Canada: What About The Old People?

Last Updated: December 17 2014
Article by Michelle Black

The basis of family status extends beyond childcare; there is also the developing issue of eldercare, that is, when members of the workforce need to take time away from work in order to tend to the needs of elderly and infirm parents. The Ontario Human Rights Tribunal was asked to deal with this very issue in Devaney v. ZRV Holdings Limited (2012 HRTO 1590).

The facts

The Applicant had worked for ZRV Holdings Limited ("ZRV") for 27 years (most of his career) as an architect and, for quite a while, his mother had been suffering from various health issues. In 2008, his mother was rendered entirely incapacitated and the Applicant was the primary caregiver. Due to his mother's various health issues, the Applicant was required to be away from the office (either to be fully absent from work or to work from home) on many occasions to attend to his mother's care, take her to appointments, etc. This absenteeism was of concern to ZRV who sent various correspondences to the Applicant letting him know that his poor attendance was unacceptable and that it needed to be improved or he would be terminated for cause. Based on what ZRV considered to be a failure to improve, the Applicant's employment was terminated on January 9, 2009. Subsequently, the Applicant filed a complaint with the Human Rights Tribunal.

The issue

The Tribunal determined that the question to be decided was:

... whether the respondents' requirement that the Applicant attend the office during certain hours, except when he had a business meeting outside of the office, and the respondents' ultimate termination of the applicant's employment for failing to attend at the office as required, resulted in discrimination against the Applicant on the basis of family status.
(para. 99)

The Applicant argued that he had "significant elder care responsibilities towards his mother" and that those responsibilities are "included in the Code ground of 'family status'" (at para. 100). It was also the Applicant's position that family status is not only discrimination because "a person is a mother, father, son or daughter, but discrimination connected to the identity and circumstances of an applicant's family member" (at para. 102; emphasis added).

In response, ZRV argued that the Applicant did not establish a prima facie case of discrimination based on family status. It also argued that an employer need not accommodate all conflicts between work and parental obligations and not all conflicts can give rise to a find of discrimination. Importantly, ZRV argued that:

If it is the caregiver's choice, rather than family responsibilities that preclude the caregiver from attending work, a prima facie case of discrimination on the basis of family status is not established...
(para. 108)

ZRV attempted to argue that there was no difference between the Applicant's care giving responsibilities and those of anybody else, that there was no evidence that the Applicant was "uniquely qualified" to care for his mother and that he could have hired someone to provide care services or admitted his mother to a long term facility but that he "chose" not to:

[t]hey submit that the applicant chose to spend time with his mother rather than attend the office as required by his employer, and that, while his devotion to his mother is laudatory, such devotion does not create a family duty or obligation protected by the Code.
(para. 109)

The decision – prima facie discrimination

The Tribunal adopted the appropriate analysis (i.e. it determined first whether a prima facie case of discrimination had been made out). The Tribunal rejected the idea of establishing a higher test or threshold for family status discrimination and distinguished between absences that were required versus absences that were made by choice.

In determining whether the Applicant was required to attend to his mother's care, the Tribunal considered the evidence presented from the Applicant with respect to the various appointments and ways in which he needed to care for his mother. In contrast, ZRV had provided documentary evidence in terms of timesheets, logs, etc. to demonstrate his various absences.

While arguably not providing a definite response to ZRV's assertion that the Applicant should have hired someone to care for his mother (or "put" her in a home), the Tribunal looked at whether the Applicant was required to tend to his mother's care.

Ultimately, the Tribunal determined that the Applicant had established a prima facie case of discrimination, finding he had been required on many occasions (although not all to which he had attested) to be away from the office due to his elder care responsibilities. The Tribunal found that he had been terminated because of these absences.

The Tribunal noted that ZRV had been aware of the Applicant's elder care responsibilities and that:

... given the applicant's care responsibilities to his mother, the respondents' requirement that the applicant be in strict attendance at the office each day had an adverse impact on the applicant, as he was expected to be in the office during certain hours each day regardless of elder care requirements that he had, and his employment was terminated based on absences, a significant portion of which were required due to his family circumstances. I find, therefore, that the applicant has established a prima facie case of discrimination on the basis of family status.
(para. 154)

The decision – duty to accommodate

The Tribunal then went on to determine whether ZRV had fulfilled the duty to accommodate to the point of undue hardship. The evidence showed that ZRV was aware that the reason for many of the Applicant's absences was because he was caring for his mother. ZRV tried to argue that company policy was such that if an employee needed accommodation, the company would wait for the employee to approach and ask for whatever accommodation was needed. ZRV also argued that it did not require proof of the Applicant's mother's illness and that it did not want to pry into his personal affairs. The Tribunal rejected ZRV's "hands off" approach and found that:

... being aware that the applicant had eldercare responsibilities affecting his attendance, the respondents had a duty to consider and explore the possibilities of accommodating the applicant's needs related to his elder care responsibilities.
(para. 172)

The Tribunal found that ZRV failed to do this and did not "engage in any dialogue whatsoever with the applicant concerning his needs related to his elder care responsibilities and the possibility of accommodating those needs" (para. 172). The Tribunal rejected any argument that the Applicant had failed to fulfill his part of the accommodation process (i.e. to communicate what accommodation he would require because ZRV was aware that the Applicant had these family responsibilities). ZRV should have asked what could be done to accommodate the Applicant's circumstances.

The Tribunal did not accept ZRV's argument that the Applicant's working from home negatively affected morale and impeded on the Applicant's ability to fulfill his work responsibilities since the Applicant was quite reachable at home and he completed his work duties on time to the client's satisfaction.

The Tribunal found that there was no evidence of undue hardship arising from the Applicant's absences from the office and held there was:

Insufficient evidence to establish that accommodating the applicant's limited number of Code-related absences would have created problems for his team or others at the office amounting to undue hardship within the meaning of the Code.
(para. 192)

Interestingly, after ZRV terminated the Applicant, the Applicant asked for a second chance. ZRV offered to take the Applicant back under a contract, the terms of which were very similar to the original employment arrangement but would last for only three months, after which the relationship would be reviewed. ZRV argued that the contract was a form of accommodation in response to the Applicant's request to be given another chance but this argument was outright rejected by the Tribunal. Notably, the Tribunal also rejected the Applicant's argument that ZRV's attempts to manage his absence were vexatious or could constitute harassment.

Overall, the Tribunal found that ZRV discriminated against the Applicant on the basis of family status and failed in its duty to accommodate to the point of undue hardship. As a remedy, based on the Applicant's "considerable loss of self-respect, dignity, and confidence", the Tribunal awarded $15,000.00. The Tribunal also ordered that the Respondents were to develop a workplace human rights policy that included the duty to accommodate and to provide mandatory human rights training throughout the organization.

What this means to you?

Although the question of whether caring for an elderly parent can form the basis of a complaint of family status discrimination is an emerging and arguably novel legal area, one take-home message is not new: an employer must not "look away" under the guise of respecting an employee's privacy when a question arises as to whether there is a need to accommodate. As always, the specific facts of the case must be examined to determine whether discrimination exists and whether the employer accommodated to the point of undue hardship.

In this particular case, the Applicant was clearly dealing with family circumstances that required him to either be completely absent or to work away from the office. ZRV was chastised for not engaging in a discussion with the Applicant with respect to the Applicant's needs and in what ways he could possibly be accommodated. The Tribunal noted that ZRV was aware of the ongoing family responsibilities that the Applicant had but that it did not engage in this dialogue. It is certainly important for employers to respect any privacy issues that an employee may have with respect to his or her family obligations, but at the same time, if there is an issue that has arisen which an employer is aware, it should engage the employee in a respectful dialogue to determine what, if any, steps can be taken in order to assist the employee in dealing with the issues.

What is also noteworthy from this decision is the distinction that the Tribunal made between making a choice to care for an elderly adult and being required to care for an elderly adult. While there are choices involved as to how a parent cares for a child, there can be no debate that the parent is required to care for a child. It will be interesting to see whether the courts and tribunals will adopt the same perspective when dealing with issues arising from caring for an elderly patient. If this decision is any indication, such is likely to be the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions