Tough Luck: The Failures of British Columbia Human Rights Legislation in the Arena of Workplace Family Status Discrimination

by Sophie Chase, 2024 winner of the Labour and Employment Law Section Student Essay Contest.

“The question of what constitutes a prima facie case of family status discrimination has been the source of considerable ‘uncertainty and controversy’ in the human rights arena…”
Justice Rosalie Abella, Fraser v Canada (Attorney General)¹

“…the family embodies the principle of selfishness, exclusion and pursuit of private interest and contravenes those of altruism, community and pursuit of the public good. Society is divided into families and the divisions are deep, not merely ones of slight antipathy and mild distrust.”
Michèle Barrett, “The Anti-Social Family”²

INTRODUCTION

Since the inception of human rights legislation in the 1940s, Canadian courts and tribunals have consistently mandated that employers uphold a fundamental obligation: to cultivate workplaces “free from discrimination”.³ This imperative remains central to the employer-employee relationship, echoing an enduring commitment to fostering environments of equality and fairness.

First recognized in Ontario in 1981, family status remains Canada’s most recently codified ground of discrimination.⁴ Since 1981, as more employees have sought protection from family status discrimination (“FSD”), employers have continued to push back – hard.⁵ For employers, the extensive range of familial ties among employees have made the parameters of FSD appear limitless, thereby posing an imminent disruption to the workforce.⁶

Permeating judicial consideration, employer fear led to the development of more stringent criteria for FSD, compared to all other grounds of discrimination wherein the Meiorin/Moore test (previously Meiorin/O’Malley test) governed.⁷ A fragmented assessment of FSD ensued, with federal applications following the Johnstone v Canada model, Ontario applications following the Misetich v Value Village Stores Inc model, and Alberta applications referencing the Meiorin/Moore test.⁸ By far, the most restrictive of these models was the Health Sciences Assoc of BC v Campbell River (“Campbell River”) test, which governed the application of FSD in British Columbia.⁹

Campbell River prohibited FSD claims that were permissible in nearly every other jurisdiction by requiring employees to prove that their FSD resulted from an employer’s change to a term or condition of employment (the “Threshold Restriction”). Under Campbell River, employees also had to prove that the employer-imposed change led to a serious interference with a substantial parental or other family duty or obligation (the “Materiality Restriction”).¹⁰ Fifteen years after its introduction, the Court in Harvey v Gibraltar Mines Ltd (“Gibraltar Mines”) overturned the Campbell River Threshold Restriction.¹¹ Unfortunately, the Materiality Restriction persisted, as employees must still prove that, due to a change in life, work, etc., their employment seriously interferes with a substantial familial obligation.

This paper argues that the Materiality Restriction limits the ability of parenting triads, mothers, fathers, and same-sex parents (together the “focus classes”)¹² to make out a successful claim in FSD. Further, this paper considers the harm of such a limitation, claiming that the Materiality Restriction generates physical and psychological vulnerability for the focus classes.¹³ ‘Physical vulnerability’ arises when a lack of support in managing work/family conflict forces individuals to prioritize work over family, often leading to precarious employment situations.¹⁴ ‘Psychological vulnerability’ arises when individuals face invasive questioning about their efforts to manage work/family conflict before seeking employer support, potentially damaging their sense of parental success.¹⁵ Considering these forms of vulnerability, this paper advocates for the removal of the Materiality Restriction.

This paper is divided into four parts. Part one investigates the history of human rights legislation, and FSD, to contextualize the Materiality Restriction and draw parameters around the application of this paper. Part two introduces the focus classes, connecting their difficulty in successfully making out a case of FSD to the Materiality Restriction. Part two’s emphasis on the increase in vulnerability experienced by the focus classes, at the hands of the Materiality Restriction, informs part three. Part three argues that the Materiality Restriction contradicts the broad principles of human rights legislation. Bearing this contradiction in mind, part four advocates for a return to the Meiorin/Moore test and further FSD law reform.

PART ONE: Human Rights Legislation, FSD, and a Complicated Web of Tests

a. The Early Years of FSD

Across Canada, early human rights legislation afforded protection against discrimination on the grounds of race, religion, ethnicity, and place of origin.¹⁶ In the 1970s, Canadian jurisdictions created consolidated human rights acts or codes, having prior to this point spread their protections throughout numerous statutes and regulations. It was at this consolidation stage that human rights legislation expanded to include the grounds of age, disability, political belief, sexual orientation, record of criminal conviction, dependence on alcohol or drugs, and source of income.¹⁷

Ontario was the first province to include family status as a protected ground in 1981. In 1992, the British Columbia Human Rights Code (the “Code”) also recognized family status as a protected ground.¹⁸ Now, section 13(1) of the Code, addressing protection against discrimination in the workplace, reads:

A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment

because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted…¹⁹

Recognition of FSD exists beyond section 13, as the Code at sections 10, 8, and 7 respectively link FSD to housing, services, and publications.²⁰ Sections 10, 8, and 7 are outside the scope of this paper. Instead, this paper addresses the uncertain and controversial application of FSD within the workplace.²¹ In Fraser, Justice Abella not only linked the inconsistent and unclear application of FSD at the human rights level to its current inadequacy for Charter protection, but also correlated such inconsistency with the case of Campbell River.²² Thus, in arguing for a return to the Meiorin/Moore test, this paper’s impact goes beyond the reduction of focus class vulnerability and, by suggesting avenues for further clarity in the FSD scheme, moves toward establishing Charter protections against FSD.

b. Meiorin/Moore, the Classical Test for Human Rights Discrimination

Determining whether discrimination amounts to a breach, on every ground besides family status, involves consideration of the two-stage British Columbia v BCGSEU (“Meiorin”) analysis. At the first stage, a complainant must establish a prima facie case of discrimination (the “Prima Facie Stage”). Once a complainant has satisfied the Prima Facie Stage, and an employer seeks to justify their discrimination, the employer must prove the existence of a bona fide occupational requirement. This second stage is outside the scope of this paper.²³

In 2012, the Supreme Court of Canada (“SCC”) in Moore v British Columbia (“Moore”), like in Ontario Human Rights Commission v Simpsons-Sears (“O’Malley”), further particularized the Meiorin Decision. This time, the SCC mandated that an employee prove that (1) they have a characteristic which is protected under the appropriate code, (2) they have experienced an adverse effect with regard to their employment or a term of that employment, and (3) the protected characteristic (from (1)) was a factor in the adverse treatment (from (2)).²⁴ Every ground of discrimination, besides FSD, requires satisfaction of the three Moore requirements and nothing more.²⁵

c. The History of the Campbell River Test

Modifying the Meiorin/Moore test in relation to FSD, the Court in Campbell River held that an employee must satisfy two elements, in addition to the Moore three part-test, to successfully make out a Prima Facie case. First, an employee must prove that their employer has caused a change in a term or condition of employment (the Threshold Restriction), and second that this change has resulted in a serious interference with a substantial parental or other family duty or obligation (the Materiality Restriction).²⁶ Some academics, in support of the legitimacy of Campbell River, claim these restrictions to be no more than a detailed breakdown of the three Moore requirements.²⁷ Many more academics list Campbell River to be the most onerous application of human rights protection.²⁸

Gaining affirmation in Envirocon Environmental Services, ULC v Suen and numerous other decisions, the Campbell River approach persisted until Gibraltar Mines.²⁹ Acting as intervener in Gibraltar Mines, the British Columbia Office of the Human Rights Commissioner (the “BCHRC”) asked the Court to consider Campbell River’s perpetuation of gender inequality.³⁰ More specifically, the BCHRC argued that, given women’s primary role in familial caregiving, the Threshold Restriction’s limitation of protection against FSD to the context of ‘employer-induced change’ disproportionately impacts women over men. In effect, women are compelled to manage their work/family conflicts on their own, often resorting to part-time or unstable employment and accepting reduced wages, limited benefits, fewer chances for advancement, and sometimes little to no retirement benefits.³¹

The British Columbia Court of Appeal (“BCCA”), in Gibraltar Mines, ultimately overturned the Campbell River Threshold Restriction. However, instead of leaning into the BCHRC’s feminist lens reasoning, the BCCA adopted a statutory interpretation model. The Court concluded that “there is nothing in the context of the Code that would limit the protection of s.13(1)(b) to circumstances arising from a change in a term and condition of employment.”³² Concluding otherwise, as dictated by the BCCA, would be contrary to the object of the Code which instead emphasises an expansive and unrestrictive approach to the interpretation of its provisions.³³

d. Breaking down the Materiality Restriction

The Materiality Restriction outlived Gibraltar Mines, resulting in what the BCHRC could only deem a partial win. Per Gibraltar Mines, the Materiality Restriction is inclusive of three requirements. First, a claimant must hold a parental or other familial duty or obligation. Second, this duty or obligation must be substantial. Third, the conflict between employment and the cited duty or obligation must be serious.³⁴ This analysis rarely turns on the third requirement as, among other reasons, litigation costs dissuade bringing non-serious conflicts to trial or arbitration.³⁵

The impacts of requirements one and two are the focus of this paper. Under the first requirement, ‘other familial duty or obligation’ is often applied in connection to the needs of a sibling, aunt/uncle, cousin, or other close relative.³⁶ Caring for an elderly parent (like the more obvious caring for a child) is often classified as a ‘parental… duty or obligation’, given its reference to the parent/child relationship.³⁷

The second requirement incorporates a further legal framework, depending in large part on the self-accommodation analysis.³⁸ Self-accommodation, in the context of the Materiality Restriction, investigates whether a parent/relative has taken sufficient steps, on their own, to reconcile their work/family conflict before turning to their employer for accommodation.³⁹ Such an expectation, in the context of a parent/child relationship, is dictated by the courts as requiring that a parent look into the availability of other caregivers, canvas daycare options, and avoid partaking in any activities that conflict with work.⁴⁰ However, in reality, investigation into the steps a parent has taken to self-accommodate is often much more invasive.⁴¹

PART TWO: The Materiality Restriction and its Scheme of Vulnerability

a. Unpacking Requirement One – Parents, Parental, and Familial

Many areas of family law offer a broad base on which to argue one’s guardianship by permitting ‘parent-like’ relationships to fulfil definitions of ‘parent’.⁴² Seeking to limit those who can claim protection from FSD, the Materiality Restriction only permits ‘true’ parents (or children caring for their elderly parents) to claim a ‘parental…duty or obligation’.⁴³ Kenworthy v Brewers’ Distributor (“Kenworthy”)exemplifies this limitation, as the Court held that to successfully claim FSD “Ms. Kenworthy would have to show that she was a parent with particular parental obligations.”⁴⁴

By limiting the ‘parental… duty or obligation’, to the more restrictive parent/child relationship, the Materiality Restriction relies on the conceptual lag between the “law’s families” and the actual “families we live with”.⁴⁵ Three cases – AA v BB (“AA”), CC (Re) (“Re CC”)and British Columbia Birth Registration No. 2018-XX-XX5815 (Re) (“Re BC Birth Registration”)⁴⁶ – have spearheaded the closing of this gap. Legislation, however, has largely yet to catch up. Thus, ‘the laws’ families are still often defined in statute along the lines of tradition, blood and relation.

In AA, the Ontario Court of Appeal (“ONCA”) permitted a third custodial parent to be named on a birth registration.⁴⁷ Arriving at this decision, the Court considered the evolution of societal circumstances and perspectives over the last few decades. They noted that it is now commonplace for a child’s parents to consist of two biological parents, and a ‘third’ individual tied to the biological parents by a romantic relationship.⁴⁸ Identifying that past courts have limited ‘parent’ to only those biologically tied to the child, the Court in AA, broadening jurisprudence, concluded that the ‘third’ individual is just as much the guardian of a child as any adoptive or biological parent.⁴⁹ At the time, the Court’s finding was not supported by the Children’s Law Reform Act (“CLRA”). Instead, section 4(1) of the CLRA stated that “any person having an interest may apply to a court for a declaration that a male person is recognized in law to be the father of a child or that a female person is the mother of a child.”⁵⁰ The Court in AA held that section 4(1)’s use of “the” connotes only one of a mother and a father.⁵¹

Following AA (and its unsuccessful attempt at modifying the CLRA), nine families initiated Grand v Ontario, againcontesting the constitutionality of the CLRA’s intolerance of diverse sexual orientations and, more broadly, LGBTQIA+ rights.⁵² Settling this issue, Ontario introduced the All Families are Equal Act (“AFAEA”), providing that:

parentage will be defined and recognized in such fashion as to acknowledge the possibility of more than two parents. A maximum of four parents will be recognized by administrative process and judicial declarations of parentage will still be available in circumstances for more than four parents, having regard to a child’s best interests.⁵³

The result following Re CC and Re BC Birth Registration did not see the same ‘closing of the conceptual gap’, as Grand v Ontario, between the “laws’ families” and the “families we live with”.⁵⁴ In Re BC Birth Registration, three individuals in a polyamorous triad had a child; two of these individuals (a woman and a man) were biologically related to the child, and the ‘third’ (a woman) was not. As the ‘third’ individual was not afforded parentage upon the child’s birth, the trio sought a declaration of parentage for the ‘third’ individual, and a subsequent amendment to the child’s birth record.⁵⁵ At the time, the Family Law Act (“FLA”) prohibited three parents from being named on a child’s birth registration.⁵⁶ Responding to this provision, the BCSC stated that “the legislature’s attention when drafting the FLA was not on modernizing the provisions relating to children conceived through sexual intercourse… [and as such] there is a gap in the FLA .”⁵⁷ To put it more bluntly, the court in Re BC Birth Registration noted that “the legislature did not contemplate polyamorous families.” This non-contemplation was chalked up to (a) changing social conditions and attitudes or (b) a simple oversight.⁵⁸ Either way, the Court held the FLA to inadequately recognize that all three parents were deserving of parentage status.⁵⁹ The Court in Re CC, considering facts very similar to those in Re BC Birth Registration, arrived at the same conclusion in relation to the Newfoundland and Labrador Children’s Law Act.⁶⁰

Since Re BC Birth Registration the FLA has not changed, still stating at section 26(1) that “on the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child's biological father.”⁶¹ Thus, under the current FLA a ‘third’ individual, not involved in sperm donation or acting as a surrogate, will be presumed to hold no parentage.⁶²

In the wake of the AFAEA, Ontario leads the law on inclusive definitions of ‘parent’ and ‘family’, finally entrenching a model which focuses on care and commitment rather than tradition and biology. Unfortunately, in British Columbia, due to the FLA’s continued limitation of parentage to two individuals, the Materiality Restriction’s ‘parental… duty or obligation’ requirement prohibits the nonbiological (and ‘nontraditional’) ‘third’ individual from successfully claiming FSD.

Care and commitment are charged notions in any legal rule/principle that is tied to family. For example, mother, as defined by the Dictionary of Canadian Law, includes a clear care component.⁶³ However, care “is not present in the legal dictionary’s definition of stepparent… which [instead] turns on the spousal relationship with the child’s birth or adoptive parent, rather than a care relationship between the step-parent and the child.”⁶⁴ Like in the definition of stepparent, the ‘third’ individual’s most apparent connection to their child is often through another parent, in the form of marriage. It is well discussed in social-science literature that LGBTQIA+ persons are less likely than heterosexual persons to marry.⁶⁵ Requiring the ‘third’ individual to relate to their child through a spouse is thus not only reductive of the unique child/parent relationship that ‘third’ individual holds, but it is more onerous when that ‘third’ individual is LGBTQIA+. Adding to this complexity is the fact that marriage involving more than two people is still illegal in Canada.⁶⁶ Ultimately, the ‘third’ individual, void of a clear ‘parental… duty or obligation’, is less likely to be accommodated by their employer (at least in relation to their family) and more likely to face physical vulnerability upon being rerouted to precarious forms of work.⁶⁷

Non-traditional parents are not only excluded from claiming accommodation under the Materiality Restriction’s ‘parental… duty or obligation’ clause, but its ‘other familial duty or obligation’ clause as well. For example, in Athwal v Sandhu and others,under application of the Materiality Restriction, the Court noted that “family status can arise … where someone suffers an adverse impact because of their status as a parent or a child or a relative.”⁶⁸ Relation is also emphasized in Canada Post Corp v CUPW, as Arbitrator Lanyon held that “every family experiences some difficulties with their family obligations, whether it be children, parents or other relatives.”⁶⁹ This use of “relative(s)” solidifies that FSD, irrespective of whether it is defined as a ‘parental’ or ‘other familial’ duty or obligation, is focused quite solely on tradition and biology.

b. Unpacking Requirement Two – Substantial Duties and Obligations

In Gibraltar Mines, the BCCA held a ‘substantial… duty or obligation’ to require investigation of the “characterization between parental or other family duties that may be regarded as substantial as opposed to more ordinary family responsibilities.”⁷⁰ Such a requirement goes to self-accommodation, dictating that parents claiming FSD must demonstrate their efforts to overcome their work/family conflict. Where there is proof that numerous steps have been taken, yet the conflict persists, the given obligation or duty is more likely to be deemed substantial.⁷¹

Social-science literature supports that mothers, more than fathers, face a significant hurdle in proving that their parental obligation/duty rises above the ordinary. Due to societal expectations that a mother be competent at accounting for childcare, school, and medical appointments, Fuegen et al, concluded that “a good mother [was seen to] perform [ ] more childcare behaviors than a good father”.⁷² More recently, Albiston and Correll affirmed this double standard, holding that “working mothers [are] in a double bind because either they are assumed to put family ahead of work or, if they do not, they are disliked and penalized because they should put family first.”⁷³

On the flip side, given fathers’ historic lack of participation in home life, academics have argued that fathers are often at a ‘burden’ or ‘presumption’ disadvantage when appearing before the court on custody matters.⁷⁴ In Suen,the Court enumerated that both men and women experience stereotypical views regarding childcare. For women, such views concern their place in the private sphere and their responsibility to care for their children unconditionally. For men, stereotypical views foretell their poor participation in the family sphere, excluding them from childcare and “inclusion in dialogue surrounding how to balance the responsibilities of work and family”.⁷⁵

Noting the harm inherent to the perpetuation of these stereotypes, the Court denied Envirocon’s argument that Mr. Suen’s lack of any “special skill or ability”, in childcare, proved that Mr. Suen could not possibly hold a ‘substantial parental… duty or obligation’.⁷⁶ The Court held that such a position “so minimized the role of a father in a child’s care as to run counter to the purposes of the Code”.⁷⁷ Not only did the Court hold Envirocon’s position contrary to the Code’s purpose but, in stating that “Campbell River could open the door to such restrictive interpretations”, they also noted the source of such a position.⁷⁸ Following Suen, the Materiality Restriction can be recognized as burdening fathers and mothers alike – rendering both classes unable to convince their employers that the duties they owe their children are in fact ‘substantial’.

By permitting employers to demand their employees prove the ‘substantial’ nature of their parental or familial duties, prior to receiving employer assistance, the Materiality Restriction enables employers to seek personal disclosure of their employees. Such disclosure, meant to convince an employer that a mother or father has first taken all the steps within their power before requesting help from their workplace, is generative of psychological vulnerability. Parents are required to disclose all they can (regardless of perceived privacy) as mothers must challenge the notion that their childcare responsibility is an ordinary duty shared by all parents, and fathers must counter the perception that their childcare obligation is insignificant and trivial.⁷⁹

In SMS Equipment Inc v Communications, Energy and Paperworkers Union Local 707, the Court recognized the invasive nature of the Materiality Restriction, stating that a grievor may be asked to divulge “the biological [circumstances] of [their] children, [their] choice of caregivers for [their] children and [their] personal financial circumstances.”⁸⁰ Such a query arose among the facts of Miraka v ACD Wholesale Meats, as an employer asked an applicant why they had not attempted to obtain a babysitter on Craigslist or Kijiji to care for their young children during an emergency.⁸¹ Further, in Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, the grievor’s employer asked, in cross-examination, whether the grievor’s husband, who owned and operated a restaurant and was unavailable to provide childcare, viewed his business as a greater priority than his children.⁸² Such judgement-based-inquiries beget internalization that one is inadequate as a parent/caregiver. In turn, psychological vulnerability leads to physical vulnerability, as employees seek to avoid the same harmful conversation in the future.⁸³ Again, lack of protection against FSD leaves an employee to balance their work/family conflict alone, likely having to concede workplace securities to care for their children.⁸⁴

When discussing vulnerability experienced by mothers and fathers, it becomes essential to consider the concept of intersectionality. Coined by Kimberlé Crenshaw in the late 1980s, intersectionality describes how overlapping social identities relate to social structures of oppression.⁸⁵ In Thibaudeau v Canada, Justice L’Heureux Dubé and Justice McLachlin model an intersectional approach, finding that parental identities often require protections on the basis of sex, marriage, and family status.⁸⁶ Thus, while the Materiality Restriction is noted to generate vulnerability for both mothers and fathers, the application of an intersectional approach indicates greater vulnerability for mothers, as their sex predisposes them to lower pay and precarious work.⁸⁷

The intersectional approach can also accommodate consideration of sexual orientation. Gay and lesbian parents are often impacted by the presence of covert or overt homophobia in the workplace. Much literature emphasizes the ease in which “managers… react in knee-jerk fashion based on their own experiences and expectations or because of biases they may not even know they have.”⁸⁸ Employers are not quick to afford fathers in a same-sex relationship with family status accommodations.⁸⁹ While the same data is not available for lesbian parents, in general LGBTQIA+ parents experience greater psychological vulnerability when required to prove their parenting competencies.⁹⁰ This experience is primarily due to the internalization of social-historical stigmas, which leave lasting impressions on LGBTQIA+ individuals that they will be unjustly persecuted (i.e., referred to social/child services with little to no reasoning).⁹¹ Such fear is not unfounded, as in Massey, Merriweather, and Garcia, participants rated the same scripted negative parenting behaviour to be more undesirable when read by same-sex parents versus opposite-sex parents.⁹² It is not novel that fear of invasive investigation limits the amount that many LGBTQIA+ individuals wish to ask their employers for aid or benefits.⁹³ Responsibilities surrounding children, and consequences related to judgment in the parenting arena, only make this fear greater.⁹⁴ Thus, investigations leading to proof that one’s parenting duty or obligation is ‘substantial’ reduces the number of accommodation requests made by LGBTQIA+ parents.

The psychological vulnerability perpetuated by the Materiality Restriction does not stem from requiring self-accommodation, but rather from granting employers unrestricted investigative authority. This authority enables employers to demand that employees present, and be available for questioning on, all the self-accommodation measures they have undertaken. The invasion and judgement associated with this employer power leads to employee internalization of notions related to inadequate parenting as well as non-desire to seek future accommodation.

Interestingly, self-accommodation is commonly utilized within human rights analyses. However, under all other grounds of discrimination the potential for such an analysis to provide unfettered investigative abilities to employers is limited by (1) removing qualifiers like ‘substantial’ and (2) grouping self-accommodation considerations under Meiorin stage two.⁹⁵ By the second stage of Meiorin an employee has already made out a prima facie case of discrimination, and the burden has flipped to the employer to prove that the bona fide occupational requirement justifies such discrimination.⁹⁶ Investigations into self-accommodation, at this second stage, when the burden is on the employer, allow accommodation to be a give-and-take consideration rather than a one-sided investigation into whether an employee has satisfied their employer that they require aid.⁹⁷

Employers have expressed concerns about deferring the accommodation discussion to stage two of the Meiorin test, arguing that it may reduce employees’ motivation to engage in resolving their own work/family conflicts.⁹⁸ However, employers fail to recognize that on every other ground of discrimination, besides FSD, the accommodation conversation is treated as a “multi-party inquiry”.⁹⁹ For example, in cases alleging discrimination on the basis of disability, an employee must prove (under the stage two analysis) that they advised their employer that they need accommodation, that they offered relevant medical data, and that they accepted some of the employer’s reasonable accommodation offers.¹⁰⁰ If the employee cannot prove they took these steps then an employer will likely succeed on Meiorin stage two.

PART THREE: The Materiality Restriction and the Broader Goals of Human Rights Legislation

In United Nurses of Alberta v Alberta Health Services (“United Nurses”) the Court held that human rights legislation must be applied in a broad and liberal manner to best achieve its remedial purposes.¹⁰¹ Similarly, in Canadian National v Canada (Canadian Human Rights Commission), the Court stressed the importance of interpreting human rights legislation to fully achieve its goals and objective – also emphasizing that human rights are “individual rights of vital importance… [that] should not be minimize[d] or enfeeble[d].”¹⁰² In essence, human rights should be interpreted and applied as broadly as possible.¹⁰³ By restricting the ‘third’ individual in a triad relationship, mothers, fathers and same-sex parents access to protection against FSD, the Materiality Restriction contradicts a broad application.

The overlap between the focus classes implies that nearly every individual claiming FSD, on the basis of a parent/child relationship, will face resistance and be nudged towards precarious work.¹⁰⁴ As argued in Commission scolaire régionale de Chambly v Bergevin, and outlined in the opening statements of this paper, employers are obliged to address workplace discrimination to reduce the harm their employees experience.¹⁰⁵ The Materiality Restriction does the opposite, permitting employers to heighten employee vulnerability rather than mitigate harm against them.

PART FOUR: Legal Reform

a. A Return to the Meiorin/Moore Test

The Materiality Restriction should be retired. As argued throughout this paper, the Materiality Restriction limits the ability of the focus classes to successfully claim FSD, in turn perpetuating physical and psychological vulnerability. Caselaw, like United Nurses, supports the removal of the Materiality Restriction, as the courts have affirmed the sufficiency of the Meiorin/Moore test in governing FSD.¹⁰⁶

However, in advocating for the application of the Meiorin/Moore approach it is essential to consider, as stated by Justice McLachlin in Meiorin, that “conventional analysis shields systemic discrimination from scrutiny”.¹⁰⁷ In 2023, the Meiorin/Moore approach has become conventional and as such this paper also considers legal reform beyond a return to Meiorin/Moore.

b. Beyond Meiorin/Moore

Firstly, when addressing requirement one of the Materiality Restriction, regarding the definitions of ‘parent’ and ‘other family’, British Columbia could benefit from adopting the progressive and inclusive definitions found in the AFAEA and the updated CLRA. Such amendments to the FLA would reflect a more care-based understanding of parentage and family structures.¹⁰⁸ Most basically, such definitions should permit more than two parents to claim parentage, at the birth of their child, without having to attend court and seek an order.

Regarding this paper’s examination of the second Materiality Restriction requirement, and its use of the term ‘substantial’, focus should be directed towards improving workplace education and policies. Policies might offer a bank of family care-days to be used at employee discretion and without investigation. Workplace policies could also incorporate permanent work-from-home provisions, or other measures which emphasize flexibility. More generally, workplace polices must encompass fair treatment and non-discrimination provisions, undergoing regular review to ensure conceptual gaps between articulation and reality do not arise. Competency courses, lunch learn-ins, and other campaigns could also aim at diminishing family status biases, bringing awareness to non-traditional family forms and reducing homophobia in the workplace.

Finally, more precise requirements surrounding accommodation could address employer concerns over the recognition of FSD. These guidelines might include obligations on employees to notify employers of any conflicts they are experiencing (with enough employer response time). Employees might also be instructed to canvas co-worker availability before they request that their employer investigate shift-change potentials or any other needed accommodations.

c. Allowing Social Science Evidence to Guide Legal Reform

As noted in Perryman, social science evidence is increasingly being utilized in the constitutional and human rights context, often with positive outcomes for “historically disadvantaged litigants”.¹⁰⁹ For instance, in Canada v Bedford the SCC used social science evidence to find that section 213(1)(c) of the Criminal Code violated sex workers’ right to security of the person. In reaching this decision, the SCC ruled that the principle of stare decisis need not apply when there is a “change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”¹¹⁰ Canada v Bedford is not the only case which equates a shift in shared social values to a change in circumstances; in the Reference re Same-Sex societies evolving understanding of marriage was tantamount to the Court’s ruling.¹¹¹

Recent social science literature concerning the family has emphasized an abolitionist rhetoric, critiquing the family model as insular, exclusionary, and prioritizing private rights over public well-being.¹¹² While this paper does not meaningfully explore abolitionist rhetoric regarding the family it is crucial to emphasize that, according to such a model, even highly inclusive interpretations of FSD could still be exclusionary as they are based on societal prioritization of the family.

CONCLUSION

This paper illustrates how the Materiality Restriction constrains an employee’s capacity to assert FSD. Due to its origination as a response to employer concern over the acknowledgment of FSD, and its potential impact on workplace efficiency, it is unsurprising that the Materiality Restriction has resulted in heightened vulnerability for many employees.

In the end, this paper suggests that the Materiality Restriction should be done away with, as its use of language surrounding biological and legal conceptions of parent restrict the ‘third’ individual, in a triad relationship, from claiming protection against FSD. This ‘third’ parent is left vulnerable, made to take on precarious work arrangements to accommodate for their family.

Further, the Materiality Restrictions’ mandate of a ‘substantial… duty or obligation’ compels discussion between mothers and fathers and their employers. Mothers and fathers are left to challenge assumptions regarding childcare responsibilities, either as anticipated burdens shared by all parents or inconsequential and trivial duties. The vulnerability experienced by parents, when countering these presumptions, is the result of internalized feelings of parental inadequacy and fear that future accommodation requests will deliver similar harm. Same-sex couples are also limited by the Materiality Restriction and, under an intersectional approach, are likely to experience even greater vulnerability than their heterosexual counterparts. This is because the caliber of social stigmas and biases regarding same-sex couples caregiving capabilities surpasses those targeted at heterosexual mothers and fathers.¹¹³

In the end, the Materiality Restriction conflicts with a broad and liberal approach to human rights legislation, necessitating its abolishment. While the Meiorin/Moore test can effectively oversee FSD, comprehensive protection of parents in the workforce necessitates broader definitions of ‘parent’ and ‘family’, enhanced workplace education on anti-discrimination, and more prescriptive accommodation policies for employers and employees alike.

BIBLIOGRAPHY

LEGISLATION

All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), SO 2016, c 23.

Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Children's Law Reform Act, RSO 1990, c C 12.

Human Rights Code, RSBC 1996, c 210.

Family Law Act, SBC 2011, c 25.

JURISPRUDENCE

AA v BB, 2007 ONCA 2.

Athwal v Sandhu and others, 2018 BCHRT 149.

British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd, 2023 BCCA 168.

British Columbia (Human Rights Tribunal) v Gibraltar Mines Ltd, 2023 BCCA 168. (Factum, Intervener).

British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] SCR 3.

Canada (Attorney General) v Bedford, 2013 SCC 72.

Canada (Attorney General) v Johnstone, 2014 FCA 110.

Canadian National v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114.

Canada Post Corp v CUPW, (2006), 87 CLAS 248 (Arbitrator: Lanyon).

CC (Re), 2018 NLSC 71.

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Endnotes