In a recent decision, the B.C. Court of Appeal has broadened the test for discrimination based on family status under the B.C. Human Rights Code.
In B.C., the longstanding test for family status discrimination was set out in HEABC v Campbell River and North Island Transition Society, 2004 BCCA 260 (the “Campbell River test”). There, the Court indicated that in “the usual case”, a prima facie case of family status discrimination is established when:
- a change in a term or condition of employment imposed by an employer;
- which results in serious interference with a substantial parental or other family duty or obligation.
In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168, the Court reviewed the test in the context of considering employee entitlement to accommodation for caregiving obligations. The Court clarified that the first prong of the Campbell River test – a change in a term or condition of employment imposed by an employer – is not an exhaustive statement of the test for family status discrimination in employment. The first prong could also be met where an employer decides not to change a term of employment to address an employee’s need, or potentially in other circumstances.
In that case, an employee requested modifications to her and her husband’s work schedules (who worked for the same employer) to care for their son. After the employer declined to provide the accommodation, the employee filed a human rights complaint alleging discrimination based on family status.
The employer applied to have the complaint dismissed, arguing they had not changed a term or condition of employment, and therefore the first prong of the Campbell River test could not be met. The issue made its way to the Court of Appeal for review, where the Human Rights Tribunal sought the Court’s guidance as to whether a change in the terms and conditions of employment is necessary before a prima facie case of family status discrimination is established.
The Court determined the Campbell River test does not dictate that a change to a term or condition of employment imposed by an employer is the only circumstance in which family status discrimination can be established. In addition to noting that the Court’s previous reference to “the usual case” did not create any such requirement and the B.C. Human Rights Code does not contain any such limitation, the Court cited the importance of giving statutory language relating to human rights a broad and liberal interpretation.
Given this development, B.C. employers should be aware of the potential for liability arising where a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation of an employee, even absent an employer change to the term or condition.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.