British Columbia's Family Status Discrimination Test: More Employer-Friendly Than Family-Friendly?

• Law Firm: Stikeman Elliott LLP
• Subject Matter: Employment and HR, Government, Public Sector, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Human Rights
• Author: Mr Gary Clarke, David Price and Maja Blanchette
• Published date: 17 May 2023

In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 ("Gibraltar"), the British Columbia Court of Appeal clarified the test for establishing prima facie family status discrimination. In British Columbia, employees are still required to establish that a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. However, Gibraltar clarifies that a change in a term or condition of employment is not a precondition to a finding of prima facie discrimination.

In our previous post on the issue of family status discrimination, we highlighted that there is no unified test in Canada for establishing prima facie family status discrimination. Instead, different Canadian jurisdictions apply different tests. In 2021, the Court of Appeal of Alberta ("ABCA") affirmed the applicable test for Alberta employees, as discussed in our previous post. A full panel of the Court of Appeal for British Columbia ("BCCA" or "Court") has now clarified the applicable test for British Columbia employees in its recent Gibraltar decision.

In British Columbia, the leading authority on family status discrimination is Campbell River & North Island Transition Society v. H.S.A.B., 2004 BCCA 260 ("Campbell River"). Campbell River has given rise to conflicting interpretations and has received criticism from other courts, including from the ABCA, for setting a higher threshold for establishing discrimination based on family status relative to other prohibited grounds of discrimination.

In Gibraltar, the Court focused on the proper interpretation of the Campbell River test. The Court held that the Campbell River test does not require a change in a term or condition of employment as a precondition to a finding of prima facie discrimination. However, the Court affirmed that Campbell River defined the scope of family status discrimination to include only serious interference with a substantial parental or other family duty or obligation. The Court also emphasized the materiality threshold created by the "serious" and "substantial" requirements.

Facts and Summary of Previous Decisions

The complainant in the underlying human rights complaint was a journeyman welder who worked 12-hour shifts. Her spouse also worked for Gibraltar Mines Ltd. ("Gibraltar Mines"). After the birth of their child, the complainant requested a change to her, and her spouse's, work schedule to accommodate childcare arrangements...