The law surrounding family status discrimination has developed considerably across the country in recent years. In a decision released on 5 February 2019, the British Columbia Court of Appeal has confirmed the long-standing test that applies to such cases in British Columbia; a test which continues to differ from that used in other provinces and the federal jurisdiction.
In British Columbia, the test for family status discrimination was developed approximately 15 years ago in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society (2004 BCCA 260). The required elements are as follows:
While this test has continued to bind BC courts and administrative tribunals since that time, considerably more liberal tests have been developed and applied in other jurisdictions, where the Campbell River approach has been expressly rejected. In the federal jurisdiction and other provinces, the various formulations of the test used do not require an employer-imposed change in working conditions, or that the change be ‘serious’ or ‘substantial’ in nature.
In Envirocon Environmental Services, ULC v. Suen (2019 BCCA 46), BC’s highest court had an opportunity to revisit the Campbell River decision. There, the claimant worked in Burnaby, but was regularly assigned to out of town projects. Shortly after he welcomed his first child, he was assigned by his employer to work in Manitoba for a two-month period. When he refused this assignment based on his family circumstances, his employment was terminated and he brought a claim of family status discrimination.
In considering this matter, the BC Court of Appeal expressly declined the opportunity to overrule Campbell River, and instead applied that test in concluding that family status discrimination could not be established on the facts. In particular, the Court of Appeal concluded that being away from home for extended periods at a time did not result in serious interference with a ‘substantial parental obligation’.
This case provides certainty for BC employers regarding the applicable legal test when faced with matters relating to alleged family status discrimination. It remains to be seen, however, whether leave to appeal this decision will be pursued to the Supreme Court of Canada.