BC Court confirms high threshold for proving family status discrimination in employment

The BC Supreme Court recently confirmed the test for family status discrimination in the case of Gibraltar Mines Ltd. v Harvey, 2022 BCSC 385.

Ms. Harvey and her husband were employed by Gibraltar Mines Ltd. 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 Ltd. 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 Ltd. made another proposal which too was rejected. 

Ms. Harvey made a complaint to the BC Human Rights 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. It argued that the shift schedules were the same as they had always been and the same for everyone. Gibraltar Mines Ltd. 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 Ltd. applied to the BC Supreme Court to ask for a review of the Tribunal’s decision. Gibraltar Mines Ltd. argued that the Tribunal used the wrong legal test. 

The judge agreed with Gibraltar Mines Ltd.’s 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. 

Takeaways

The key takeaway is that employees will have a difficult time making a successful human rights complaint based on family status discrimination, especially where the employer does not change the terms or conditions of employment.

Questions? Comments? Please contact Scott Marcinkow at [email protected] or anyone else from our team listed on the Authors page.