Modern Family (Status): Court of Appeal Clarifies Test for Family Status Discrimination in B.C.

A five-justice division of the B.C. Court of Appeal has just issued an important, unanimous decision on the applicable test to address claims of discrimination in employment with respect to family status (caregiving obligations).

Since 2004, the following passage from Health Sciences Assn. of B.C. v. Campbell River, 2004 BCCA 260 (“Campbell River”) was treated as the test to be applied when addressing such claims:

[39] … 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. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. 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.

(Bold added.)

The test was, however, subject to conflicting interpretations.

Last week, in British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168, the Court of Appeal put those conflicting interpretations to rest. It clarified that a “change” in a term or condition of employment was not a prerequisite for a successful complaint and, importantly: (1) rejected the tests applied in other jurisdictions; and (2) unambiguously reaffirmed an approach which ensures that employers are not faced with an obligation to accommodate family caregiving obligations in the absence of a material adverse impact on such obligations.

Procedural History

The complainant, Lisa Harvey, filed a human rights complaint against her employer, Gibraltar Mines Ltd. (“Gibraltar”), after it declined her and her husband’s shift preferences her return from parental leave. Gibraltar offered alternative accommodation proposals but to no avail.

Before the B.C. Human Rights Tribunal, Gibraltar brought an application to dismiss Ms. Harvey’s complaint on a preliminary basis arguing, among other things, that the complaint had no reasonable prospect of success because there had been no change in a term or condition of Ms. Harvey’s employment. That was, at the time, considered to be a requirement of Campbell River. The Tribunal declined to allow Gibraltar’s application.

Gibraltar sought judicial review of the Tribunal’s decision. The B.C. Supreme Court sided with Gibraltar and quashed that decision based on Ms. Harvey’s failure to establish a change in a term or condition of employment.

The Tribunal took the extraordinary step of initiating an appeal of the Supreme Court’s decision and took the further extraordinary step of requesting that a five-justice division of the Court be constituted to hear the appeal. The Human Rights Commissioner also participated in the appeal as an intervenor, and the Attorney General of B.C. participated as a respondent. Notably, Ms. Harvey did not choose to be involved at any stage after the application to dismiss.

Standing of the Tribunal

A threshold issue for the Court of Appeal was whether it was proper for the Tribunal, a quasi-judicial administrative tribunal that is supposed to be an independent and impartial decision-maker, to initiate an appeal concerning its own decision and the test to be applied to address discrimination claims with respect to family status.

Perhaps surprisingly, the Court determined the Tribunal’s involvement to be appropriate in all the circumstances. It ultimately determined that the need for a fully-informed decision outweighed concerns about the Tribunal’s initiation of the appeal, highlighting that Ms. Harvey was not a participant in the appeal.

Test for Family Status Discrimination in the Context of Caregiving Obligations

Turning to the merits of the case, the Court of Appeal concluded that Campbell River does not stand for the proposition that prima facie family status discrimination can only arise where an employer changes a term or condition of employment. The Court reasoned, among other things, that such an interpretation is at odds with the broad and liberal interpretation afforded to human rights legislation.

The Court then went on to consider the key element of the Campbell River test: a complainant must show that a term or condition of employment results in a “serious” interference with a “substantial” parental or other family duty or obligation. The Court refused to modify this element of the test and indeed bolstered it. It clarified the substantive aspects of the test as follows:

(a) To establish discrimination arising out of a conflict between work requirements and family caregiving obligations, the parental or other family duty or obligation must be “substantial or out of the ordinary”. The Court was careful to highlight that the absence of such a materiality standard “would trivialize the important value that is reflected by the inclusion of family status in s. 13(1)(b) of the Code”.

(b) Recent concerns raised by other appellate courts about this aspect of the Campbell River test were dismissed as “misconceived”. The Court was addressing concerns raised in cases like United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194 and Canada (AG) v. Johnstone, 2014 FCA 110.

(c) Most significantly, the Court confirmed the standard of “materiality” is consistent with human rights law and applicable to each aspect of the general test for prima facie discrimination as set out in the Supreme Court of Canada’s decision of Moore v. British Columbia (Minister of Education), 2012 SCC 61.

Conclusion and Next Steps

As a result of this important decision and, specifically, the determination that the impact on parental or other family duties or obligations must be “material” and “substantial or out of the ordinary” to give rise to an obligation to accommodate, the test in place ensures that the interests of employers in British Columbia will continue to be adequately protected.

This decision does not spell the end of the specific dispute involving Ms. Harvey. Because the lower court judge did not consider Gibraltar’s arguments concerning the substantive aspects of Campbell River, the Court of Appeal remitted the case to the B.C. Supreme Court for determination of the remaining issues in the initial petition for judicial review.

It will be interesting to see how the lower court rules on those remaining issues in light of the Court of Appeal’s guidance on the “materiality” aspect of the Campbell River test. It will also be interesting to see the impact of the Court’s decision on subsequent decisions of the Tribunal.