The British Columbia Supreme Court On Family Status Discrimination: Parenting Roles, Stereotypes And In-Flux Jurisprudence

Introduction

The recent British Columbia Supreme Court ("BCSC") decision in Envirocon Environmental Services, ULC v. Suen confirms that the law in British Columbia with respect to family status discrimination remains unsettled. The decision also provides insight into the reasoning of the British Columbia Human Rights Tribunal (the "Tribunal") regarding parenting roles and stereotypes and the interpretation of the purposes underlying the British Columbia Human Rights Code (the "Code").12

Facts

Mr. Suen worked as a project manager based out of Burnaby, B.C., for Envirocon Environmental Services, ULC ("Envirocon"), a company providing environmental remediation services across Canada. As a project manager, Mr. Suen was sometimes temporarily assigned to projects out of town, but he was able to work remotely or fly home to Vancouver during these assignments at Envirocon's expense.

A few months after the birth of Mr. Suen's daughter, a project manager in Manitoba unexpectedly resigned and Envirocon assigned Mr. Suen to replace him. The assignment would have required Mr. Suen to relocate to Manitoba for two and a half months, with no rotations back at the head office, and trips home to Vancouver only on weekends and at his own cost. When Mr. Suen refused to transfer, Envirocon terminated his employment.

The Complaint and Application to Dismiss

Mr. Suen filed a human rights complaint with the Tribunal, alleging that in terminating his employment, Envirocon had discriminated against him on the basis of his family status (the "Complaint").

Envirocon then filed an application to dismiss the Complaint, arguing, among other things, that:

the facts alleged by Mr. Suen, even if true, did not contravene the Code; and the Complaint did not further the purposes of the With respect to the first argument, Envirocon submitted that the facts alleged by Mr. Suen, even if true, did not meet the elements of the test for discrimination based on family status set out by the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society3 (the "Campbell River test").

In its decision rejecting Envirocon's application to dismiss the complaint,4 the Tribunal found, however, that the facts alleged could meet the Campbell River test, as well as the lower threshold set out in the decision of the Supreme Court of Canada ("SCC") in Moore v. British Columbia (Education)5 (the "Moore test"). The Tribunal also strongly...