Canada: A (Not So) New Test For Family Status Discrimination In British Columbia

It is often a challenge for employers to determine whether they have a duty to accommodate an employee's "family status" under human rights legislation.  Adjudicators across Canada have taken different approaches to assess whether the duty to accommodate family status has been triggered.  The recent B.C. Human Rights Tribunal decision in Adair v. Forensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147 ("Adair"), demonstrates that some Tribunal members continue to resist the most stringent test for complainants that is binding law in B.C.

Background

Darcy Adair lost his commercial driver's license as a result of an epileptic seizure.  When he returned to work, his employer, the Forensic Psychiatric Services Commission ("FPSC"), modified his schedule so that he would be assigned shifts where he was not required to have a commercial driver's license, which so happened to be primarily evening shifts.  Mr. Adair complained that restricting him from working day shifts amounted to a failure to accommodate him and he alleged that FPSC had discriminated against him on the basis of a physical disability.  Notably, Mr. Adair did not allege family status discrimination in his complaint, although he did argue that the new schedule had a negative impact on his family, primarily because he had less time to spend with his young children.

The Tribunal dismissed Mr. Adair's complaint on the basis that the all-evening schedule was reasonable and fully accommodated his disability while not interfering with the duties and responsibilities of his co-workers.  While the Tribunal acknowledged that Mr. Adair may have preferred an accommodation which allowed him to spend more time with his children, it held that it did not have to assess whether his preferred schedule was a reasonable option, commenting that where there is more than one reasonable option, an employer is entitled to choose among those options.

Interestingly, despite Mr. Adair confirming that his complaint was related to his disability, the Tribunal explored whether Mr. Adair would have been successful if he had framed his complaint as family status discrimination.

The Test for Family Status Discrimination

In Adair, the Tribunal reiterated many comments made in previous Tribunal decisions, including that not every conflict between work and familial obligations will trigger the duty to accommodate, and that there is an "inevitable tension" between work and family responsibilities.

In determining whether there has been family status discrimination, the approach in British Columbia has been to consider whether a change in a term or condition of employment has resulted in a "serious interference with a substantial parental or other family duty or obligation of the employee" (the Campbell River test).  This is generally considered to be the most stringent test for family status discrimination in Canada.  In Mr. Adair's case, the Tribunal applied this test and found that he had not presented evidence of a "serious interference" between his family and work duties.  It acknowledged that while his children wanting to spend more time with their father was desirable, it was not something that was captured by "family status" protection.

After remarking that the law on family status is "unsettled" in British Columbia, the Tribunal then considered whether Mr. Adair would be able to establish family status discrimination using the less stringent tests applied in other Canadian jurisdictions, where qualifiers such as "serious" and "substantial" are not used.  For example, at the federal level, a four part test is applied: (1) a child is under the employee's care and supervision; (2) the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice; (3) the employee has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (4) the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation (the Johnstone test).  The Tribunal in Adair found that even if it applied the tests used federally, in Ontario, or in Alberta, Mr. Adair would have been unsuccessful because the all evening schedule did not interfere with his obligation to provide child care or any other legal responsibility for his children.

Adair is now listed on the Tribunal's website as one of the "leading cases" for family status discrimination, with the comment that the Campbell River test may no longer be "supportable".  Adair was considered by the Tribunal a few months later in Suen v. Envirocon Environmental Services (No. 2), 2017 BCHRT 226, where another Tribunal member confirmed that the Campbell River test was still applicable, while also acknowledging that there may be a question of whether the Campbell River test is still good law in British Columbia.

Relevance for Employers

Campbell River was a decision of the B.C. Court of Appeal that is binding on the Human Rights Tribunal.  Therefore, the Tribunal's approach is troubling and it remains to be seen whether the Tribunal will actually apply the less stringent approaches taken in the other Canadian jurisdictions.  Despite this legal uncertainty, Adair provides some assurance to employers regarding the scope of the duty to accommodate, and it confirms that not all interferences between work and familial obligations will be a violation of the Human Rights Code.  While an employee's requested accommodation should generally be explored as part of the accommodation process, the duty to accommodate does not necessarily require employers to provide an employee with his or her preferred solution.  The duty to accommodate requires reasonableness on both sides.

We recommend that employers keep the following in mind when dealing with requests for family status accommodation:

  • as with all accommodation requests, requests for family status accommodation should be looked at on a case-by-case basis;
  • context is important (i.e. consider what supports are available to the employee);
  • consider what efforts have already been made by the employee to deal with the family-work conflict, while remembering that this factor alone is not determinative; and
  • document the suggestions made by both parties, and explore an employee's suggestion if reasonable.

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