Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On August 8, 2019, the Supreme Court of Canada dismissed an application for leave to appeal from the judgment of the British Columbia Court of Appeal in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46, without costs.
The British Columbia Court of Appeal recently affirmed that it continues to be bound by the existing legal test for adverse discrimination on the ground of “family status” established in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society.1 In Envirocon Environmental Services, ULC v. Suen,2 the Court of Appeal confirmed that employees in British Columbia face a higher burden in establishing “family status” discrimination than their counterparts in the rest of Canada where more liberal tests are followed.3
Approximately four months after the birth of his daughter, an employee was dismissed for cause when he refused an assignment to manage a project in Manitoba for between eight to ten weeks, “[i]n consideration of [his] wife and 4 month old baby…” The company refused to finance any trips home during the period of the assignment. Following his termination, the former employee filed a complaint against his employer with the British Columbia Human Rights Tribunal (Tribunal) alleging that his employer discriminated against him on the basis of “family status.”
The Tribunal declined to dismiss the former employee’s complaint, holding that his termination could constitute adverse effect discrimination on the basis of family status, and that there was a reasonable prospect that it could succeed. Although the Tribunal questioned whether Campbell River “remains good law,” it applied the Campbell River test, which provides that a prima facie case of discrimination is made out when:
(a) There is a change in a term or condition of employment imposed by an employer; and
(b) The change results in a serious interference with a substantial parental or other family duty or obligation of the employee.
The Supreme Court of British Columbia (Court) dismissed the employer’s application for judicial review of the Tribunal’s decision, ruling that it was not patently unreasonable. The employer then appealed the Court’s decision to the Court of Appeal on the basis that it erred in its standard of review analysis and its finding that nothing about the Tribunal’s decision was patently unreasonable.
On the appeal, the former employee argued that the test for family status discrimination set out in Campbell River should be reconsidered on the basis that it is too restrictive and 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. However, the Court of Appeal declined to reconsider the Campbell River test and proceeded to analyze whether the change in a term or condition of the former employee’s employment resulted in “a serious interference with a substantial parental or other family duty or obligation,” the only question at issue on appeal. It concluded that the Tribunal had erroneously concluded that the former employee could satisfy this second step of the Campbell River test:
While [the employee’s] desire to remain close to home to be with his child and to assist his wife in caring for the child outside his normal weekday working hours and on weekends is understandable and commendable, he is no different than the vast majority of parents. 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. Nothing in [the] complaint or affidavit suggests his child would not be well cared for in his absence. [Emphasis added] (para. 32)
The Court of Appeal concluded that the Tribunal’s erroneous finding with respect to the second step of Campbell River was key to the Tribunal’s decision to allow the adverse effect discrimination aspect of the former employee’s complaint to proceed. Accordingly, it held that the Tribunal’s decision was arbitrary and could not stand. The appeal was allowed, the Court’s order set aside, and the Tribunal’s decision declining to dismiss the adverse effect discrimination aspect of the complaint was quashed. The matter was remitted to the Tribunal for further proceedings consistent with the Court of Appeal’s reasons.
What are the Implications for Employers in British Columbia and Beyond?
The Envirocon case suggests that employers in British Columbia faced with a claim of discrimination on the basis of family status will be required to accommodate their employees’ “needs” rather than their “desires.” This is good news for employers in that province. The “needs” versus “desires” analysis should also be noted by employers that face family status discrimination claims in other Canadian jurisdictions.
Envirocon also establishes that 15 years after its introduction, the Campbell River test is still “good law” in British Columbia. Employees claiming adverse discrimination on the ground of family status will continue to be required to satisfy the restrictive requirements of the test.
It remains to be seen whether the Court of Appeal’s endorsement of the Campbell River test will have an impact outside British Columbia, where the trend has been to adopt tests that are less restrictive in that they do not require the interference to be “serious” and the parental or other family duty or obligation to be “substantial.”
Finally, employers should be on the lookout for the possible appeal of the Envirocon decision to the Supreme Court of Canada. We will be watching this, as well, and will update you should it occur.
1 2004 BCCA 260.
2 2019 BCCA 46.
3 See, for example, Johnstone v. Canada, 2014 FCA 110 (Federal Court of Appeal) and Mistech v. Value Village Stores Inc., 2016 HRTO 1229 (Human Rights Tribunal of Ontario).