In Adekayode v Halifax (Regional Municipality), 2015
CanLII 13866, a Nova Scotia Human Rights Commission Board of
Inquiry recently considered a complaint alleging that an
employer's failure to provide a top-up of employment insurance
benefits for biological parents during a parental leave was
The complainant, Mr. Adekayode, was a unionized employee,
and his Collective Agreement provided top-up benefits to employees
who took adoption leave, but not to employees who took a parental
leave in respect of a biological child. Mr. Adekayode alleged that
this constituted discrimination on the basis of family status. Both
the employer and the union took the position that the differential
treatment between biological parents and adoptive parents was not
In considering the complaint, the Board of Inquiry
provided useful guidance on the meaning of discrimination in Nova
Scotia, and the protected ground of "family
The Board of Inquiry held that, based on the definition of
discrimination in the Nova Scotia Human Rights Act, in
order to make a finding of discrimination, there must be both a
distinction related to a protected characteristic, and a particular
effect of that distinction. With respect to the effect, the
Board concluded that the distinction must impose burdens not
imposed on others, or withhold or limit access to opportunities,
benefits and advantages available to other individuals. The Board
held that a distinction in treatment that does not result in that
kind of effect is not discrimination within the meaning of the Nova
Scotia Human Rights Act.
With respect to family status, the Board held that this
prohibited ground of discrimination includes "the
way the parent and child came to be in their relationship: whether
by birth, adoption placement, foster placement, guardianship,
voluntary role acceptance, or even by attachment." (para. 17)
It also includes"the entire scope
of legal obligations of care, responsibility, and protection for a
child that a person takes on when they enter into a parental
relationship with a child." (para. 17) Further, family status
"comprehends the whole essential social relationship of
obligation and dependence between those acting as parents, and
those who are children, with respect to care." (para.
Based on this meaning of family status, the Board
concluded that the Nova Scotia Human Rights Act prohibits
discrimination based on how the parent/child relationship is
created, and based on the care obligations created by the
In considering Mr. Adekayode's complaint, the Board
noted that there was a clear distinction drawn in the Collective
Agreement between biological and adoptive parents: adoptive parents
were entitled to the top-up of employment insurance benefits for 10
weeks at 75% pay, whereas biological parents were not entitled to
any top-up. Further, this distinction was drawn based on how the
parent/child relationship was created, which falls within the
protected ground of family status. Finally, the distinction had the
effect of withholding access to benefits from biological parents.
Therefore, the Board found that the denial of top-up benefits to
biological parents was discriminatory because it imposed a
disadvantage on them based on their family status.
With respect to remedy, the Board found that the real
injury that needed to be rectified was Mr. Adekayode's loss of
the opportunity to be home with his son, and noted that is a
difficult injury to address through an enforceable remedy. The
Board found that the most appropriate remedy was to award that Mr.
Adekayode was entitled to parental leave with top-up at a time when
his son was not expected to be in regular attendance at public
school. The Board held that the employer and the union should share
the cost of the leave because they both shared responsibility for
the discriminatory provisions of the Collective
This case provides important guidance on the meaning of
"family status" in Nova Scotia. It is one of very few
cases in the province that have considered this issue. It also
highlights for the employers the importance of carefully
considering their leave policies to assess whether employees on
leaves are treated differently on the basis of a prohibited ground
of discrimination. If so, there is a risk that the employer could
be found liable for discrimination.
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