The British Columbia Court of Appeal just issued its important decision of a 5 member panel reviewing the test for family status discrimination under the Human Rights Code (“Code”): British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar”). This decision came out on Friday, April 21, 2023, and represents a loss for employers but also a win.

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Introduction - Family Status Discrimination

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One of the protected grounds of discrimination under the Code is “family status”. Family status discrimination continues to be an area in which the law differs across Canada. In British Columbia, the test for family status discrimination has been more stringent than in other parts of Canada for the past 15 years, defined by the BC Court of Appeal decision in HAS v Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”).  In that case the court held that the test for determining if there is prima facie family status discrimination is as follows:

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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. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.

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Since then, many have tried to challenge this more stringent test to match the rest of Canada. Now the test was challenged again in this judicial review.

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Gibraltar Mines Ltd. v. Harvey

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Lisa Harvey and her husband were both employees of Gibraltar Mines, who usually worked the same 12-hour shifts but they sometimes worked different night shifts. Lisa became pregnant and after the birth she sought a workplace accommodation to change her and her spouse’s work schedules to facilitate childcare arrangements. After she and Gibraltar were unable to agree on an accommodation, she filed a Human Rights Complaint.

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Gibraltar brought an Application to Dismiss the Complaint by way of a summary application under section 27 of the Code. The Tribunal is empowered to dismiss the complaint at an early stage if for example it determines there is no reasonable prospect of success.

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On an application by Gibraltar to dismiss the complaint, the Tribunal dismissed the claim of sex and marital status discrimination. However, it decided to not dismiss the family status complaint, determining it had to go to a full hearing at a later date. As part of its analysis, the Tribunal held that the Campbell River legal test did NOT require that there be a change in a term or condition of employment. The Tribunal could not make findings of fact at this stage, so it held that a hearing was necessary to decide whether Gibraltar’s decision not to modify the work schedules of Lisa and her husband “created a serious interference with a substantial parental obligation”, resulting in discrimination based on family status under the Code.

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Gibraltar (the employer) filed a judicial review in the BC Supreme Court, challenging the initial Tribunal decision to not dismiss the complaint, arguing that the Campbell River test required as a precondition a change in terms and conditions of employment (see quote above in the Introduction). The Judicial Review Judge agreed with Gibraltar, and overturned the Tribunal’s decision, holding that the Tribunal was bound by Campbell River to dismiss the complaint, as it had not arisen from a change of terms and conditions of employment in this case.

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The employees were not interested in pursuing further appeals, but with the opportunity to challenge the more stringent BC test, the Human Rights Tribunal brought an appeal of this judicial review decision. The Tribunal argued first that the change of terms and conditions of employment was not a prerequisite to bringing a family status discrimination complaint. It also argued that the second part of the Campbell River test (“materiality condition”) was contrary to the Code.

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BC Court of Appeal

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Because one of its landmark decisions was in issue, the BC Court of Appeal constituted a 5-member panel signaling that it was going to reinterpret or overrule the Campbell River earlier decision.

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Does the Tribunal Have Standing to Bring This Appeal?

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First the Appeal Court had to decide whether the Tribunal could bring an appeal involving one of its decisions. Gibraltar argued that to allow the Tribunal to do so would call into question its impartiality.

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The court held that the Tribunal, as a party to the judicial review, had a statutory right to appeal and further the Tribunal was entitled to make submissions on the question of law namely whether a finding of prima facie family status discrimination requires a change in a term or condition of employment. The Tribunal was also allowed to argue that the second part of the Campbell River test should be overturned. The notion that a tribunal can appeal its own decision has evolved over time reflecting what the court described as “the evolution in thinking” and courts now say such standing and scope of participation is a matter of discretion. The court must “balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality.” [para 35]

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Interpretation - Change in a Term or Condition of Employment

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Secondly the BCCA held that on a proper interpretation of Campbell River a complainant does not have to prove there has been a change in a term or condition of employment.  The court justified its decision on the basis that in Campbell River the employer in fact did alter the employee’s shift schedule “so it was not necessary for the Court to consider whether prima facie discrimination regarding a term or condition of employment could arise from a change in circumstances of the employee, or a change in the employee’s family status, and the Court did not do so. That question was not a live issue before the Court in Campbell River, as it is in this appeal.” [para 63].

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The court held that the proper test is:

I conclude that s. 13(1)(b) 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. [para 77 emphasis added]

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Interference With a Substantial Parental or Other Family Duty or Obligation

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Thirdly the Court upheld what it described as the “substantive element” of Campbell River namely the “materiality test”.  It held:

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The requirement in Campbell River that to establish discrimination arising from a conflict between work requirements and family obligations, the parental or family duty be substantial or out of the ordinary is necessary to give meaning to the protected characteristic of family status. Without a materiality standard, any family obligation that is impacted by a person’s employment conditions could support a finding of prima facie discrimination, which would require justification by the employer. Such an interpretation would trivialize the important value that is reflected by the inclusion of family status in s. 13(1)(b) of the Code. [para 92]

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I conclude that for purposes of assessing conflicts between work requirements and family obligations, prima facie discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. To put this test in terms of Moore, to establish prima facie adverse impact discrimination as a result of a conflict between work requirements and family obligations, an applicant must establish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of e1mployment, and that their family status was a factor in the adverse impact. [para 101]

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The court allowed the appeal, and the matter was sent back to the BC Supreme Court level for the judge to decide the question of materiality (the judge might decide to refer it back to the Tribunal for a hearing as it had found).

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What Does This Mean for my Business

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There is no doubt that the elimination of the “changed working conditions and terms” test is “bad news” for employers.  That threshold test was clear and easy to understand and apply and would eliminate any complaints that did not result from such a change.

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However the “good news” is that the Court of Appeal has strongly affirmed the “materiality” test for any claim of family status discrimination.  Absent a legislative change, that is a high bar for a complainant to hurdle.  But unfortunately, each case will be decided on its own facts so there is far less certainty in the outcome.  As witnessed here in the Gibraltar case the Tribunal held that it could not decide the application of the materiality test and would require a formal hearing.

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The other concern employers will have with this expanded scope of family status discrimination complaints is that the Tribunal is so backed up in processing complaints that employers may not even know a complaint has been filed and accepted by the Tribunal for a year or longer.  That will make it more difficult for employers to defend such complaints.  Such delays will also impact on remedies.

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Finally the action of the Tribunal in aggressively attacking the Campbell River tests (#1 and #2) might raise concerns of the perception of impartiality in any particular case.  If the Tribunal expands the scope of what is included in the materiality test, then the business community will have reason to be concerned.

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It remains to be seen if the comments of the court in Campbell River regarding the likely success of such family status discrimination complaints will continue to apply:

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“I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.”

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Mike Weiler & Chris Drinovz

April 24, 2023

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.