Article by: Janna Crown, Brandon Hillis + James D. Kondopulos
In Gibraltar Mines Ltd. v. Harvey, 2022 BCSC 385, for the second time in three years, the BC courts have reaffirmed the two-part test for determining whether an employee is entitled to accommodation based on family status (caregiving obligations).
First articulated by the BC Court of Appeal in 2004, the Campbell River test, as the test has come to be known, requires an employee seeking accommodation of parental or other caregiving obligations to establish that:
- the employer has made a unilateral change in a term or condition of employment; and
- such change results in a serious interference with a substantial parental or other family duty or obligation.
In its 2019 decision in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46, the BC Court of Appeal confirmed that the Campbell River test remains good law in British Columbia. A full analysis of the Envirocon line of cases can be found here.
- Lisa Harvey was an employee of Gibraltar Mines at its mining operation north of Williams Lake.
- While on maternity leave, Ms. Harvey requested adjustments to her work schedule to address a childcare issue.
- Gibraltar refused the adjustments Ms. Harvey requested. It, however, offered alternatives but those were rejected by her.
- Harvey then filed a human rights complaint against Gibraltar. She alleged that the rejection of what she had requested constituted discrimination in employment on a number of protected grounds, including family status.
- Gibraltar applied to dismiss Ms. Harvey’s human rights complaint and took the position that she had failed to satisfy the first step of the Campbell River test: there had been no change in her pre- and post-leave work schedules.
The BC Human Rights Tribunal allowed all of the application to dismiss Ms. Harvey’s complaint with the exception of the portion related to alleged discrimination on the basis of family status. Notwithstanding the Court of Appeal’s recent confirmation of the Campbell River test in Envirocon, there was no need, the Tribunal suggested, to show a change in a term or condition of employment in order to establish entitlement to accommodation on the basis of childcare obligations.
Judicial review proceedings
On judicial review before the B.C Supreme Court, Gibraltar advanced a number of arguments but relied heavily on the Court of Appeal’s decision in Envirocon. It argued that the Tribunal’s interpretation of the Campbell River test was incorrect and amounted to an error of law, and asked that the Tribunal’s decision be quashed.
Gibraltar was ultimately successful. The Court held it was bound, as was the Tribunal, by Envirocon as a matter of law and precedent and, that being the case, the Tribunal’s decision to allow Ms. Harvey’s family status discrimination case to continue was wrong and could not stand:
Even if [the Court of Appeal’s] references [in Envirocon] to the first part of the two-part test [in Campbell River] are obiter, there is nothing incidental or collateral about them. In my view, in affirming Campbell River as establishing a two-part test that includes a requirement for a change in a term or condition of employment, the Court of Appeal in [Envirocon] clearly intended to provide guidance. This part of the decision must be treated as authoritative and is therefore binding. It follows then that … I must conclude that the Tribunal’s interpretation of BC’s test for prima facie family status discrimination in employment was incorrect.
Takeaways for employers
This case represents an important victory for employers in British Columbia. It confirms once again that before any accommodation based on family status (caregiving obligations) is required by law, an employee must establish:
- a unilateral change by the employer in a term or condition of employment; and
- such change has resulted in a serious interference with a substantial parental or other family duty or obligation.
Perhaps unlike the tests applied in other jurisdictions in Canada, the Campbell River test strikes an appropriate balance between employee and employer rights when addressing the inherent and ever-changing tension between work and family obligations.
This article was written by James D. Kondopulos, Brandon Hillis, and Janna Crown. James and Brandon were counsel for Gibraltar Mines Ltd. in the judicial review proceeding.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.