The British Columbia Supreme Court on family status discrimination: Parenting roles, stereotypes and in-flux jurisprudence

Introduction

The recent British Columbia Supreme Court (“BCSC”) decision in Envirocon Environmental Services, ULC v. Suen confirms that the law in British Columbia with respect to family status discrimination remains unsettled.  The decision also provides insight into the reasoning of the British Columbia Human Rights Tribunal (the “Tribunal”) regarding parenting roles and stereotypes and the interpretation of the purposes underlying the British Columbia Human Rights Code (the “Code”).[1][2]

Facts

Mr. Suen worked as a project manager based out of Burnaby, B.C., for Envirocon Environmental Services, ULC (“Envirocon”), a company providing environmental remediation services across Canada.  As a project manager, Mr. Suen was sometimes temporarily assigned to projects out of town, but he was able to work remotely or fly home to Vancouver during these assignments at Envirocon’s expense.

A few months after the birth of Mr. Suen’s daughter, a project manager in Manitoba unexpectedly resigned and Envirocon assigned Mr. Suen to replace him.  The assignment would have required Mr. Suen to relocate to Manitoba for two and a half months, with no rotations back at the head office, and trips home to Vancouver only on weekends and at his own cost.  When Mr. Suen refused to transfer, Envirocon terminated his employment.

The Complaint and Application to Dismiss

Mr. Suen filed a human rights complaint with the Tribunal, alleging that in terminating his employment, Envirocon had discriminated against him on the basis of his family status (the “Complaint”).

Envirocon then filed an application to dismiss the Complaint, arguing, among other things, that:

  • the facts alleged by Mr. Suen, even if true, did not contravene the Code; and
  • the Complaint did not further the purposes of the

With respect to the first argument, Envirocon submitted that the facts alleged by Mr. Suen, even if true, did not meet the elements of the test for discrimination based on family status set out by the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society[3] (the “Campbell River test”).

In its decision rejecting Envirocon’s application to dismiss the complaint,[4] the Tribunal found, however, that the facts alleged could meet the Campbell River test, as well as the lower threshold set out in the decision of the Supreme Court of Canada (“SCC”) in Moore v. British Columbia (Education)[5] (the “Moore test”). The Tribunal also strongly suggested that the SCC’s recent decision in Stewart v. Elk Valley Coal Corp.[6], in which the SCC criticized the requirement for a complainant to establish that acts of discrimination were “material” or “significant”, meant that the Campbell River test is no longer good law. Notably, neither the Tribunal nor the BCSC reached a conclusion as to the proper test for family status discrimination in B.C.

With respect to the argument that the Complaint would not further the purposes of the Code, Envirocon reasoned that family status is a protected ground to ensure protection of employees in difficult, irreconcilable situations, such as when an employee has a child with significant physical or mental health issues that demands provision of special care, or lacks resources or support to obtain assistance with such care. Envirocon argued that since Mr. Suen’s wife was the primary caregiver for his daughter and they had plenty of childcare supports, Mr. Suen “did not have any special skill or ability which [rendered] him indispensable in the care of his daughter”.

The Tribunal strongly rejected this line of argument, holding that Envirocon’s argument perpetuated the stereotype that mothers have higher parental responsibilities than fathers.  Emphasizing that the case is not about regular working hours, but about an employer requiring lengthy periods of absence, the Tribunal found that the assignment would diminish Mr. Suen’s ability to share in the responsibility of parenting his child.  Furthermore, Envirocon’s assertion that Mr. Suen has “no special skill or ability” to make him indispensable in caring for his daughter so minimizes the role of a father in a child’s care as to run counter to the purposes of the Code.

The Tribunal decided not to dismiss the Complaint.

Envirocon’s Petition for Judicial Review

Envirocon brought a petition for judicial review to the BCSC.  The Court rejected Envirocon’s petition, holding that the Tribunal’s decision to allow Mr. Suen’s complaint to proceed was discretionary, was entitled to deference, and was not clearly unreasonable. The Court did not clarify whether the test in Moore or Campbell River, or some other test, is the appropriate test to determine whether discrimination based on family status has occurred.

Key Takeaways

At this time, the appropriate legal test to determine discrimination based on family status in B.C. is unclear.  Employers should be aware that the Campbell River test, which requires complainants meet a higher threshold than the test for family-status discrimination in other jurisdictions in Canada, may not apply in B.C.  The Tribunal’s decision, upheld by the Court on review, suggests that assignments that require round-the-clock absences from an employee’s child care responsibilities may reach the threshold of family status discrimination.  Another factor that could be problematic for the employer is that it did not offer the manager regular rotations home, and would not pay for his flights back during the rotation (both of which it previously did for him in BC).  Also, the Tribunal clearly signaled that it will not consider favourably any arguments that can be said to perpetuate stereotypes regarding parental roles.  The Tribunal took issue with the Employer for minimizing the father’s role in parenting his daughter; however, in fairness to the Employer, it appears that it was raising this in the context of the Campbell River Test to show that given one parent was a full-time caregiver, the absence of the other parent did not meet the threshold of “a serious interference with a substantial parental or other family duty”.  The Employer could have made the same argument if the parental roles had been reversed.  Nonetheless, the Tribunal has clearly signaled that no employer should consider a father’s child care obligations to be any less important than those of a mother.

It is not clear whether or when this case will be heard and decided by the Tribunal (it could still settle), but if it is heard, you can expect the Tribunal’s decision will add yet another layer to the family status jurisprudence in B.C.  We will keep you posted.

 

[1] 2018 BCSC 1367.

[2] Envirocon Environmental Services, ULC v. Suen, 2018 BCSC 1367; Human Rights Code, R.S.B.C. 1996, c. 210.

[3] Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 [Campbell River].

[4] 2017 BCHRT 226.

[5] 2012 SCC 61.

[6] Stewart v. Elk Valley Coal Corp., 2017 SCC 30 [Elk Valley].

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