This post was originally published January 31, 2020 and was updated November 23, 2020.
The debate continues on what constitutes family status discrimination following the Supreme Court of Canada's denial of leave to appeal in the matter of Envirocon Environmental Services, ULC v. Suen (2019 BCCA 46) ("Suen").
While family status is a prohibited ground of discrimination in human rights legislation across Canada, there remains considerable debate regarding the appropriate legal test for claims of family status discrimination. In particular, there are differing views regarding the level of adverse impact and the nature of family obligations required to trigger prima facie discrimination.
The Supreme Court of Canada had an opportunity to establish a uniform test for family status discrimination by allowing an application for leave to appeal the judgment of the Court of Appeal of British Columbia in the matter of Suen. As a result of its refusal to grant leave, the test for family status discrimination will continue to depend on the jurisdiction in which the alleged discrimination occurred. A brief overview of the different tests for family status discrimination is set out below for federal employers, as well as for British Columbia, Alberta, and Ontario.
Also, since the date this blog was originally published, two decisions were released by the British Columbia Human Rights Tribunal ("BCHRT") that reiterate the test that will be applied to family status discrimination complaints in British Columbia. More specifically, the BCHRT released its decision in Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125 ("Ziegler") and in Suen v. Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188 ("Suen Part II")
The Ziegler decision dismissed a complaint by an employee that her employer's change in her work schedule discriminated on the basis of her family status. Also, in Suen, the matter was referred back to the BCHRT for adjudication as to whether the decision to terminate Mr. Suen's employment constituted direct discrimination. In Suen Part II, the BCHRT dismissed the remainder of the complaint and held that the complainant's family status did not factor into the decision to terminate his employment.
The Federal Approach
In the federal jurisdiction, the leading authority on family status discrimination is Johnstone v. Canada (Border Services Agency), 2014 FCA 110 ("Johnstone").
Pursuant to the Johnstone test, to establish a prima facie case of family status discrimination a complainant must show that:
- a child is under his or her care and supervision;
- a childcare obligation engages the individual's legal responsibility for that child, as opposed to a personal choice;
- reasonable efforts were made to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
- the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of a childcare obligation.
The Johnstone test has been criticized for constraining family status discrimination protection. The test has also been criticized for imposing a higher threshold for adverse impact than claims of discrimination on other prohibited grounds. Notwithstanding these criticisms, Johnstone continues to be the leading authority in the federal jurisdiction.
The British Columbia Approach
In British Columbia, the leading authority on family status discrimination is Campbell River & North Island Transition Society v. H.S.A.B., 2004 BCCA 260 ("Campbell River"), as recently confirmed by the Court of Appeal of British Columbia in Suen.
Pursuant to the Campbell River test, to demonstrate prima facie discrimination on the basis of family status, a complainant must show that a change in a term or condition of employment imposed by an employer has resulted in a serious interference with a substantial parental or other family duty or obligation.
As with Johnstone, the Campbell River test has been criticized for creating a higher threshold for establishing discrimination based on family status relative to other prohibited grounds of discrimination. As a result, Campbell River has not been widely followed outside of British Columbia.
Of note, the Campbell River test seemingly contradicts the Supreme Court of Canada's decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 ("Elk Valley"). In Elk Valley, the Supreme Court of Canada held that a complainant need only demonstrate that their protected characteristic was "a factor" in the adverse treatment for prima facie discrimination to be established. However, in Suen the Court of Appeal of British Columbia confirmed that the Campbell River test remains the applicable test for family status cases in British Columbia despite Elk Valley. This was the test applied by the BCHRT in both Suen Part II and Ziegler.
The employee in Ziegler alleged that the employer's failure to accommodate her shift preference represented a serious interference with her parental rights. Ultimately, the BCHRT held that the employee's unwillingness to consider alternative childcare arrangements meant that there was no interference with a substantial parental duty or obligation.
In Suen, two grounds of discrimination were alleged, both adverse effect and direct discrimination. Adverse effect discrimination occurs where an otherwise neutral workplace policy impacts employees who share a particular protected characteristic. The Court of Appeal held that the complaint alleged facts that were only capable of establishing Mr. Suen's status as a parent, but there was nothing to suggest that his child would not be well cared for in his absence. Therefore, the complaint could not satisfy the second step of the Campbell River test with respect to the adverse effect discrimination. Accordingly, the remaining question as to whether there was any direct discrimination had been referred back to the BCHRT for adjudication.
Direct discrimination occurs when an individual is treated differently because of a protected characteristic. To constitute direct discrimination, the BCHRT held that Mr. Suen's family status had to factor into the decision to terminate his employment. The BCHRT held in Suen Part II that the termination was not discriminatory, as it was not punishment for Mr. Suen prioritizing his family. In holding there was no direct discrimination, the BCHRT concluded that not wanting to be away from one's family is not, on its own, a sufficient basis for turning down a work assignment in a job where travel is sometimes required.
The Alberta Approach
In Alberta, the test for family status discrimination is the same as the test for discrimination for all other prohibited grounds of discrimination as set out in SMS Equipment Inc. v. CEP, Local 707, 2015 ABQB 162 ("SMS"). To demonstrate prima facie discrimination the complainant must show that:
- a family status relationship exists;
- adverse treatment has occurred; and
- the adverse treatment was due, at least in part, on the employee's family status.
Alberta has also adopted the first two steps of the Johnstone test by requiring complainants to demonstrate, in the first stage of the SMS test, that:
- a child is under his or her care and supervision; and
- a childcare obligation engages the individual's legal responsibility for that child, as opposed to a personal choice.
Unlike the test used in Johnstone and Campbell River, the Alberta test does not create a higher threshold for establishing discrimination based on family status relative to other prohibited grounds of discrimination. However, it does limit family status discrimination to legal parental obligations by adopting the first two steps of the Johnstone test.
The Ontario Approach
While the Johnstone test has been applied by some adjudicators in Ontario, the Ontario Human Rights Tribunal in Misetich v. Value Village Stores Inc., 2016 HRTO 1229 ("Misetich") rejected it and instead held that the test for family status discrimination should be the same as the test for discrimination for all other prohibited grounds. This approach is similar to the one taken in Alberta. To establish adverse treatment, in accordance with Misetich, a complainant must show a significant negative impact to the family relationship or to their work, due to the employee's family status. Unlike Alberta, the Misetich framework does not require an employee to establish a legal parental obligation.
Despite the fact that family status is a prohibited ground of discrimination in all Canadian jurisdictions, employers should be aware that the test for discrimination based on family status continues to vary from jurisdiction to jurisdiction. Responses to requests for accommodation based on family status must be tailored to the jurisdiction where the employee is located to ensure compliance with applicable Human Rights legislation.
Notwithstanding the decisions by the BCHRT in both Suen Part II and Ziegler reinforce that not every request for flexibility as it relates to childcare obligations will be sufficient to maintain a family status complaint in British Columbia, employers who are considering implementing a change in an employee's terms and conditions of employment should clearly communicate the nature of the change to the employee. In the Suen Part II decision, both the employer and the employee were criticized for their failure to engage in a constructive dialogue around the change.
It may well be that disputes can be averted where an employee has a clear understanding of the impact that a change may have, as well as any measures that are being taken by the employer to mitigate them. Of course, in accordance with the decision in Ziegler, employees also have an obligation to pursue solutions to their own childcare issues, provided those solutions do not constitute a serious interference with a substantial parental obligation. Accordingly, discussions with employees about any concerns they have related to the change will also assist an employer in assessing their validity.
While the family status issues raised in Ziegler, Suen, and Suen Part II were found not to amount to discrimination, in the context of the COVID-19 pandemic, employers are well advised to consider whether certain measures can be put in place to assist employees who may be experiencing difficulties with their family obligations as the prospect of further lockdown measures loom. Depending on the circumstances, employers may consider implementing temporary alternate work schedules, leaves of absence, and providing access to employee assistance programs that could assist employees in the search for appropriate care, and other similar measures.
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.