Modern Family (Status): Court Of Appeal Clarifies Test For Family Status Discrimination In B.C.

Law FirmRoper Greyell LLP ' Employment and Labour Lawyers
Subject MatterEmployment and HR, Government, Public Sector, Contract of Employment, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Human Rights
AuthorJanna Crown, Brandon Hillis, Jaime H. Hoopes and James Kondopulos
Published date08 May 2023

A five-justice division of the B.C. Court of Appeal has just issued an important, unanimous decision on the applicable test to address claims of discrimination in employment with respect to family status (caregiving obligations).

Since 2004, the following passage from Health Sciences Assn. of B.C. v. Campbell River, 2004 BCCA 260 ("Campbell River") was treated as the test to be applied when addressing such claims:

[39] ... Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.

(Bold added.)

The test was, however, subject to conflicting interpretations.

Last week, in British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168, the Court of Appeal put those conflicting interpretations to rest. It clarified that a "change" in a term or condition of employment was not a prerequisite for a successful complaint and, importantly: (1) rejected the tests applied in other jurisdictions; and (2) unambiguously reaffirmed an approach which ensures that employers are not faced with an obligation to accommodate family caregiving obligations in the absence of a material adverse impact on such obligations.

Procedural History

The complainant, Lisa Harvey, filed a human rights complaint against her employer, Gibraltar Mines Ltd. ("Gibraltar"), after it declined her and her husband's shift preferences her return from parental leave. Gibraltar offered alternative accommodation proposals but to no avail.

Before the B.C. Human Rights Tribunal, Gibraltar brought an application to dismiss Ms. Harvey's complaint on a preliminary basis arguing, among other things, that the complaint had no reasonable prospect of success because there had been no change in a term or condition of Ms. Harvey's employment. That was, at the time, considered to be a requirement of Campbell...

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