Update on family status discrimination: SCC denies leaves to appeal in Suen

24 septembre 2019 | Katie Comley

( Disponible en anglais seulement )

The end of summer and return of many Canadians to their regular work and school routines reminds us of the challenge of balancing work and family. The decision of the Supreme Court of Canada to deny leave to appeal in the matter of Envirocon Environmental Services, ULC v. Suen[1], (“Suen”) is therefore timely. The facts of Suen, and the debate surrounding the legal test for family status discrimination, highlight the complexity of this area of human rights law.

Understanding “Family Status” in BC and Beyond

Across Canada, “family status” is understood to refer to parental or family duties or other obligations. Though family status is commonly understood to relate to the care of children, elder care responsibilities fall under the definition as well. Despite the consistency of the definition, the appropriate legal test for family status discrimination, as well as the scope of the protected ground, have been the subject of debate across Canada for years.

In British Columbia, Health Sciences Association of British Columbia v. Campbell River et al[2], (“Campbell River”) set a high bar by requiring employees to establish:

  1. a change in a term or condition of employment imposed by the employer; and
  2. the change resulted in a serious interference with a substantial parental or other family duty or obligation.

The Campbell River test is often criticized for imposing a different, stricter standard for establishing discrimination in the area of family status than the test that applies to other protected grounds.

To add to the confusion, different tests for family status discrimination have emerged outside of BC following Campbell River. The Federal Court of Appeal articulated its own test for family status discrimination in Canada (Attorney General) v. Johnstone[3], (“Johnstone”), requiring an employee to prove that the obligation at issue “engaged the individual’s legal responsibility”. The Johnstone test was later called into question by the Ontario Human Rights Tribunal in Misetich v. Value Village Stores Inc.[4], (“Misetich”), which asked why family status required a unique legal test for discrimination.

The tensions created by Campbell River, Johnstone, and Misetich provided the backdrop for Suen, and raised hopes the SCC would use Suen as an opportunity to provide clarifying comments in this area of law.

The Suen Saga

Mr. Suen was offered an assignment by his employer that required him to work in Manitoba for 8-10 weeks. Mr. Suen refused the assignment, stating that he needed to remain in BC to help his wife (who was on maternity leave at the time) care for their newborn baby. Due to his refusal, Mr. Suen was terminated from his employment with cause. Mr. Suen filed a complaint with the BC Human Rights Tribunal, alleging that the termination of his employment constituted discrimination on the basis of family status.

The Tribunal refused to summarily dismiss Mr. Suen’s human rights complaint. In the process of doing so, the Tribunal questioned whether the Campbell River test remained good law, and suggested that the scope of protection offered against family status discrimination by the BC Human Rights Code should be broadened to protect the shared exercise of parenting responsibilities.

The Tribunal’s decision was upheld on judicial review by the BC Supreme Court, but later overturned by the BC Court of Appeal. Many hoped that the SCC would use Suen to weigh in on the family status debate by clarifying what legal test was applicable in BC and beyond, and adjudicating on the policy aspects of the Tribunal’s decision. However, the denial of leave to appeal suggests that the door is closed for the time being.

Employer Considerations

Despite all of the fuss caused by Suen, the test for family status discrimination in BC remains Campbell River.

Employers operating in BC can continue to expect their employees to meet their work obligations in addition to family responsibilities. For employees in BC, the degree to which a change to a term or condition of employment constitutes “serious interference” with family obligations will remain a high bar to meet. Contrary to the vision of shared parental obligations advanced by the Tribunal, employees cannot insist that their employer allow them to assist their partner with the performance of family obligations.

At Miller Thomson, our Labour & Employment Group can provide you and your business with practical advice on human rights issues, including those related to the accommodation of employees for reasons relating to family status.

[1] Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46, leave to appeal to SCC refused, 38580 (8 August 2019).

[2] Health Sciences Association of British Columbia v. Campbell River et al, 2004 BCCA 260.

[3] Canada (Attorney General) v. Johnstone, 2014 FCA 110.

[4] Misetich v.Value Village Stores Inc., 2016 HRTO 122.

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