Family status discrimination continues to be an area in which the law differs across Canada. In British Columbia, the test for family status discrimination has been more stringent than in other parts of Canada for the past 15 years. The British Columbia Court of Appeal recently confirmed that this more stringent test set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 ("Campbell River"), continues to be the applicable test in British Columbia.
The Court of Appeal in Envirocon Environment Services, ULC v. Suen, 2019 BCCA 46 ("Envirocon") confirmed that:
[…] 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.
The employee was a project manager who had been employed with Envirocon Environmental Services ("Envirocon") since 2012. A few months after the birth of his first child, the employee was assigned to work in another province for eight to ten weeks. The employee refused to accept the assignment, and was subsequently terminated by Envirocon for just cause.
The employee filed a complaint with British Columbia's Human Rights Tribunal, asserting that Envirocon's conduct amounted to discrimination on the basis of family status in contravention of the Human Rights Code.
The Human Rights Tribunal Decision
Envirocon applied to dismiss the employee's complaint, asserting that the employee did not experience a serious interference with a substantial parental duty or obligation as a result of his temporary relocation.
The Tribunal considered whether the applicable test should be the less stringent test set out by the Supreme Court of Canada in Moore v British Columbia [Education], 2012 SCC 61 ("Moore"), which held that a prima facie case of discrimination will be made out when:
- the complainant possesses a protected characteristic;
- the complainant experiences an adverse impact with respect to [employment];
- the protected characteristic was a factor in the adverse impact.
The Tribunal also considered less restrictive tests for family status discrimination that had been established in other parts of Canada, as well as statements made by the Supreme Court of Canada in Stewart v Elk Valley Coal Corp., 2017 SCC 30, which stated that adjectives like "material" or "significant" are unnecessary in a human rights analysis.
Ultimately, the Tribunal applied both the Moore and Campbell River analyses to Envirocon's application and declined to dismiss the complaint on a preliminary basis.
Noting that "there is an open question about the continued supportability of Campbell River", the Tribunal ordered that the matter be set down for a full hearing on its merits.
Court of Appeal
The matter eventually made its way to the British Columbia Court of Appeal. There, the Court confirmed that Campbell River remains the governing law in British Columbia and determined the Tribunal erred in its application of it.
The Court held that temporary relocation, without more, could not constitute a "serious interference with a substantial parental or other family duty or obligation." The Court explained:
[…] while the employee's desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends is understandable and commendable, he is no different than the vast majority of working parents. There are many parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children. Nothing in the employee's complaint or affidavit suggests his child would not be well cared for in his absence.
For employers in British Columbia, Envirocon confirms that a personal preference to provide childcare, without more, does not trigger a duty to accommodate on the basis of family status. Employees will be required to exercise self-help, and balance childcare and work obligations before establishing a substantial parental obligation requiring accommodation.
In other Canadian jurisdictions, it will be interesting to see whether Courts and Tribunals will be willing to consider the more restrictive Campbell River language, now that it has been re-confirmed. The intention of the language, said the Court, is to prevent "disruption and great mischief" that occurs if employees seek accommodation on the basis of childcare preference alone.
The employee has applied for leave to appeal to the Supreme Court of Canada. We anticipate that leave will be granted given the differing approaches to family status discrimination across Canada.