HRTO Decision Clarifies Family Status Accommodation Test and Finds Reasonable Investigation Conducted

In Ananda v. Humber College Institute of Technology & Advanced Learning, a recent decision of the Human Rights Tribunal of Ontario (Tribunal), the Tribunal confirmed its approach to assessing claims of family status discrimination (in this case, involving eldercare) and described some of the features of a picture-perfect human rights investigation. In this FTR Now, we discuss the Tribunal’s ruling and its practical implications for employers and service providers.

Factual Background

The Applicant was a student in the joint Humber College (College)/University of New Brunswick (UNB) Collaborative Bachelor of Nursing Program (Program). This four-year eight-semester program prepares students to write their College of Nurses examinations and to obtain their license to practice as Registered Nurses. The College and UNB were respondents to companion applications arising from the same set of facts that were heard at the same hearing.

The Applicant experienced challenges in the Program, his progress having been interrupted on two occasions as a result of course failures, but ultimately he made his way into the 4th year of the Program. Shortly after the Applicant began his 4th year clinical placement, his clinical instructor noticed that he was struggling with the material. She attempted to support him by providing him with detailed feedback on his performance in writing following his clinical class each week. The Applicant resisted her attempts to assist him and described them as “abuse” to the administration, which triggered an investigation by the College’s Centre for Human Rights, Equity and Diversity (described in greater detail below). Despite his clinical instructor’s assistance, the Applicant failed the placement with the result that he was unable to complete all courses in the Program within the mandatory six-year timeframe for doing so and was required to withdraw from the Program.

The Applicant appealed his grade in the clinical placement but his appeals were unsuccessful. The Applicant then sought an extension of the six-year timeframe for completing his degree, claiming that the reason for his poor performance in the Program was the stress of being his elderly mother’s primary caregiver. The Applicant stated that his caregiving role constituted an “extenuating circumstance” and warranted an extension of the time available to complete the degree. The Applicant’s extension request was denied because the Associate Deans at the College and UNB who were responsible for making this decision were not persuaded that the Applicant’s caregiving needs were significantly different from those of many other students who grapple with childcare or eldercare responsibilities.

In the Application, the Applicant alleged discrimination and harassment based on age, and discrimination based on family status. He alleged that his age was a factor in his clinical instructor’s assessment of his performance in the placement and that she was preoccupied by his age and made harassing comments toward him about his age. He also alleged that he was discriminated against on the basis of family status because his request for an extension of the six-year timeframe to complete his degree was denied despite the family status-related reasons for his poor performance in his clinical placement. Finally, the Applicant alleged that the Respondents failed to adequately investigate concerns he raised about his clinical instructor.

The Application was denied. The most significant aspects of the decision are the Tribunal’s analysis of the Applicant’s allegation of family status discrimination and his allegation that the College did not meet its duty to investigate his complaint, discussed below.

The Correct Test for Family Status Discrimination

The Applicant’s allegation of family status discrimination arose from the decision not to grant the Applicant an extension of the mandatory six-year period during which he was required to successfully complete all the courses in the Program. The Applicant claimed that he was unable to focus properly during his clinical placement because of his concern for his ill mother, and because his caregiving obligations resulted in a lack of rest which negatively affected his ability to focus. The extension request was denied because the Applicant’s description of his mother’s needs (which had never been raised by the Applicant at any point during his course of study) did not indicate that she was in need of his constant care. The Tribunal similarly found that Applicant’s description of his eldercare obligations did not establish that he had experienced a “real disadvantage” as a result of his eldercare responsibilities.

The requirement of a “real disadvantage” arising out of the parent-child relationship in order to establish family status discrimination was first enunciated in Devaney v. ZRV Holdings Limited, where it was held that to succeed in an application alleging family status discrimination, the applicant must demonstrate that “a rule or requirement had an adverse effect on her or him because of requirements or needs relating to or arising out of the parent-child relationship.” In Ananda, the Tribunal affirmed that this is the “correct approach” to assess a family status discrimination claim. In so doing, the Tribunal departed from Canada (Attorney General) v. Johnstone, as foreshadowed in its critique of the Johnstone approach in Misetich v. Value Village Stores Inc., a 2016 Tribunal decision successfully argued by Hicks Morley.

In Ananda, the Tribunal held that, in order for the Applicant to establish family status discrimination, he had to establish that there was a “need” or “requirement” arising from his caregiving relationship with his elderly mother and that the negative impact of the decision not to allow the discretionary extension created “real disadvantage” to the Applicant arising from the responsibilities that flowed from his role as caregiver to his mother. The Tribunal held that the Applicant’s caregiving role (which involved bringing his mother tea, waking up with her some nights, taking her to appointments and assisting her in advance of cataract surgery that occurred after the clinical placement was completed) did not sufficiently explain his poor performance throughout the clinical placement and therefore he was not entitled to an extension of the six-year time period for completing his degree as a family status accommodation.

A Picture-Perfect Human Rights Investigation

As discussed above, once the Applicant’s clinical instructor noticed that the Applicant was struggling in the placement, she took immediate steps to help him improve his performance by providing him with supplementary performance feedback in writing. Ultimately, the Program Coordinator became involved in efforts to assist the Applicant, and invited the Applicant to a meeting with herself and the clinical instructor to explore learning strategies. The Applicant refused to attend the meeting with the Program Coordinator and the clinical instructor, alleging that he had been subject to “abuse” by the clinical instructor during the placement. This comment raised a concern for the Program Coordinator and led her to contact the Director of the Centre for Human Rights, Equity and Diversity, who immediately contacted the Applicant to discuss his concerns.

In his first meeting with the Director of the Centre for Human Rights, Equity and Diversity, the Applicant was uncooperative and did not identify any Human Rights Code (Code)–related grounds of discrimination. The Director nevertheless met with the Clinical Instructor to discuss the Applicant’s concerns and subsequently concluded that no violation of the College’s human rights policy had occurred. When she advised the Applicant of her conclusion, he, for the first time, alleged that race and gender were factors in his treatment by his clinical instructor. The Director re-opened her investigation in light of these new allegations and scheduled a second meeting with the clinical instructor to address the Applicant’s concerns. The Director determined that the allegations were not substantiated, and met with the Applicant to convey her conclusion. At this third meeting, the Applicant told the Director that five students had witnessed the alleged behaviours. The Director consequently re-opened her investigation for a second time and requested interviews of all five students, only three of whom responded. None of the student witnesses corroborated the Applicant’s allegations, and each indicated that the Applicant appeared as though he required additional support in the placement. Finding no evidence to substantiate the Applicant’s claim, the Director finally concluded in a closure letter to the Applicant that his allegations of race and gender discrimination were unfounded and that the investigation was closed.

Service providers have an obligation to respond to complaints of Code-based harassment and discrimination in a timely and effective manner based on the three-part analysis set out in Laskowska v. Marineland of Canada Inc. However, there is some conflict in the Tribunal’s jurisprudence as to whether a respondent’s failure to investigate an allegation of discrimination or harassment may lead to liability even if the allegations are found to be unproven at a hearing. In Ananda, the Tribunal found that a respondent’s failure to appropriately address or investigate a Code-based allegation can constitute a standalone violation of the Code. Accordingly, the Tribunal examined the College’s investigation of the Applicant’s concerns.

The Tribunal found that the College took adequate and appropriate steps to address the Applicant’s allegations and that in fact, it was “hard to fathom what more the Respondent College could have done.” Notably, the College launched an investigation based on the potential of a human rights concern despite the Applicant’s dismissive attitude toward the investigator, and the College was highly responsive to the incrementally expanding scope of the Applicant’s allegations in reaction to the Director’s investigation findings, reopening the investigation on two occasions, to ensure a thorough fact-finding exercise.

This case was successfully argued on behalf of Humber College Institute by Njeri Damali Campbell.

Ananda’s Lessons for Service Providers and Employers

Of the many takeaways provided by the Tribunal in the Ananda decision, the following are critical:

When faced with a request for family status accommodation, ensure that you have a clear understanding and assessment of:

All substantiating documentation and information in your organization’s possession at the time;
The “need” or “requirement” that arises directly from the service user or employee’s parent/child relationship. This may involve reasonable probing on the part of the service provider or employer; and
The alleged disadvantage arising out of the parent/child relationship that could be caused if the accommodation need is not met.

When investigating an alleged concern, be:

Proactive in exploring the nature of the alleged concern to determine whether there are any “hidden” human rights dimensions that ought to be explored; and
Responsive to any new information that arises that could change the outcome of an investigation, even where the investigation is officially “closed.” Note that an organization can be found to have “constructive knowledge” of (and a concomitant duty to investigate) a discrimination claim where new information is received by the investigator.

FTR Now