Labour and Employment Law Blog

On February 18, British Columbians will join Canadians in several other provinces to celebrate Family Day. It is an opportunity to spend time with the people who are, for many Canadians, the most valuable aspect of their lives. The fact that some provinces have declared a statutory holiday for this purpose reinforces the truth of the old adage – there is nothing more important than family.

Canadian jurisdictions have further recognized this principle by enshrining protection for family status in provincial and federal human rights legislation. The interpretation of what amounts to discrimination on the basis of family status, however, is not necessarily uniform among jurisdictions.

Most notably, British Columbia has adopted a relatively strict standard for establishing discrimination in respect of employment on the basis of family status. In the leading case on the issue, Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 [Campbell River] (argued by Lawson Lundell's very own Ritu Mahil), the British Columbia Court of Appeal set out a two-part test for prima facie family status discrimination in relation to employment:

• there has been a change in a term or condition of employment imposed by an employer; and
• the change results in a serious interference with a substantial parental or other family duty or obligation of the employee.

The Court of Appeal in Campbell River further noted that "in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case."

Despite being binding authority in British Columbia, Campbell River has been criticized as unduly narrowing the scope of family status discrimination and the decision has not been widely followed outside British Columbia.

This criticism has intensified since 2017, when the Supreme Court of Canada released its decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 [Elk Valley]. Elk Valley was a case about discrimination on the basis of disability, not family status; however, in its reasons, the Supreme Court of Canada held that, in assessing whether a prima facie case of discrimination can be established, a complainant need only demonstrate that their protected characteristic was "a factor" in the adverse treatment.

Despite Elk Valley, the British Columbia Court of Appeal has recently affirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 [Envirocon] that, at least for the time being, Campbell River remains the law in British Columbia.

Mr. Suen, whose wife had recently given birth, worked for Envirocon out of its Burnaby office. After a project manager in Manitoba resigned unexpectedly, Envirocon assigned Mr. Suen to the project for a period of 8 to 10 weeks. Mr. Suen declined the assignment "in consideration of his wife and 4 month old baby." Envirocon advised Mr. Suen that if he did not accept the assignment he would be dismissed for cause. Mr. Suen still refused the assignment, and Envirocon terminated his employment for cause due to insubordination.

Mr. Suen filed a complaint with the British Columbia Human Rights Tribunal alleging that Envirocon discriminated against him on the basis of his family status. The Tribunal found that the fact Mr. Suen was required to be physically absent for more than two months "meets the threshold of 'something more' than the usual work/family tensions that every parent faces at some time or another and which Campbell River purports to put beyond the protection of the Code."

On judicial review, the Supreme Court of British Columbia upheld the Tribunal's decision, finding that the Tribunal made no legal error in applying the Campbell River test to the facts before it.

On appeal, Mr. Suen argued that the Campbell River test is too restrictive. The Court of Appeal confirmed that Campbell River remains good law in British Columbia. The Court of Appeal noted that Mr. Suen's request for the appeal to be heard by a five-justice division so the Court could consider whether Campbell River ought to be overturned was denied – accordingly, the Court of Appeal held itself to be bound by Campbell River, and Mr. Suen would be required to meet the strict test set out in that case.

The Court of Appeal found that the facts alleged by Mr. Suen were not capable of satisfying the second step of the Campbell River test – rather, the facts alleged established only that Mr. Suen is a parent, and Mr. Suen's desire to remain close to home to be with his child and assist his wife in caring for the child is no different than the vast majority of parents. Accordingly, the Court allowed the appeal and remitted the matter back to the Tribunal for further proceedings consistent with the Court of Appeal's reasons.

The result of Envirocon is that Campbell River remains the governing authority on family status discrimination in British Columbia. Given that Envirocon affirmed Campbell River on technical grounds, it remains possible that, if Envirocon is appealed to the Supreme Court of Canada, or if a future five-judge division of the Court of Appeal sees fit to overturn Campbell River, the law will change such that British Columbia will join the rest of Canada in applying a less restrictive test for finding prima facie family status discrimination. At least for the near future, however, British Columbians may be required to show something more than Canadians in other jurisdictions in order to establish that they have been subject to prima facie discrimination on the basis of family status.

A few take-away lessons for British Columbia employers based on Envirocon and Campbell River:

• Employees are not entitled to a flexible work schedule simply for the purpose of allowing them to spend more time with family, even if the employee is a recent parent.
• Parents are expected to juggle the demands of parenting with their work obligations. It is only when there is some special circumstance, such as when the parent is uniquely qualified or available to care for a child with special needs, that family status under the Human Rights Code will be engaged.
• Employees who request accommodation or refuse a change in a term or condition of employment on the basis of a family obligation will typically be required to show why the conflicting obligation is substantial and how the employee will otherwise be unable to arrange their affairs to address the obligation.

For advice regarding employees who have raised family status as a potential concern in respect of a workplace policy or direction, please contact a member of Lawson Lundell's Labour, Employment, and Human Rights Group.