Confirmation of Stringent British Columbia Test for Family Status Duty to Accommodate

Author:Yosie Saint-Cyr
Date:August 08, 2019
 
FREE EXCERPT

A recent British Columbia Court of Appeal decision confirmed that the stringent test set out in Health Sciences Assoc of BC v Campbell River and North Island Transition Society (B.C.C.A., 2004 “Campbell River“) to determine if there was a duty to accommodate based on family status and if there is a prima facie case of discrimination based on family status, continues to be the applicable test in British Columbia.

Quick facts

The employee was a project manager who had been employed since 2012. From time to time, he was required to travel to project sites away from home. Approximately four months after the birth of his first child, the employee was assigned to work for eight to 10 weeks in Manitoba due to the unexpected resignation of a project manager. The employee refused to accept the assignment.

The employer asked him to reconsider and warned him he would be dismissed, and again the employee proceeded to refuse the assignment. He was subsequently terminated by the employer for just cause effective immediately.

The employee filed a complaint with British Columbia’s Human Rights Tribunal, asserting that the employer discriminated against him in the area of employment on the basis of “family status” by requiring him to take on a project that would take him away from home for eight to ten weeks when he just became a father. The employee asked for, among other things, compensation for lost wages, salary or expenses and damages for injury to dignity. The employer claimed that the dismissal was unrelated to his family status.

The employer also filed an application with the Human Rights Tribunal to dismiss the former employee’s complaint without a hearing, asserting that the employee had not experienced a serious interference with a substantial parental duty or obligation as a result of his temporary relocation (i.e., Campbell River Test.)

Decision of the Human Rights Tribunal

The Human Rights Tribunal denied its application and held there was a reasonable prospect the employee could establish indirect or adverse effect discrimination by using a less stringent test than the one in Campbell River, which included the Supreme Court of Canada case in Moore v British Columbia [Education] (2012 SCC 61), which held that a prima facie case of discrimination will be made out when: the complainant possesses a protected characteristic; the complainant experiences an adverse impact with respect to their employment; and the protected characteristic is a factor in...

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