Canadian Employment Law Today

6 | March 20 , 2019 Canadian HR Reporter, a Thomson Reuters business 2019 Cases and Trends Relations Code — in cases where there is an allegation of prohibited discrimination in employment on the basis of family status (parental or other family duty or obliga- tion). Perhaps more importantly, the deci- sion puts to rest the notion that the test in Campbell River is no longer good law. Envirocon Environmental Services was a provider of environmental remedia- tion services. One of the company's proj- ect managers was Brian Suen. He started working on the job in 2012 and, from time to time, was required as part of his employ- ment duties to travel to project sites away from home for varying periods of time. A number of months after the birth of his daughter, Suen was assigned to project in Pinawa, Man., that was expected to take eight to 10 weeks. e project manager on that project had resigned from employ- ment on short notice, leaving Envirocon in the lurch. No project manager other than Suen was available to go to Manitoba. Suen refused the temporary assignment, suggesting just before he was discharged from employment for insubordination and failure to comply with lawful workplace di- rection that he could not accept the assign- ment "out of consideration" for his wife and daughter. He subsequently filed a human rights complaint alleging that the company had subjected him to prohibited discrimination in employment on the basis of family status. e company responded by denying any violation of the B.C. Human Rights Code and filing an application to dismiss Suen's complaint on a preliminary basis without the need for a full oral hearing on the mer- its. It also took the position that Suen could not establish a case of prohibited employ- ment discrimination on the basis of fam- ily status (parental or other family duty or obligation) because he simply could not satisfy the requirements of the Campbell River test. In the course of the written sub- mission process, the company highlighted the evidence of Suen himself that his wife was the primary caregiver for their daugh- ter and was off work on leave at that time. e B.C. Human Rights Tribunal denied the application to dismiss. e tribunal, among other things, questioned whether the test developed in Campbell River re- mains good law. An application for judicial review of the tribunal's decision was unsuccessful. e reviewing judge took the view that the tri- bunal had engaged in an exercise of discre- tion and was accordingly entitled to a high degree of deference. Envirocon took the matter on appeal. Court of Appeal confirms Campbell River test e B.C. Court of Appeal allowed the ap- peal, finding the tribunal's decision was patently unreasonable as it was arbitrary and could not be allowed to stand. It was quashed and the judicial review decision was also set aside. e court remitted the case to the tribunal for "further proceed- ings consistent with (its) reasons." Without reservation at all, the Court of Appeal confirmed the Campbell River test. It set out the two requirements of the test: • ere has been a change in a term or con- dition of employment imposed by the em- ployer. • e change has resulted in a serious in- terference with a substantial parental or other family duty or obligation of the em- ployee. e court ruled that Suen had alleged facts "only capable of establishing the un- disputed fact that he is a parent." It high- lighted that "nothing in (his) complaint or affidavit" suggested that "his child would not be well cared for in his absence." In short, there was no allegation or evi- dence which could satisfy the second re- quirement of the applicable legal test — a serious interference with a substantial pa- rental or other family duty or obligation. e court was very obviously alive to the floodgates problem which would result out of setting too low a bar for establish- ing family status discrimination in a case like Suen's. It rejected the argument that it should "only (be) necessary for a complain- ant to show that a change in a term or con- dition of employment interferes with a pa- rental or other family duty or obligation." making the following notable observation: "While Mr. Suen's desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends is understandable and com- mendable, he is no different than the vast majority of parents." e court added: "ere are many par- ents who are required to be away from home for extended periods for work-related reasons who continue to meet their obliga- tions to their children." e decision in Envirocon is a significant one for any provincially-regulated employ- er doing business or operating in B.C. Be- cause it is the decision of an appellate court, it may also be persuasive in other jurisdic- tions in the country. At least in B.C., there is once again clarity around the test for prohibited employment discrimination on the basis of family status (parental or other family duty or obliga- tion). As it did one-and-one-half decades ago, the B.C. Court of Appeal has struck an ap- propriate balance between family needs and employer interests or work require- ments. e court continues to favour an approach to allegations of family status dis- crimination which is context-sensitive. It is an approach which, as the court stated in Campbell River, "depend(s) on the circum- stances of each case" and circumscribes the matter so that "(the concept of family status)... (is not) an open-ended concept ... (which) would have the potential to cause disruption and great mischief in the work- place." For more information see: • Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.). • Envirocon Environmental Services, ULC v. Suen, 2019 CarswellBC 204 (B.C. C.A.). « from TEST FOR FAMILY STATUS on page 1 There was no allegation or evidence indicating serious interference with a substantial parental duty or obligation. Must be more than just desire to be with his child ABOUT THE AUTHOR James D. Kondopulos James D. Kondopulos is an employment, labour and workplace human rights lawyer with Roper Greyell LLP, an employment and labour law boutique in Vancouver. James was co-counsel along with Michael A. Wagner and Brandon I. Hillis, also of Roper Greyell, for the successful appellant in Envirocon Environmental Services, ULC v. Suen. James can be contacted by visiting www.ropergreyell.com.

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