Canada: The British Columbia Supreme Court On Family Status Discrimination: Parenting Roles, Stereotypes And In-Flux Jurisprudence


The recent British Columbia Supreme Court ("BCSC") decision in Envirocon Environmental Services, ULC v. Suen confirms that the law in British Columbia with respect to family status discrimination remains unsettled.  The decision also provides insight into the reasoning of the British Columbia Human Rights Tribunal (the "Tribunal") regarding parenting roles and stereotypes and the interpretation of the purposes underlying the British Columbia Human Rights Code (the "Code").12


Mr. Suen worked as a project manager based out of Burnaby, B.C., for Envirocon Environmental Services, ULC ("Envirocon"), a company providing environmental remediation services across Canada.  As a project manager, Mr. Suen was sometimes temporarily assigned to projects out of town, but he was able to work remotely or fly home to Vancouver during these assignments at Envirocon's expense.

A few months after the birth of Mr. Suen's daughter, a project manager in Manitoba unexpectedly resigned and Envirocon assigned Mr. Suen to replace him.  The assignment would have required Mr. Suen to relocate to Manitoba for two and a half months, with no rotations back at the head office, and trips home to Vancouver only on weekends and at his own cost.  When Mr. Suen refused to transfer, Envirocon terminated his employment.

The Complaint and Application to Dismiss

Mr. Suen filed a human rights complaint with the Tribunal, alleging that in terminating his employment, Envirocon had discriminated against him on the basis of his family status (the "Complaint").

Envirocon then filed an application to dismiss the Complaint, arguing, among other things, that:

  • the facts alleged by Mr. Suen, even if true, did not contravene the Code; and
  • the Complaint did not further the purposes of the

With respect to the first argument, Envirocon submitted that the facts alleged by Mr. Suen, even if true, did not meet the elements of the test for discrimination based on family status set out by the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society3 (the "Campbell River test").

In its decision rejecting Envirocon's application to dismiss the complaint,4 the Tribunal found, however, that the facts alleged could meet the Campbell River test, as well as the lower threshold set out in the decision of the Supreme Court of Canada ("SCC") in Moore v. British Columbia (Education)5 (the "Moore test"). The Tribunal also strongly suggested that the SCC's recent decision in Stewart v. Elk Valley Coal Corp.6, in which the SCC criticized the requirement for a complainant to establish that acts of discrimination were "material" or "significant", meant that the Campbell River test is no longer good law. Notably, neither the Tribunal nor the BCSC reached a conclusion as to the proper test for family status discrimination in B.C.

With respect to the argument that the Complaint would not further the purposes of the Code, Envirocon reasoned that family status is a protected ground to ensure protection of employees in difficult, irreconcilable situations, such as when an employee has a child with significant physical or mental health issues that demands provision of special care, or lacks resources or support to obtain assistance with such care. Envirocon argued that since Mr. Suen's wife was the primary caregiver for his daughter and they had plenty of childcare supports, Mr. Suen "did not have any special skill or ability which [rendered] him indispensable in the care of his daughter".

The Tribunal strongly rejected this line of argument, holding that Envirocon's argument perpetuated the stereotype that mothers have higher parental responsibilities than fathers.  Emphasizing that the case is not about regular working hours, but about an employer requiring lengthy periods of absence, the Tribunal found that the assignment would diminish Mr. Suen's ability to share in the responsibility of parenting his child.  Furthermore, Envirocon's assertion that Mr. Suen has "no special skill or ability" to make him indispensable in caring for his daughter so minimizes the role of a father in a child's care as to run counter to the purposes of the Code.

The Tribunal decided not to dismiss the Complaint.

Envirocon's Petition for Judicial Review

Envirocon brought a petition for judicial review to the BCSC.  The Court rejected Envirocon's petition, holding that the Tribunal's decision to allow Mr. Suen's complaint to proceed was discretionary, was entitled to deference, and was not clearly unreasonable. The Court did not clarify whether the test in Moore or Campbell River, or some other test, is the appropriate test to determine whether discrimination based on family status has occurred.

Key Takeaways

At this time, the appropriate legal test to determine discrimination based on family status in B.C. is unclear.  Employers should be aware that the Campbell River test, which requires complainants meet a higher threshold than the test for family-status discrimination in other jurisdictions in Canada, may not apply in B.C.  The Tribunal's decision, upheld by the Court on review, suggests that assignments that require round-the-clock absences from an employee's child care responsibilities may reach the threshold of family status discrimination.  Another factor that could be problematic for the employer is that it did not offer the manager regular rotations home, and would not pay for his flights back during the rotation (both of which it previously did for him in BC).  Also, the Tribunal clearly signaled that it will not consider favourably any arguments that can be said to perpetuate stereotypes regarding parental roles.  The Tribunal took issue with the Employer for minimizing the father's role in parenting his daughter; however, in fairness to the Employer, it appears that it was raising this in the context of the Campbell River Test to show that given one parent was a full-time caregiver, the absence of the other parent did not meet the threshold of "a serious interference with a substantial parental or other family duty".  The Employer could have made the same argument if the parental roles had been reversed.  Nonetheless, the Tribunal has clearly signaled that no employer should consider a father's child care obligations to be any less important than those of a mother.

It is not clear whether or when this case will be heard and decided by the Tribunal (it could still settle), but if it is heard, you can expect the Tribunal's decision will add yet another layer to the family status jurisprudence in B.C.  We will keep you posted.


1 2018 BCSC 1367.

2 Envirocon Environmental Services, ULC v. Suen, 2018 BCSC 1367; Human Rights Code, R.S.B.C. 1996, c. 210.

3 Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 [Campbell River].

4 2017 BCHRT 226.

5 2012 SCC 61.

6 Stewart v. Elk Valley Coal Corp., 2017 SCC 30 [Elk Valley].

To view the original article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions