Resources: Human Rights

Leading Labour and Workplace Law Cases of 2020

With the upheaval and significant challenges and difficulties of 2020, some important labour and workplace law cases may not have been front of mind for employers and HR practitioners.

The following are what we consider to be among the top five cases of the last 12 to 18 months.

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B.C. Human Rights Tribunal Confirms No Family Status Discrimination When Employee is Required to Travel to Work: The End of the Suen v. Envirocon Environmental Services Saga

In what is expected to be the final chapter of the Suen v. Envirocon Environmental Services saga, the B.C. Human Rights Tribunal has followed the lead of the B.C. Court of Appeal and dismissed the complaint of discrimination in employment on the basis of family status which Brian Suen filed against his former employer, Envirocon Environmental Services, ULC, a number of years ago.

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BC Human Rights Tribunal Confirms Bona Fide Employee Insurance Plans Are Not Discriminatory

British Columbia’s Human Rights Code[1] (“Code”) prohibits an employer from discriminating against an employee on the basis of certain protected characteristics with respect to employment or any term or condition of employment.  However, section 13(3)(b) of the Code exempts bona fide employee insurance plans and other specified plans from allegations of discrimination on the grounds of marital status, physical or mental disability, sex and age.

[1]  Human Rights Code, R.S.B.C. 1996, c. 210.

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B.C. Human Rights Tribunal Reaffirms Requirements of Campbell River Test in Recent Family Status Discrimination Case

In Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, the B.C. Human Rights Tribunal dismissed a complaint made by a former employee claiming the employer had failed to accommodate her childcare needs. The case represents one of the first instances of the Tribunal applying the “Campbell River test” for discrimination in employment on the basis of family status following the confirmation of that test in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46.

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Saucy Tweet Results in For Cause Termination of Employee

Fastenal Canada terminated B.C. employee Hussien Mehaidi for expressing his outrage on Twitter for the company’s Christmas gift of Gets Sauced BBQ sauce and a company
branded wooden scraper. Mehaidi tweeted from an anonymous account with zero followers a tweet which read: “what kind of multi-billion dollar company gifts its Canadian employees barbecue sauce as a holiday gift? Yet the USA employees stuff their face with an actual holiday gift box!”

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Coronavirus: Information Bulletin for Employers

As of today’s date, January 28, 2020, more than 100 people have died from the Wuhan coronavirus – a novel (new) coronavirus – and more than 4,500 others have been infected.  A warning has been issued to travellers to avoid all non-essential travel to China and cases of infection have been reported in countries other than China, including Japan, South Korea, Taiwan, Thailand and the United States.

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Not Every Failed Return to Work is a Failure of the Duty to Accommodate

In Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243, the Human Rights Tribunal dismissed without a hearing the human rights complaint of a nurse regarding her attempts to return to work following an extended disability leave.  In reaching that decision, the Tribunal made several helpful comments about the scope of the duty to accommodate and what constitutes harassment under the Human Rights Code.

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Conduct of Transgender Complainant Leads to Dismissal of Complaint of Discrimination in the Provision of Waxing Services

Jessica Yaniv is a transgender woman who filed seven human rights complaints against multiple defendants relating to the denial of waxing services. In five cases, she requested waxing of her scrotum. In two, she requested waxing of her arms or legs. In each case, Ms. Yaniv told the Respondent that she was a transgender woman and the Respondent then refused to wax her.

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Uncertain Changes and a Strained Relationship Do Not Amount to Constructive Dismissal

Reza Baraty alleged he was constructively dismissed from his position with Wellons Canada Corp. (“Wellons”).  He considered: (1) his position to have been eroded to the point where he was no longer a manager; and (2) the work environment to have become intolerable because of bullying and harassment by a co-worker.

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Family Feud: Survey Says BC Test for Family Status Discrimination is Good Law

In a decision issued August 8, 2019, Brian Suen v. Envirocon Environmental Services, ULC et al., 2019 CanLII 73206 (SCC), the Court dismissed the leave application of a human rights complainant who alleged he was subjected to prohibited employment discrimination on the basis of family status (familial obligations), and implicitly approved of the test for family status discrimination developed by the BC Court of Appeal in 2004 and recently reaffirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46.

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