'We needed to have some clarification about whether Campbell River is still good law'
The British Columbia Court of Appeal has established a new view of the test for prima facie family status discrimination that has been in place for nearly two decades.
“For so long, we looked at Campbell River as the leading decision to interpret what family status means, so it's nice to have some more insight and clarification from the Court of Appeal,” says Trevor Thomas, co-founder and principal at Ascent Employment Law in Vancouver. “I think it's going to help the legal community to figure out how to address these claims and, ultimately, that will benefit employers and employees to better understand their rights and obligations.”
The worker was a journeyman welder with Gibraltar, a mining company that operates a mine north of Williams Lake, BC.
The worker’s spouse was also employed with Gibraltar as a journeyman electrician. When the worker became pregnant, she and her spouse worked the same 12-hour shifts for the most part, although they sometimes worked different night shifts.
After their first child was born and the worker’s parental leave was reaching its end, she requested an accommodation through a change in their work schedules to facilitate childcare arrangements. However, they were unable to agree on an arrangement.
Family status discrimination complaint
The worker filed a human rights complaint alleging discrimination in employment on the basis of family status, marital status, and sex under the BC Human Rights Code.
Gibraltar applied to dismiss the worker’s complaint on the grounds that there was no reasonable prospect that it would succeed.
The BC Human Rights Tribunal dismissed the complaint on the basis of sex and marital status, but it declined to dismiss the family status complaint. It referred to the BC Court of Appeal decision Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, which established the test for family status discrimination where an adverse impact flows from a conflict between a family obligation and a work requirement.
Gibraltar argued that it had not changed a term or condition of the worker’s employment and the worker had not alleged a serious interference with a substantial parental obligation, and the worker’s circumstances were “commonplace childcare difficulties.”
The tribunal disagreed that the Campbell River test required a change to a term or condition of employment for there to be discrimination. It also found that the issue of whether the company created a serious interference to a substantial parental obligation by refusing to change the schedules of the worker and her spouse required a hearing with evidence.
The BC Supreme Court narrowed the family status discrimination test in a decision that favoured employers.
Judicial review dismissed complaint
Gibraltar sought a judicial review with the BC Supreme Court, asserting that the tribunal misinterpreted the Campbell River test.
The chambers judge reviewed the case law dealing with family status discrimination, including Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46. The chambers judge agreed with Suen that the requirement of a change in a term of employment combined with the standard of a serious interference with a substantial family obligation addressed the concern of potential “floodgates” being opened to family status discrimination claims.
The chambers judge found that she was bound by the existing case law that the Campbell River test required a change to the terms and conditions of employment before prima facie discrimination could be found. The judge determined that the tribunal’s interpretation of the test was incorrect and overturned its decision.
“In this case of the judicial review, the judge is saying, ‘We don't need to do much more about the law, because it's already been settled,’” says Thomas.
The BC Human Rights Commission appealed.
The BC Court of Appeal noted that the Supreme Court of Canada established the three-part Moore test for prima facie discrimination - the complainant must show that they have a characteristic protected under the BC Human Rights Code, they experienced an adverse impact, and the protected characteristic was a factor in the adverse impact.
Legal responsibility, impact and family needs are factors to consider in determining the duty to accommodate family status, says an employment lawyer.
Different issue in precedent case
The appeal court noted that in Campbell River, the employer changed the terms of employment by changing the employee’s shift schedule, so the court there did not have to consider whether discrimination could arise from a change in the employee’s circumstances or family status. It was a different issue than in this case, said the appeal court.
The Court of Appeal also found that Suen – used to support the chambers judge’s analysis – addressed a different issue as well. That decision dealt with whether the allegations in the complaint met the test for a serious interference with a substantial parental obligation, not whether a change in a term of employment was a precondition for discrimination.
The chamber’s judge’s decision that they were bound by existing case law is typically how the justice system works, but the Court of Appeal went deeper and assessed what Campbell River was really about, says Thomas.
“[The Court of Appeal] saw some differences in what the courts had to decide for each of the cases - the court in Campbell River was deciding something different than the court in this case,” he says.
The nature of family status is frequently evolving in different jurisdictions, say employment lawyers.
Broad interpretation
In addition to the central issue in Campbell River being different, the Court of Appeal also found that the code does not require a change in a term of employment to trigger prima facie discrimination. In particular, human rights legislation must be given a broad and literal interpretation to best protect the rights of employees, rather than “adopt narrow constructions that would frustrate those purposes,” said the appeal court.
“We often see this in the decisions from the BC Human Rights Tribunal, that the code is to be interpreted broadly and liberally,” says Thomas. “The code is intended to be wide-ranging and cover a lot of different scenarios, because ultimately, what the goal is to protect human rights – we want to make it broad enough that it captures a lot of different scenarios, which allows the tribunal to protect people's human rights.”
The tribunal’s decision not to dismiss the worker’s discrimination complaint in Gibraltar was based on its conclusion that the reference to a change in a term or condition of employment was “not an exhaustive statement of the test,” said the Court of Appeal in agreeing with the tribunal’s position. Interpreting Campbell River as restricting the code’s protection to circumstances where the terms of employment have changed would “frustrate the broad remedial purposes” of the code, the appeal court said.
As for concerns that the floodgates could be opened to more claims based on parental obligations, the Court of Appeal pointed to the fact that Campbell River set out a materiality standard that to establish family status discrimination, the parental or family duty must be substantial and the adverse impact must be a serious one. This fit in with with the Moore test for prima facie discrimination, said the court.
“[The Court of Appeal] determined that it can still fit within that larger Moore framework - if he decided that it wouldn't fit within that framework, I don't think [the appeal court] would have decided this case the way that it did,” he says.
The Court of Appeal allowed the tribunal’s appeal and remitted the case back to the BC Supreme Court for consideration of the remaining issues.
A BC company must pay an employee more than $500,000 for failing to accommodate the employee’s childcare needs by altering his schedule.
Digging deeper into family status discrimination
“Since Campbell River came out, it's assumed that’s what the legal test is [for family status discrimination], and everybody just followed that,” says Thomas. “The Court of Appeal’s decision did a great job of showing that we should dig a little deeper into what Campbell River actually means, and we needed to have some clarification from the Court of Appeal about whether Campbell River is still good law and if it's actually the legal test that we've all assumed it has been for all these years.”
However, just because the test for family status discrimination may have changed a bit, it doesn’t mean the floodgates are open, says Thomas.
“I suspect that employers are going to start hearing from employees who have basic family obligations that might interfere with their work schedule, but those obligations do not meet the threshold of the serious interference of substantial parental or family obligations,” he says. “Employers just need to be aware the test has changed, but it’s not a free-for-all - there's still a framework and a significant legal test to meet.”
