Many employers and practitioners of human rights law in British
Columbia (like us) have been following the Federal Court of Appeal
decision in Canada (Attorney General) v
Johnstone, expecting that, as in Alberta and Ontario, the BC Human Rights
Tribunal may adopt Johnstone's broader federal human rights test for family
status discrimination, which would displace the narrower BC
test from Health Sciences Association
of B.C. v. Campbell River and North Island Transition
Society (Campbell River). Although
Johnstone was not raised directly in the decision, the BC
Human Rights Tribunal recently declined an
invitation to reconsider the application ofCampbell Riverand
whether its test for family status discrimination has been
displaced in British Columbia.
Kenworthy v Brewers'
Distributor (No. 2)involved an
application to dismiss two complaints involving
allegations of discrimination on the basis of sex and family status
and retaliation in the workplace. The respondent employer,
Brewers' Distributor Ltd. (BDL), is a beer warehousing and
distributing business. It employed Noelle Kenworthy as a casual
warehouse employee with a variable and inconsistent schedule. When
Ms. Kenworthy became pregnant, BDL accommodated her by changing her
work duties and schedule. After Ms. Kenworthy's child was born,
BDL entered into a series of accommodation agreements with Ms.
Kenworthy and made concerted efforts to accommodate her childcare
scheduling needs. However, the agreements also provided that Ms.
Kenworthy would be responsible for making any personal arrangements
necessary to enable her to meet her employment obligations. BDL
decided not to renew the accommodation agreement due to Ms.
Kenworthy's failure to fulfil these obligations, giving rise
(in part) to Ms. Kenworthy's human rights complaints. Ms.
Kenworthy also alleged in the complaints that she was sexually
harassed at the workplace, treated in a discriminatory fashion due
to her sex and family status, and retaliated against by BDL when it
refused to enter further accommodation
respect to the ground of family status, Ms. Kenworthy argued that
River test was no longer applicable and that the
Tribunal should be guided by the overall test for discrimination
from Moore v. British Columbia
(Education).The adjudicator disagreed, and relied on the
Rivertest. The Tribunal
did not go so far as accepting BDL's position that theCampbell Rivertest be strictly applied, concluding that the test
is not an "exhaustive one". In the circumstances, there
was no need to revisit theCampbell Riveranalysis. The Tribunal found that none of Ms.
Kenworthy's complaints had a reasonable prospect of success and
granted BDL's application to dismiss.
What this means for BC
there is scope for flexibility in the test for family status
discrimination under Campbell
River, the Kenworthy
decision demonstrates that the Tribunal will require particular
circumstances to justify revisiting and potentially displacing the
River test. For now, it appears Campbell
River is sufficient for the Tribunal's purposes to
address complaints of discrimination in family status in British
Columbia.However, as we posted previously, employers would
be well-advised to consider theJohnstonetest when examining employees' accommodation
requests on the basis of family status. This will insulate against
complaints, even if the resulting accommodation goes further than
the law in British Columbia requires. Of course, this is a matter
of risk management – there is no reason employers cannot
apply theCampbell Rivertest.
Aside from the appropriate test for family status
discrimination, Kenworthyalsooffers a good example of an employer meeting
its duty to accommodate family status by properly engaging the
accommodation process and pursuing reasonable accommodation
options. As the Tribunal put it, the accommodation process is one
in which: "all those involved are required to work together to
find a solution that adequately balances competing interests".
Having failed or refused to do her part in the accommodation
process, the complainant was unable to defeat the employer's
application to dismiss.
Although the Tribunal has confirmed that the
applicable in British Columbia, given the general desire for
uniformity in human rights protections across Canadian
jurisdictions and the broader tests being utilized elsewhere, it
does raise the question of whether, or perhaps when, the Tribunal
will revisit theCampbell Riveranalysis. We will keep you updated on
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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