The BC Human Rights Tribunal successfully appealed a decision of the BC Supreme Court and, in doing so, changed the legal test for family status discrimination in BC

Administrative law – Decisions reviewed – Human Rights Tribunal – Judicial review – Appeals – Legislative compliance – Standard of review – Correctness – Human rights – Discrimination – Family status – Marital status – Gender – Labour relations

Gibraltar Mines Ltd. v. Harvey, [2023] B.C.J. No. 720, 2023 BCCA 168, British Columbia Court of Appeal, April 21, 2023, R.J. Bauman C.J.B.C., S.D. Frankel, A.W. MacKenzie, J.J.L. Hunter and J.C. Grauer JJ.A.

The Appellant, BC Human Rights Tribunal (the “Tribunal”), sought to appeal a decision from the BC Supreme Court relating to the complainant’s employment with the Respondent, Gibraltar Mines Ltd. (“Gibraltar Mines”).

Ms. Harvey and her husband were employed by Gibraltar Mines near Williams Lake. They worked the same 12‐hour shifts. After she gave birth to her first child, Ms. Harvey and her husband requested a change for one of their work schedules so they could access childcare.

The mine had a few shift schedules as it operated 24 hours:

• A/C shift was a rotating schedule of days and night shifts;
• B/D shift was another rotating schedule of days opposite to the A/C shifts; and
• J shift was dayshift on Monday to Friday.

Ms. Harvey and her husband proposed or requested two accommodation options for when Ms. Harvey returned from maternity leave. The first option was that they be permitted to work 8‐hour shifts on the A/C shift when they were on days rather than a 12‐hour shift. The second option was that one of them be permitted to work the J shift (day shift).

Gibraltar Mines proposed that one of them be moved to B/D shift (and the other remain on A/C shift) so one of them would always be off each day to take care of childcare pick up or drop off. Ms. Harvey rejected this proposal saying it would have a negative effect on their family life to be on opposite shifts. Gibraltar Mines made another proposal which was also rejected.

Ms. Harvey made a complaint to the Tribunal alleging discrimination based on her family status, marital status, and sex. Gibraltar Mines applied to dismiss the complaint. The Tribunal dismissed the complaint on the basis of marital status and sex. The Tribunal then considered the application to dismiss in relation to the allegation of family status discrimination.

Gibraltar Mines argued it had not changed any terms or conditions of employment and this was a required element of family status discrimination in BC. It argued that the shift schedules were the same as they had always been and the same for everyone. Gibraltar Mines argued that Mr. and Ms. Harvey were asking for different shifts because of the change in their needs after having children.

The Tribunal declined to dismiss the complaint on the basis of family status on this preliminary application. The Tribunal found it was not a requirement for Ms. Harvey to prove that there was a change to a term or condition of her employment.

Gibraltar Mines applied to the BC Supreme Court to ask for a review of the Tribunal’s decision. Gibraltar Mines argued the Tribunal used the wrong legal test.

The judge agreed with Gibraltar Mines’ argument that the law required two elements for a complainant to prove a case of discrimination on the basis of family status: (1) the employer has imposed a change in a term or condition of employment, which results in (2) a serious interference with a substantial parental or other family obligation.

The judge quashed the Tribunal’s decision because the Tribunal had used the wrong legal test.

The Tribunal initiated an appeal to the BC Court of Appeal.

The Court of Appeal first had to decide whether they could hear the case because the complainant was no longer pursuing the appeal. The Court of Appeal accepted that the Tribunal could pursue the appeal and could make arguments about the correct legal test to be applied for family status discrimination allegations in BC.

The Court of Appeal disagreed with the Supreme Court and overturned its decision.

The Court of Appeal concluded that, to establish a prima facie case of family status discrimination in BC, an employee does not need to prove there was a change in the terms or conditions of their employment. Instead, an employee must only prove: (1) the employee suffered a serious adverse impact from a term or condition of employment; and (2) the term or condition of employment amounts to a serious interference with a substantial parental or other family obligation.

The Court of Appeal asked the Supreme Court to consider the remaining issues in the judicial review hearing.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at [email protected].

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