B.C. Court Of Appeal Clarifies Test For Prima Facie Family Status Discrimination

• Law Firm: Lawson Lundell LLP
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Author: Ms Nicole Skuggedal, Lucy Williams and Emily Raymond (Summer Student)
• Published date: 08 May 2023

In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 ("Gibraltar Mines"), the British Columbia Court of Appeal ("BCCA") recently resolved much of the uncertainty surrounding the test for prima facie family status discrimination in B.C.

A five-judge panel of the BCCA unanimously held that the test for prima facie family status discrimination does not include a requirement that there must be a change in the employee's terms or conditions of employment. Rather, the BCCA held that prima facie family status discrimination occurs where "a term or condition results in a serious interference with a substantial parental or other family duty or obligation of an employee, whether as a consequence of a change in the term of employment or a change in the employee's circumstances."¹

The BCCA's decision is an important one, as it provides long-awaited clarification on the proper interpretation and application of the test for prima facie family status discrimination in B.C.

History of Family Status Discrimination in BC

Section 13(1) of the Human Rights Code, R.S.B.C. 1996, c. 210 (the "Code") prohibits discrimination against a person regarding employment or any term of employment based on, among other grounds, family status. However, there is no definition of "family status" in the Code, meaning that the Legislature left the scope of family status to be developed by the courts through case law.

It has long been understood that the test for prima facie family status discrimination in B.C. was set out by the BCCA in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 ("Campbell River"), and required an employee to show that:

• their employer imposed a change in a term or condition of employment; and
• the change resulted in a serious interference with a substantial parental or other family obligation.

The Gibraltar Mines Case

Background

Ms. Harvey and her husband both worked the same 12-hour shift at Gibraltar Mines Ltd. ("Gibraltar"). Ms. Harvey became pregnant and went on maternity leave. Towards the end of her leave, Ms. Harvey sought a workplace accommodation to alter her and her husband's shifts to facilitate childcare arrangements. The parties entered into discussions, but were unable to agree on an accommodation. Ms. Harvey filed a human rights complaint with the BC Human Rights Tribunal (the "Tribunal"), alleging discrimination in employment on the basis of marital status, sex, and family...