Canada: BC Court Of Appeal Affirms Stricter Standard For Finding Of Family Status Discrimination

Last Updated: February 21 2019
Article by Ritu Mahil and Jim Boyle

On February 18, British Columbians will join Canadians in several other provinces to celebrate Family Day. It is an opportunity to spend time with the people who are, for many Canadians, the most valuable aspect of their lives. The fact that some provinces have declared a statutory holiday for this purpose reinforces the truth of the old adage – there is nothing more important than family.

Canadian jurisdictions have further recognized this principle by enshrining protection for family status in provincial and federal human rights legislation. The interpretation of what amounts to discrimination on the basis of family status, however, is not necessarily uniform among jurisdictions.

Most notably, British Columbia has adopted a relatively strict standard for establishing discrimination in respect of employment on the basis of family status. In the leading case on the issue, Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 [Campbell River] (argued by Lawson Lundell's very own Ritu Mahil), the British Columbia Court of Appeal set out a two-part test for prima facie family status discrimination in relation to employment:

  • there has been a change in a term or condition of employment imposed by an employer; and
  • the change results in a serious interference with a substantial parental or other family duty or obligation of the employee.

The Court of Appeal in Campbell River further noted that "in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case."

Despite being binding authority in British Columbia, Campbell River has been criticized as unduly narrowing the scope of family status discrimination and the decision has not been widely followed outside British Columbia.

This criticism has intensified since 2017, when the Supreme Court of Canada released its decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 [Elk Valley]. Elk Valley was a case about discrimination on the basis of disability, not family status; however, in its reasons, the Supreme Court of Canada held that, in assessing whether a prima facie case of discrimination can be established, a complainant need only demonstrate that their protected characteristic was "a factor" in the adverse treatment.

Despite Elk Valley, the British Columbia Court of Appeal has recently affirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 [Envirocon] that, at least for the time being, Campbell River remains the law in British Columbia.

Mr. Suen, whose wife had recently given birth, worked for Envirocon out of its Burnaby office. After a project manager in Manitoba resigned unexpectedly, Envirocon assigned Mr. Suen to the project for a period of 8 to 10 weeks. Mr. Suen declined the assignment "in consideration of his wife and 4 month old baby." Envirocon advised Mr. Suen that if he did not accept the assignment he would be dismissed for cause. Mr. Suen still refused the assignment, and Envirocon terminated his employment for cause due to insubordination.

Mr. Suen filed a complaint with the British Columbia Human Rights Tribunal alleging that Envirocon discriminated against him on the basis of his family status. The Tribunal found that the fact Mr. Suen was required to be physically absent for more than two months "meets the threshold of 'something more' than the usual work/family tensions that every parent faces at some time or another and which Campbell River purports to put beyond the protection of the Code."

On judicial review, the Supreme Court of British Columbia upheld the Tribunal's decision, finding that the Tribunal made no legal error in applying the Campbell River test to the facts before it.

On appeal, Mr. Suen argued that the Campbell River test is too restrictive. The Court of Appeal confirmed that Campbell River remains good law in British Columbia. The Court of Appeal noted that Mr. Suen's request for the appeal to be heard by a five-justice division so the Court could consider whether Campbell River ought to be overturned was denied – accordingly, the Court of Appeal held itself to be bound by Campbell River, and Mr. Suen would be required to meet the strict test set out in that case.

The Court of Appeal found that the facts alleged by Mr. Suen were not capable of satisfying the second step of the Campbell River test – rather, the facts alleged established only that Mr. Suen is a parent, and Mr. Suen's desire to remain close to home to be with his child and assist his wife in caring for the child is no different than the vast majority of parents. Accordingly, the Court allowed the appeal and remitted the matter back to the Tribunal for further proceedings consistent with the Court of Appeal's reasons.

The result of Envirocon is that Campbell River remains the governing authority on family status discrimination in British Columbia. Given that Envirocon affirmed Campbell River on technical grounds, it remains possible that, if Envirocon is appealed to the Supreme Court of Canada, or if a future five-judge division of the Court of Appeal sees fit to overturn Campbell River, the law will change such that British Columbia will join the rest of Canada in applying a less restrictive test for finding prima facie family status discrimination. At least for the near future, however, British Columbians may be required to show something more than Canadians in other jurisdictions in order to establish that they have been subject to prima facie discrimination on the basis of family status.

A few take-away lessons for British Columbia employers based on Envirocon and Campbell River:

  • Employees are not entitled to a flexible work schedule simply for the purpose of allowing them to spend more time with family, even if the employee is a recent parent.
  • Parents are expected to juggle the demands of parenting with their work obligations. It is only when there is some special circumstance, such as when the parent is uniquely qualified or available to care for a child with special needs, that family status under the Human Rights Code will be engaged.
  • Employees who request accommodation or refuse a change in a term or condition of employment on the basis of a family obligation will typically be required to show why the conflicting obligation is substantial and how the employee will otherwise be unable to arrange their affairs to address the obligation.

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 Mondaq.com.

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

Authors
Ritu Mahil
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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