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The case involved a human rights complaint from Ms. Harvey, a welder employed at Gibraltar Mines. She alleged she was discriminated against because the company would not provide her with reasonable accommodation so she could meet her childcare and family responsibilities when she returned to work after maternity leave.

The Court was asked to clarify the legal test for family status discrimination. Family status discrimination means discrimination on the basis of a person’s family situation. For example, if a person has children or elderly parents they are responsible for.

The B.C. Supreme Court considered whether an employee can only prove discrimination on the basis of family status when their employer changes a condition of employment. The Court determined that family status discrimination only occurs if an employer changes a condition of employment.

“The B.C. Supreme Court has determined that an employer is not required to provide workplace accommodations, such as a shift change, even when a parent is not able to provide adequate childcare, unless the employer changed the worker’s shift,” said Commissioner Kasari Govender. “As women are often still the primary caregivers of their children, this perpetuates gender inequality in the workforce.”

This requirement to prove that there has been a change in the conditions of employment does not exist when discrimination is alleged on the basis of other protected characteristics, like disability or sex. Similarly, this is a threshold that does not need to be met for family status discrimination in other Canadian provinces with similar human rights protections.

The case was appealed to the B.C. Court of Appeal and on Jun. 21, 2022, the Commissioner was granted intervenor status in the appeal. A hearing took place on Oct. 24, 2022.

On Apr. 21, 2023, the Court of Appeal issued its decision. The Court of Appeal ruled that employees can qualify for a workplace accommodation when any condition of their employment has an adverse effect on an important parental duty. Complainants are not required to show that their employer has changed their terms of employment.

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About interventions

The Commissioner can apply to intervene in court and can intervene as a matter of right in B.C. Human Rights Tribunal cases with the potential to make a significant impact on human rights across the province. Interventions can impact how the law evolves, making them an important tool in systemic work to promote and protect human rights.

If the Commissioner’s request to intervene is approved by a court, BCOHRC provides submissions (also called legal arguments) to the judge in the case in question. These submissions are usually about how to interpret a narrow point of the law. Intervenors do not represent either side in a case; their submissions must be different from the arguments being made by the parties to the case, and submissions must not advocate for either side to win or lose.

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