Employers in Canada are prohibited from discriminating against their employees on the basis of ‘family status,’ which is defined differently from province to province. In Atlantic Canada, Nova Scotia and Prince Edward Island, family status is defined as the ‘state of being in a parent-child relationship.’ In Newfoundland and Labrador, the provincial Human Rights Act grounds the definition in the parent-child relationship, but includes stepchildren and adopted children in the definition of ‘child’ and step-parents and adoptive parents in the definition of parents. The New Brunswick Human Rights Commission has the broadest definition in Atlantic Canada, holding that family status includes “being related to another person through blood, marriage, adoption or legal guardianship” and goes further to say that family status can be otherwise established.
As it concerns the workplace, the fundamental concept behind laws that prohibit family status discrimination is that employers may not needlessly interfere with an employee’s obligation to care for their family. While seemingly simple, this concept has been the source of considerable debate in Canada, with many adjudicators being rightfully concerned that it could create uncertainty for employers, or that it is impractical to oblige employers to accommodate all of an employee’s family obligations.
In 2004, the British Columbia Court of Appeal established a legal test to show family status discrimination in the often-quoted case of Campbell River & North Island Transition Society v. H.S.A.B. (2004 BCCA 260). It essentially established that family status discrimination only occurred when a change in working conditions or terms of employment resulted in a serious interference with a substantial parental/family duty or obligation.
This case has provided employers with a reasonable degree of certainty for nearly twenty years. However, in increasing numbers, courts have been turning away from the Campbell River test over concerns that discrimination can take place without a change to working conditions. This has left the state of this area of law in flux. Here, we look at what has been happening across Canada, and what this means for employers.
The Legal Test for Family Status Discrimination:
The Supreme Court of Canada, in its leading decision of Moore v. British Columbia (Ministry of Education) (2012 SCC 61) established the general test for workplace discrimination. Therein, Justice Abella held that an employee has been discriminated against if:
- The complainant shows a prima facie case of discrimination, by showing that:
a. They have a protected characteristic under the relevant human rights statue;
b. They suffered an adverse impact; and
c. The protected characteristic was a factor in the adverse impact.
- In the context of employment law, once a prima facie case of discrimination is shown, discrimination will be proven if the employer is unable to show that the discrimination is justified as a bona fide occupational requirement.
While this test has been widely used throughout the country, some adjudicators had found that it was not an appropriate method to assess an instance of alleged family status discrimination. Specifically, there has been concern that any interference with an employee’s obligations to their family would constitute family status discrimination. There was concern that prima facie cases of discrimination would arise out of the regular and ordinary operations of business, and that it would be difficult for employers to operate under this burden. Some have argued that the Moore test is therefore unworkable for circumstances of family status accommodation. The following passage from a Nova Scotia Arbitration, IUEC, Local 125 v. Otis Canada (Cassista) ( N.S.L.A.A. No. 4) outlines these concerns.
It strikes me as problematic to say that any adverse impact on the obligations attendant upon family status establishes a prima facie duty to accommodate. For example, I would not expect that an employee who has children was entitled to insist, via the duty to accommodate, that the employer provide day care at the work site or elsewhere. Being in a family carries with it certain basic personal obligations and costs that the employee must in ordinary course shoulder him- or herself. The basic burdens and obligations common to most parents cannot necessarily be shifted onto the employer by way of a duty to accommodate simply because the obligations of work have an adverse impact however slight on the employee’s family obligations. To say that would be to say that family status always trumps the obligations of work, and always triggers a duty to accommodate to the point of undue hardship. Such a result strikes me as unworkable. In my view it is this conceptual difficulty that continues to animate the debate over the proper test, a debate being carried out between and amongst arbitrators, human rights tribunals and the courts.
Given these concerns, some adjudicators have sought to add additional requirements to show a prima facie case of family status discrimination. This has led to multiple competing tests which are inconsistent and often conflict with each other. Adjudicators faced with arguments of family status discrimination must do their best to work through the different tests and assess for themselves which standard should be applied. This furthers the debate and contributes to greater uncertainty.
The Campbell River test had become one of the more commonly applied throughout the country and many used it as a response to the concerns outlined earlier that the Moore test is too broad. This decision took place prior to Moore and in it the Court found that to show a prima facie case of family status discrimination, an employee needs to show
(a) a change in a term or condition of employment imposed by an employer;
(b) which results in serious interference with a substantial parental or other family duty or obligation.
This additional element of the test where an employer must have changed a term or condition of employment has been used by subsequent adjudicators as a way to address the conceptual difficulties with family status discrimination. The Campbell River principle continued to be applied post-Moore, for example in Envirocon Environmental Services, ULC v. Suen (2019 BCCA 46).
The BCCA recently re-examined this approach in British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd. (2023 BCCA 168). That case began as a BC Human Rights Tribunal (the “Tribunal”) case involving an employee who requested changes to her work schedule so that she could access childcare. The employer refused to make those changes and she brought a claim to the Tribunal alleging discrimination on family status.
Based on the principle from Campbell River, the employer had not changed a term or condition of employment – it had in fact refused to make a change. Accordingly, a prima facie case could not be made out under a narrow interpretation of Campbell River. The Tribunal chose not to use the Campbell River principle however and found that the acts of the employer constituted prima facie discrimination regardless of whether they had actively changed working conditions or not. The Employer successfully had the decision reversed on this point at judicial review and the matter was appealed to the BCCA.
The BCCA sided with the Tribunal and decided that Campbell River should not be interpreted narrowly. It held that Campbell River did not stand for the principle that a change in employment terms or conditions was a requirement to establish family status discrimination. It is one of the ways in which a prima facie case of discrimination can be established, but not the only way. The Court therefore amended the test and ruled that:
110 […] 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 [i] their family status includes a substantial parental or other duty or obligation, [ii] that they have suffered a serious adverse impact arising from a term or condition of employment, and [iii] that their family status was a factor in the adverse impact.(numbering added)
The Court of Appeal noted that this interpretation aligns the principles from Campbell River with the broad and general principles from Moore and established that discrimination based on family status would be assessed in the same manner as the other characteristics that are protected by human rights legislation.
The Gibraltar Mines decision could reduce some of the uncertainty associated with family status discrimination claims in Canada. The BCCA’s rejection of the limiting nature of its previous precedent will likely put an effective end to adjudicators needing to consider whether to adopt the Campbell River approach. That will be one less potential approach that could be used in these types of cases.
The rejection of the Campbell River principles seems to be taking place throughout the country.
In Ontario, it was found that family status must be treated the same as all protected grounds, and therefore applied the Moore test without the qualifier established by Campbell River (see Ananda v. Humber College (2017 HRTO 611).
In Alberta, the Court of Appeal also rejected Campbell River, which it found unjustly limited the establishment of prima facie cases of family status discrimination, including references to Campbell River in United Nurses of Alberta v. Alberta Health Services (2021 ABCA 194).
In Saskatchewan, in Desani v. North Ridge Development Corp. (2023 SKKB 3), the Saskatchewan Court of King’s Bench stated:
112: […] the test in Campbell River has been criticized because it requires a complainant to establish a change in a term or condition of employment imposed by an employer which results in serious interference with a substantial parental or other family duty or obligation. This has the effect of imposing a higher standard for establishing a prima facie case of discrimination on the basis of family status than on the basis of other protected grounds.
The Saskatchewan Court went on to cite the Supreme Court of Canada in stating…
114: “[i]n Elk Valley (decided 13 years after Campbell River) the Supreme Court confirmed that a protected ground or characteristic need only be “a factor” in the adverse treatment, and rejected the idea that adjectives such as “significant” or “material” should be incorporated into the test…”
This suggests that this court would also reject the BCCA’s decision in Gibraltar Mines. which found that an applicant must show that there was interference with a ‘significant’ family duty or obligation. This goes to show that while the Gibraltar Mines decision may help reduce some of the uncertainties with family status discrimination, the issue has not been conclusively settled.
The trend among adjudicators across the country appears to be moving towards the more general test for establishing prima facie cases of family status discrimination. This trend does appear to be continuing in Atlantic Canada for the time being. However, we will continue to assess the situation and any ongoing development to this legal debate. Going forward, employers will need to be cognizant of this fact and take particular care not to engage in any behaviour which can be said to meet the more general requirements from Moore.