Case Summary: A father was not able to establish adverse effect discrimination after he refused to work out of town and away from his infant child for several weeks
The Appellant, Envirocon Environmental Services ULC, successfully appealed a Chambers decision. The Chambers Judge had refused to interfere with the Tribunal’s application of the legal test for indirect or adverse effect discrimination. The Court of Appeal held the Tribunal’s decision was patently unreasonable.
Administrative law – Decisions reviewed – Human rights tribunal – Discrimination – Judicial review – Appeals – Standard of review – Correctness – Patent unreasonableness – Employment – Termination of employment
Envirocon Environmental Services ULC v. Suen,  B.C.J. No. 146, 2019 BCCA 46, British Columbia Court of Appeal, February 5, 2019, S.D. Frankel, S. Stromberg-Stein and R. Goepel JJ.A.
The Appellant, Envirocon Environmental Services ULC, hired the Respondent, Mr. Brian Suen, in 2012 and he worked in the Burnaby office. From time to time, he was required to travel to project sites away from home. In September 2015, his wife gave birth to their first child. Mr. Suen returned to work four weeks later in the Burnaby office. On January 20, 2016, the manager of a project in Manitoba resigned unexpectedly and Mr. Suen was assigned to that project. Mr. Suen would be expected to be away for 8-10 weeks without returning home. Mr. Suen refused. Mr. Suen was terminated for cause on the basis of insubordination and a disrespectful manner of communication. He filed a complaint with the BC Human Rights Tribunal (the “Tribunal”) alleging discrimination on the basis of family status. Envirocon pleaded that his dismissal was unrelated to family status.
In December 2016, Envirocon applied to the Tribunal seeking a dismissal of the complaint. The Tribunal refused to dismiss the complaint. The Tribunal held there were two bases on which Mr. Suen may be able to establish discrimination: (1) his employment was terminated because he had become a parent (direct discrimination), and (2) 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 (indirect or adverse effect discrimination).
Regarding adverse effect discrimination, the Tribunal considered the test in Moore v British Columbia, 2012 SCC 61 (“Moore”) and the test in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”). The Tribunal questioned whether Campbell River remained good law. On the third part of the Moore test, Mr. Suen alleged that his employment was terminated because he refused the assignment in Manitoba and he did that on the basis of its infringement on his family status. In considering the Campbell River test, the Tribunal held that Mr. Suen’s absence from his wife and infant for several consecutive weeks, “could be found to constitute serious interference with a substantial or other family duty or obligation”. On this basis, the Tribunal was satisfied that the facts alleged in the complaint could constitute a breach of the Code pursuant to the Moore and Campbell River tests. The Tribunal refused to dismiss the complaint on the basis of section 27(1)(b) of the Code.
In considering section 27(1)(c) of the Code, the Tribunal held that it would be open to the Tribunal to conclude that requiring Mr. Suen’s absence for consecutive weeks, “meets the threshold of ‘something more’ than the usual work/family tensions that every parent faces at some time or another and which Campbell River purports to put beyond the protection of the Code.”
Envirocon applied to the BC Supreme Court seeking judicial review of the Tribunal’s decision with respect only to the indirect or adverse impact discrimination aspect of the complaint. The Chambers Judge reviewed the Tribunal’s decision on a standard of patent unreasonableness. The Chambers Judge held the Tribunal did not make a legal error or apply the wrong legal test because the Tribunal applied both the Campbell River and Moore tests.
Envirocon appealed the Chambers Judge’s decision to the BC Court of Appeal. The Court of Appeal decided it was bound by the decision in Campbell River as it was not sitting as a five-justice division. The Court of Appeal reviewed the Chambers Judge’s decision on a correctness standard. The Court of Appeal held that a patent unreasonableness standard applied to reviewing the Tribunal’s decision because the Tribunal was applying a legal standard.camp
The Court of Appeal further held that the facts alleged by Mr. Suen were not capable of satisfying the second step of the Campbell River test. Mr. Suen had not alleged that his child required special care or that he alone was capable of caring for his child. In other words, he was no different than the vast majority of parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children. This erroneous finding with respect to the second step of the Campbell River test was key to the Tribunal’s decision to allow the adverse effect discrimination aspect of Mr. Suen’s complaint to proceed. The Court of Appeal concluded the decision was therefore arbitrary and cannot stand.
The Court of Appeal allowed the appeal, set aside the Chambers Judge’s order, and quashed the Tribunal’s decision, remitting the matter to the Tribunal for further proceedings relating to the direct discrimination issue.
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@example.com.