Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: FamilysStatus discrimination in employment in B.C.

In Envirocon Environmental Services, ULC v. Suen, the BC Court of Appeal recently confirmed that in order to establish discrimination in employment on the basis of family status, a human rights complainant must show:

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

This confirms the approach previously set out by the BC Court of Appeal in the 2004 case of Health Sciences Association of BC v. Campbell River and North Island Transition Society (Campbell River). Campbell River involved an arbitration award under a collective agreement.

The Human Rights Code, B.C. protects people from, among other things, discrimination in employment on the basis of a person’s family status. This is interpreted to include parental or other family obligations.

In Envirocon, Suen filed a human rights complaint, alleging that his employer had discriminated against him when it assigned him to a project away from his home for eight to ten weeks. This occurred shortly after his child was born. Before becoming a parent, he had been assigned to projects away from home.

The employer applied to dismiss the complaint on the basis that Suen had not established a case of discrimination on the basis of family status, in accordance with the test previously outlined in the Campbell River case.

The Tribunal declined to dismiss the complaint.

The employer first sought judicial review. The BC Supreme Court agreed with Suen.

The employer then appealed to the BC Court of Appeal.

The court set aside the Tribunal’s decision, and returned the matter back to the Tribunal.

The court pointed out that Suen had alleged facts that established only that he is a parent and there was nothing to “suggest … his child would not be well cared for in his absence”.

Given this, Suen was unable to satisfy the second part of the two-part test above. He had failed to show a serious interference with a substantial parental or other family duty or obligation.

Some have criticized Campbell River as being too narrow. For example, some suggest that it should not be necessary to show a change in employment, or that the interference with family obligations is substantial. An interference, they suggest, ought to be enough.

Suen had requested that the court overturn Campbell River. The court declined to do so. It did not address Suen’s argument that the test in Campbell River is too restrictive and that it should “only [be] necessary for a complainant to show that a change in a term or condition of employment interferes with a parental or other family duty or obligation.”

Courts, tribunals and arbitrators across Canada have struggled with how to define family status. This has resulted in conflicting tests, which are not always evenly applied. The test developed by the Federal Court, which would apply for example to federally regulated employers with employees in B.C., differs from that set out in Campell River. The Federal Court has had several opportunities to follow Campbell River and has declined to do so.

The different approaches suggest that the law on family status will continue to be a topic of interest. Ultimately, these differences may need to be settled by the Supreme Court of Canada.

It is possible that leave may be sought to the Supreme Court of Canada in this case.

If you are in a situation in which your employment is causing interference with your childcare or other family obligations, and you are not able to make other arrangements, carefully assess your options and be sure you understand your rights. Similarly, employers should be aware that this remains a topic of interest.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website, www.inspirelaw.ca.

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