BC Human Rights Update November 2021
Author: Mike Weiler, KSW Lawyers Employment & Labour Group
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Interesting developments in the Human Rights area that our readers should be aware of.
BC HUMAN RIGHTS TRIBUNAL GOING OUT OF THE SUMMARY DISMISSAL BUSINESS
When a Human Rights complaint is filed an employer respondent has the option of bringing an Application to Dismiss the Complaint by way of a summary application under section 27 of the Code. The Tribunal is empowered to dismiss the complaint at an early stage if for example it determines there is no reasonable prospect of success. This important gatekeeper function often eliminates the need for a lengthy and expensive oral hearing on the merits. Employers are remarkably successful in having unmeritorious complaints dismissed under this provision.
However the Tribunal is facing unprecedented delays in processing complaints and has a large number of outstanding applications to dismiss. These applications can take well over a year to process in many cases. As a result on November 8th 2021 the Tribunal issued a practice direction headed “Emergency Pause on New Applications to Dismiss”. As a result the Tribunal will not accept new applications to dismiss under section 27 effective immediately and this pause will remain in effect until further notice.
The Tribunal notes that “given the recent significant increase in case volume and the resulting backlog, the Tribunal is beginning a review of its process, including seeking public input, and expects to replace this practice direction in early 2022.”
Here is a link to their update.
“FAMILY STATUS” LAW IN BC BEING CHALLENGED
One of the protected grounds of discrimination under the BC Human Rights Code is “family status”. Family status discrimination continues to be an area in which the law differs across Canada. In British Columbia, the test for family status discrimination has been more stringent than in other parts of Canada for the past 15 years. This ground of discrimination has been given a fairly restrictive interpretation by our Court of Appeal in the seminal decision of HSA v Campbell River and North Island Transition Society, 2004 BCCA 260. Since then many have tried to challenge this more stringent test to match the rest of Canada. Then in 2019, the BC Court of Appeal confirmed the stringent test from Campbell River as follows:
[…] 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.
Envirocon Environment Services, ULC v. Suen, 2019 BCCA 46
Now the test is being challenged again in a judicial review of a 2020 BC Human Rights Tribunal decision (Gibralter Mines Ltd. v. Harvey, 2021 BCSC 927). Gibralter Mines Ltd. (the employer) brought an application to dismiss the complaint made against them based on family status by an employee returning from maternity leave who requested a change in hours of work. The employer relied on the Campbell River decision to advance their argument that there was no discrimination based on family status in this case as there was no change made in a term or condition of employment. That application was dismissed by the Tribunal. Gibralter then has brought a judicial review of that decision to the BC Supreme Court, and the hearing occurred at the end of October over the course of 3 days. The court was asked to consider if Campbell River is still law and how it should be interpreted. One of the key arguments the Tribunal made against the employer and the test is that Step 1 of Campbell River (the need for a change or term of employment) is not a requirement and was never intended to be a step of the test.
This is a very important judicial review application for employers. If the court allows an expanded definition of family status then employers will likely be faced with many more complaints based on this ground since no change in terms of employment will be needed to prove discrimination.
Judgment was reserved at the conclusion of the hearing, so we will report back on this decision as soon as it is available, likely in 3-6 months – stay tuned.
BC HUMAN RIGHTS TRIBUNAL PROVIDES UPDATED GUIDANCE ON VACCINATION POLICIES
In July 2021 the Human Rights Commissioner issued a policy guidance paper on the approach to be taken in respect of proof of vaccination during the COVID 19 pandemic. That policy was updated by the Commissioner on October 14th 2021. Here is a link to the policy.
We covered recent arbitration decisions on the enforceability of mandatory vaccination policies in our most recent articles.
Our Employment & Labour Group has been working with businesses to educate, develop and draft the right policies and contracts for their workplace and are here to help! Get in touch today.
Mike Weiler is senior counsel with the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Mike works closely with Chris and specializes in labour law and helping unionized employers with Labour Relations and Union Advice. Mike has more than 44 years of experience practicing employment, labour and human rights law, and related areas, including governance and shareholders rights (and corporate defences to same). He represents employers, management, executives and other senior employees. You can reach Mike by email at firstname.lastname@example.org.
Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, the Vice President of Greater Langley Chamber of Commerce and a Director for Surrey Cares.
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