Test for discrimination on the basis of family status

21 October 2019

Introduction

Family status has long been enshrined in Canadian human rights legislation as a prohibited ground of discrimination. The test for determining if a person has been discriminated against based on his or her family status varies from province to province, with British Columbia arguably having the most stringent standard. The leading test in British Columbia for discrimination on the basis of family status comes from Health Sciences Association of B.C. v Campbell River and North Island Transition Society, 2004 BCCA 260 ("Campbell River"). The Campbell River test provides that a prima facie case of discrimination is established 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 British Columbia Court of Appeal ("BCCA") in Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46 ("Envirocon") recently confirmed that the Campbell River test is still the applicable test. Before Envirocon, however, there had been a debate about whether the British Columbia courts should adopt the more relaxed test from Moore v British Columbia (Education), 2012 SCC 6 ("Moore"). The Moore test provides that a prima facie case of discrimination on the basis of family status is established when: 1) the complainant possesses a protected characteristic; 2) the complainant experiences an adverse impact with respect to his or her employment; and 3) the protected characteristic is a factor in the adverse impact.

Envirocon: Facts

Mr. Suen had worked as project manager for Envirocon Environmental Services, ULC since 2012. Mr. Suen's position required that he travel to project sites periodically. In 2015, Mr. Suen's wife gave birth to their first child. In January 2016, the employer assigned Mr. Suen to manage a project in Manitoba for eight to ten weeks, and informed Mr. Suen that he would not be paid to return home until the assignment concluded. Mr. Suen refused to accept the assignment out of consideration for his wife and child. The employer warned Mr. Suen that he would be dismissed if he did not accept the assignment, and subsequently dismissed Mr. Suen when Mr. Suen once again refused to accept the assignment.

Mr. Suen filed a complaint under section 13(1) of the Human Rights Code, RSBC 1996, c 210, and the employer made a preliminary application to dismiss the complaint.

BC Human Rights Tribunal and BC Supreme Court

The British Columbia Human Rights Tribunal ("BCHRT") found that the employer's requirement that Mr. Suen be physically absent for eight to ten weeks could be more than mere "parental preference" and could violate the Human Rights Code. The BCHRT also found that the question of whether the Campbell River test, or the Moore test, should apply to matters involving allegations of discrimination on the basis of family status, was a live issue. The BCHRT dismissed the employer's preliminary application, and the Supreme Court of British Columbia ("BC Supreme Court"), on judicial review, found that the BCHRT's decision was not patently unreasonable.

BC Court of Appeal

The BCCA reversed the BC Supreme Court's ruling and quashed the BCHRT's decision. In doing so, the BCCA confirmed that the test for family status discrimination remains the Campbell River test, and that Mr. Suen's temporary relocation was not a "serious interference with a substantial parental or other family duty or obligation". The BCCA held that:

…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.

Supreme Court of Canada

On August 8, 2019, the Supreme Court of Canada dismissed Mr. Suen's application for leave to appeal the BCCA's ruling.

Importantly for employers, Envirocon confirms that a "serious interference" requires more than an employee being absent from home for an extended period of time, unless it can be demonstrated that the absence would result in the child not being well cared for.

For all questions related to human rights accommodation, the Gowling WLG Employment, Labour & Equities Group would be pleased to assist. Find out more about our Group and how to contact a specific lawyer.


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