Test for family status discrimination reaffirmed in British Columbia

B.C. Court of Appeal keeps bar high for type of parental duties that must be interfered with to constitute discrimination
By James Kondopulos
|Canadian Employment Law Today|Last Updated: 04/01/2019

The British Columbia Court of Appeal has just reaffirmed the test for family status discrimination in the province of British Columbia — a test which was first developed by the same court about 15 years ago in Campbell River & North Island Transition Society v. H.S.A.B.C., and which had come under criticism over the years and, indeed, was questioned more recently as no longer being good law.

In a unanimous decision issued a few weeks ago in Envirocon Environmental Services, ULC v. Suen, the Court of Appeal confirmed that the test from Campbell River represents the law in British Columbia. The test binds all decision-makers in the province — including the lower courts and administrative tribunals like the B.C. Human Rights Tribunal and labour arbitration boards constituted under the B.C. Labour Relations Code — in cases where there is an allegation of prohibited discrimination in employment on the basis of family status (parental or other family duty or obligation). Perhaps more importantly, the decision puts to rest the notion that the test in Campbell River is no longer good law.

Envirocon Environmental Services was a provider of environmental remediation services. One of the company’s project managers was Brian Suen. He started working on the job in 2012 and, from time to time, was required as part of his employment duties to travel to project sites away from home for varying periods of time.

A number of months after the birth of his daughter, Suen was assigned to project in Pinawa, Man., that was expected to take eight to 10 weeks. The project manager on that project had resigned from employment on short notice, leaving Envirocon in the lurch. No project manager other than Suen was available to go to Manitoba.

Suen refused the temporary assignment, suggesting just before he was discharged from employment for insubordination and failure to comply with lawful workplace direction that he could not accept the assignment “out of consideration” for his wife and daughter.

He subsequently filed a human rights complaint alleging that the company had subjected him to prohibited discrimination in employment on the basis of family status.

The company responded by denying any violation of the B.C. Human Rights Code and filing an application to dismiss Suen’s complaint on a preliminary basis without the need for a full oral hearing on the merits. It also took the position that Suen could not establish a case of prohibited employment discrimination on the basis of family status (parental or other family duty or obligation) because he simply could not satisfy the requirements of the Campbell River test. In the course of the written submission process, the company highlighted the evidence of Suen himself that his wife was the primary caregiver for their daughter and was off work on leave at that time.

The B.C. Human Rights Tribunal denied the application to dismiss. The tribunal, among other things, questioned whether the test developed in Campbell River remains good law.

An application for judicial review of the tribunal’s decision was unsuccessful. The reviewing judge took the view that the tribunal had engaged in an exercise of discretion and was accordingly entitled to a high degree of deference.

Envirocon took the matter on appeal.

Court of Appeal confirms Campbell River test

The B.C. Court of Appeal allowed the appeal, finding the tribunal’s decision was patently unreasonable as it was arbitrary and could not be allowed to stand. It was quashed and the judicial review decision was also set aside. The court remitted the case to the tribunal for “further proceedings consistent with (its) reasons.”

Without reservation at all, the Court of Appeal confirmed the Campbell River test. It set out the two requirements of the test:

• There has been a change in a term or condition of employment imposed by the employer.

• The change has resulted in a serious interference with a substantial parental or other family duty or obligation of the employee.

The court ruled that Suen had alleged facts “only capable of establishing the undisputed fact that he is a parent.” It highlighted that “nothing in (his) complaint or affidavit” suggested that “his child would not be well cared for in his absence.”

In short, there was no allegation or evidence which could satisfy the second requirement of the applicable legal test — a serious interference with a substantial parental or other family duty or obligation.

The court was very obviously alive to the floodgates problem which would result out of setting too low a bar for establishing family status discrimination in a case like Suen’s. It rejected the argument that it should “only (be) necessary for a complainant to show that a change in a term or condition of employment interferes with a parental or other family duty or obligation.” making the following notable observation:

“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.”

The court added: “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 decision in Envirocon is a significant one for any provincially-regulated employer doing business or operating in B.C. Because it is the decision of an appellate court, it may also be persuasive in other jurisdictions in the country.

At least in B.C., there is once again clarity around the test for prohibited employment discrimination on the basis of family status (parental or other family duty or obligation).

As it did one-and-one-half decades ago, the B.C. Court of Appeal has struck an appropriate balance between family needs and employer interests or work requirements. The court continues to favour an approach to allegations of family status discrimination which is context-sensitive. It is an approach which, as the court stated in Campbell River, “depend(s) on the circumstances of each case” and circumscribes the matter so that “(the concept of family status)... (is not) an open-ended concept ... (which) would have the potential to cause disruption and great mischief in the workplace.”

For more information see:

• Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.).

• Envirocon Environmental Services, ULC v. Suen, 2019 CarswellBC 204 (B.C. C.A.).

James D. Kondopulos is an employment, labour and workplace human rights lawyer with Roper Greyell LLP, an employment and labour law boutique in Vancouver. James was co-counsel along with Michael A. Wagner and Brandon I. Hillis, also of Roper Greyell, for the successful applicant in Envirocon Environmental Services, ULC v. Suen. James can be contacted by visiting www.ropergreyell.com.

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