Brian Suen v. Envirocon Environmental Services, ULC, et al.
(B.C.) (Civil) (By Leave)
Human rights - Human rights — Discrimination in employment — Discrimination based on family status — Nature of the test for prima facie discrimination on the ground of family status — Whether the settled test for prima facie discrimination should apply to claims of discrimination on the ground of family status — If not, what test should be applied to determine whether prima facie discrimination based on family status is made out — Human Rights Code, R.S.B.C. 1996, c. 210.
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Mr. Suen started working in the Burnaby office of Envirocon Environmental Services, ULC, as a project manager in 2012. The position required some travel to project sites. In 2015, his wife gave birth to their first child. In January 2016, the manager of a project in Manitoba resigned unexpectedly, and the Director of Projects assigned Mr. Suen to manage that project for eight to ten weeks. Envirocon would not pay for him to return home until the end of the assignment. After discussion by email, Mr. Suen informed the Director of Projects that he would not be accepting the assignment out of consideration to his wife and child. He was given an opportunity to reconsider, and was warned that he would be dismissed if he did not accept the assignment, but, when he did not change his mind, he was informed that his employment had been terminated, effective immediately.
Mr. Suen filed a complaint under the Human Rights Code, R.S.B.C. 1996, c. 210, s. 13(1), alleging that Envirocon had discriminated against him in relation to employment. Envirocon made a preliminary application to dismiss the complaint. The British Columbia Human Rights Tribunal held that Mr. Suen might be able to establish direct discrimination based on the termination of his employment due to his having become a parent, or indirect or adverse effect discrimination based on 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. Envirocon accepted that there would be a hearing of the direct discrimination complaint, but requested judicial review, seeking to limit the hearing to the existence of that complaint. The chambers judge dismissed the petition, finding that the decision not to dismiss the complaint was discretionary and entitled to deference. The Court of Appeal allowed a further appeal and set aside the Tribunal’s decision, holding, based on Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, that the facts alleged could not establish that the change in the term or condition of employment had resulted in a serious interference with a substantial parental or other family duty or obligation.
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