SUPREME COURT OF CANADA UPHOLDS FAMILY STATUS DISCRIMINATION TEST ENDING CRITICISM AND DEBATE

15. August 2019 0

On August 8, 2019 the Supreme Court declined an application for leave to appeal in the case of Envirocon Environment Services, ULC v. Suen.  This is significant for employers in British Columbia and puts to rest a long debate about the appropriate test for discrimination on the basis of family status.

If you aren’t already familiar with the Family Status Discrimination Test, it is a test to determine whether a change in a term, or condition of employment, imposed by the employer results in serious interference with a substantial parental or other family duty.

The test was developed in 2004 by the British Columbia Court of Appeal in the case of Health Sciences Association of B.C. v. Campbell River and North Island Transition Society.  Since that decision, there have been many suggestions at the Tribunal level that the test is too difficult to meet and that rather than having to show a serious interference or a substantial parental duty or obligation, a complainant should only have to show an interference with a duty or obligation.  This is similar to the test that is applied by Tribunals in other jurisdictions in Canada.

That debate and criticism has now been put to bed with the Supreme Court’s refusal to hear the Suen case.  The Court of Appeal in Suen held that the test established in Campbell River was the appropriate test and that a complainant has to show more than an interference with their ability to fulfill parental obligations.  The Court specifically noted that “there are many parents who are required to be away from home for extended periods for work related reasons who continue to meet their obligations to their children.”  The Court noted that there was nothing in the evidence to show that Mr. Suen’s child would not be well cared for in his absence, suggesting this as a necessary element in establishing discrimination in family status.

The take away for employers is that in British Columbia, a contextual, analytical analysis must be done to determine whether any proposed change to working conditions will be viewed as discrimination on the basis of family status.  If it is a change that in the particular circumstances will result in a serious interference with a substantial parental duty, it is discrimination.  If it is merely a change that interferes with a parents ability only to participate in parenting, it likely is not discrimination.  The good news for employers and employees is that with this decision, all parties can feel confident in the test that has to be met to establish discrimination on the basis of family status.

Read the case decision here.

Read the Court of Appeal decision here.

 

Want more useful updates on recent decisions? Contact Rose Keith at rkeith@harpergrey.com or anyone else from our team listed on the Authors page.

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