Canadian HR Reporter Weekly

November 28, 2018 Published weekly by Thomson Reuters Canada Ltd. CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 customersupport.legaltaxcanada@tr.com www.thomsonreuters.ca One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor-in-Chief: Todd Humber todd.humber@thomsonreuters.com (416) 298-5196 Editor/Supervisor: Sarah Dobson sarah.dobson@thomsonreuters.com (416) 649-7896 News Editor: Marcel Vander Wier marcel.vanderwier@thomsonreuters.com (416) 649-7837 Sales Manager: Paul Burton paul.burton@thomsonreuters.com (416) 649-9928 Circulation Co-ordinator: Keith Fulford keith.fulford@thomsonreuters.com (416) 649-9585 Art Director: Dave Escuadro david.escuadro@thomsonreuters.com (416) 649-9358 ©2018 Thomson Reuters Canada Ltd All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Thomson Reuters, Media Solutions, Canada). 'Family status' accommodation continues to challenge employers B.C. case involves father refusing two-month relocation BY SARAH DOBSON A recent decision by the Supreme Court of Brit- ish Columbia provides employers with a few more insights when it comes to family status accommodation. e case concerned Brian Suen, an environmen- tal project manager at Envirocon based in Burnaby. He had worked there since 2012 and occasionally had to work out of town. But after the birth of his daughter in September 2015, Suen was told he had to take on a project in Manitoba starting in January — for at least two months. Suen was told there would be no rotations home and the company would not pay for him to come home on weekends. After considering the project, Suen declined, citing his wife and four-month-old baby, even though he was told his refusal could "mean discipline up to and including termination summarily for just cause." Suen's employment was subsequently terminat- ed, and he filed a complaint with the human rights tribunal in July 2016. He alleged Envirocon failed to accommodate him, that he was discriminated against on the basis of his family status, and the termination based on his family status had caused adverse consequences. Envirocon's application to dismiss this complaint on a preliminary basis was denied, so the company sought judicial review of the tribunal's decision. It argued the test set out by the B.C. Court of Appeal in 2014 in Health Sciences Assoc. of B.C. v. Camp- bell River and North Island Transition Society was incorrectly applied, and it was binding law. But the Supreme Court disagreed, in dismissing the petition. It said the tribunal did not make a le- gal error or apply the wrong legal test in applying both the Campbell River and Moore tests in deter- mining Suen had made out a prima facie case of discrimination. e Campbell River test required there to be a change in a term of condition of employment that resulted in a serious interference with a substantial parental or other family duty or obligation. e Moore test (from the 2012 Moore v. British Columbia (Education)) required that complainants had a characteristic protected from discrimination under the code, they experienced an adverse im- pact with respect to the service, and the protected characteristic was a factor in the adverse impact. e Suen case is a reminder that the test for fam- ily status discrimination is still not settled, said Katy Allen, an associate at Lawson Lundell in Vancouver. "e view on employers' side counsel has been that (the Campbell River test) was aimed at saying not every parental obligation is going to result in the employee being accommodated — for instance, for a particular schedule they need. at case was really saying you need something more than just what all parents face, the work-life balance that all parents face." But the decision has been criticized for conflat- ing the prima facie test for discrimination with the second stage, "which is was there a bona fide oc- cupational requirement and would there be undue hardship on the employer?" she said. "Our view is that if (an employer's) goal is certain- ty and to ensure your decision is going to be in line with human rights law and you're not going to get into a dispute, it's safest to look at Campbell River, yes, but also the Moore test and take a broader view to see what steps should be taken to accommodate." is is a very difficult area for employers, as the state of the law — meaning the applicable legal test — is currently being challenged in B.C., said Erin Brandt, a lawyer at Kent Employment Law in Vancouver. "is creates uncertainty for employers with respect to how far protection on the basis of fam- ily status extends, and what specific situations will require accommodation by the employer," she said. But this particular case opens the door to a broadening of family status protection, according to Brandt. It confirms the significant role fathers play in their children's lives, and the significant role women play in the workplace, she said, citing the tribunal's rejection of "stereotypical views of the respective roles of mothers and fathers in both the public and private spheres." e tribunal found these views "not only harmful to women in their ability to participate free of im- pediment in social and economic life at the work- place, but also to men and their ability to participate in social and cultural life at home." It's an interesting question, said Allen, as to whether that was about mothers' and fathers' roles or rather primary caregivers versus secondary care- givers, and if it would have been the same conclu- sion if it had been the wife being sent away for two months. e Supreme Court's ruling was also noteworthy in that most family status cases concern scheduling, but this one was about a lengthy absence, she said. e tribunal indicated you can't necessarily draw a perfect analogy between the two, and there's "a different type of adverse impact on the employee," she said.

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