In the case of Suen v. Envirocon Environmental Services, ULC, the British Columbia Court of Appeal confirmed that not every change to a parent’s work schedule will amount to discrimination on the basis of family status. The Court confirmed that in order for a change to a parent’s work schedule to be considered discriminatory, the change must cause “a serious interference with a substantial parental or other family duty or obligation.”
Mr. Suen worked for Envirocon as a project manager at its Burnaby, British Columbia office. As part of his duties, he was required to travel to project sites away from home.
In January 2016, Mr. Suen was assigned as the manager for a project in Manitoba. He was told that he would be required to be away from home for eight to ten weeks and that the company would not pay for him to return home until the end of the project. Mr. Suen advised Envirocon that out of consideration for his wife and their four-month-old baby, he would not be going to Manitoba. Envirocon warned Mr. Suen that if he did not accept the assignment, his employment would be terminated for cause. Mr. Suen refused to accept the assignment and as a result, his employment was terminated for cause.
Mr. Suen filed a complaint against Envirocon with the British Columbia Human Rights Tribunal. In his complaint, Mr. Suen alleged that Envirocon discriminated against him on the basis of his family status contrary to s.13 of the British Columbia Human Rights Code. Mr. Suen claimed that shortly after the birth of his daughter, Envirocon assigned him a project that would require him to be away from home for up to ten weeks.
In its response, Envirocon pleaded that the termination of Mr. Suen’s employment was unrelated to his family status. They later filed an application to have Mr. Suen’s claim dismissed under ss. 27(1)(b), (c) and (d)(ii) of the Code.
In determining whether there had been a contravention of the Code, the Tribunal considered the decisions in Moore v. British Columbia (Education) and Campbell River & North Island Transition Society v. H.S.A.B.C.
In Moore, it was held that in order to succeed in a complaint of discrimination, a complainant must show direct discrimination: they experienced an adverse impact regarding their employment and a protected ground was a factor in the adverse impact.
In Campbell, it was held that in order to establish a case of discrimination on the basis of family status, the complainant must show that they suffered “indirect or adverse effect discrimination”. That is, (1) there was a change in a term or condition of their employment and (2) that change caused a serious interference with a substantial parental or other family duty or obligation.
After considering the above, the Tribunal concluded that it was satisfied that Mr. Suen could establish direct discrimination as well as indirect discrimination or adverse effect discrimination under the Campbell test. As a result, Envirocon’s application was dismissed.
Envirocon appealed the Tribunal’s decision on the basis that, even if the alleged facts in the complaint were true, they did not satisfy the second limb of the Campbell test.
Court of Appeal decision
Envirocon argued that the Tribunal erred in rejecting its argument that the facts alleged by Mr. Suen, at best, established a conflict between Mr. Suen’s “ work requirement” and his “parental preference”. Envirocon asserted that this was not enough to satisfy the second limb of the Campbell test. In advancing its argument, Envirocon pointed to the fact that Mr. Suen did not allege that his daughter required special care, nor did he assert that he was the only one capable of caring for his daughter.
The Court agreed with Envirocon that the facts alleged by Mr. Suen did not satisfy the second limb of the Campbell test. The Court noted that those facts were only capable of establishing that Mr. Suen was a parent. The Court found that although Mr. Suen’s desire to remain close to home to assist his wife in caring for their baby was “understandable and commendable”, it was no different than the vast majority of other parents. The Court also found that there was nothing in Mr. Suen’s complaint or affidavit to suggest that his daughter would not be well cared for in his absence.
As a result, the appeal was allowed. The Court quashed the Tribunal’s decision to decline to dismiss the adverse effect discrimination aspect of Mr. Suen’s complaint and the matter was remitted to the Tribunal for further determination consistent with the Court’s findings.
By Anique Dublin
Latest posts by Rudner Law, Employment / HR Law & Mediation (see all)
- Fixed term contracts and bad term clause - November 5, 2021
- Vaccine mandates and proof of vaccination: What employers need to know - October 8, 2021
- Morningstar: Divisional Court finds constructive dismissal claim not statute-barred - September 10, 2021