Is being close to home to care for a newborn a substantial parental duty? According to the BC case of Suen v Envirocon Environmental Services it may not be. For better or for worse, BC Courts will continue to be bound by a strict test for family status discrimination.
In Suen v Envirocon, the employee was a project manager who had been employed at Envirocon Environmental Services in BC. In September 2015, shortly after his wife gave birth to their first child, the employee was requested to take an 8 to 10 week assignment in Manitoba. Envirocon would not pay for him to return home until the end of that period.
The employee refused the assignment in consideration of his wife and newborn. The employee was warned that he would be dismissed if he did not accept the assignment. In January of 2016, Envirocon dismissed the employee.
The Human Rights Tribunal (“Tribunal”)
The employee filed a complaint with the Tribunal alleging discrimination on the basis of “Family Status” based on the following facts:
• The newborn had jaundice
• To assist his wife in caring for the newborn, the employee worked from home for the first two weeks following birth followed by an additional two weeks of vacation time.
• Neither the employee nor his wife had any additional support to help care for their daughter
Envirocon applied to dismiss the complaint, stating that it was unrelated to his family status. The Tribunal declined to dismiss and found sufficient evidence to substantiate a claim. The Tribunal went so far as to question whether the stringent test for discrimination based on family status from Health Sciences Assoc. of B.C. v Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) should apply and whether it was still “good law”.
The Court of Appeal
Envirocon appealed at the British Columbia Court of Appeal (“BCCA”). The BCCA confirmed that the test to determine family status discrimination in BC was still the Campbell River test:
Employee must show
(i) there has been a change in a term or condition of employment and
(ii) such a change resulted in a “serious interference [SF1] with a substantial parental or family duty of obligation”.
The BCCA found that the employee’s factual circumstances did not meet the standard of for the second step of the test. The facts of his case only established that he was a parent. The Court explained that wanting to be close to home to his child and to assist his wife in caring for the child was “no different than the vast majority of parents”. Furthermore, nothing in the employee’s complaint suggested that the child would not be well cared for during his absence.
Supreme Court of Canada
The employee took his appeal to the SCC in hopes of getting it reversed. Unfortunately for the employee, on August 8, 2019, the SCC brought the Suen v Envirocon saga to an end by dismissing an application for leave to appeal.
This dismissal by the SCC cements the Campbell River test as BC’s test for determining family status discrimination. It is a much stricter approach than the test for determining other types of discrimination which is the test from Moore v British Columbia (Education), 2012 SCC 5. In that test, the complainant need only to establish that he or she have a characteristic protected from discrimination, that he or she experienced an adverse impact, and that the protected characteristic was a factor in the adverse impact.
For employees, the Campbell River test means that they will have to show a substantial parental duty or obligation that is different or unique compared to the majority of other working parents. Further, they may need to demonstrate that an absence from their child’s life would result in the child not being well cared for.
For employers, the Campbell River test means that the Court continues to favour practical business operation over the day to day issues that come with parenting and elder care. While this is encouraging for employers, it is expected that Campbell River will continue to be tested until it is more aligned with the less strict Moore test.
Please see the Court of Appeal decision here:
For more information on this topic or to hear how we can assist you with respect to your employment related questions, please contact Jordanna Cytrynbaum