The test for family status discrimination clarified in BC

On April 21, 2023, the British Columbia Court of Appeal released its decision of British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd, 2023 BCCA 168. This decision clarifies the test for establishing prima facie family status discrimination in employment.

In Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, the British Columbia Court of Appeal had previously held 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. 

The central issue on the appeal in Gibraltar Mines was whether a change in a term or condition of employment was a necessary precondition to a finding of prima facie family status discrimination. The Court agreed with the Tribunal that it was not and overturned the Supreme Court of British Columbia’s decision, for the following three reasons:

• Campbell River does not provide that the only circumstance which allows for prima facie discrimination is when there is a change to a term or condition of employment;
• section 13 of the Human Rights Code does not require a change to a term or condition of employment to trigger prima facie discrimination; and
• human rights legislation is characterized as quasi-constitutional and must be given a broad and liberal interpretation in order to best achieve its broad public purposes.

However, the Court affirmed that a threshold is necessary in order to make the family status test workable in the context of employment. It justified the Campbell River requirement that the family duty be subject to a materiality standard, i.e. there must be a serious interference with a substantial family duty of the employee. The Court further reasoned that, the Campbell River test (as clarified in Gibraltar Mines) is consistent with the more general  test for discrimination in human rights legislation.

With clarity from the BC Court of Appeal on what the family status test requires, employers should be aware that a human rights complaint on the basis of family status could be brought successfully without any change to a term or condition of employment. Therefore, employers must determine how to accommodate a significant interference with an employee’s material family-related responsibilities to ensure compliance with their obligations under the Human Rights Code.

For further information please contact any of the members of the DLA Piper Canadian Employment and Labour Law Service Group listed here.