In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 ("Gibraltar"), the British Columbia Court of Appeal clarified the test for establishing prima facie family status discrimination. In British Columbia, employees are still required to establish that a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. However, Gibraltar clarifies that a change in a term or condition of employment is not a precondition to a finding of prima facie discrimination.
In our previous post on the issue of family status discrimination, we highlighted that there is no unified test in Canada for establishing prima facie family status discrimination. Instead, different Canadian jurisdictions apply different tests. In 2021, the Court of Appeal of Alberta ("ABCA") affirmed the applicable test for Alberta employees, as discussed in our previous post. A full panel of the Court of Appeal for British Columbia ("BCCA" or "Court") has now clarified the applicable test for British Columbia employees in its recent Gibraltar decision.
In British Columbia, the leading authority on family status discrimination is Campbell River & North Island Transition Society v. H.S.A.B., 2004 BCCA 260 ("Campbell River"). Campbell River has given rise to conflicting interpretations and has received criticism from other courts, including from the ABCA, for setting a higher threshold for establishing discrimination based on family status relative to other prohibited grounds of discrimination.
In Gibraltar, the Court focused on the proper interpretation of the Campbell River test. The Court held that the Campbell River test does not require a change in a term or condition of employment as a precondition to a finding of prima facie discrimination. However, the Court affirmed that Campbell River defined the scope of family status discrimination to include only serious interference with a substantial parental or other family duty or obligation. The Court also emphasized the materiality threshold created by the "serious" and "substantial" requirements.
Facts and Summary of Previous Decisions
The complainant in the underlying human rights complaint was a journeyman welder who worked 12-hour shifts. Her spouse also worked for Gibraltar Mines Ltd. ("Gibraltar Mines"). After the birth of their child, the complainant requested a change to her, and her spouse's, work schedule to accommodate childcare arrangements. The parties were unable to reach a suitable accommodation. The complainant subsequently filed a human rights complaint alleging discrimination based on family status (among other grounds).
Tribunal Decision
Gibraltar Mines argued that the family status complaint should be dismissed as there had been no change in a term or condition of the complainant's employment. The British Columbia Human Rights Tribunal ("Tribunal") concluded that Campbell River did not stand for the proposition that a change in a term or condition of employment was necessary before prima facie family status discrimination could be established. The Tribunal decided to allow the family status complaint to proceed to a hearing.
BCSC Decision
Gibraltar Mines sought judicial review of the Tribunal's decision. The Supreme Court of British Columbia ("BCSC") quashed the Tribunal's decision, finding that Campbell River required a change in a term or condition of employment as a precondition to a finding of prima facie discrimination.
BCCA Decision
The Tribunal appealed the BCSC decision. The BCCA found that the Tribunal had standing to bring the appeal and allowed the appeal.
The appeal focused on the proper interpretation of the Campbell River test for establishing prima facie family status discrimination. The test set out in Campbell River was as follows:
Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that 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.
[Emphasis added.]
In Gibralter, the Court concluded that the reference to "a change in a term or condition of employment" was not to be taken as an exhaustive statement of the test for prima facie discrimination. The Court gave three reasons for this interpretation:
- the question of whether a change in the employee's circumstances could lead to a term or condition of employment resulting in a serious interference with a substantial parental or other family duty or obligation was not before the Court in Campbell River. Rather, the issue in Campbell River was the meaning and scope of family status;
- British Columbia's Human Rights Code ("Code") does not require a change in a term or condition of employment to trigger prima faciediscrimination; and
- it has consistently been held that human rights legislation is characterized as quasi-constitutional and must be given a broad and liberal interpretation.
As such, the Court concluded that a change in a term or condition of employment is not a precondition to a finding of prima facie discrimination. However, the Court upheld the materiality threshold set out in Campbell River which requires a serious interference with a substantial parental or other family duty or obligation.
The Court acknowledged that Campbell River has been criticized for requiring a higher threshold for establishing discrimination based on family status relative to other prohibited grounds of discrimination. However, the Court dismissed such criticism as misconceived, noting that the materiality threshold does not create a "different test" for family status, but rather provides a workable definition of family status. The Court noted this was particularly important in British Columbia (as opposed to other jurisdictions as "family status" is not defined the Code. The Court emphasized the importance of the materiality threshold to prevent any family obligation that is impacted by an employee's conditions of employment from constituting prima facie discrimination.
Ultimately, the Court set out the test for establishing prima facie family status discrimination as follows:
- the complainant must establish that their family status includes a substantial parental or other family duty or obligation;
- the complainant must establish that they suffered a serious adverse impact arising from a term or condition of employment; and
- the complainant must establish that their family status was a factor in the adverse impact.
Key Takeaways
Gibraltar has clarified the test for establishing prima facie family status discrimination in British Columbia. The BCCA has made it easier for employees to claim family status discrimination by confirming that a change in employment terms is not a precondition to a finding of prima facie discrimination. However, the BCCA has maintained an otherwise stringent test for family status discrimination. In particular, the materiality threshold means employees are still required to establish a serious interference with a substantial parental or family duty or obligation. As noted in Gibraltar, this threshold is meant to ensure that not every conflict between work and family obligations is considered to be discriminatory.
Additionally, while Gibraltar clarifies the test for family status discrimination in British Columbia, employers must continue to be aware that the test differs in other Canadian jurisdictions. Responses to requests for accommodation based on family status must therefore be tailored accordingly.
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