Case Summary and Analysis: Suen v. Envirocon Environmental Services, ULC

The Prima Facie Test and Discrimination Based on Family Status: A Case Law Review and Analysis of Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46

Background

Despite the test for prima facie discrimination being set out clearly in Moore v. British Columbia (Education) (Moore), and reaffirmed in Stewart v Elk Valley Coal Corporation (Stewart v Elk), the test for prima facie discrimination on the protected ground of family status (including childcare and eldercare) has been the subject of an interesting and unsettled debate for many years. A recent decision from the British Columbia Court of Appeal (BCCA), Suen v. Envirocon Environmental Services ULC (“Suen”), has brought this debate to the forefront.

For the sake of clarity, this post will first provide a brief overview of the current legal framework, detailing the competing prima facie tests. The post will then provide a summary of the Tribunal and lower court decisions in Suen and conclude with a brief analysis of the BCCA’s decision.

The Current Legal Framework: Too Many Prima Facie Tests

As more than one decision-maker has noted, the current legal framework on family status cases is unsettled and fraught with tension. This is easily demonstrated by reviewing the development of the case law on this point.

The Campbell River Test:

In 2004, the BCCA released its decision in Health Sciences Association of BC v Campbell River and North Island Transition Society (Campbell River). In that case, the appellant’s employer sought to change her work schedule from 8:30 am to 3:00 pm to an 11:30 am to 6:00 pm shift. She was unable to accept this change as she needed to be home to care for her children after school. The appellant’s union advised the employer that she was seeking accommodation of her work schedule based on her family status.

In developing what is now referred to as the Campbell River test, the BCCA first found that the term “family status” cannot be an open-ended concept with a broad definition. It went on to state that whether particular conduct did or did not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case (para. 39). Most crucial, however, was the BCCA’s statement on what an applicant must demonstrate to prove prima facie discrimination:

[39] In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee.

In short, the Campbell River test is comprised of two steps: (i) has there been a change in a term or condition of employment; and (ii) has the change resulted in a serious interference with a substantial parental or other family duty or obligation. Only when an applicant has made out these two steps would a Tribunal then make a finding of prima facie discrimination on the basis of family status. Interestingly, the BCCA itself noted the sheer impossibility of meeting this threshold when, Low J. noted in the same paragraph quoted above, “that in the vast majority of situations in which there is conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.” (para. 39)

Moore and the Test for Prima Facie Discrimination:

Years later, in 2012, the Supreme Court of Canada (SCC) released its seminal decision in Moore where the prima facie test as we now know it was laid out by the Court (para. 33). Despite the fact that Moore was a case which was initially brought before a tribunal on the ground of disability, it was largely understood that the prima test for discrimination was applicable to all prohibited grounds of discrimination and applied by tribunals and lower courts in most jurisdictions accordingly.

Interestingly, the SCC’s test in Moore did not cause the British Columbia Human Rights Tribunal (BCHRT), or any level of British Columbia Court, to question whether Campbell River remained good law. Rather, it appears that the BCHRT applied both tests simultaneously (see, for example:  Meldrum v. Astro Ventures, Ma v. Dr. Ianin G. M. Cleator and another).

The Johnstone Test:

Even prior to the SCC’s decision in Moore, however, Campbell River did receive quite a bit of criticism outside of BC over its restrictive approach and was expressly rejected by the Canadian Human Rights Tribunal (see: Hoyt v Canadian National Railway and in Johnstone v Canada Border Services), and by the Public Service Staffing Tribunal (Rajotte v. President of the Canada Border Services Agency et al.). Perhaps one of the more compelling and comprehensive discussions on the Campbell River test was provided by Barnes J. in a Federal Court decision where he found that the test was “wrong in law” and that the threshold for prima facie discrimination should be the same for all the prohibited grounds of discrimination. Unfortunately, Barnes J.’s decision was appealed and the Federal Court of Appeal (FCA) chose to express no opinion on what the correct legal test for family status cases is (para. 2).

The FCA in 2014 did have an opportunity to once and for all deal with the question of the appropriate test for prima facie discrimination on the ground of family status. Indeed, the FCA acknowledged the importance of avoiding hierarchies of human rights (para. 81). However, rather than providing guidance on, or preferably outright rejecting, the test in Campbell River, the FCA in Canada (Attorney General) v. Johnstone, chose to instead put forth its own test to be applied when an allegation of discrimination on the prohibited ground of family status resulting from childcare obligations is alleged. According to the FCA, the individual advancing the claim must demonstrate:

• That a child is under his or her care and supervision;
• That the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
• That he or she had made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and,
• That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation (para. 93).

The FCA then proceeded to elaborate on each of these factors and commented on what each factor requires of the applicant to prove. The FCA’s discussion about the fourth factor is especially troubling as it seems to confirm, or at the very least endorse, the Campbell River test in requiring an applicant to demonstrate that the workplace rule interferes in a manner that is more than trivial or insubstantial.

Stewart v Elk Comments on the Prima Facie Test:

It was the SCC’s Stewart v Elk decision in 2017 that caused several BCHRT Vice-Chairs to question whether Campbell River was still considered good law. Interestingly enough, it was not the fact that the SCC affirmed the Moore test (para. 24), but rather the SCC’s findings that the test should not be altered by adding unnecessary adjectives. Writing for the majority, McLaughlin C.J., as she then was, stated:

 [46]   Second, I see no need to alter the settled view that the protected ground or characteristic need only be “a factor” in the decision.  It was suggested in argument that adjectives should be added: the ground should be a “significant” factor, or a “material” factor.  Little is gained by adding adjectives to the requirement that the impugned ground be “a factor” in the adverse treatment. In each case, the tribunal must decide on the factor or factors that played a role in the adverse treatment. This is a matter of fact.  If a protected ground contributed to the adverse treatment, then it must be material.

McLaughlin’s statements on the addition of adjectives to the third part of the Moore test speaks to the weight given to a factor in the adverse impact experienced by the complainant. When an unnecessary adjective like “significant” or “material” is imported into the third part of the Moore test, the question is no longer whether the prohibited ground was a factor, but rather how much weight should be given to the prohibited ground in playing a role in the adverse impact. In applying McLaughlin’s statement to the Campbell River test, it is not difficult to see why the test is being called into question. The question in the second step of the Campbell River test asks whether a “serious interference with a substantial parental or other family duty or obligation” has occurred; this is ultimately a question of weight, and not a question of whether the family status was a factor in accordance with the Moore test.

The British Columbia Human Rights Tribunal: Questioning Campbell River

The question was first raised in Adair v Forensic Psychiatric Services Commission (No.2). In that case, BCHRT Vice-Chair Rilkoff laid out the Moore test and noted that the law on family status is unsettled (para. 119). He questioned whether Campbell River was good law in light of the SCC’s swift rejection of the addition of adjectives to the prima facie test. Despite raising this concern, however, Vice-Chair Rilkoff determined that this was not the case to decide whether Campbell River has been “overtaken by Moore and Elk Valley.” (para. 123)

The concerns raised in Adair were echoed in subsequent BCHRT cases including in Suen (see discussion below), Athwal v Sandhu and others, and Ziegler v Pacific Blue Cross.

It is on the above unsettled legal backdrop that we now turn to the Suen saga.

Suen: Summary of Facts

The facts of Suen are relatively straightforward. Mr. Suen commenced his employment as a project manager at Envirocon in 2012. He was based in Burnaby, British Columbia but was occasionally required to travel to project sites away from home. On the occasions he travelled, his trips were usually no longer than a day or two at a time.

In 2015, Mr. Suen and his wife had a baby and he stayed home for one month; he used vacation time coupled with days where he would work remotely from home. Mr. Suen returned to work in the office after 1 month away.

When his baby was approximately four months old, Envirocon assigned Mr. Suen to a project in Manitoba and advised him that he was required to be on the project site for 8-10 weeks. Envirocon would pay for Mr. Suen’s roundtrip airfare to go to Manitoba at the start of the project and at the end of the project, but would not provide a travel stipend for him to return within that timeframe. Mr. Suen requested time to consider this assignment, in light of the fact that he was a new father. Envirocon was not receptive to his hesitation and gave him a weekend to consider and the ultimatum that if he did not accept the project, there may be consequences. Ultimately, Mr. Suen refused the assignment because of his new baby at home. Envirocon terminated Mr. Suen’s employment for cause for insubordination.

Mr. Suen filed a Human Rights complaint with the BCHRT alleging he was discriminated against in the area of employment on the basis of family status.

Suen: The BCHRT Decision

It is important to note that the matter to be heard by the BCHRT in this decision was akin to a summary dismissal. The respondent requested that the Vice-Chair dismiss the complaint for several reasons, including (i) there was no prima facie case of discrimination (ii) there was no reasonable prospect that the complaint would succeed, and (iii) proceeding with the complaint would not further the purposes of the Code.

In laying out the legal framework of family status cases, Vice-Chair Ohler, following the steps of her colleague Vice-Chairs at the Tribunal, raised the question of whether Campbell River remains good law in light of Stewart v Elk Valley (para. 33).  Despite this question, however, she proceeded by applying both Moore and Campbell River to the facts before her. She did this by first applying each step of Moore, and then introducing the Campbell River test in the third branch of Moore. In denying the Respondent’s request to dismiss the complaint, Vice-Chair Ohler found that Mr. Suen had a reasonable prospect of success on either test.

In coming to this determination, she again noted the significance of Stewart v Elk by stating that it opened the door for a finding that the “tools already available to the Tribunal and applied to all other grounds are sufficient – within Moore, the purposes of the Code, and the sections of the Code that provide express defences such as bona fide occupational requirement.” (para. 84) In short, she called into question the necessity of Campbell River while being clear that her decision did not turn on this issue.

Suen: The British Columbia Supreme Court Decision

The Respondent filed a petition for judicial review at the BCSC. In its application, Envirocon argued that Vice-Chair Ohler incorrectly applied the Campbell River test, and most importantly argued that Moore did not supplant Campbell River, which was binding law.

In a very straightforward decision, Maisonville J. found that the Vice-Chair had applied Campbell River reasonably to the facts before her. Moreover, Maisonville J. found that the Vice-Chair’s questioning of the validity of Campbell River to be clearly obiter.

Suen: The British Columbia Court of Appeal Decision

The Respondent filed an appeal with the BCCA. The BCCA allowed the appeal. In a relatively short decision, the BCCA found that while the Tribunal member had applied the right test (Campbell River), they found that her application of the test was patently unreasonable.

In making this finding, the BCCA focused on the second step of the Campbell River test, namely, whether a change resulted in a serious interference with Mr. Suen’s substantial parental or other family duty or obligation. The BCCA found that the facts alleged by Mr. Suen were not capable of satisfying this second step because nothing indicated that his child would not be well taken care for in his absence. According to the BCCA, the evidence was only capable of establishing that Mr. Suen was a parent, which was an undisputed fact (para. 32).

It is important to note here that, in their appeal, the Respondent was seeking to limit the Tribunal hearing “to the direct discrimination aspect of [Mr. Suen’s] complaint.” (para. 2) In making this distinction, the appellant muddied the waters by introducing a distinction between direct and indirect discrimination; a distinction that in the human rights sphere is quite antiquated.

Even more troubling than the way the Respondent framed the issue, however, is the BCCA’s decision. In allowing the appeal, the BCCA quashed the Tribunal’s decision to decline dismissing “the adverse discrimination aspect of Mr. Suen’s complaint” and remitted the matter to the Tribunal for further proceedings consistent with their reasons (para. 36). This suggests that the BCCA, at the very least, endorses the Respondent’s distinction. The reason this is so troubling is that, in subscribing to this distinction and only applying Campbell River (and not even considering the role of Moore on family status), the BCCA implies there indeed exists two different types of discrimination, each with its own separate legal test.

Lastly, it would be remiss not to mention that Mr. Suen attempted to have Campbell River overruled by requesting that the Appeal be heard by a five-justice division. The BCCA denied this request and then used this denial to support the fact that they were bound by Campbell River and would not consider his arguments about the validity of the contentious precedent (para. 25).

Conclusion

It is both puzzling and disconcerting that BC has adopted a test that burdens complainants with a higher threshold to establish prima facie discrimination in the context of family status. This, in effect, establishes a hierarchy of human rights with family status being rated second-tier to the other human rights grounds. By virtue of the decisions in Campbell River and Johnstone, it is evident that the Courts are grappling with both defining the scope of family status cases and in reconciling adverse impact based on family status (including childcare and eldercare) with disruptions at work.

As noted by the Tribunal member in Suen, the SCC has not ever directly considered the ground of family status so as to reconcile the competing views across Canada and provide guidance and clarity (para. 77). The BCCA decision in Suen, however, if appealed to the SCC and granted leave, may provide the SCC with this opportunity to once and for all settle the issue. 

ARCH will continue to monitor this case and provide updates on any developments.