In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 ("Gibraltar Mines"), the British Columbia Court of Appeal ("BCCA") recently resolved much of the uncertainty surrounding the test for prima facie family status discrimination in B.C.
A five-judge panel of the BCCA unanimously held that the test for prima facie family status discrimination does not include a requirement that there must be a change in the employee's terms or conditions of employment. Rather, the BCCA held that prima facie family status discrimination occurs where "a term or condition results in a serious interference with a substantial parental or other family duty or obligation of an employee, whether as a consequence of a change in the term of employment or a change in the employee's circumstances."1
The BCCA's decision is an important one, as it provides long-awaited clarification on the proper interpretation and application of the test for prima facie family status discrimination in B.C.
History of Family Status Discrimination in BC
Section 13(1) of the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code") prohibits discrimination against a person regarding employment or any term of employment based on, among other grounds, family status. However, there is no definition of "family status" in the Code, meaning that the Legislature left the scope of family status to be developed by the courts through case law.
It has long been understood that the test for prima facie family status discrimination in B.C. was set out by the BCCA in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 ("Campbell River"), and required an employee to show that:
- their employer imposed a change in a term or condition of employment; and
- the change resulted in a serious interference with a substantial parental or other family obligation.
The Gibraltar Mines Case
Ms. Harvey and her husband both worked the same 12-hour shift at Gibraltar Mines Ltd. ("Gibraltar"). Ms. Harvey became pregnant and went on maternity leave. Towards the end of her leave, Ms. Harvey sought a workplace accommodation to alter her and her husband's shifts to facilitate childcare arrangements. The parties entered into discussions, but were unable to agree on an accommodation. Ms. Harvey filed a human rights complaint with the BC Human Rights Tribunal (the "Tribunal"), alleging discrimination in employment on the basis of marital status, sex, and family status.
Gibraltar applied to dismiss the complaint, in part, on the basis that the first step of the test set out in Campbell River was not met since Gibraltar did not change a term or condition of Ms. Harvey's employment.
The Tribunal's and the BCSC's Decisions
The Tribunal dismissed the portion of Ms. Harvey's complaint pertaining to marital status and sex, but allowed the complaint with respect to family status to proceed. The Tribunal held that there was no requirement to show a change in terms or conditions of employment in the context of requesting an accommodation based on childcare obligations. Gibraltar applied to the BC Supreme Court ("BCSC") for judicial review of the Tribunal's decision.
The BCSC concluded that it was bound by the BCCA's previous rulings and the two-part Campbell River test. Accordingly, the BCSC concluded that since Gibraltar had not changed a term or condition of Ms. Harvey's employment, there was no prima facie case of discrimination. The Tribunal appealed the BCSC's decision to the BCCA.
The central issue on the appeal was whether a change in an employee's terms or conditions of employment was required in order to establish prima facie family status discrimination.
The BCCA reviewed the relevant provisions of the Code and its previous decisions and determined that Campbell River had been misinterpreted as requiring a change in an employee's terms or conditions of employment as a prerequisite to demonstrating prima facie family status discrimination. The BCCA came to this conclusion for three main reasons:2
- The issue on appeal was not before the BCCA in Campbell River, as the employer in Campbell River had changed the terms of the employee's employment. Rather, the issue before the BCCA was whether the term "family status" could encompass difficult childcare arrangements. In Campbell River, the BCCA actually decided that family status included the responsibility for childcare arrangements, subject to a materiality requirement. The comments regarding a change in terms or conditions of employment were limited to the facts of the case and were not an exhaustive statement on the test for prima facie family status discrimination.
- The Code does not require a change in a term or condition of employment before the protections in section 13 are triggered. The purposes of the Code suggest that it should be given an expansive interpretation.
- Human rights legislation is quasi-constitutional and as such, must be given a broad and liberal interpretation in order to achieve its purposes.
The BCCA also noted that the requirement that the parental or other family duty or obligation be "substantial or out of the ordinary" is necessary to give proper meaning to the protected ground of family status because, without a materiality standard, any family obligation that is impacted by an employee's terms or conditions of employment would amount to prima facie discrimination, and that is not what the Legislature had intended.3
With respect to the need to establish a "serious interference", the BCCA discussed the concepts of "real disadvantage" to parental responsibilities and impacting the parent/child relationship "in a significant way".4
Takeaways for Employers
An employee no longer needs to demonstrate that their employer has changed a term or condition of their employment in order to establish prima facie family status discrimination. However, an employee will still have to demonstrate that the terms or conditions of their employment result in a serious interference with a substantial parental or other family duty or obligation.
Employers will need to update their practices and/or policies to ensure that accommodation requests based on family status are processed in accordance with Gibraltar Mines. While this may result in an initial increase in accommodation requests due to the initial step of having to demonstrate a change in terms or conditions of employment being removed, not all requests will be able to pass the materiality requirements.
The Campbell River test only applies in B.C. There is a different family status test for federally-regulated employees, as well as in other provinces and territories.
If you have any questions about this topic, or about labour and employment matters in general, please contact a member of our Labour, Employment, and Human Rights Group.
1. British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 [Gibraltar Mines], at para. 77.
2. Gibraltar Mines at paras. 67 - 77
3. Gibraltar Mines at para. 92
4. Gibraltar Mines at paras. 97 - 98, citing Misetich v. Value Village Stores Inc., 2016 HRTO 1229, at para, 54
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