Case In Point

Appellate Court Reviews “Family Status” Test

Case In Point

Appellate Court Reviews “Family Status” Test

Date: March 11, 2019

The British Columbia Court of Appeal recently clarified the meaning and scope of the term “family status” in Envirocon Environmental Services, ULC v. Suen. This case confirmed the Campbell River test, which imposes a higher standard for establishing discrimination than the often-cited Federal Court of Appeal test in Johnstone, adding to the “family status” interpretation debate around the accommodation of childcare and eldercare.


The respondent was an employee at Envirocon Environmental Services, ULC (Envirocon). Envirocon advised him that he would have to take an out-of-province assignment that required him to be away from home for eight to ten weeks and that it would not pay for him to return home during that period. The respondent had a four-month old infant at home and preferred to stay nearby to help his wife take care of their newborn. He refused the assignment and his employment was terminated for cause. The respondent subsequently filed a complaint at the British Columbia Human Rights Tribunal alleging that he was discriminated against on the basis of family status.

The Human Rights Tribunal Decision

Envirocon sought to have the complaint dismissed primarily on the basis that the acts alleged did not contravene the Human Rights Code and there was no reasonable prospect of success.

The Tribunal held there were two bases on which the respondent may be able to establish discrimination:

  1. His employment was terminated because he had become a parent (i.e. direct discrimination); and
  2. There had been a change in a term or condition of his employment that resulted in a serious interference with a substantial parental or other family duty or obligation (i.e. indirect or adverse effect discrimination) (at para 2).

The Tribunal then declined to dismiss the complaint with respect to the issue of adverse effect discrimination, finding that the respondent’s required absence could be found to be “serious interference with a substantial parental or other family duty or obligation” and that such a change could amount to “something more” than the usual work or family-related tensions of a parent. It also found there was a reasonable prospect that the complaint could succeed. In arriving at this conclusion, the Tribunal applied Campbell River but questioned whether it remained “good law.”

Chambers Judge Decision

Envirocon applied for judicial review of the Tribunal’s decision. The Chambers Judge upheld the Tribunal’s decision and ruled that it was not patently unreasonable.

The Court of Appeal Decision

Envirocon appealed the Chambers Judge’s decision, arguing the Chambers Judge erred in her standard of review analysis and her finding that there was nothing patently unreasonable about the Tribunal decision.

In this appeal, the respondent also argued that the Court should reconsider the test for family status discrimination set out in Campbell River, referring to the Johnstone decision which criticized that test.

The Court of Appeal declined to reconsider the test. It stated that put “in terms of Campbell River, in deciding Envirocon’s application, the Tribunal had to determine whether, on the basis of those alleged facts, it could be found that: (i) there had been a change in a term or condition of Mr. Suen’s employment; and (ii) such a change resulted in “a serious interference with a substantial parental or other family duty of obligation”. Only the second question is in issue on this appeal.”

The Court found that the facts alleged by the respondent “were not capable of satisfying the second step of the Campbell River test.” His desire to remain close to home to care for his newborn child was understandable, but was “no different than the vast majority of parents.” There was nothing in the complaint that suggested his child would not be cared for in his absence.

As such, the Court held that the Tribunal erroneously concluded that the alleged facts could satisfy the second step of the Campbell River test, a conclusion which was key to its decision to allow the adverse effect discrimination part of the complaint to proceed. The Court found the decision was arbitrary and could not stand. It allowed the appeal and remitted the matter back to the Tribunal.

Takeaways for Employers

This case adds to the debate over the appropriate legal test and scope of the duty to accommodate employee childcare obligations. In Ontario, the generally accepted test in family status cases was the Federal Court’s test in Johnstone, at least until the Human Rights Tribunal of Ontario called it into question in Misetich. At this time, it is unclear whether the Envircon decision will shift the trend in Ontario or elsewhere in Canada but stay tuned for future developments. 

Regardless of which test is used, however, this case clarifies that parental preferences (as opposed to “needs”) are not generally required to be accommodated. This articulation of the test in the Envirocon decision is seemingly more restrictive than either test of the Federal Court of Appeal or Human Rights Tribunal of Ontario and accommodation-seekers (at least in British Columbia) may have some difficulty establishing a prima facie case of discrimination where their request is more akin to a preference than a substantial parental obligation

Editor’s Note: on August 8, 2019, the Supreme Court of Canada denied leave to appeal on the original preliminary issues and the matter has been remitted to the Tribunal for further proceedings.

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