B.C. Court of Appeal Unequivocally Affirms Test For Family Status Discrimination
By James D. Kondopulos and Bobby Sangha (articled student), Roper Greyell LLP — Employment and Labour Lawyers
In my opinion, [the concept of family status] cannot be an open-ended concept … for that would have the potential to cause disruption and great mischief in the workplace ….
Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case …. I think 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.
Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 per Low J.A. at paras. 38 and 39
In unanimous reasons for judgment issued a couple of days ago, the B.C. Court of Appeal unequivocally affirmed the test for family status discrimination in the province of British Columbia.
The Court made it clear in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 that a human rights complainant seeking to establish a case of prohibited discrimination in employment on the basis of family status (parental or other family duty or obligation) must show that:
- there has been a change in a term or condition of employment imposed by the employer; and
- the change has resulted in a serious interference with a substantial parental or other family duty or obligation of the employee.
This represents a resounding confirmation of the test first established by the Court of Appeal around one and a half decades ago in Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260.
Brian Suen filed a complaint of prohibited employment discrimination on the basis of family status with the B.C. Human Rights Tribunal (the “Tribunal”).
He alleged that his former employer, Envirocon Environmental Services, ULC, discriminated against him when, a number of months after his daughter was born, it assigned him to a project site away from his home in the Lower Mainland for a period of eight to ten weeks. Before the birth of his child, Mr. Suen had from time to time been assigned to project sites away from home as part of his employment duties.
Envirocon filed an application to dismiss Mr. Suen’s complaint on a preliminary basis without the need for a full oral hearing before the Tribunal. It took the position that Mr. Suen simply could not establish a case of prohibited discrimination on the basis of family status (parental or other family duty or obligation) because he could not satisfy the requirements of the test for family status discrimination in Campbell River.
The Tribunal refused to grant the application to dismiss.
Envirocon filed a petition for judicial review but that was unsuccessful.
The reviewing judge concluded that the decision of the Tribunal on the application to dismiss was an exercise of discretion and entitled to a high degree of deference.
Envirocon succeeded in its appeal to the Court of Appeal. The decision of the Tribunal was quashed and the decision of the reviewing judge set aside. The matter was remitted to the Tribunal for “further proceedings consistent with [the Court’s] reasons”.
The Court held that the decision of the Tribunal was patently unreasonable. It was arbitrary and could not be allowed to stand. Mr. Suen had alleged facts “only capable of establishing the undisputed fact that he is a parent” and there was “[n]othing in [his] complaint or affidavit [to] suggest … his child would not be well cared for in his absence”.
Finding that there was no allegation of fact or evidence which could satisfy the second step of the Campbell River test — a serious interference with a substantial parental or other family duty or obligation — the Court made the following notable statement:
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. 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 Court also made it clear that it was not open to the Tribunal or, for that matter, any lower court or administrative decision-maker to question whether the test in Campbell River remains good law because that test is binding in this province. As well, the Court did not find it necessary to address Mr. Suen’s arguments that the Campbell River test is “too restrictive” and has been the subject of criticism 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”. The Court held:
It is unnecessary to address Mr. Suen’s arguments in any detail, as this division is bound by Campbell River. In that regard, I note Mr. Suen requested this appeal be heard by a five-justice division so that the Court could consider whether Campbell River ought to be overruled: see Practice Directive (Criminal & Civil), Five Justice Divisions (February 3, 2012). That request was denied.
James D. Kondopulos, Michael A. Wagner and Brandon I. Hillis were co-counsel for the successful appellant in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46. They are employment, labour and workplace human rights lawyers at the Vancouver-based boutique firm of Roper Greyell LLP – Employment and Labour Lawyers.
Special thanks to Bobby Sangha (articled student) for helping to write this article.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.