The recent BC Supreme Court case of Gibraltar Mines Ltd. v Harvey, 2022 BCSC 385 provides some clarity to how the issue of discrimination based on family status may be handled in the employment context in BC. In doing so, the Gibraltar decision followed two prior BC Court of Appeal decisions which treated family status differently from other grounds of discrimination.
Discrimination in the workplace is prohibited on several grounds under the BC Human Rights Code. These grounds include sex, age, marital status, religion, disability, and gender identity, among others. One perhaps lesser-known ground is that of family status. As was the case in Harvey, family status often involves a competing balance between a parent’s duty to their family, such as childcare needs, and the employer’s duty to accommodate requests related to the same.
Since 2012, determining whether an employer has discriminated against an employee has been governed by the three-step test established in the Supreme Court of Canada case Moore v British Columbia (Education), 2012 SCC 61. This test applies regardless of the alleged ground of discrimination. However, courts in BC have continued to apply the principles in Health Sciences Association of BC v Campbell River and North Island Transition Society, a 2004 BC Court of Appeal decision in relation to cases of discrimination based on family status.
Under the Moore test, discrimination can be found where 1) the complainant has a characteristic protected under the Human Rights Code, 2) the complainant has experienced adverse treatment regarding their employment, and 3) the protected characteristic was a factor in the adverse treatment. This test was put in place by the Supreme Court of Canada in an attempt to unify how discrimination is treated across the country and to provide not only certainty, but also a broad range of protections for employees.
The test in Campbell River provides two additional pieces of criteria to the grounds of family status that narrow the application of the Moore test. First, the complainant must show a change in a term or condition of employment. Second, this change must result in a serious interference with a substantial parental or other family obligation.
The Federal Court of Appeal was the first court to specifically reject the Campbell River factors in 2014, determining that the test for discrimination in family status should be substantially the same as other enumerated grounds, stating that there should be no hierarchies of human rights.
In 2016, the Ontario Human Rights Tribunal considered the impact that Moore had on the Campbell River factors in relation to discrimination based on family status. They concluded that Moore prohibited further restrictions on a finding of discrimination and rejected applying the Campbell River factors as too limiting on employee’s rights.
As recently as 2021, the Alberta Court of Appeal upheld the Moore test for all grounds of discrimination, including those based on family status.
However, courts in BC continue to recognize that family status is a distinct ground of discrimination worthy of its own test. In the 2019 BC Court of Appeal case Envirocon Environmental Services, ULC v Suen, the court upheld the Campbell test despite the ruling in Moore. The reason? Moore did not deal with discrimination based on family status specifically, whereas Campbell did. Therefore, the test for discrimination in family status remains separate from the test for discrimination in other areas, such as disability.
This was confirmed in March of 2022, when Harvey denied a discrimination claim to an employee whose childcare obligations after maternity leave meant she could not return to 12-hour shifts. In this case, the employee initiated the proposed change to her employment that she could not return to 12-hour shifts due to an inability to find adequate daycare for her newborn. The employer refused and the employee brought an allegation of discrimination based on family status. In ruling in favour of the employer, the BC Supreme Court reasoned that the change in circumstances was a result of the employee’s personal circumstances, and not a change imposed by the employer. Therefore, the employee’s claim of discrimination due to the employer’s refusal to provide accommodation could not be sustained.
This decision provides employers with a unique way of dealing with requests for workplace accommodation to family matters which may cause conflicts between employees and their work obligations. Under the Harvey ruling, a failure to accommodate changes in family status is not necessarily grounds for discrimination.
In other words, the courts in BC have seemingly incentivized employers to not accommodate changes in family status because it is only when there is a change in employment conditions, rather than maintaining the status quo, that discrimination based on family status can be claimed.
As of yet, it remains to be seen if the decision by the BC Supreme Court in Harvey will be appealed but given the practical effects of this decision it wouldn’t be surprising to see this issue on the Supreme Court of Canada’s agenda sometime in the near future.
As with many legal issues, discrimination is an area of the law that is heavily dependant on the unique facts of each situation. As a result, the law is not always as black and white as it may seem, and many cases involve a substantial “grey area” where very specific and unique circumstances can decide the outcome.
If you have any questions about this topic or need legal advice in relation to this or any other issue, please contact us to set up a consultation. We can be reached at 604-705-0022 or by email to info@sorensensmith.com.
For more information read the judges full decision in Gibraltar Mines Ltd. v. Harvey, 2022 BCSC 385.