Father’s Family Status Denied by BC Court of Appeal

May 2019

Article by: Michael Wagner

With its 2004 Campbell River decision, the BC Court of Appeal articulated the BC test for family status discrimination involving family obligations in the context of employment.  It essentially held that employers cannot impose workplace rules that seriously interfere with the substantial family obligations of its employees, unless doing so would cause the employer undue hardship.

Since the Campbell River decision, the law of family status discrimination in Canada became a patchwork of disparate decisions and legal principles.  Decision-makers in other jurisdictions developed different tests and approaches.  Even in BC, some decisions strayed from the Campbell River test and expressed doubt about its continued applicability.  This caused uncertainty for everyone with an interest in this area of law.

Earlier this year, the BC Court of Appeal revisited this issue in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46.  That case involved the father of a healthy newborn who refused to travel for business.  The Human Rights Tribunal held that Mr. Suen should be allowed to stay home with his son and, on Judicial Review, the BC Supreme Court agreed.  However, the Court of Appeal affirmed Campbell River and held that such commonplace conflicts between work obligations and family life were not protected by the BC Human Rights Code.

In our view, the Court of Appeal’s Envirocon decision has at least two beneficial effects.  First, it has reminded administrative tribunals and lower courts that they are bound by decisions of the Court of Appeal.  Criticism and comment from other jurisdictions is an insufficient basis upon which to reject binding authority in this province.

Second, Envirocon clearly reaffirms that the Campbell River test is the applicable law in BC for prima facie family status discrimination involving familial obligations in the employment context.  It is no longer viable for parties in BC to argue tests developed in other jurisdictions or under different circumstances such as Johnstone or Moore, or any other approach advocated by administrative tribunals or courts in other jurisdictions.

We note that leave to appeal Envirocon to the Supreme Court of Canada has been sought so it remains to be seen whether the BC Court of Appeal’s decision in Envirocon will be the end of the matter.

Lessons for Employers:

  • Employers must always carefully consider accommodation requests based on employees’ obligations to their family members.
  • The Campbell River test still applies in BC and no accommodation is required unless there is a serious interference to a substantial family obligation.
  • If accommodation is required, it must be provided unless doing so would cause the employer undue hardship.
  • The law in this area is complex, and may fundamentally change if the Supreme Court of Canada elects to hear this case.

Michael A. Wagner, James D. Kondopulos,and Brandon I. Hillis were co-counsel for the successful appellant in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46.