Recent BC Court of Appeal decision shifts family status test
“Family is not an important thing. It’s everything.”
Not everyone may agree with the above quote from Canadian-born actor Michael J. Fox, but it rings true for many. And while one’s family may not be literally everything, it’s often a huge part of a person’s life, particularly when that family gets larger and places more demands on their time. This is where there can be conflict with that other big part of many people’s lives – their employment.
Work-life balance is all the rage in terms of recruitment and retention efforts, as employers try to make things easier on employees who have to find the time to deal with work issues and personal issues. While helping employees find that balance can help push an employer along the road to being an employer of choice, there are also legal considerations to consider in relation to employee family status.
Family status is a protected ground under human rights legislation, which means it has to be accommodated to a certain extent or else an employer faces liability for discrimination. What’s been not so certain has been to what extent that is, leading to numerous human rights tribunal decisions addressing the issue.
The test for family status discrimination depends on the jurisdiction, but there are different tests used in three groups – one is used in British Columbia and Alberta, one in Ontario, and one for federal and other jurisdictions. While these tests vary somewhat and there’s been some dispute over the extent of what parental or other family obligations should be protected, several years ago the Supreme Court of Canada stated that family status should be given a liberal interpretation to advance “the broad policy considerations underlying human rights legislation.”
Campbell River test
For the better part of two decades, the test followed in BC has come from that established in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260. It’s been commonly interpreted that the two-part test requires a change in a term or condition of employment and a serious interference with a substantial parental obligation. Last year, the BC Supreme Court clarified this test by dismissing a family status discrimination complaint – that had been allowed to proceed by the BC Human Rights Tribunal – because the complaint related to a change in the employee’s family status, not a term or condition of employment.
However, an appeal of that decision has led to a reassessment of the family status discrimination test, with the BC Court of Appeal disagreeing with the lower court. The appeal court determined that the lower court misinterpreted the Campbell River test, as that precedent case did not specifically address whether a change in the employee’s family status could trigger discrimination. The Court of Appeal considered the concept that human rights legislation should be interpreted broadly and overturned the decision, allowing the discrimination complaint to proceed to a hearing before the tribunal.
The BC Court of Appeal’s decision could significantly affect how family status discrimination cases are evaluated, but outside of BC things appear unaffected. Federally and in many jurisdictions, a four-part test based on childcare obligations is applied, as set out by the Federal Court of Appeal in Canada (Attorney General) v. Johnstone, 2014 FCA 110. This test requires that the employee: has a child under their care or supervision; has made reasonable efforts to meet childcare obligations through reasonable alternative solutions and has been unsuccessful; and the workplace rule interferes with that obligation in a “more than trivial or substantial manner.”
The Johnstone test
The four-part Johnstone test stood for a couple of years in Ontario until that province’s Human Rights Tribunal rejected it for being different from the test for other forms of discrimination – the three-part Moore test. In Misetech v. Value Village Stores Inc., 2016 HRTO 1229, the tribunal determined that family status discrimination required: a negative impact on a family need that results in a real disadvantage to the parental relationship and responsibilities; a contextual assessment of the impact, and whether the employer accommodated to the point of undue hardship. The main difference from the Johnstone test was that it doesn’t require the employee to self-accommodate, but rather it looks at whether the employer and employee attempted accommodation.
Regardless of the test used to determine family status discrimination, there is a limit to what employers have to accommodate. Concerns over opening the floodgates for discrimination claims related to normal parental duties have been raised, but the tests for the most part place limits on how far family status should be protected. For example, the Canada Public Service Labour Relations and Employment Board rejected a federal government employee’s accommodation grievance over the employee’s request to leave 30 minutes earlier to help his spouse care for their special-needs children. The board determined that the request wasn’t based on the employee’s legal responsibility for childcare, but rather him wanting to help his spouse – which wasn’t sufficient for protection under family status grounds.
Of course, a failure to accommodate that leads to family status discrimination where there are grounds for protection can be costly for an employer. A couple of years ago, the Canadian Human Rights Tribunal ordered a BC employer to pay a worker more than $500,000 for loss of wages, benefits and pension contributions plus damages for pain and suffering. The employer had provided accommodation to the employee, who was a single father, that was inadequate for his childcare responsibilities, and then stopped the accommodation when an agreement with the employee fell through. An expensive bit of family status discrimination.
Family can be an important thing to employees. If employers make their employees’ families important in their considerations, it could save them from turnover, bad feelings, and legal liability.