British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (CanLII)
The BC Human Rights Code prohibits discrimination, among others, based on “family status.” The BC Court of Appeal’s decision in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260(“Campbell River”) has been taken to stand for the proposition that a change in terms of employment was required to establish a prima facie case.
The Complainant did not participate in the appeal. The Court determined that the Human Rights Tribunal, the appellant, had standing to participate on the merits and bring the appeal. The Court concluded that “issues the tribunal will be permitted to raise will be assessed … as a matter of discretion, balancing the need for fully informed adjudication against the importance of maintaining tribunal impartiality” (para. 37). In the case at hand, the Court concluded that “whether a change in the terms and conditions of employment is necessary before prima facie family status discrimination can be established is an appropriate extricable question of law for the Tribunal to raise for determination. The submissions the Tribunal seeks to make do not go the merits of Ms. Harvey’s complaint, but to the test the Tribunal is to apply in order to consider them” (para. 50).
The Court succinctly set out actual context:
[7] …. Ms. Harvey and her spouse were employed with Gibraltar, which operates a mine about 60 kilometers north of Williams Lake, British Columbia. The mine operates 24 hours per day, seven days per week. Ms. Harvey was a journeyman welder at the time of the complaint; her spouse was a journeyman electrician. Both were members of the union. When Ms. Harvey became pregnant, she and her spouse worked the same 12-hour shifts, but they sometimes worked different night shifts.
[8] After the birth of their first child and close to the end of her parental leave, Ms. Harvey sought a workplace accommodation to change her and her spouse’s work schedules to facilitate childcare arrangements. The parties … were unable to agree on a suitable accommodation. …
Gibraltar sought to have the complaint dismissed. The Tribunal dismissed the application. Gibraltar sought judicial review, which quashed the Tribunal’s decision because there had been no change in terms of employment, based on Campbell River.
In Moore v. British Columbia (Minister of Education), 2012 SCC 61, the Supreme Court of Canada established a general test for prima facie discrimination. Complainants must show that (1) they have a characteristic protected from discrimination under the Code; (2) that they have experienced an adverse impact; and (3) that the protected characteristic was a factor in the adverse impact.
The Court concluded that Campbell River did not require a change in terms of employment to establish a prima faciecase. First, the issue of change of terms of employment was not before the Court in Campbell River. “What this Court actually decided was that family status included the responsibility for childcare arrangements, subject to a materiality requirement. Not every interference with parental duties of an employee is prima facie discriminatory, requiring justification by the employer. The interference must be serious and the parental duty must be substantial” (para. 69).
Second, the Court concluded that, as a matter of statutory construction, there is nothing in the Human Rights Code that requires a change of terms of employment.
Third, the Code must be given a broad and liberal interpretation, noting that “s. 13(1)(b) applies whenever a term or condition results in a serious interference with a substantial parental or other family duty or obligation of an employee, whether as a consequence of a change in the term of employment or a change in the employee’s circumstances” (para. 77).
The Court concluded:
[101] … for purposes of assessing conflicts between work requirements and family obligations, prima facie discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation. To put this test in terms of Moore, to establish prima facie adverse impact discrimination as a result of a conflict between work requirements and family obligations, an applicant must establish that their family status includes a substantial parental or other duty or obligation, that they have suffered a serious adverse impact arising from a term or condition of employment, and that their family status was a factor in the adverse impact.