Family Feud: Survey Says BC Test for Family Status Discrimination is Good Law
No, the BC test for family status discrimination has not been the subject of a survey question on TV’s popular game show, Family Feud.
It was, however, front and centre on an application for leave to appeal to the Supreme Court of Canada.
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.
Brian Suen alleged that his former employer, Envirocon Environmental Services, ULC, discriminated against him contrary to human rights legislation when it assigned him to a remote work site for a period of eight to ten weeks a few months after his daughter was born. He had been assigned to work sites away from home a number of times before the birth of his child.
Envirocon applied to dismiss Mr. Suen’s complaint on a preliminary basis without the need for a full oral hearing before the BC Human Rights Tribunal. The company took the position that Mr. Suen could not satisfy the requirements of the test for family status discrimination, the so-called Campbell River test. Envirocon said in particular that he could not show:
- there had been a change in a term or condition of employment imposed by the employer
- the change had resulted in a serious interference with a substantial parental or other family duty or obligation of the employee
The Tribunal disagreed and refused to grant the application to dismiss.
Envirocon unsuccessfully applied for judicial review of the Tribunal’s decision. The BC Supreme Court concluded that the decision was an exercise of discretion and entitled to a high degree of deference.
The company then appealed to the BC Court of Appeal and was successful. The decision of the Tribunal was quashed and the judicial review decision set aside. The Court of Appeal held that the decision was arbitrary and could not be allowed to stand. It highlighted that there was no allegation of fact or evidence which could satisfy the second requirement of the Campbell River test – a serious interference with a substantial parental or other family duty or obligation. The Court held:
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 of Appeal confirmed in unequivocal terms that the Campbell River test is binding law in the province of British Columbia. The Court found it unnecessary to address Mr. Suen’s arguments that the 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”.
Supreme Court of Canada Decision on Leave Application
Until August 8, 2019 – and notwithstanding the Court of Appeal’s decision in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 – the Campbell River test in BC had its detractors.
Some decisions, including from the Human Rights Tribunal, strayed from the test and expressed doubt about its validity or ongoing applicability. One of the arguments made was that it was inappropriate to create a higher threshold for human rights protection in cases of alleged discrimination on the basis of family status (familial obligations).
The decision issued by the Supreme Court of Canada on August 8, 2019 is very welcome. It puts to rest the debate and any lingering uncertainty. The Campbell River test – a test which offers a context-sensitive analytical lens and recognizes that an employer’s duty to accommodate cannot reasonably be triggered by the many commonplace conflicts which arise between employment and family duties – is the law in BC. This is irrespective of conflicting decisions or legal principles developed or applied elsewhere in Canada. It is no longer viable for parties in BC to rely on different tests from other jurisdictions.
James D. Kondopulos, Michael A. Wagner, Brandon I. Hillis and Sarah D. Dickson were co-counsel for Envirocon in Brian Suen v. Envirocon Environmental Services, ULC et al., 2019 CanLII 73206 (SCC). They are employment, labour and workplace human rights lawyers at the Vancouver-based boutique firm of Roper Greyell LLP – Employment and Labour Lawyers.
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.