The British Columbia Court of Appeal (the “BCCA”) recently issued an important decision about family status discrimination. In Envirocon Environmental Services, ULC v. Suen (“Envirocon”), a unanimous BCCA affirmed the existing legal test for adverse discrimination on the ground of family status under the BC Human Rights Code (the “Code”). For BC employers, this is a welcome decision.
In Envirocon, Mr. Suen was fired when, shortly after the birth of his daughter, he refused a work assignment that would have required him to work outside of BC for eight to ten weeks. Mr. Suen alleged discrimination on the basis of “family status”. After the BC Human Rights Tribunal (the “Tribunal”) refused to dismiss the claim, Envirocon appealed the decision to the Supreme Court of British Columbia, which refused Envirocon’s application for judicial review, and then to the BCCA.
To understand the impact of the Envirocon decision, one must first understand the 2004 BCCA decision of Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society (“Campbell River”), where the BCCA established the test for adverse discrimination (on the basis of family status) as a change in employment “imposed by an employer” which “results in a serious interference with a substantial parental or other family duty” of the employee.
The Campbell River test has been the subject of scrutiny as it arguably imposes a different, less stringent standard in family status cases compared to other grounds of discrimination. As a result, courts and tribunals across Canada have declined to follow Campbell River in other jurisdictions. The central issue in Envirocon was whether the Campbell River test remained intact.
The Tribunal held that Mr. Suen’s “required absence from his wife and four‐month‐old infant for consecutive 24‐hour periods over a number of weeks could be found to constitute serious interference with a substantial parental or other family duty or obligation”. Despite applying the Campbell River test, the Tribunal questioned whether the Campbell River test remained “good law”.
At the BCCA, Mr. Suen argued that the Court should reconsider the Campbell River test and that it should only be “necessary for a complainant to show that a change in a term or condition of employment interferes with a parental or other family duty or obligation”. The BCCA declined to embark on any such analysis, stating simply that it was “bound by Campbell River”.
The BCCA then overturned the Tribunal’s decision that the company discriminated against Mr. Suen. The BCCA held that the Tribunal had incorrectly applied the Campbell River test to the facts of the case:
… While Mr. Suen’s desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends is understandable and commendable, he is no different than the vast majority of parents. There are many parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children…
The effect of this decision, for now at least, is that BC employers have some certainty about what will constitute discrimination on the basis of family status in BC. By upholding the Campbell River test requiring “serious interference with a substantial parental or other family duty”, the BCCA unequivocally endorsed the high threshold set out in Campbell River. To demonstrate “serious interference” with a “substantial” family duty, an employee must show how his or her circumstances are somehow distinct from all other workers who balance the demands of their employment with their family lives.
We are monitoring whether Envirocon will be appealed to the Supreme Court of Canada, so stay tuned for further updates.