The British Columbia Court of Appeal recently issued a decision revising the test for family status discrimination under section 13 of the British Columbia Human Rights Code (“Code”) in their decision in British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines”). This landmark decision issued by a five-member panel of judges significantly broadens the circumstances in which an employer may be found to have discriminated against an employee on the basis of family status.
The Previous Test for Family Status Discrimination
Prior to the Court of Appeal’s decision in Gibraltar Mines, the test for family status discrimination in British Columbia was set out in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”). The so-called “Campbell River test” required that a complainant must prove both:
a) a change in a term or condition of employment by the employer; and
b) that the change resulted in a serious interference with a substantial parental or other family duty or obligation.
The Campbell River test had recently been affirmed by the Supreme Court of British Columbia in Gibraltar Mines Ltd. v. Harvey, 2022 BCSC 385, a detailed summary of which is available here.
The New Test for Family Status Discrimination
The new test for family status discrimination established by the Court of Appeal in Gibraltar Mines is significantly broader than the Campbell River test. Under the new Gibraltar Mines test, in order for a complaint of family status discrimination to succeed under Section 13 of the Code, a complainant must prove:
a) they suffered an adverse impact arising from a term or condition of employment; and
b) the term or condition of employment amounted to a serious interference with a substantial parental or family obligation.
The Court of Appeal’s determination effectively means that even in the absence of a change in a term or condition of employment, an employer may be found to have discriminated on the basis of an employee’s family status.
In coming to its decision in Gibraltar Mines, the Court of Appeal explained that the test in Campbell River was not incorrect, but that it was non-exhaustive. In Campbell River, the employer had changed a term or condition of the complainant’s employment by changing her work schedule, so the court only had to consider whether that change in the terms or conditions of employment could amount to family status discrimination. The Campbell River decision did not preclude a finding that family status discrimination could arise in other circumstances, including from a change in an employee’s circumstances or family status. The Court of Appeal has sent the Gibraltar Mines case back to the BC Supreme Court for consideration of the issues in light of the newly revised test for family status discrimination.
Key Takeaways
This case is of significant importance to British Columbia employers, as it overturns nearly two decades of jurisprudence developed following the Campbell River decision. Even where an employer has made no change to the terms or conditions of employment, a change in the employee’s family circumstances or family status may now give rise to a claim of family status discrimination. Employers must carefully consider the impact of both changed and existing terms or conditions of employment on their employees who assert that they have a substantial parental or family obligation, and gauge how they can accommodate their employees’ family status-related obligations, in order to comply with their obligations under the Code.
If you have any questions about this article or need any assistance navigating this significant change, please contact Nicole C.M. Toye, Jessica Fairbairn, or your Harris lawyer.
