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Special thanks to our former articling student, Eloise Somera.

In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines“), the British Columbia Court of Appeal upheld the BC Human Rights Tribunal’s decision that a change in employment terms is not a necessary precondition to a finding of prima facie discrimination based on family status.

The Relevant Legal Tests

In Moore v. British Columbia (Minister of Education), 2012 SCC 61 (“Moore“), the Supreme Court of Canada outlined the test for establishing discrimination in the workplace:

  • The employee must first demonstrate prima facie discrimination by proving that:
    • they have a characteristic protected under human rights legislation;
    • they have experienced an adverse impact; and
    • the protected characteristic was a factor in the adverse impact.
  • If an employee establishes prima facie discrimination, the burden then shifts to the employer to justify its requirement as a bona fide occupational requirement that cannot be accommodated without undue hardship.

In conjunction with this general test, the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) elaborated on what is required to prove prima facie discrimination based on family status. The Campbell River test requires an employee to prove:

  • a change in a term or condition of employment by the employer; and
  • that the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Campbell River test was reaffirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Suen”).

Factual Background

Ms. Harvey and her spouse were employed by Gibraltar Mines where they worked the same twelve-hour shift. Upon returning from maternity leave in 2017, Ms. Harvey sought a workplace accommodation to change her and her spouse’s work schedules to facilitate childcare arrangements. The parties exchanged proposals for accommodation, but could not come to an agreement. Ms. Harvey filed a human rights complaint alleging discrimination in employment based on family status, marital status, and sex under s. 13 of British Columbia’s Human Rights Code (the “Code”).

Gibraltar Mines applied to dismiss Ms. Harvey’s complaint under ss. 27(1)(b), (c), and (d)(ii) of the Code, which permits the Tribunal to dismiss all or part of a complaint summarily if the acts or omissions alleged in the complaint do not contravene the Code, there is no reasonable prospect that the complaint will succeed, or proceeding with the complaint or part of the complaint would not further the purposes of the Code. To support their application, Gibraltar Mines submitted that it had not changed a term or condition of Ms. Harvey’s employment and that she had not alleged a serious interference with a substantial parental obligation, contrary to the Campbell River test.

The Human Rights Tribunal Disagrees with Gibraltar Mines

Although the Tribunal dismissed Ms. Harvey’s complaint on the basis of sex and marital status, it allowed her to proceed with her complaint on the basis of family status. The question for the Tribunal to determine was whether the Campbell River test required a change in employment terms as a precondition to a finding of prima facie discrimination, or whether family status discrimination could also arise from a change in the employee’s circumstance. The Tribunal concluded the latter, stating that “a change in a term or condition of employment is not the only circumstance that can result in a serious interference with a substantial parental or family duty or obligation”.

The Chambers Judge Upholds the Campbell River Test

Gibraltar Mines sought judicial review of the Tribunal’s decision in British Columbia’s Supreme Court, arguing that the Tribunal had misinterpreted the Campbell River test because it did not conclude that a change in the terms and conditions of employment was a precondition to establishing prima facie discrimination based on family status. The chambers judge agreed, citing the significance of Suen‘s affirmation of the Campbell River test. The chambers judge concluded that she was bound by the findings in Suen and Campbell River, and that a change in the terms and conditions of employment is required before a finding of prima facie discrimination could be made. As a result, the Tribunal’s decision was quashed. The decision was appealed to British Columbia’s Court of Appeal.

The British Columbia Court of Appeal Revises the Campbell River Test

On appeal, the issue to be determined was whether a prerequisite to a finding of prima facie discrimination in the context of family status discrimination requires the employer to have changed a term or condition of employment, pursuant to Campbell River and Suen.

In coming to its conclusion, the Court of Appeal found that the Campbell River test is not meant to be exhaustive, meaning that a change to a term or condition of employment is not the only factor to be considered when determining whether prima facie family status discrimination has occurred. This finding is in line with the statutory interpretation of the Code, which does not suggest any limitations to a finding of prima facie family status discrimination. Furthermore, to accept a narrow reading of the Campbell River test would be contrary to the long-standing idea that human rights legislation must be given a broad and liberal interpretation. Ultimately, the Court of Appeal found that s. 13 of the Code applies “whenever a term or condition results in a serious interference with a substantial parental or other family duty or obligation of an employee, whether as a consequence of a change in the term of employment or a change in the employee’s circumstances.”

As a result of this decision, a change to a term or condition of employment is no longer required to establish prima facie discrimination based on family status.

Family Status Discrimination in Ontario

In Ontario, the Human Rights Tribunal has purposely implemented a broad analysis for establishing family status discrimination. In Misetich v. Value Village Stores Inc., 2016 HRTO 1229, Ontario’s Tribunal requires an employee to establish a “real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, and/or to the employee’s work.” The Ontario Tribunal has noted that “assessing the impact of the impugned rule is done contextually and may include consideration of the other supports available to the applicant. These supports are relevant to assessing both the family-related need and the impact of the impugned rule on that need.” Once the employee proves discrimination, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship.

The test established in Gibraltar Mines brings British Columbia in line with Ontario.

Key Takeaways

  • As a result of the test in British Columbia being broadened for establishing prima facie family status discrimination, employers could experience more claims for discrimination, even when they don’t make any changes to the terms and conditions of employment.
  • Employers need to be cautious when assessing whether they have a duty to accommodate an employee’s family status, even where there has been no change to an employee’s terms of employment. As is often the case, there’s a potential that case law in other provinces will follow suit and establish precedents that are similar to that in British Columbia and Ontario. We strongly urge employers to speak to qualified lawyers when assessing accommodation requests of all nature, but especially those based on family status given the possibility of changes in the law at this time.

If you have any questions, please do not hesitate to ask one of our employment lawyers.