Family Responsibilities are Human Rights
- November 6, 2013
Toronto, ON, November 6, 2013 – Bakerlaw strongly believes it is discriminatory to refuse to accommodate persons with bona fide responsibilities for the care of family members. We are pleased to be at the forefront of championing the rights of caregivers, a group who has suffered in silence for too long.
Denise Seeley was a conductor for Canadian National Railway Company (“CN”), with two young daughters. CN told her to leave her family home and transfer to Vancouver for an indefinite period under circumstances which precluded her from arranging daycare. When she declined to report, she was terminated.
The Canadian Human Rights Tribunal, upheld by the Federal Court, held CN discriminated against Ms. Seeley on the basis of her family status (see Canadian National Railway v. Seeley, 2013 FC 117 for the Federal Court decision). CN has appealed yet again, this time to the Federal Court of Appeal, where bakerlaw will represent Ms. Seeley.
Family status is an important emerging area of human rights laws. Where care responsibilities for a family member conflict with employment obligations and your employer is unwilling to make accommodations enabling you to reconcile the competing demands, act quickly.
Assert your right to be accommodated, with legal assistance if necessary, in order to avoid termination and costly litigation after the fact.
Pensions and Benefits
Public pensions and benefits are directly affected by discriminatory private and government policies, all of which need to be re-examined in light of the decisions in Seeley and its companion, Johnstone.
Minor changes have been made to Employment Standards (ES) and Employment Insurance (EI) legislation to provide job security and some income replacement when providing care to close relatives who are believed to be dying or at serious risk of dying. Like maternity and parental leaves, governments have been slow to extend these benefits.
A major issue that is little understood is the impact caregiving has on a person’s Canada Pension Plan (“CPP”). Because CPP is based on averaging income over potential income earning years, periods spent out of the workforce providing care to a sick or disabled family member can severely reduce a person’s pension. CPP makes provision for people who drop out of the workforce to care for young children (“caregiver drop-out provision”) but not for other caregivers.
The federal government’s refusal to extend the caregiver drop out based on need is discriminatory and in violation of both the equality clause of the Charter of Rights and Freedoms and the Canadian Human Rights Act.
Bakerlaw litigated this issue on behalf of a client through the internal EI Pension Appeal Board (PAB). The outcome was negative and, while judicial review of the decision was initiated in the Federal Court, the application was withdrawn on the instructions of the client. Later, ARCH took the same issue to the Federal Court of Appeal, which decided the case the same wa
sy, although there was a strong dissent from Justice Linden [see Harris v. Canada, 2009 FCA 22].
Both cases were decided on the basis that refusal to extend the caregiver dropout did not constitute discrimination based on disability.
Bakerlaw believes the PAB and FCA decisions were wrongly decided. More importantly, it believes that the same case would be decided differently if the issue were family status rather than disability discrimination.
Bakerlaw has already amassed the requisite evidence from pre-eminent experts and has completed the legal research required to bring a Charter challenge in the Federal Court based on family status. A crucially important case could therefore be launched at minimal cost to a client.
Bakerlaw is committed to addressing the plight of caregivers by ensuring employers accommodate their needs and governments do not discriminate against them in public pension and benefit programs.
– This post is current as of the time of writing. Readers should not rely on this post as legal advice. –