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Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46

AREAS OF LAW: Human rights law; Adverse effect discrimination; Judicial review; Standard of review

~It is not adverse effect discrimination for an employer to require an employee to be away from his family for work, where the employee has not shown that being away would interfere with a substantial parental or other family duty or obligation.~

BACKGROUND
 The Appellant, Envirocon Environmental Services, terminated the employment of the Respondent, Brian Suen, with cause when he refused to accept an out-of-province assignment shortly after the birth of his first child. The Appellant also accused the Respondent of being flippant, disrespectful, unprofessional and insubordinate. Suen then filed a complaint with the Respondent BC Human Rights Tribunal, alleging discrimination on the basis of family status. The Appellant took the position before the Tribunal that the dismissal was unrelated to Suen’s family status. The Appellant filed an application seeking to have the complaint dismissed without a hearing and filed an affidavit in support of this application. Suen filed an affidavit in response. There was a conflict in the affidavits that raised the question of whether assigning Suen to a project that required him to be away from home for an extended period constituted a significant change in the terms of his employment. The Tribunal declined to dismiss the complaint with respect to adverse effect discrimination. It held that the complaint, on its face, alleged facts that could constitute adverse effect discrimination on the basis of family status. The Tribunal further held there was a reasonable chance that the complaint could succeed. The Appellant sought judicial review of this decision. The chambers judge reviewed the Tribunal’s decision on a standard of patent unreasonableness. She reasoned that absent an extricable question of law, the Tribunal’s discretionary decision under s. 27(1) of the Human Rights Code had to be reviewed on that standard pursuant to s. 59(3) of the Administrative Tribunals Act. She found that the Tribunal applied the tests in the Supreme Court of Canada decision in Moore v. British Columbia and the BC Court of Appeal decision in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society in determining that there was a prima facie case of discrimination. There was no clear evidence of any unreasonable finding.

APPELLATE DECISION
The appeal was allowed. The Court of Appeal noted that the test in Campbell River has two steps. First, there must be a change in a term or condition of the complainant’s employment. Second, that change must result in a serious interference with a substantial parental or other family duty or obligation. In this appeal, the second question was engaged. The Tribunal found that being required to be away from his wife and child for a number of months could be found to constitute this serious interference. The Tribunal rejected the Appellant’s argument that the facts alleged by Suen could, at best, establish a conflict between a work requirement and a parental preference. There was no allegation that the child required special care or that Suen alone was capable of caring for the child. The Court of Appeal agreed, noting that while 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 work hours was understandable and commendable, he was no different from the vast majority of parents. Many parents are required to be away from home for extended periods for work-related reasons. There was nothing in the complaint or in Suen’s affidavit to suggest his child would not be well cared for in his absence. The Tribunal’s erroneous finding with respect to the second step of Campbell River was key to its decision to allow the adverse effect discrimination aspect of the complaint to proceed. Because of this error, the decision was arbitrary and was accordingly quashed.

COUNSEL COMMENTS

Comments provided by Michael Wagner and James Kondopulos, Counsel for the Appellant:

“With its 2004 Campbell River decision, the BC Court of Appeal articulated this province’s test for prima facie family status discrimination involving familial obligations in the context of employment. That was the first time this issue was addressed by a court in BC and one of the only appellate decisions of its kind in Canada. As such, it was a leading case argued across the country.

The approach in Campbell River received mixed reviews from courts, human rights tribunals and labour arbitrators who were charged with deciding familial obligation cases. Supporters of the approach appreciated its context-sensitive analytical lens and recognition that an employer’s duty to accommodate cannot reasonably be triggered by the many commonplace conflicts which arise between work and family duties. Detractors argued that the Campbell River approach created an inappropriate higher threshold for human rights protection than exists for other types of discrimination claims.

In the one and a half decades since the Campbell River decision, the law of family status discrimination in Canada has become a patchwork of disparate decisions and legal principles. Decision-makers in other jurisdictions have developed different tests and approaches. Even in BC, some decisions, such as the Tribunal’s decision in Envirocon, have strayed from the Campbell River test and expressed doubt about its continued applicability. This has been regrettable in that it has led to uncertainty for everyone with an interest in this area of law, including employees, unions, employers, legal counsel and, ultimately, decision-makers.

In our view, the BC Court of Appeal’s recent decision in Envirocon was welcome. It has had at least two beneficial and salutary effects. First, it has reminded administrative tribunals and lower courts that they are bound by decisions of the Court of Appeal. Criticism and comment from other jurisdictions is an insufficient basis upon which to reject binding authority in this province.

Second, the decision of the Court of Appeal in Envirocon clearly reaffirms that the Campbell River test is the applicable law in BC for prima facie family status discrimination involving familial obligations in the employment context. It is no longer viable for parties in BC to argue tests developed in other jurisdictions or under different circumstances such as Johnstone or Moore, or any other approach advocated by administrative tribunals or courts in other jurisdictions.

We are advised that leave to appeal to the Supreme Court of Canada will be sought. It remains to be seen whether the BC Court of Appeal’s decision in Envirocon will be the end of the matter.”

 

Comments provided by Fred Wynne, Counsel for the Respondent, Brian Suen:

“This is an important case highlighting the inconsistent treatment of family status discrimination as compared to other forms of discrimination protected under the BC Human Rights Code.

The BC Court of Appeal’s finding in the case turned on the fact the court was unwilling to revisit its 2004 decision of Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”), and highlights BC’s particularly narrow test for what constitutes prima facie discrimination on the ground of family status.

Campbell River Confirmed

The important takeaway from the case is that the BC Court of Appeal re-confirmed the test for family status discrimination from Campbell River. In Suen, at the appellate level, a distinction was drawn between family obligations (i.e. child care or other caregiving) and family status per se (i.e. being a father, mother, child). The Court of Appeal also accepted the employer`s narrow interpretation of Campbell River, based largely on obiter dicta from the oft-repeated paragraph 39 of the Campbell River decision, that in the vast majority of cases where parental obligations conflict with work requirements a family status discrimination case will not be made out.

A Hierarchy of Rights?

The question that was left unanswered when the Court of Appeal declined to reconsider Campbell River is why the test for family status discrimination ought to be different from the tests for prima facie discrimination for every other ground listed in the Human Rights Code. Family status discrimination is left as an outlier with its own prima facie test, which in my view is stricter to make out than other discrimination cases. Family status has become a second-class right, in essence.

I am not alone in this view as Campbell River, and the family status question more generally, has been the subject of debate and criticism in other jurisdictions across Canada including Alberta, Ontario, Nunavut, and the Federal Courts.

While the Supreme Court of Canada has recently weighed in on the proper test for prima facie discrimination generally, and made obiter dicta comments that adjectives (i.e. “significant” or “material”) should not be added to the prima facie test, as Campbell River does, there is no family status authority from the Supreme Court of Canada. We are left with divided jurisprudence across the country on this issue.

To Be Continued…

We are seeking leave to appeal to the Supreme Court of Canada. Hopefully we will answer the questions I pose above, and achieve some much needed clarity in this area of the law.”

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