A recent ruling of the British Columbia Court of Appeal, British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 found that an employer can discriminate against an employee on the basis of family status even where the employer did not change a term or condition of employment. This may have significant impact on employers’ navigating changes in family status among their employees.
Facts
The employee (“Ms. Harvey”) and her husband both worked the same shift at the same company, Gibraltar Mines Ltd. (“GML”). In 2017, following maternity leave, Ms. Harvey returned to her employment and requested a change in her work schedule to permit her and her husband to find childcare. GML did not agree to the changes, but nevertheless offered alternatives which did not work for Ms. Harvey. Ms. Harvey proceeded to file a human rights complaint alleging failure to accommodate and discrimination on several grounds including family status.
At the BC Human Rights Tribunal (“BCHRT”), GML argued that Ms. Harvey’s application to the BCHRT could not succeed because GML had not made any unilateral change to her employment. GML based this argument on the well-established precedent from Health Sciences Assoc. of BC v Campbell River and North Island Transition Society (“HSABC”) 2004 BCCA 260 which carried the following test:
“If the term “family status” is not elusive of definition, the definition lies somewhere between the two extremes urged by the parties. 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. […]” Emphasis added.
Health Sciences Assoc. of BC v Campbell River and North Island Transition Society 2004 BCCA 260 at [39]
Clearly the court in HSABC found that this two-step test was in-line with the requirements of the BC Human Rights Code, however it is also clear from this quote that Justice Low writing for the court in HSABC, found this to be applicable in the “usual case”, but perhaps not in every case.
BCHRT Decision & Judicial Review
The BCHRT decided against GML, finding that a “serious interference” with a substantial parental or other family obligation could occur even without a change in the terms and conditions of employment. GML applied for judicial review to the British Columbia Supreme Court which found that the tribunal was bound to follow the precent which required the employee to establish a change in terms and conditions of employment.
British Columbia Court of Appeal
The British Columbia Court of Appeal (BCCA) sided with the BCHRT and found that earlier precedent is not a full statement of the entire test. In fact, the BCCA found that the HSABC should not be interpreting as stating that prima facie discrimination can only occur where there is a change in terms and conditions of employment. The wording in the BC Human Rights Code does not require a change in terms and conditions of employment.
The BCCA found that discrimination can occur both in cases where the employer chooses top make a change in an employee’s employment and to not make change in the employees’ employment, either of which could lead to a negative result on the employee.
Considerations
The outcome for employers in BC is that there is now a clear broader basis on which employees can make claims of discrimination and which could require the employer to accommodate an employee. Once the employee can establish that terms and conditions of employment present a serious interference with their parental duties, the failure to modify the workplace as a result could be seen as a failure to accommodate.
Of course, certain employers may be able to rely on a defence of a bona fide occupational requirement, but it is likely that where the change merely requires adjustments to work schedules, such a defence will be a hard sell. In all accommodations, it is important to reach out to experienced counsel for guidance.
At Bridge Legal & HR Solutions we can help you untangle and understand the web of obligations that applies to your employment relationships whether in British Columbia or in Ontario. To find out how we can help, contact us through our contact form or call us at 647-794-5442.
