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”).