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Clarification on family status (child care) claims under the BC Human Rights Code

Trevor R. Thomas

Co-Founder + Partner
April 26, 2023

The B.C. Court of Appeal has clarified the legal test for family status claims under the B.C. Human Rights Code. This clarification represents a significant shift in the law.

Starting Point: The Human Rights Code

Section 13 of the Code provides protection to employees in the area of employment on a variety of different protected grounds:

Discrimination in employment

13(1) A person must not

(a)   refuse to employ or refuse to continue to employ a person, or

(b)   discriminate against a person regarding employment or any term or condition of employment

because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

Our courts have provided guidance on how these claims are treated in practice by creating legal tests. In other words, the courts have told us what a complainant must be able to prove in order to successfully establish a human rights complaint. For claims based on family status, a key decision from 2004 has provided the legal framework for these types of cases.

The Previous Legal Test: The Campbell River Decision

In 2004, the B.C. Court of appeal released the decision of Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260. For the last 19 years, the Campbell River decision has been the seminal authority on family status claims. The reason? Paragraph 39 of the decision explained the legal test for family status discrimination:

[39]      … 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.

[Emphasis added.]

The underlined portion of the paragraph is the legal test that a complainant must meet in order to establish a family status claim of discrimination. Part of the legal test requires that the employer must have changed a term or condition of employment. This specific requirement was the focus in the recent B.C. Court of Appeal decision of British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168, which has caused a major stir in human rights law.

What Happened?

The initial human rights complaint was brought to the Tribunal by Lisa Harvey. Ms. Harvey and her spouse were employed by Gibraltar. Ms. Harvey became pregnant and sought a workplace accommodation to change her and her spouse’s work schedules to facilitate childcare arrangements. The parties were unable to reach agreement on a work schedule, and Ms. Harvey filed a complaint to the Human Rights Tribunal.

The complaint made its way through the Tribunal, the B.C. Supreme Court, and finally, the Court of Appeal. The issue for the Court of Appeal to decide was whether it is a prerequisite to a finding of prima facie family status discrimination that the employer has changed a term or condition of employment.

The Court of Appeal determined that family status claims are not limited to only situations where the employer makes a change to a term or condition of employment; it can also be triggered based on a change in the employee’s circumstances. At paragraph 101 of the decision, the Court of Appeal articulated the new legal test for family status claims:

… 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 employment, and that their family status was a factor in the adverse impact.

This decision provides much-needed clarity on the legal test. It also represents a shift to a more balanced approach to family status claims. Employers are urged to be mindful of such changes in the law in order to properly assess risk when faced with family status issues.

For more information on this change to the law, and how to approach these issues in the workplace, please reach out to us.