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
November 16, 2020
November 16, 2020
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.
In its October 27, 2020 decision in Suen v. Envirocon Environmental Services and another (No. 3), 2020 BCHRT 188, the Tribunal reinforced the applicability of what is widely known as the “Campbell River test” and provided valuable guidance to the employer community in British Columbia.
This dispute was focused on the matter of whether the termination of Mr. Suen’s employment following his refusal to accept a temporary, out-of-province assignment to an Envirocon project in Manitoba constituted prohibited discrimination in employment on the basis of family status. Mr. Suen alleged that it did because his refusal of the temporary assignment was grounded in his desire not to be away from his wife and infant child.
Envirocon denied discriminating against Mr. Suen in violation of the B.C. Human Rights Code. The company asserted that it was exercising its management right to assign Mr. Suen to the Manitoba project, and was well justified in terminating his employment when he stubbornly refused the assignment.
The parties engaged in a lengthy preliminary proceeding prior to this decision of the Tribunal.
The outcome of the preliminary proceeding was the dismissal of a related element of Mr. Suen’s complaint – the question of whether Envirocon was obligated to accommodate the complainant’s family status in addition to being prohibited from dismissing him from employment due to that protected ground.
The procedural history of the Suen v. Envirocon Environmental Services case can be summarized as follows:
- On October 19, 2017, the Tribunal dismissed Envirocon’s preliminary application to dismiss the complaint on the basis that the company could have a duty to accommodate Mr. Suen. The Tribunal called into question the continued applicability of the Campbell River test.
- On August 14, 2018, the B.C. Supreme Court denied a petition for judicial review filed by Envirocon.
- On February 5, 2019, the B.C. Court of Appeal allowed an appeal brought by Envirocon. The Court determined that the Campbell River test continues to be the law in the province of British Columbia and, to that end, dismissed the accommodation-related aspect of Mr. Suen’s complaint. A summary of the Court’s decision can be found here.
- On August 8, 2019, the Supreme Court of Canada denied Mr. Suen’s application for leave to appeal.
Decision of the Tribunal
Following the dismissal of the accommodation-related element of Mr. Suen’s complaint, all that remained for the Tribunal to determine was the question of whether the complainant could establish a case of direct discrimination: was Mr. Suen’s family status a factor in Envirocon’s decision to terminate his employment?
After a four-day hearing, the Tribunal properly concluded that Mr. Suen’s family status did not factor into the termination decision. Envirocon was within its rights to assign the complainant to the Manitoba project and to bring an end to his employment when he refused obstreperously to accept the assignment.
The Tribunal found no evidence to establish that Mr. Suen’s status as a father was a factor in the termination decision. The Tribunal specifically rejected the complainant’s argument that his own reason for refusing the assignment was sufficient, in itself, to establish that Envirocon had acted discriminatorily. His argument was characterized as an attempt at a “workaround” of the Court of Appeal’s decision and one based on “irrelevant” considerations.
According to the Tribunal, Envirocon “was not obligated to allow Mr. Suen to set his own terms of employment” and, to determine otherwise, would leave employers in an “untenable position”. The Tribunal acknowledged the reality that work assignments in jobs where travel is sometimes required will always result in time away from family and “a sacrifice of some kind for anyone”. The Tribunal also recognized that “[w]here travel is required, someone has to go”.
This is a valuable decision for employers in B.C. — especially those which operate businesses or operations where employee travel is required from time to time.
In particular, the decision of the Tribunal confirms that:
- an employee’s personal reason for declining an out-of-town assignment – and his or her desire or preference to remain at home in particular – is not, in itself, capable of establishing a prima facie case of human rights discrimination;
- an employee cannot refuse to work or dictate his or her conditions of employment simply because of a childcare desire or preference; and
- the Campbell River test – a test first articulated around 16 years ago and reaffirmed in Suen v. Envirocon Environmental Services – will be applied in cases dealing with employee requests for accommodation related to parental and other family caregiving obligations.
James D. Kondopulos is a founding member and partner (practising through a law corporation) of Vancouver-based employment and labour law boutique, Roper Greyell LLP. He was named by Lexpert as one of Canada’s leading lawyers under 40 and is ranked as a leading employment lawyer in the Canadian Legal Lexpert Directory. He is also recognized as a leader in the area of employment and labour law in Chambers Canada, Who’s Who Legal and Best Lawyers International, Canada.
Brandon I. Hillis is a lawyer at Roper Greyell LLP, where he practises in all areas of labour, employment and workplace human rights law. Brandon uses his technical knowledge of the law to find the best strategies for his clients. He has represented employers in workplace arbitrations, collective agreement disputes and human rights complaints.
Gabrielle Berron-Styan is an articled student at Roper Greyell. She is interested in all areas of employment and labour law and focuses on workplace human rights and privacy law and workplace investigations.
For more information about James, Brandon and Gabrielle and the work they do at Roper Greyell or to obtain their contact information, please visit https://ropergreyell.com/.
While every effort has been made to ensure this article is accurate, you are urged to seek specific advice on matters of concern and not to rely solely on its contents. The article is meant for general information purposes only and does not constitute legal advice.