No Change Needed: BC Court Of Appeal Clarifies Test For Family Status Discrimination

• Law Firm: Fasken
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Author: Ms Leanne Monsma and Andrew Gould
• Published date: 23 May 2023

In a recent decision¹, the British Columbia Court of Appeal clarified and expanded the test for discrimination based on family status under British Columbia's Human Rights Code (the "Code"). Giving the Code a broad and liberal interpretation, the Court of Appeal held that an employee does not need to establish that their employer changed a term or condition of their employment. Rather, discrimination may be made out where a term or condition of employment, changed or not, results in serious interference with a substantial parental or family duty obligation.

What happened?

The complainant and her spouse were both employed by Gibraltar Mines Ltd. (the "employer") as journeyman tradespersons. When the complainant became pregnant, both her and her spouse were working the same 12-hour shifts. After the birth of her child, the complainant requested a workplace accommodation to change her and her spouse's work schedules to facilitate childcare arrangements. The complainant and the employer exchanged proposals but were unable to agree on a revised schedule to accommodate the complainant's request.

The complainant proceeded to file a human rights complaint against the employer at the British Columbia Human Rights Tribunal (the "Tribunal"), alleging discrimination on the basis of family status, marital status and sex.

The employer applied to the Tribunal to have the complaint dismissed on a preliminary basis. The Tribunal dismissed the complaint on the basis of sex and marital status, but allowed the complaint on the basis of family status to proceed.

In reaching its decision, the Tribunal reviewed the test for family status discrimination from the Court of Appeal's decision in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society ("Campbell River"), which has two elements:²

• was there a change in a term or condition of employment by the employer; and
• did the change result in a serious interference with a substantial parental or other family duty or obligation?

The Tribunal determined that a change in a term or condition of employment was not a precondition for a finding of discrimination on the basis of family status.

The employer brought an application for judicial review of the Tribunal's decision to the BC Supreme Court and argued that the Tribunal had misinterpreted the test from Campbell River. The chambers judge of the BC Supreme Court agreed with the employer and quashed the decision of the Tribunal, holding that the...