Family Status Discrimination Test Affirmed by BC Court of Appeal

The British Columbia Court of Appeal recently affirmed that the test for assessing discrimination in employment on the basis of family status differs from other protected grounds.

The Human Rights Code prohibits discrimination in employment on a variety of grounds, including physical or mental disability, age, religion, political belief, sex and sexual orientation. The test applied when determining what constitutes discrimination under these grounds is the same, namely:

1. Does the employee have a characteristic protected from discrimination (e.g., a physical disability)?;

2. Did the employee experience adverse treatment in their employment (e.g., a demotion or termination of employment)?; and

3. Was the protected characteristic a factor in the adverse treatment?

However, the test applied in British Columbia when interpreting what constitutes family status discrimination differs from the other protected grounds. In Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”), the British Columbia Court of Appeal established a two-part test for establishing discrimination on the basis of family status:

1. a change in a term or condition of employment imposed by the employer; and

2. the change resulted in a serious interference with a substantial parental or other family duty or obligation.

Campbell River has been criticized for creating a more stringent test for establishing family status discrimination in British Columbia and is not followed by adjudicators in other jurisdictions. Notwithstanding these concerns, the British Columbia Court of Appeal recently affirmed its stricter test in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Suen”).

In Suen, Mr. Suen worked as a project manager in Envirocon’s office in Burnaby. He was required to travel for work. His wife gave birth to their first child a few years after commencing employment with Envirocon. The manager of a project in Manitoba resigned unexpectedly when Mr. Suen’s child was four months old and Mr. Suen was advised that he was required to report to Manitoba for eight to ten weeks. Mr. Suen refused the assignment, citing his wife and four-month old baby. His employment was terminated as a result of refusing to accept the out-of-town assignment.

Mr. Suen filed a human rights complaint alleging discrimination on the basis of family status. Envirocon applied to dismiss the complaint on the basis that assigning Mr. Suen to a project requiring him to be away from home did not constitute a significant change in the terms of his employment and was not a serious interference with a substantial parental obligation. The Human Rights Tribunal denied the application to dismiss, noting that recent Supreme Court of Canada decisions cast doubt on whether Campbell River remains good law.

Envirocon unsuccessfully applied for judicial review of the Tribunal’s decision before appealing to our Court of Appeal. There, Mr. Suen asked the Court to reconsider the test in Campbell River on the basis that it is too restrictive. The Court declined to do so. Instead, it overturned the decision of the Tribunal noting that Mr. Suen’s child did not require special care and he was not the only parent capable of caring for his child. As such, Envirocon’s demand that Mr. Suen work away from home did not constitute a serious interference with a substantial parental or other family duty of obligation. Mr. Suen’s desire to not work away from home was akin to a parental preference to spend time with his child – a preference shared by most parents.

It is unknown whether Suen will be appealed to the Supreme Court of Canada. However, in the interim, Campbell River remains good law in British Columbia. Parents are expected to juggle work and parental obligations. A parent’s preference to spend time with his or her child will not – in and of itself – establish family status discrimination. A serious interference with a substantial parental obligation is required.

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