The British Columbia Court of Appeal (“BCCA”) confirmed, in Envirocon Environmental Services, ULC v. Suen (“Envirocon”), that it has no appetite to depart from BC’s current legal framework, which applies a stringent test to establish prima facie discrimination in the context of family status.

Background

The complainant and new father, Mr. Suen, had been employed as a project manager with Envirocon since 2012. In 2016, Mr. Suen was given an out-of-town work assignment shortly after the birth of his first child. He was told that he would be away for eight to ten weeks and that the employer would not pay for him to return until the assignment concluded. Mr. Suen refused, in consideration of his wife and four-month-old baby.

Mr. Suen’s employment was terminated and he filed a complaint with the BC Human Rights Tribunal (“Tribunal”). The complaint involved both direct and indirect family status discrimination:

a. Direct - where Mr. Suen was terminated because he had become a parent; and

b. Indirect - where the new requirement to travel was a serious interference with Mr. Suen’s substantial parental obligation.

The employer filed an application to limit the complaint to only the issue of direct discrimination, submitting that the facts did not pass the threshold in BC for indirect family status discrimination.

The test for prima facie discrimination in BC

The threshold for family status discrimination in BC was set by the BCCA in Campbell River:

a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.

According to the BCCA, the Campbell River test is intentionally narrow so that it does not “cause disruption and great mischief in the workplace.”

In the 2017 case of Stewart v. Elk Valley Coal Corp. (“Elk Valley”), the Supreme Court of Canada confirmed that the threshold for discrimination requires that the complainant only “show that they have a characteristic protected from discrimination under the [Human Rights Code ("the Code")]; that they experienced an adverse impact with respect to [employment]; and that the protected characteristic was a factor in the adverse impact.”

The issue in Envirocon was whether, in the face of Elk Valley, Campbell River was still good law. Importantly, other Canadian jurisdictions disagree with Campbell River, and take the position that it conflates the threshold issue of prima facie discrimination with the next stage of the analysis.

Envirocon decision

In Envirocon, the Tribunal and the BC Supreme Court dismissed the employer’s application, finding that requiring Mr. Suen to be physically absent for over two-plus months could be more than mere “parental preference” and could be captured by protections of the Code.

The employer appealed to the BCCA and Mr. Suen requested that the BCCA reconsider the threshold Campbell River test.

The BCCA did not accept Mr. Suen’s invitation to harmonize the test for prima facie family status discrimination with the rest of Canada, and distinguished Elk Valley because it did “not involve family status discrimination.” The BCCA confirmed it was bound by Campbell River.

Applying Campbell River, the BCCA remarked that Mr. Suen had not alleged that his child required special care or that he alone was capable of caring for the child; therefore, he was no different than the vast majority of parents who are required to travel and work away for extended periods.

The BCCA found there was no "serious interference with a substantial parental or other family duty or obligation," the employer’s appeal was allowed and the matter was remitted to the Tribunal to be heard on the basis of direct discrimination alone.

Limitations on family status

The BCCA’s interpretation of family status discrimination makes practical business sense. Many employees face regular child care or elder care issues and it seems untenable to require employers to accommodate every request for flexibility.

An excellent case in point is a recent BC arbitration decision, where an employee, who was also a father, was scheduled to work on Halloween. When the father requested that his shift be swapped with a junior employee, his supervisor declined as the junior employee was not sufficiently qualified.

The father ended up taking unpaid family responsibility leave and did spend Halloween with his family. The grievance focused on his loss of wages and whether the employer should have accommodated his family status.

After reviewing the test in Elk Valley and acknowledging the controversy surrounding BC’s Campbell River test, the arbitrator concluded that she was bound by Campbell River, that there was no change in the terms of employment, and that there was no serious interference with a substantial parental or other family duty. Notably, the arbitrator dismissed the grievance and then went one step further, confirming that her conclusion would not change even had she used the Elk Valley test for discrimination applied by other jurisdictions.

While the threshold test for family status discrimination remains higher in BC, it is recommended that employers seek advice when managing issues involving changes in work and family responsibilities. Although the Envirocon case may not have warranted a change in BC, it is clear that decision-makers are preparing for a fact scenario that does.