The British Columbia Court of Appeal has recently confirmed its approach to discrimination on the basis of family status.
The Campbell River Test
The test for family status discrimination was established in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”). In order to establish discrimination on the basis of family status, the complainant must establish:
- a change in a term or condition of employment imposed by the employer; and
- the change resulted in a serious interference with a substantial parental or other family duty or obligation.
Campbell River has been criticized for imposing a different and higher standard for establishing discrimination on the basis of family status as compared to other protected grounds. Different tests have also emerged in other Canadian jurisdictions.
Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46
In the recent decision of Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Envirocon v. Suen”), the Court of Appeal had an opportunity to re-consider Campbell River.
The case involved an individual, Mr. Suen, who was employed by Envirocon as a project manager in Burnaby. From time to time he was required to travel for work. In September 2015, Mr. Suen and his wife welcomed their first child. Mr. Suen worked from home and took some holidays after his daughter’s birth. In January 2016, Mr. Suen was assigned to a project in Manitoba which would require that he be away for 8-10 weeks. Mr. Suen advised Envirocon he would not go to Manitoba in order to remain close to his family. Envirocon ultimately terminated Mr. Suen’s employment for cause.
Mr. Suen filed a human rights complaint alleging discrimination on the basis of family status. Envirocon filed an application to dismiss the complaint without a hearing. The Human Rights Tribunal declined to dismiss any aspect of Mr. Suen’s complaint. The Tribunal held that the facts as alleged could constitute adverse effect discrimination on the basis of family status and there was a reasonable prospect the complaint could succeed. The Tribunal applied Campbell River but also raised a question concerning the continuing applicability of the Campbell River test.
Envirocon applied for judicial review of the Tribunal’s decision. The Chambers Judge upheld the Tribunal’s decision finding that the Tribunal’s decision was not patently unreasonable.
Envirocon ultimately appealed the decision of the Chambers Judge to the British Columbia Court of Appeal. The Court of Appeal declined the opportunity to re-consider the Campbell River test and confirmed its continued application in British Columbia. The Court of Appeal ultimately found that the Tribunal’s decision was patently unreasonable and arbitrary because the facts alleged by Mr. Suen could not satisfy the second step of the Campbell River test – a serious interference with a substantial parental or other family duty or obligation.
The importance of the case
This is an important case as it clarifies that Campbell River continues to be the applicable test to meet for family status discrimination in British Columbia. It further demonstrates that something more than a parent’s desire to be close to home to assist with parenting obligations will be necessary to meet the test.
If you have any questions about family status discrimination, or any other workplace issue, please contact Nicole Toye.
