The Supreme Court of British Columbia has affirmed the test for family status discrimination in British Columbia in the recent decision of Gibraltar Mines Ltd. v. Harvey, 2022 BCSC 385 (“Gibraltar Mines”). In particular, the Court affirmed the two-part test articulated in the earlier Campbell River and Suen decisions which requires both a) a change in a term or condition of employment; and b) that the change resulted in a serious interference with a substantial parental or other family duty or obligation.
The Facts
Ms. Harvey and her husband were employed by Gibraltar Mines Ltd. (“Gibraltar ”), working identical 12-hour shifts prior to the birth of their child in 2017. In advance of returning from maternity leave, Ms. Harvey sought accommodations permitting her and her husband to work staggered shifts to facilitate child care coverage. Rejecting her proposal, Gibraltar suggested that Ms. Harvey or her husband switch to opposing 12-hour shift schedules permanently, or on a temporary basis until they found a suitable child care solution. Ms. Harvey rejected Gibraltar’s proposal due to the negative impact working opposite 12-hour shifts would have had on her family. Ms. Harvey then filed a complaint with the British Columbia Human Rights Tribunal (the “Tribunal”) alleging that Gibraltar discriminated against her on the basis of family status, marital status, and sex, contrary to section 13 of the British Columbia Human Rights Code (the “Code”). The Tribunal accepted Ms. Harvey’s complaint on the ground of family status (the “Complaint”).
Case History
Tribunal Decision
Gibraltar applied to the Tribunal to dismiss the Complaint, arguing in part that the facts pled did not disclose a change to a term or condition of employment, which it argued was a necessary condition for a complaint of family status discrimination to succeed.
The Tribunal reviewed the test for family status discrimination, referencing the decisions of Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) and Envirocon Environmental Services, ULC v. Suen., 2019 BCCA 46 (“Suen”). In Campbell River, the BC Court of Appeal established that a complainant must prove that the employer’s actions resulted in a “serious interference with a substantial parental or other family duty or obligation of the employee” for a complaint of family status discrimination to succeed under section 13 of the Code (at para. 39). Suen affirmed this test.
Although in Campbell River and Suen the respective employers did impose a change in term or condition of employment that impacted the complainants’ family obligations, in this case the Tribunal held that a change by the employer was not actually necessary to give rise to a “serious inference” of family status discrimination. Dismissing Gibraltar’s application, the Tribunal concluded that Ms. Harvey could establish a breach of the Code if the alleged facts were proven, given that the regular shift schedule created a serious interference with a substantial parental obligation or duty, notwithstanding the lack of change to a term or condition of her employment.
Judicial Review of Tribunal Decision
Gibraltar applied to the Supreme Court of British Columbia for judicial review of the Tribunal’s decision. The employer alleged that the Tribunal had erred in law by incorrectly concluding that the test for discrimination on the basis of family status set out in Campbell River and affirmed in Suen did not require a change to a term or condition of employment.
The Court concluded that the Tribunal’s interpretation was incorrect. The Court affirmed the two-part test established in Campbell River and affirmed in Suen. Unless both parts of the test are met, a claim for family status discrimination under section 13 of the Code will not be substantiated. As a result, the Court quashed the Tribunal’s decision to dismiss Gibraltar’s application to dismiss the Complaint.
Key Takeaways
Prior to Gibraltar Mines, the test for family status discrimination in British Columbia was uncertain. This case is significant for British Columbia employers as it provides clarity on the test for family status discrimination in this province. It confirms that the two-part test applies, and that both elements must be met in order to establish discrimination in employment on the basis of family status.
If you have any questions about this article, please contact Jessica Fairbairn or your Harris lawyer.
