The issue of discrimination on the basis of family status continues to be of interest to all employers, and one on which the appeal courts in Canada do not seem to be able to agree.
Two different tests for proving discrimination on the basis of family status have developed in Canada – one from the Federal Court and one from the British Columbia Court of Appeal. The B.C. test is a more restrictive one, requiring a determination that the employer implemented terms or conditions of employment which resulted in a serious interference with a substantial parental or other family duty. In contrast, the test from the Federal Court simply requires interference which is more than trivial or insubstantial.
However, there does appear to be one aspect of the test upon which the Courts agree – that the family obligation which is alleged to have been interfered with must be something more than a typical family obligation or choice which many families face. In a recent decision, Envirocon Environmental Services, ULC v. Suen, while confirming that the test in B.C. has not changed despite the more recent and less restrictive law from the Federal Court, the B.C. Court of Appeal also confirmed that it is not every interference with family life which is prohibited.
Mr. Suen alleged that his employer, Envirocon, had discriminated against him when it assigned him to work on a project which required him to be away from home for eight to ten weeks. At the time, Mr. Suen's daughter was four months old, and he took the position that his wife required him to assist with the care of his daughter and that he could not be away for such an extended period of time. Envirocon terminated his employment when he refused the assignment.
The Court of Appeal determined that Mr. Suen was not able to prove that there had been a serious interference with a substantial parental obligation. The Court stated:
"...the facts alleged by Mr.Suen ... are only capable of establishing the undisputed fact that he is a parent. While Mr.Suen's desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends is understandable and commendable, he is no different than the vast majority of parents. 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. Nothing in Mr.Suen's complaint or affidavit suggests his child would not be well cared for in his absence."
The types of family obligations which must be accommodated are defined similarly by the Federal Court, although its terminology is different. In a case which also dealt with child care issues, the Federal Court stated, "the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability". Thus, it is clear that Mr. Suen would not have been successful with his claim even under the arguably broader test established by the Federal Court.
The confirmation that not every family obligation must be accommodated is a welcome one, but employers must be careful not to reject dubious requests for accommodation out of hand. When faced with an accommodation request on the basis of family status, employers must be diligent in seeking information to fully understand the basis for the request, and whether there are circumstances which make the employee's situation unusual.
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.