Confirmation of Stringent British Columbia Test for Family Status Duty to Accommodate

A recent British Columbia Court of Appeal decision confirmed that the stringent test set out in Health Sciences Assoc of BC v Campbell River and North Island Transition Society (B.C.C.A., 2004 “Campbell River“) to determine if there was a duty to accommodate based on family status and if there is a prima facie case of discrimination based on family status, continues to be the applicable test in British Columbia.

Quick facts

The employee was a project manager who had been employed since 2012. From time to time, he was required to travel to project sites away from home. Approximately four months after the birth of his first child, the employee was assigned to work for eight to 10 weeks in Manitoba due to the unexpected resignation of a project manager. The employee refused to accept the assignment.

The employer asked him to reconsider and warned him he would be dismissed, and again the employee proceeded to refuse the assignment. He was subsequently terminated by the employer for just cause effective immediately.

The employee filed a complaint with British Columbia’s Human Rights Tribunal, asserting that the employer discriminated against him in the area of employment on the basis of “family status” by requiring him to take on a project that would take him away from home for eight to ten weeks when he just became a father. The employee asked for, among other things, compensation for lost wages, salary or expenses and damages for injury to dignity. The employer claimed that the dismissal was unrelated to his family status.

The employer also filed an application with the Human Rights Tribunal to dismiss the former employee’s complaint without a hearing, asserting that the employee had not experienced a serious interference with a substantial parental duty or obligation as a result of his temporary relocation (i.e., Campbell River Test.)

Decision of the Human Rights Tribunal

The Human Rights Tribunal denied its application and held there was a reasonable prospect the employee could establish indirect or adverse effect discrimination by using a less stringent test than the one in Campbell River, which included the Supreme Court of Canada case in Moore v British Columbia [Education] (2012 SCC 61), which held that a prima facie case of discrimination will be made out when: the complainant possesses a protected characteristic; the complainant experiences an adverse impact with respect to their employment; and the protected characteristic is a factor in the adverse impact.

The employer appealed for a review of the Tribunal’s decision.

Appeals decisions

The chambers judge reviewed the Tribunal’s decision and held that based on the Campbell River Test, the Tribunal’s decision was not patently unreasonable and that there was evidence to support the Tribunal’s decision that a prima facie case was made out. The Tribunal member’s decision not to dismiss the employee’s complaint was a discretionary one and is entitled to deference.

The employer, still not satisfied, appealed to the Court of Appeal and contended the chambers judge erred in: 1) her determination of the standard of review applicable to the Tribunal’s interpretation of the Campbell River Test; 2) finding that there was nothing incorrect or, alternatively, patently unreasonable about the Tribunal’s characterization of the Campbell River Test; and 3) finding that there was nothing patently unreasonable about the Tribunal’s decision not to dismiss the complaint.

The Court of Appeal allowed the review and set aside the Tribunal’s decision and confirmed that Campbell River remains the governing law in British Columbia and determined that the Tribunal had erred in its application of it. The court held that temporary relocation, without more (more than the usual work/family tensions that every parent faces at some time or another), could not constitute a “serious interference with a substantial parental or other family duty or obligation.”

The court explained that:
[32] … while the [employee]’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 working 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. Nothing in the [employee]’s complaint or affidavit suggests his child would not be well cared for in his absence.”

Takeaway for employers

The case of Campbell River clarified the meaning and scope of the term “family status” in the British Columbia Human Rights Code and how a prima facie case of discrimination can be made on the ground of family status, which includes “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.”

This case confirms that a personal preference to provide childcare, without additional factors, does not trigger a duty to accommodate based on family status.

Employees have an obligation to try to balance family obligations with their work obligations. Only when the employee can establish a substantial parental obligation that needs accommodation will the family status duty to accommodate will be triggered. It is not what the employee would prefer. The employee has to establish more than a conflict between a work requirement and a parental preference.

Important note: The employee is seeking leave to appeal to the Supreme Court of Canada to address the inconsistency in the test for family status discrimination across the country. Therefore the above principle applicable in British Columbia right now may change.

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