By Erin Brandt.
In November 2017, we applauded a forward-thinking BC Human Rights Tribunal decision (Suen v. Envirocon) that offered hope for a change in the law relating to family status discrimination.
In that case, Mr. Suen argued that his dismissal for refusing to accept a temporary work transfer to Manitoba, which would have taken him away from his wife and newborn child in BC, was discriminatory on the basis of his family status. The Tribunal found that Mr. Suen had a reasonable prospect of proving this discrimination – i.e. that the work transfer was a serious interference with a substantial parental or other family duty or obligation – and allowed his human rights complaint to proceed.
The employer applied for a judicial review of this decision, but the BC Supreme Court upheld the Tribunal’s findings and dismissed Envirocon’s application. In late 2018, Envirocon continued its attempt to overturn the Tribunal’s original decision and appealed the Supreme Court ruling to BC’s Court of Appeal. Earlier this month, the company’s efforts were rewarded as the Court of Appeal quashed the Tribunal’s decision.
At issue in the appeal was whether the temporary work transfer to Manitoba did in fact result in a serious interference with a substantial parental or other family duty of obligation (i.e. known as indirect or adverse effect discrimination). In allowing the employer’s appeal, the Court of Appeal concluded that:
1. The facts alleged by Mr. Suen established only that he was a parent.
2. While Mr. Suen’s desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends was “understandable and commendable”, he is no different than “the vast majority” of parents.
3. There are “many 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.
4. There was nothing in the facts to suggest that Mr. Suen’s child “would not be well cared for in his absence”.
As such, Mr. Suen is now precluded from pursuing a human rights complaint against his former employer for adverse effect discrimination. He is now limited to arguing that he was fired because he had become a parent, and that such firing was discriminatory under the Human Rights Code. The “serious interference with a substantial parental obligation” argument is no longer available to him.
As we noted in our 2017 post, the Tribunal’s original decision in Suen not only opened the door to broadening protection for BC parents asserting family status discrimination in BC, it also included progressive commentary about a father’s role in the family. Unfortunately, the Court of Appeal’s decision effectively silences those comments and essentially dismisses the idea that fathers are more than ancillary to their children’s lives.
Will the highest Court in the land eventually weigh in on this issue? Stay tuned.