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B.C. Courtroom of Enchantment Clarifies Take a look at for Prima Facie Household Standing Discrimination


In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines”), the British Columbia Courtroom of Enchantment (“BCCA”) not too long ago resolved a lot of the uncertainty surrounding the take a look at for prima facie household standing discrimination in B.C.

A five-judge panel of the BCCA unanimously held that the take a look at for prima facie household standing discrimination doesn’t embrace a requirement that there should be a change within the worker’s phrases or circumstances of employment. Somewhat, the BCCA held that prima facie household standing discrimination happens the place “a time period or situation ends in a critical interference with a considerable parental or different household responsibility or obligation of an worker, whether or not as a consequence of a change within the time period of employment or a change within the worker’s circumstances.”[i]

The BCCA’s choice is a crucial one, because it gives long-awaited clarification on the right interpretation and software of the take a look at for prima facie household standing discrimination in B.C.

Historical past of Household Standing Discrimination in BC

Part 13(1) of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”) prohibits discrimination in opposition to an individual concerning employment or any time period of employment primarily based on, amongst different grounds, household standing. Nevertheless, there is no such thing as a definition of “household standing” within the Code, which means that the Legislature left the scope of household standing to be developed by the courts by means of case regulation.

It has lengthy been understood that the take a look at for prima facie household standing discrimination in B.C. was set out by the BCCA in Well being Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”), and required an worker to indicate that:

  • their employer imposed a change in a time period or situation of employment; and
  • the change resulted in a critical interference with a considerable parental or different household obligation.

The Gibraltar Mines Case

Background

Ms. Harvey and her husband each labored the identical 12-hour shift at Gibraltar Mines Ltd. (“Gibraltar”). Ms. Harvey turned pregnant and went on maternity depart. In direction of the tip of her depart, Ms. Harvey sought a office lodging to change her and her husband’s shifts to facilitate childcare preparations. The events entered into discussions, however had been unable to agree on an lodging. Ms. Harvey filed a human rights grievance with the BC Human Rights Tribunal (the “Tribunal”), alleging discrimination in employment on the premise of marital standing, intercourse, and household standing.

Gibraltar utilized to dismiss the grievance, partially, on the premise that step one of the take a look at set out in Campbell River was not met since Gibraltar didn’t change a time period or situation of Ms. Harvey’s employment.

The Tribunal’s and the BCSC’s Choices

The Tribunal dismissed the portion of Ms. Harvey’s grievance pertaining to marital standing and intercourse, however allowed the grievance with respect to household standing to proceed.  The Tribunal held that there was no requirement to indicate a change in phrases or circumstances of employment within the context of requesting an lodging primarily based on childcare obligations.  Gibraltar utilized to the BC Supreme Courtroom (“BCSC”) for judicial assessment of the Tribunal’s choice.

The BCSC concluded that it was certain by the BCCA’s earlier rulings and the two-part Campbell River take a look at. Accordingly, the BCSC concluded that since Gibraltar had not modified a time period or situation of Ms. Harvey’s employment, there was no prima facie case of discrimination. The Tribunal appealed the BCSC’s choice to the BCCA.

BCCA’s Choice

The central subject on the enchantment was whether or not a change in an worker’s phrases or circumstances of employment was required with a view to set up prima facie household standing discrimination.

The BCCA reviewed the related provisions of the Code and its earlier selections and decided that Campbell River had been misinterpreted as requiring a change in an worker’s phrases or circumstances of employment as a prerequisite to demonstrating prima facie household standing discrimination. The BCCA got here to this conclusion for 3 predominant causes:[ii]

  1. The problem on enchantment was not earlier than the BCCA in Campbell River, because the employer in Campbell River had modified the phrases of the worker’s employment. Somewhat, the problem earlier than the BCCA was whether or not the time period “household standing” may embody troublesome childcare preparations. In Campbell River, the BCCA really determined that household standing included the accountability for childcare preparations, topic to a materiality requirement. The feedback concerning a change in phrases or circumstances of employment had been restricted to the details of the case and weren’t an exhaustive assertion on the take a look at for prima facie household standing discrimination.
  2. The Code doesn’t require a change in a time period or situation of employment earlier than the protections in part 13 are triggered. The needs of the Code counsel that it must be given an expansive interpretation. 
  3. Human rights laws is quasi-constitutional and as such, should be given a broad and liberal interpretation with a view to obtain its functions.

The BCCA additionally famous that the requirement that the parental or different household responsibility or obligation be “substantial or out of the strange” is critical to provide correct which means to the protected floor of household standing as a result of, with no materiality normal, any household obligation that’s impacted by an worker’s phrases or circumstances of employment would quantity to prima facie discrimination, and that isn’t what the Legislature had supposed.[iii]

With respect to the necessity to set up a “critical interference”, the BCCA mentioned the ideas of “actual drawback” to parental tasks and impacting the guardian/youngster relationship “in a major means”.[iv]

Takeaways for Employers

An worker now not must show that their employer has modified a time period or situation of their employment with a view to set up prima facie household standing discrimination. Nevertheless, an worker will nonetheless need to show that the phrases or circumstances of their employment end in a critical interference with a substantial parental or different household responsibility or obligation.

Employers might want to replace their practices and/or insurance policies to make sure that lodging requests primarily based on household standing are processed in accordance with Gibraltar Mines. Whereas this may occasionally end in an preliminary improve in lodging requests as a result of preliminary step of getting to show a change in phrases or circumstances of employment being eliminated, not all requests will be capable to cross the materiality necessities.

The Campbell River take a look at solely applies in B.C. There’s a totally different household standing take a look at for federally-regulated staff, in addition to in different provinces and territories.

When you have any questions on this subject, or about labour and employment issues on the whole, please contact a member of our Labour, Employment, and Human Rights Group.

[i] British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 [Gibraltar Mines], at para. 77.

[ii] Gibraltar Mines at paras. 67 – 77

[iii] Gibraltar Mines at para. 92

[iv] Gibraltar Mines at paras. 97 – 98, citing Misetich v. Worth Village Shops Inc., 2016 HRTO 1229, at para, 54

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