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A Change in Employment Terms is No Longer Required to Constitute Prima Facie Family Status Discrimination – The British Columbia Court of Appeal Clarifies
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”).
Understanding the New Right to Disconnect in Ontario (Video)
In December 2021, the Ontario government passed Bill 27 – Working for Workers Act, 2021 requiring employers with 25 or more employees to create a “Disconnecting from Work Policy” by June 2, 2022. The Ontario government is following the lead of France, Spain and Portugal — all of which have adopted similar legislation in recent
As new work realities set in, here’s what employees should know
We are excited to share with you the BNN Bloomberg article, “As new work realities set in, here’s what employees should know.” Kevin Coon was interviewed for this article which addresses how employees should handle finances related to the workplace, including home office expenses, filing taxes, paid sick leave, and knowing what they can expect
Going Green: Medical Marijuana and the Ontario Human Rights Code
Introduction
An employee’s use of intoxicants, like marijuana, can adversely affect the work environment by:
- compromising the ability of employees to perform their job duties;
- threatening the health and safety of the employee and his or her co-workers; and
- undermining the employer’s reputation.
It is no surprise, then, that employees who are found to be under the influence at work often face discipline.
Yet, the rise of marijuana as a treatment for disabling medical conditions (such as epilepsy, chronic pain or post-traumatic stress disorder) has caused this once relatively “clear” issue to become more complex.
Continue Reading Going Green: Medical Marijuana and the Ontario Human Rights Code