December 4, 2023
Since 2004, the leading case on family status discrimination in the province was Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260.
The Campbell River case was generally interpreted to state that a prima facie case of discrimination on the basis of family status required the employer to change a term or condition of employment, and for that change to result in a serious interference with a substantial parental or other family obligation. This test was affirmed in B.C. as recently as 2019.
The Campbell River test was not necessarily applied in other jurisdictions. In Canada (Attorney General) v. Johnstone, 2014 FCA 110, the Federal Court of Appeal found in favour of a border services employee that alleged that she had been discriminated against on the basis of family status.
Upon returning from maternity leave, the employee sought a fixed work schedule rather than normal rotating shifts in order to care for her child. Importantly, the employee’s husband was also a border services employee with a rotating shift schedule, which added to the difficulty for them in obtaining childcare. The employer maintained that only a part-time employee could obtain such a schedule (and the benefits that came along with that) and her request was denied, which was the source of the employee’s complaint.
The Federal Court of Appeal concluded that family status discrimination, where childcare obligations are implicated, could be established where the following elements were met:
- a child is under the employee’s care and supervision;
- the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- the employee has made reasonable efforts to meet those childcare obligations but no reasonable alternatives are reasonably accessible; and,
- the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
The Johnstone approach differed from the Campbell River test used in BC. Use of the terms “substantial” and “serious interference” made the BC analysis more onerous for employees to prove family status discrimination, along with the pre-requisite that discrimination could only be found if a term or condition of employment was altered.
In 2021, the Alberta Court of Appeal concluded that the Johnstone test was too restrictive, due to its imposition on the employee to seek out alternative childcare methods prior to a finding of prima facie discrimination (United Nurses of Alberta v. Alberta Health Services, 2021 ABCA 194).
Then, in 2023, The B.C. Court of Appeal once again had an opportunity to consider the test for discrimination based on family status, in Gibraltar Mines.
Similar to the facts in Johnstone, the complainant and her husband in Gibraltar Mines each worked 12-hour shifts for the same employer. The complainant requested an alteration to her schedule after returning from maternity leave, and the employer refused, but offered two alternatives.
The B.C. Human Rights Tribunal found in the employee’s favour, and the employer appealed to the B.C. Supreme Court, which overturned the decision because there had been no change to a term or condition of employment. The case was appealed again by the Human Rights Tribunal to the Court of Appeal to rule only on the question of whether a change in a term or condition of employment is necessary for a prima facie finding of family status discrimination.
The Court of Appeal ruled that it was not. Rather than overturning Campbell River, it concluded that neither the Human Rights Code, s nor the decision in Campbell River, were intended to limit family status discrimination to circumstances involving a change to a term or condition of employment. The Court clarified that family status discrimination may be found where a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation – regardless of whether an employer has either changed the term or condition of employment or, as in the case of Gibraltar, refused to change a term or condition of employment.
While this case broadened the test from the B.C. standard adopted over the previous 19 years, by re-framing rather than overturning Campbell River, the test remains more stringent than that adopted by the federal Courts.
Notably, because this appeal related only to that specific question, the case was remitted back to the B.C. Supreme Court for reconsideration on all other matters.
Information provided by Jakob Sanderson, an Articling Student with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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