Research Director for Canada
Family status as a prohibited ground of discrimination is fairly new in the area of human rights law. It is understood to refer to parental or family obligations, which includes looking after a child or elderly care. The definition of the protected right is consistent across jurisdictions, however, the scope and application is not as well defined. Recent changes to the Canada Labour Code, and the latest decision rendered by the Supreme Court of Canada, have not yielded any clarity on the matter. Rather, the decision highlights the complexities of proving discrimination on the basis of family status, not only maintaining an ambiguous legal context, but at the same time, leaving in place a rigorous and prohibitive onus on workers.
In B.C., the Campbell River case stands as the bar for testing whether discrimination has occurred. The test requires that a worker demonstrate the following;
- a change in a term or condition of employment imposed by the employer and
- that the change resulted in a serious interference with a substantial parental or other family duty or obligation
This test, in particular, has been criticized by legal scholars for placing a greater burden of proof for this protected ground than for other protected grounds.
To complicate matters, the Federal Court of Appeal has also developed its own test for family status discrimination, which was later called into question by the Ontario Human Rights Tribunal. Essentially, the Tribunal questioned why a unique legal test for discrimination was needed in family status cases.
The B.C. Supreme Court, the Federal Court of Appeal and the Ontario Human Rights Tribunal decisions illustrate the complex legal context and the challenges in demonstrating discrimination on the basis of family discrimination. The Suen case raised hopes that a rendered decision would elucidate an appropriate test for family discrimination cases.
Mr. Suen was asked by his employer to take an assignment in Manitoba for 8-10 weeks, which he refused stating he needed to stay in B.C. to help his spouse look after their newborn baby. Consequently, the employer fired Mr. Suen with cause, leading him to file a complaint with the B.C. Human Rights Tribunal. The Tribunal questioned whether the Campbell River test was appropriate and suggested that the scope of protection under family status be broadened to include parenting responsibilities. The Tribunal applied a progressive and broad lens to the human rights law.
This decision was upheld by the B.C. Supreme Court, but was overturned by the B.C. Court of Appeal. The Supreme Court of Canada decision was highly anticipated as it was expected to clarify the ambiguities in family status discrimination. However, the Supreme Court of Canada denied Mr. Suen’s appeal, keeping in place the narrow scope of application and the high bar of proof.
While this decision is relevant for employers and workers in B.C., the fact that the Supreme Court of Canada upheld a high bar in family status cases will surely impact future cases across the country.
What is certain is that a standardized test does not exist, and that employers are not obligated to allow workers to assist their partner with family obligations. The issue of family status discrimination continues to evolve, and cases of family status discrimination should be carefully considered.