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Case Summary and Analysis: Supreme Court denies leave in family status discrimination case: what this means for the legal test for discrimination

On August 8, 2019, the Supreme Court of Canada (SCC) dismissed leave to appeal from the British Columbia Court of Appeal (BCCA) decision in Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46 (Suen).

Suen is a case about family status discrimination. It brought to light the consequences of the differing tests for family status discrimination that have cropped up in various jurisdictions across Canada (for an in-depth discussion of these differing tests and a discussion of Suen generally, read ARCH’s previous blog post here). It alsoraised a troubling re-introduction of the distinction between direct and indirect discrimination; a distinction that has previously been discarded by the SCC. In dismissing leave to appeal to the SCC, the application of the test to establish discrimination based on family status in British Columbia remains inconsistent with established human rights law.

This post will first briefly review the facts of Suen and the decision of the BCCA with a specific focus on its comments with respect to direct and indirect discrimination. It will then reflect on the reasons that the SCC eliminated this distinction. Finally, on this backdrop, this post will look at the practical implications of refusing leave as it specifically relates to Suen and on the prima facie test for discrimination generally.

Facts of Suen and Decision of the BCCA

Brian Suen was terminated from his employment with Envirocon Environmental Services (Envirocon) after he refused to accept a work assignment that would take him away from home for a period of 8 – 10 weeks following the birth of his daughter. While he had been given assignment away from home prior to having a child, these assignments were usually not longer than a day or two at a time.

Mr. Suen brought an application against Envirocon to the British Columbia Human Rights Tribunal (BCHRT) alleging discrimination on the basis of family status. At the firststage of the proceeding, the Vice-Chair undertook a nuanced analysis. She noted and applied the differing tests for family status discrimination – namely, the widely-accepted prima facie test for discrimination as set out in Moore v. British Columbia (Education) (Moore) and the more stringent test from Health Sciences Association of BC v Campbell River and North Island Transition Society (Campbell River). The Vice-Chair held that Mr. Suen made out at least a reasonable prospect of success regardless of which test was applied. This decision was upheld at the British Columbia Superior Court. Environcon appealed to the BCCA.

In its appeal, Envirocon only challenged the BCHRT’s application of the Campbell River test.  Envirocon took no issue with the BCHRT’s application of Moore and accepted the BCHRT’s finding that, on the application of the prima facie test, Mr. Suen made out a reasonable prospect of success. It sought to limit Mr. Suen’s case to only the “direct discrimination aspect of the complaint” (para 2 of the BCCA’s decision in Suen). In making these arguments, Envirocon introduced a distinction between direct and indirect discrimination, which, as will be explored below, had been previously considered and discarded by the SCC.

Unfortunately, the distinction was taken up by the BCCA. At paragraph 2 of its reasons, the BCCA crudely summarized the BCHRT’s decision as finding that Mr. Suen had potentially “two bases” for discrimination:

The Tribunal held that there were two bases on which Mr. Suen may be able to establish discrimination: (i) his employment was terminated because he had become a parent, i.e., direct discrimination; and (ii) there had been a change in a term or condition of his employment that resulted in a serious interference with a substantial parental or other family duty of obligation, i.e. indirect or adverse effect discrimination. (emphasis added)

In doing so, BCCA implicitly aligned direct discrimination with the prima facie test from Moore, and adverse effect/indirect discrimination with the test from Campbell River. The BCCA allowed Envirocon’s appeal and quashed the Tribunal’s findings with respect to the “adverse effect discrimination aspect” of Mr. Suen’s claim. The BCCA remitted the matter back to the BCHRT for further proceedings “consistent with these reasons.” (para 36)

Distinction between Direct and Indirect Discrimination Discarded

In order to fully appreciate the consequences of the BCCA’s decision, it is useful to reflect on the reasons that the SCC eliminated any distinction between the legal tests for direct and indirect discrimination.

In the landmark decision British Columbia (Public Service Employee Relations Commission) v BCGSEU (Meiorin), the SCC critiqued the “conventional” approach of different legal tests for direct and indirect (or adverse effect) discrimination. Specifically, it held that while the conventional approach may have been effective for interpreting early human rights jurisprudence, it ill-served current human rights legislation.

In calling for new, unified guidelines for the test for discrimination in Canada, the SCC listed a number of compelling reasons for doing so, including that few cases can be so neatly categorized into direct or indirect discrimination. The SCC found the distinction to be malleable, “chimerical” and unrealistic (para 29 of Meiorin). A standard or rule could easily be classified as either – a rule requiring employees to work on Fridays could be direct discrimination because anyone with religious beliefs preventing them from working on Fridays could work there. At the same time, it could be a neutral rule that has an adverse effect on those same workers who religious beliefs prevent them from working on Fridays. (para 27 of Meiorin).

The SCC further criticized the distinction between direct and indirect discrimination for having the effect of legitimizing systemic discrimination by failing to challenge the imbalances of power held in place by racism, ableism and sexism, and instead focusing the analysis on making “different” people fit into existing systems:

Under the conventional analysis, if a standard is classified as being “neutral” at the threshold stage of the inquiry, its legitimacy is never questioned. The focus shifts to whether the individual claimant can be accommodated, and the formal standard itself always remains intact. The conventional analysis thus shifts attention away from the substantive norms underlying the standard, to how “different” individuals can fit into the “mainstream”, represented by the standard. (para 40 of Meiorin)

In British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) (Grismer), the SCC confirmed that the same test for discrimination ought to apply in all cases. The SCC summarized and endorsed the reasons of Meiorin:

Meiorin announced a unified approach to adjudicating discrimination claims under human rights legislation. The distinction between direct and indirect discrimination has been erased. Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. (para 19, emphasis in original)

Following these decisions, it was widely understood that any distinction was eliminated. The test for discrimination in all cases was prima facie discrimination: whether the protected ground was a factor in the alleged negative impact.

Impact on Dismissing Leave on Suen and on the Test for Prima Facie Discrimination

With leave to appeal to the SCC dismissed, the BCCA’s problematic endorsement of the distinction between direct and indirect discrimination has been resurrected. A further equally problematic and presumably unintended consequence of the BCCA decision is raising the threshold for the prima facie test for discrimination.

Recalling the direction from the BCCA, the BCHRT’s application of the test from Campbell River for adverse effect discrimination was overturned and the prima facie test for discrimination was implicitly aligned with cases of direct discrimination. Consistent with the reasons of the BCCA, the BCHRT is directed to determine only the issue of whether Mr. Suen’s employment was “terminated because he had become a parent: i.e., direct discrimination” (para 2, Suen,emphasis added). It follows that the BCHRT’s application of the prima facie test for discrimination must be limited to this question.

This is problematic primarily because it revives the concerns raised by the SCC in cases like Meiorin and Grismer about the distinction between direct and indirect discrimination such as legitimizing discriminatory standards held in place by power imbalance based on sexism. Moreover, the decision of the BCCA in Suen goes further to raise the threshold of the prima facie test to only where an adverse impact is becauseof the protected ground – the language of because certainly implies that something more is required to demonstrate discrimination than merely a factor.

On this high threshold, Envirocon will no doubt be able to defend allegations that Mr. Suen was terminated because he became a parent. It is likely, or at the very least arguable, that sexism or stereotypical gender norms were factors in Mr. Suen’s termination. However, the BCCA’s directions are clear – a deeper analysis of the underlying motivations are not up for challenge. Whatever norms that may have been at play in this case are, in effect, legitimized. ARCH will continue to monitor this case and will provide an update once the BCHRT renders its decision.

August 29, 2019