The law governing family status discrimination under human rights legislation is unsettled and varies from jurisdiction to jurisdiction. A new decision from the British Columbia Court of Appeal only deepens this divide, which it appears only the Supreme Court of Canada may bridge.
For years, family status was a relatively obscure ground of discrimination, arising rarely in discrimination cases. The leading decision was the British Columbia Court of Appeal’s decision in Health Sciences Association of BC v Campbell River and North Island Transition Society (“Campbell River”). In Campbell River, the Court of Appeal held that discrimination on the basis of family status in employment arose when: (i) there had been a change in a term or condition of employment; and (ii) such a change resulted in a serious interference with a substantial parental or other family duty or obligation. This set a high bar.
However, other jurisdictions held that Campbell River did not go far enough. In Johnstone v Canada, the Federal Court of Appeal held that any interference that was more than “trivial or substantial” in an area of familial responsibility that engaged legal responsibility was discriminatory.
In Ontario, the Human Rights Tribunal broadened the test in Misetich v Value Village Stores. In that case, Ontario’s Tribunal held that the existence of a legal obligation to a family member was not required to establish discrimination.
To summarize, each of those three jurisdictions implemented different tests, with each creating a broader protection than the last.
It was within this context that the British Columbia Court of Appeal rendered its decision in Envirocon Environmental Services v Suen.
The facts of Envirocon are fairly straightforward. An employee with a newborn child was assigned, by his employer, to work out of province for several months. The employee refused, on the basis that he instead wanted to stay at home and assist his wife with child care duties. The employer terminated his employment as a result of his refusal to accept the assignment.
The employee brought a complaint to the B.C. Human Rights Tribunal alleging that his termination had been discriminatory on family status grounds.
The employer brought a motion to have the complaint dismissed on the basis that what was alleged could not constitute discrimination.
While the Tribunal found that the facts could give rise to discrimination on the basis of family status, the B.C. Court of Appeal rejected that position, and found it patently unreasonable.
In so doing the Court of Appeal upheld the requirement that there must be serious interference, causing something more than the “usual work/family tensions that every parent faces at some time or another.” Notwithstanding that the absence was going to be for several months, the Court of Appeal noted that the applicant could point to nothing in the family dynamic that required him to be at home which would elevate his rejection of the assignment from a preference (not protected by the Code) to a need (which would be protected).
Importantly, the B.C. Court of Appeal expressly refused to revise its decision in Campbell River.
That leaves the test for family status discrimination different in British Columbia as opposed to Ontario or federally regulated employees. Notably, both Johnstone (which specifically rejected Campbell River) and Campbell River are decisions of appeal courts – which only the Supreme Court of Canada has the power to overrule or adopt.
Difficulties abound when dealing with employees who assert family status rights. These difficulties are exacerbated when different rules apply by jurisdiction.
It is not known if the applicant is seeking leave to appeal this decision to the Supreme Court. Unfortunately, until we have clarity from our highest court, workplace parties will continue to fumble about, and the existence and extent of employees’ human rights will remain dependent on the province in which they live.