For the previous publication on the Nova Scotia Human
Rights Board of Inquiry Decision which considered whether an
employer's failure to provide top-up benefits to biological
parents on parental leave was discriminatory, please click
The complainant was a unionized employee and hisCollective Agreement provided top-up benefits to adoptive
parents, but not to biological parents. The Board of Inquiry
concluded that the distinction in benefits constituted
discrimination on the basis of family status.
The Union appealed the Board of
Inquiry's decision to the Nova Scotia Court of Appeal.The issues on appeal were: (1) whether the top-up was
discriminatory within the meaning of the Nova Scotia Human
Rights Act and, if so, (2) whether the top-up was saved by s.
6(i) of the Act as a "program or activity that has as
its object the amelioration of conditions of disadvantaged
individuals or classes of individuals" –adoptive
The Court of Appeal issued its decision on February 10, 2016.
The Court upheld the Board of Inquiry's conclusion that the
provision of top-up benefits to adoptive parents and not to
biological parents was discriminatory on the basis of family
status. However, the Court went on to conclude that the provision
of top-up benefits only to adoptive parents was saved by Section
6(i) of the Act. Section 6 exempts certain circumstances from the
prohibition of discrimination in the Act. In particular, Section
6(i) provides that the prohibition of discrimination does not apply
to preclude a program that that has as its object the amelioration
of conditions of disadvantaged individuals. The Union and the
employer argued that the provision of top-up benefits was intended
to ameliorate the circumstances of adoptive parents, who they
submitted were a disadvantaged group.
The Court of Appeal noted that
the uncontradicted evidence was that:
A heavy majority of adopted children have special needs,
not so forbirth children.
Adoptive families often struggle with bonding that is
natural to the birth relationship.
Adoptive parents are particularly stressed during the six
month probationary period after the placement, when the adoption is
The post-placement infrastructure for adoptive parents is
less supportive than for natural parents.
The Court accepted that adoptive
parents are a disadvantaged group, and that the object of the
top-up benefits was to ameliorate their circumstances. Accordingly,
the Court concluded that the provision of top-up benefits only to
adoptive parents (and not to biological parents) was saved by
Section 6(i) and did not violate the Human Rights Act. On
that basis, the Court of Appeal overturned the Board of
Inquiry's order and dismissed the Human Rights
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