Two-Part Kickoff for Family Status Discrimination

Written by Daniel Standing LL.B., Editor, First Reference Inc.

There has been significant debate in courtrooms and arbitration hearings over the years about the threshold point at which a complainant establishes a prima facie case of discrimination by an employer on the ground of family status. In British Columbia, the law stood to be clarified after that province’s Human Rights Tribunal got it wrong concerning two spouses who worked at a mine and sought scheduling accommodations. The Supreme Court of British Columbia’s decision in Gibraltar Mines Ltd. v Harvey, 2022 BCSC 385 is sure to be cited or read by anyone requiring a tidy summary of the law in this area.

Brief background

Lisa Harvey and her husband both worked the same 12-hour shift at Gibraltar, a mine north of Williams Lake-she, as a journeyman welder and he, as a journeyman electrician. In 2017, Ms. Harvey had a baby and went on maternity leave. During the period of her leave, both she and her husband asked for a reduced workday to facilitate their childcare arrangements. They said they couldn’t rely on family to pitch in regularly, and hiring a live-in nanny wasn’t an option. Gibraltar refused to grant the request, but later offered them staggered hours, to which the Harveys replied in the negative, saying it would have hurt their family life.

The Tribunal assessed the issue of whether the Harveys’ discrimination claim based on the protected ground of family status met the threshold to require a response from the employer. In other words, the issue was whether the Harveys had established a prima facie case simply by establishing that she had suffered a serious interference with a substantial parental or other family obligation.

The court’s decision

In its judicial review of the Tribunal’s decision, the court concluded that the Tribunal got it wrong. It observed that in British Columbia, the province’s top court previously confirmed in the Suen case that there are two parts to a prima facie case of family status discrimination. First, the complainant has to prove that there has been a change in a term or condition of employment, and second, that the change resulted in a “serious interference with a substantial parental or other family duty or obligation.”

To get to that conclusion, Justice Margot Fleming begins her substantive analysis with a comprehensive yet concise review of jurisprudence on the issue of prima facie discrimination on family status grounds. Beginning with the 1985 Supreme Court of Canada decision in Simpson-Sears, she traces the lineage of key cases touching on other Supreme Court cases like Meiorin and Elk Valley, as well as decisions of the Ontario and Canada human rights tribunals.

The strict legal question that the court’s reflection on past cases led to was whether the Tribunal correctly interpreted the Court of Appeal’s decision in Suen. That case was clear, that the “Campbell River test” remained good law. According to the test, “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 serious interference with a substantial parental or other

family duty or obligation of the employee.” It was clear there were two parts to the test. The court noted that the Supreme Court of Canada refused leave to appeal in Suen.

For those who enjoy technicalities, Justice Fleming’s discussion on the finer points of ratio decidendi and obiter dicta will not disappoint. This analysis was needed to determine whether

the Suen court’s reference to the first part of the test was obiter or not, and the ramifications. Regardless of whether it was part of the decision proper, it was intended to provide guidance, Justice Fleming ruled. Therefore, it had to be treated as authoritative and binding.

Takeaway for employers

The end result was that the Tribunal was wrong to have ruled that Ms. Harvey had proven a prima facie case of discrimination. She had not proven that the employer changed a term or conditions of her employment, and therefore the full scope of the test had not been satisfied.

Employers in British Columbia who are bound by this ruling should take solace in the fact that absent a change in working terms or conditions that it imposes; it should not face liability for discrimination on the grounds of family status. On a related note, when contemplating changes to workplace rules and policies that rise to the level of a term or condition of employment, employers who contemplate and account for any unintended discriminatory effects on their employees will stand a better chance at avoiding liability.