Canada: SCC Refuses To Reconsider BCCA's Stricter Approach To Family Status Discrimination

Last Updated: August 28 2019
Article by Lynsey Gaudin, Alizeh Virani and Graham Christie

Protections against discrimination are enshrined in federal and provincial human rights legislation across the country. Although there are commonalities, the methodology for determining discrimination is not the same across the various grounds of protection, nor is it the same across the provinces.

In British Columbia, as in other jurisdictions, the test for determining whether discrimination has occurred on the basis of family status is unsettled. At the heart of the conflict is the applicability of the tests established in Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 ("Campbell River") and Moore v. British Columbia (Education), 2012 SCC 6 ("Moore") to matters involving allegations of discrimination on the basis of family status.

In Campbell River, it was established that a prima facie case of discrimination is made out 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.

In Moore, a less strict and general test is applied, requiring a complainant to only demonstrate that he or she has a characteristic protected from discrimination; that he or she experienced an adverse impact; and that the protected characteristic was a factor in the adverse impact.

This conflict between the appropriate test to be applied in the case of family status was recently addressed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 ("Envirocon").

In Envirocon, an employee whose wife had recently given birth was assigned to replace a project manager at a site in Manitoba, which would require him to be away from his family for a period of two to two and a half months. The employee declined the assignment. The employer advised the employee that the assignment was within its management rights, that it was a requirement of the job of which the employee was aware, and that he could be dismissed for cause if he persisted in refusing the assignment. The employee advised that he would not take the assignment out of consideration for his four-month-old baby and his wife. The following day, after refusing to change his mind, the employer issued a letter of termination for insubordination.

Following his termination, the employee filed a complaint with the British Columbia Human Rights Tribunal ("BCHRT") alleging discrimination with respect to employment on the basis of family status.

In response, the employer unsuccessfully applied to have the complaint dismissed without a hearing. In denying the employer's application, the BCHRT found that there was sufficient evidence to substantiate a claim, and that it was open to question as to whether the more stringent Campbell River test or the more general Moore test should be applied to matters involving allegation of discrimination on the basis of family status.

The employer filed a petition for judicial review of the BCHRT decision, which was dismissed by the Supreme Court of British Columbia after finding that the BCHRT's decision was not patently unreasonable and deserved deference. The employer then appealed the Supreme Court's decision.

The British Columbia Court of Appeal ("BCCA") overturned the lower court ruling, and quashed the decision of the BCHRT. The Court of Appeal affirmed that the test to be applied in British Columbia with respect to discrimination based on family status is the test outlined in Campbell River. The BCCA found that the employee did not satisfy the requirement that there was serious interference with a substantial parental or other family duty or obligation, concluding that 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."

The Court found that nothing in the employee's complaint would suggest that his child would not be well cared for in his absence, and on that basis found that he did not meet the second component of the Campbell River test.

The Campbell River test has been criticized for narrowing the scope of family status discrimination, and as a result has not been widely followed outside of British Columbia.

The question of whether the Campbell River test is "good law" was not expressly addressed in the case. While the Court held that it was bound by the decision, it did not specifically address the justification as to why there is a different test for proving discrimination on the ground of family status, when human rights complaints based on other protected grounds remain subject to the test established in Moore. This remains true for many other jurisdictions in Canada which face similar uncertainty as to the applicable test.

On this ground, the employee applied for leave to appeal this decision to the Supreme Court of Canada.

On August 8, 2019, the Supreme Court of Canada dismissed the leave to appeal, suggesting that the case law across the country is well settled and that although there may be different approaches taken in different jurisdictions, each applicable test is sufficient in ensuring that discrimination on the basis of family status has been appropriately established. As such the applicable test in British Columbia will continue to be the Campbell River test.

While this case affirms Campbell River, it also provides insight as to what may be required with respect to establishing "serious interference."

Specifically, a mere absence from home for an extended period will not satisfy the requirement for serious interference, unless it can be demonstrated that such absence would result in the child not being well cared for. Future cases may be required in making a definitive determination as to what constitutes sufficient care while a parent is absent.

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.

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