Harvey V Gibraltar - The Latest Development In The Test For Discrimination On The Basis Of Family Status In BC

• Published date: 02 December 2020
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Ontario Employer Advisor, Abigail Cheung and Heather Mallabone

The BC Human Rights Tribunal's (the "Tribunal") decision in Harvey v. Gibraltar Mines Ltd. (No. 2), 2020 BCHRT 193 ("Harvey"), is the latest in a series of cases clarifying the test for discrimination on the basis of family status in BC.

Ms. Harvey and her husband both worked the same 12-hour shift at Gibraltar Mines Ltd. ("Gibraltar"). Upon returning from maternity leave in 2017, Ms. Harvey asked her supervisor if she and her husband could work different shifts, so that they could access childcare. She proposed two options that would allow them to work slightly different hours but continue to share some time off. Her supervisor rejected these proposals and suggested instead that Ms. Harvey or her husband switch to an opposing 12-hour shift, either permanently or until they could find a better childcare solution. Ms. Harvey rejected this suggestion on the basis that working opposite shifts would negatively affect their family. She then brought a claim alleging that Gibraltar failed to accommodate her by denying her request and discriminated against her on the basis of family status, marital status, and sex, contrary to s. 13 of the BC Human Rights Code, RSBC 1996, c. 210 (the "Code"). Gibraltar applied to have the complaint dismissed, arguing that the facts pled did not disclose a breach of the Code, that the complaint had no reasonable prospect of success, and that it would not further the purposes of the Code, pursuant to ss. 27(1)(b), (c) and (d)(ii).

The Tribunal canvassed the recent case law developments in the test for discrimination on the basis of family status, beginning with Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 ("Campbell River"). In Campbell River, the BC Court of Appeal held that, to establish discrimination based on family status, contrary to s. 13 of the Code, a complainant must prove that the actions of an employer resulted "in a serious interference with a substantial parental or other family duty or obligation of the employee."¹

Several years later, the Tribunal and the BC Supreme Court cast doubt on the continued validity of the Campbell River test in Suen v. Envirocon Environmental Services (No. 2), 2017 BCHRT 226 and Envirocon Environmental Services, ULC v Suen, 2018 BCSC 1367, holding that a lower threshold for establishing discrimination applied. However, on appeal in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 ("Suen"), the BC Court of Appeal clarified...