seeley] which were at the time, in front of the
Federal Court of Appeal for appeal pertaining to the meaning and scope of
family status. The applicant argues the proper statutory interpretation should
not include family characteristics and Parliament did not intend family status
to include family characteristics.
[42]
In the applicant’s further memorandum, it argues
it is questionable to what extent the Federal Court of Appeal’s interpretation
of family status to encompass childcare obligations applies to eldercare.
[43]
Insofar as the second issue is concerned, the
applicant submits the denial of TDRA is not discriminatory and such an accommodation
exceeds the scope of RD.
[44]
First, for the rationale of denial, it argues
HRSDC did not deny the respondent’s TDRA claim on the basis of absolute status
of family or on the basis of relative status. The applicant argues that not all
distinctions made on the basis of a prohibited ground will amount to
discrimination under human rights legislation (see Gonzalez; and McGill
University Health Centre (Montréal General Hospital) v Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 at paragraph 49, [2007] 1 S.C.R. 161). It argues that the
requirement under the RD that the dependant permanently reside with the
complainant and that she occupies one of his residences for reasons of
temporary illness in order to be eligible for the TDRA is not arbitrary and has
rational connection with the objectives of the RD. It cites Alberta
(Minister of Human Resources and Employment) v Alberta (Human Rights,
Citizenship and Multiculturalism Commission), 2006 ABCA 235, 62 Alta LR
(4th) 209 for support. In that case, a complainant was denied a shelter allowance
while living with his mother and the Court found the government has discretion
in establishing a social assistance scheme as long as there is sufficient
foundation in reality and common sense.
[45]
The applicant argues here the policy underlying
the RD is both specific and limited. It argues employees do not need to
maintain second residences to facilitate their relocation unless they have
dependant family members residing with them in these residences. Here, the
dependant did not reside with them and hence, did not need employees to
maintain their former homes for them. The extra expenses in this case arose
from the voluntary separation of the family for personal reasons and the
assistance is rightly not given.
[46]
Second, for the scope of the RD, the applicant
submits the RD is not intended to facilitate medical and other caregiving
arrangements for dependants; rather, it is to allow them to continue living in
the employee’s former residence for a specified period until able to relocate
with the employee. It argues the Tribunal repurposed the RD by accommodating
the respondent’s family characteristics by providing him with TDRA and as such,
is a different conception of the RD.
[47]
Insofar as the third issue is concerned, the
applicant submits the Tribunal’s analysis is not thorough and even if it was,
the award of pain and suffering should have been at the lower end of the range
and the damage amount for special compensation was unjustified because its
conduct in denial was not reckless.
[48]
For the award of pain and suffering, the Tribunal
should look for evidence of either physical or mental manifestations of stress
caused by the hurt feelings or loss of respect as a result of the alleged
discriminatory practice. The applicant argues the situation of the case at bar
does not rise to the level of hurt feelings and loss of self-esteem
contemplated in paragraph 53(2)(e) of the Act. In support, it cites Morgan v
Canadian Armed Forces, [1989] CHRD No 5. Here, the denial did not result in
the respondent suffering from any conflict between his family obligations and
work-related requirements.
[49]
For the award of special compensation from
wilful and reckless conduct, the applicant argues HRSDC in the instant case did
not commit “some measure of intent or behaviour so
devoid of caution or without regard to the consequences of that behaviour.”
It submits the objective of the Act is to remedy discrimination, not to punish the
applicant in the case at bar. Here, HRSDC was neither devoid of caution in
denying the respondent’s application for TDRA, nor was the denial made without
regard to the consequences of that decision. The applicant submits it was made
within the normal standards of management.
V.
Respondent’s Written Submissions
[50]
The respondent submits the standard of review
for a decision of a human rights tribunal on questions of law concerning
anti-discrimination provisions of the Act is reasonableness (see Saskatchewan
(Human Rights Commission) v Whatcott, 2013 SCC 11 at paragraphs 166 to 168,
[2013] 1 S.C.R. 467; and CHRC at paragraphs 10 to 14). He further submits
there should not be a “reduced deference” to the
Tribunal’s determination of legal issues because a varying degree of deference
is against the Supreme Court’s conclusion in Dunsmuir (see Canada (Attorney
General) v Almon Equipment Limited, 2010 FCA 193 at paragraphs 32 and 33,
[2011] 4 FCR 203).
[51]
However, in the respondent’s further memorandum,
he submits, pursuant to the recently released Federal Court of Appeal decision Johnstone
v Canada (Border Services), 2014 FCA 110 at paragraphs 36 to 52, [2014] FCJ
No 455 [Johnstone FCA], the meaning and scope of family status as a
prohibited ground of discrimination and the legal test for prima facie
discrimination under that ground is reviewable on a standard of correctness.
[52]
In response to the applicant’s argument on the Tribunal’s
unilateral amendment of the respondent’s complaint, he argues the Tribunal did
not amend his complaint. He argues since he challenged the HRSDC’s response
denying the TDRA, he was at issue with the rationales for denial on both the
temporary illness and the definition of dependant.
[53]
Then, the respondent submits the Tribunal did
not repurpose the RD. He argues that the “temporary illness” limitation was
imposed as a method of achieving the express purpose of relocating employees
efficiently, at minimal cost and with a minimum detrimental effect on the
employee and his/her family and this method is under-inclusive on the grounds
of family status.
[54]
Next, the respondent submits the ground of family
status includes family characteristics. He cites the following cases for
support: Gonzalez; Johnstone; Seeley and Patterson v
Canada (Revenue Agency), 2011 FC 1398 at paragraphs 34 to 35, [2011] FCJ No
1706.
[55]
In his further memorandum, the respondent argues
the analysis in the Federal Court of Appeal decisions Johnstone FCA and Canadian
National Railway Company v Seeley, 2014 FCA 111, 458 NR 349 [Seeley FCA]
should apply to eldercare obligations. He argues the term “family status”
should be interpreted broadly (Johnstone FCA at paragraphs 61, 62, 67
and 70). Also, eldercare is an example of family circumstances protected by the
prohibition on family status discrimination (R v Peterson, [2005] OJ No
4450 [Peterson]). He submits although these two cases did not address
eldercare, the Court of Appeal did state that the test should remain flexible
in order to address unique circumstances as they arise. He provides further
analogy to religious accommodations and argues it should not be more onerous to
demonstrate a prima facie case of family status discrimination than
religious discrimination.
[56]
In response to the applicant’s argument of
rational basis for limiting the availability of TDRA, the respondent submits
that the same disruptive impact may result on an employee’s family irrespective
of whether i) the dependant resides with an employee; ii) the dependant is
suffering from a temporary or chronic illness; and iii) the dependant is well
enough to relocate with an employee. He points out that even the 2009 Directive
now has an amendment to provide coverage for a dependent who resides outside of
the employee’s residence. He argues therefore, the Tribunal was correct to find
the TDRA is under-inclusive and hence discriminatory. In support, he cites the
same two cases referenced in the Tribunal’s decision: Brooks and Gibbs.
[57]
In the respondent’s further memo, he argues the
care for his mother-in-law until she was accepted into a nursing home arose
from a family-based moral obligation, rather than a personal choice. In the
alternative, he argues his wife had a legal obligation to support her mother
pursuant to Nova Scotia’s Maintenance and Custody Act, RSNS 1989, c 160,
sections 15 to 17 (see Barrington v Shand, [1984] WDFL 1393 at
paragraphs 20 and 21, 65 NSR (2d) 153).
[58]
As for the scope of the RD, the respondent
submits the purpose of the RD is to subsidize the cost of caring for ill family
members and the RD makes it clear that it was intended to apply to dependants
who are sick. By limiting the application of the benefit to dependants who are
only temporarily sick or who are living with the relocated employee, the Tribunal
was reasonable to conclude that this was an under-inclusive benefit. He argues
the Tribunal was reasonable to find that the employer did not meet the onus to
justify employment-related discrimination on the basis of undue hardship. This
is further evidenced by the RD’s 2009 amendment.
[59]
Insofar as the remedy award for pain and
suffering is concerned, the respondent submits although each case is fact-dependent,
five prior cases support the finding of $15,000 arising out of family status
discrimination: Johnstone for the amount of $15,000; Hoyt v Canadian
National Railway, 2006 CHRT 33, at paragraphs 140 to 142, [2006] CHRD No 33
for the amount of $15,000; Richards v Canadian National Railway, 2010
CHRT 24, at paragraph 245, [2010] CHRD No 24 for the amount of $15,000; and Whyte
v Canadian National Railway, 2010 CHRT 22 at paragraph 253, [2010] CHRD No
22 for the amount of $15,000. Therefore, the award here is reasonable and falls
within the range of possible, acceptable outcomes.
[60]
Insofar as the remedy award for HRSDC’s wilful
and reckless conduct is concerned, the respondent submits the award under
subsection 53(3) of the Act is intended to be punitive (Johnstone at
paragraph 155). He argues the Tribunal was in the best position to evaluate the
evidence in fixing the quantum of damages arising from the employer’s reckless
conduct. Here, the Tribunal based its conclusion in part on the following
evidence: i) the employer failed to treat Mr. Hicks’ claim with the seriousness
it deserved; ii) the employer did not inquire into Mr. Hicks’ needs in relation
to his family situation; iii) the employer failed to consider whether human
rights principles supported Mr. Hicks’ claim; iv) any deviation from the text
of the 1993 RD was viewed as unimaginable; and v) the employer showed disregard
and indifference to Mr. Hicks’ family status and the consequence of its
decision.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[61]
Where the jurisprudence has satisfactorily
resolved the standard of review, the analysis need not be repeated (Dunsmuir
at paragraph 62).
[62]
Two of the recent Federal Court of Appeal
decisions have clarified the proper standard of review for questions of the Tribunal’s
findings of law. In Johnstone FCA at paragraph 44 and Seeley FCA
at paragraph 36, the Federal Court of Appeal found the presumption of
reasonableness is rebutted and the proper standard of review applicable to the
legal interpretation of the human rights statute is the standard of
correctness. The Federal Court of Appeal provides the following reasons in Johnstone
FCA at paragraph 51:
The two principal legal issues raised in
this appeal concern questions of fundamental rights and principles in a human
rights context. These are not issues about questions of proof or mere
procedure, or about the remedial authority of a human rights tribunal or
commission. As such, for the sake of consistency between the various human
rights statutes in force across the country, the meaning and scope of family
status and the legal test to find prima facie discrimination on that
prohibited ground are issues of central importance to the legal system, and
beyond the Tribunal's expertise, which attracts a standard of correctness on
judicial review: Dunsmuir at para. 60.
[63]
In this case, the issue on the interpretation of
family status and the issue on the legal test for finding a prima facie
case of discrimination are therefore examined under the standard of correctness
(Johnstone FCA).
[64]
As for the rest of the issues concerning the
findings of the Tribunal with respect to questions of fact and of mixed fact
and law, these are reviewed on a standard of reasonableness.
[65]
The standard of reasonableness means that I should
not intervene if the Board’s decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47).
Here, I will set aside the Tribunal’s decision only if I cannot understand why
it reached its conclusions or how the facts and applicable law support the
outcome (see Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708).
As the Supreme Court held in Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa] at
paragraph 59 and 61, a court reviewing for reasonableness cannot substitute its
own view of a preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Did the Tribunal commit a reviewable
error in concluding that family status includes eldercare obligations?
[66]
The present case, although it is not about
parental obligations, is similar in the principle to Johnstone FCA because
I am asked to determine whether or not a family obligation should be
encompassed under the prohibited ground of family status discrimination
pursuant to the Act. I agree with the respondent that an analysis under the
prohibited ground of family status should remain flexible in order to address
unique circumstances. Here, I find the Tribunal did not commit a reviewable
error in concluding that family status includes eldercare obligations.
[67]
The Tribunal correctly identified the long
standing jurisprudence on the broad interpretation of the ground of family
status discrimination under B v Ontario at paragraph 39:
The fact that the word “status” does not
restrict the statute in the manner proposed by the appellants is clear from the
way the term has been qualified in the case law, and in the submissions of the
parties. The very issue in this appeal has been characterized as whether s.
5(1) of the Code includes complaints based on “relative status” as
opposed to “absolute status”. The essence of the appellants’ argument is
that the ordinary meaning of the word “status” refers to an absolute condition;
the inclusion of relative status within the scope of the definition
would require the addition of a qualification. We cannot agree. The word “status”
is equally capable of encompassing both the absolute definition and the relative
definition. Moreover, the terms “marital status” and “family status” are in
themselves relative. That is, they require the existence or absence of a
relationship with another person. To restrict its meaning to the absolute would
ignore the very condition that brings the status into being in the first place.
[Emphasis in original]
[68]
The Federal Court of Appeal has determined that
the ground of discrimination of family status should be interpreted broadly to
include family circumstances (Johnstone FCA at paragraph 67):
It is noteworthy that Parliament chose to
use two distinct words for the word “status” in the French version of sections
2 and 3 of the Canadian Human Rights Act: “l'état
matrimonial” for marital status and the much broader “situation de famille” for family status. The
French word “situation” is
broadly defined in Le Nouveau Petit Robert as “[e]nsemble des circonstances dans
lesquelles une personne se trouve” (the whole of the
circumstances in which an individual finds himself). In contrast, that same
common dictionary defines “état”
as “[m]anière d'être (d'une personne ou d'une chose)
considérée dans ce qu'elle a de durable” (state of
being of a person or thing considered in its enduring aspects). The
distinction is important, and supports a much broader interpretation of “family
status” that includes family circumstances, such as childcare obligations.
[Emphasis added]
[69]
The Federal Court of Appeal in Seeley FCA
reiterated the principle identified in Johnstone on why the prohibited
ground of discrimination of family status encompasses the childcare obligations
at paragraph 41:
As found by this Court in Johnstone,
the prohibited ground of discrimination of family status encompasses the
parental obligations whose non-fulfillment engages the parent’s legal
responsibility to the child. The childcare obligations contemplated by the
expression family status are thus those that have immutable or constructively
immutable characteristics, such as those that form an integral component of the
legal relationship between a parent and a child. As a result, the childcare
obligations at issue are those which a parent cannot neglect without engaging
his or her legal liability. This approach avoids trivializing human rights by
extending human rights protection to personal choices.
[70]
I find this similar rationale can be applied for
the analysis of eldercare obligation in the instant case. The prohibited ground
of discrimination of family status should encompass the eldercare obligation
because whose non-fulfillment can attract not only civil responsibility (Maintenance
and Custody Act), but also criminal responsibility if not exercised
properly (Peterson). Eldercare obligation is entrenched in Canadian
societal values. It demonstrates the adult children’s responsibility to their
elderly parents.
[71]
Therefore, I find eldercare is an example of
family circumstances protected by the prohibition on family status
discrimination and the Tribunal was correct to interpret as such.
C.
Issue 3 - Did the Tribunal commit a reviewable
error in identifying the legal test for finding a prima facie case of
discrimination on the ground of family status?
[72]
The Federal Court of Appeal reviewed the legal
test for finding a prima facie case of discrimination on the prohibited
ground of family status in Johnstone FCA at paragraph 75:
… First, a prima facie case of
discrimination must be made out by the complainant. Once that prima facie
case has been made out, the analysis moves to a second stage where the employer
must show that the policy or practice is a bona fide occupational
requirement and that those affected cannot be accommodated without undue
hardship.
[73]
Here, the Tribunal correctly followed this test.
It first satisfied itself of the respondent’s case in demonstrating prima
facie discrimination on the ground of family status and then proceeded to
examine the employer’s arguments for bona fide occupational requirement.
[74]
Therefore, the Tribunal did not commit a
reviewable error in identifying the legal test for finding a prima facie
case of discrimination.
D.
Issue 4 - Did the Tribunal commit a reviewable
error in applying the legal test to the facts in the instant case?
[75]
Insofar as the first stage of the test is
concerned, I find the Tribunal was reasonable to find the respondent made out
the prima facie case of discrimination.
[76]
In determining whether a benefits scheme is prima
facie discriminatory, if the benefits are “. . .
allocated pursuant to the same purpose, yet benefits differ as the result of
characteristics that are not relevant to this purpose, discrimination may well
exist” (Gibbs at paragraph 33).
[77]
The applicant and the respondent are at issue on
whether or not the TDRA intends to cover the respondent’s family situation and
if the accommodation exceeds the scope of the RD. In light of the amendment
under the 2009 Directive which provides coverage for a dependent who resides
outside the employee’s residence, I find the TDRA does intend to provide
assistance to relocated employees irrespective of whether the dependant resides
with an employee, the dependant is suffering from a temporary or chronic
illness, or the dependant is well enough to relocate with an employee. Hence,
by limiting the application of the benefit to dependants who are only
temporarily sick or who are living with the relocated employee, the Tribunal
was reasonable to conclude that this was an under-inclusive benefit to justify
a finding of prima facie discrimination.
[78]
Insofar as the bona fide occupational
requirement is concerned, I find the Tribunal’s finding was reasonable. Here,
the Tribunal found the applicant’s bona fide occupational defence did
not stand because the applicant failed to provide reference to its renter owner
distinction and to provide evidence to substantiate its argument on the
prioritization of resources. To me, this rationale is transparent and
justifiable.
[79]
Therefore, the Tribunal was reasonable to find
there was a prima facie case of discrimination under the prohibited
ground of family status discrimination and that the employer failed to meet its
onus to establish a bona fide occupational requirement.
E.
Issue 5 - Were the Tribunal’s remedy awards
reasonable: a) award for pain and suffering, and b) award for wilful and
reckless conduct?
[80]
With respect to the award for pain and
suffering, the CHRA authorizes remedy for pain and suffering under paragraph
53(2)(e). Here, although the Tribunal found the respondent did not submit
medical reports for his claim of stress, it accepted the respondent’s evidence
of sick leave. The applicant argues HRSDC’s conduct did not rise to the level
of hurt feelings and loss of self-esteem contemplated under paragraph 53(2)(e).
In balancing the submissions from both sides and taking into consideration the
sick leave evidence, the Tribunal determined $15,000 was an appropriate
compensation for the respondent’s pain and suffering. I am satisfied that the Tribunal
did look for evidence of physical and mental manifestations of stress caused by
hurt feelings resulting from the alleged discriminatory practice and the
awarded amount is reasonable.
[81]
Regarding the award for wilful and reckless
conduct, the CHRA authorizes remedy for an employer’s wilful and reckless
conduct under paragraph 53(3). Here, the Tribunal acknowledged $20,000 is the
maximum award reserved for the very worst cases. In its determination, it
considered HRSDC’s strict adherence to the 1993 RD. It found the HRSDC did not
consider the CHRA in its rigid application of the RD and did not consider its
duty to accommodate. It ultimately determined the applicant showed disregard and
indifference towards the respondent’s family status. The Tribunal’s rationale
is transparent and justifiable. I am satisfied that its decision of the special
award is reasonable.
[82]
For the reasons above, I would deny this
application, with costs to the respondent.
Email this Content