View cases - Stewart McKelvey

39as a prohibited ground of discrimination in the Human Rights Code of British Columbia shouldnot be drawn too broadly or it would have the potential to cause “disruption and great mischief' inthe workplace”. The Court directed that a prima facie case is made out “when a change in a termor condition of employment imposed by an employer results in serious interference with asubstantial parental or other family duty or obligation of the employee.” (The underlining ismine.) Low, J.A. observed that the prima facie case would be difficult to make out in cases ofconflict between work requirements and family obligations.[144] In Hoyt, this Tribunal did not follow the approach suggested in the Campbell River case.The Tribunal summarized its position in regards to that case as follows:2010 CHRT 24 (CanLII)120 With respect, I do not agree with the [British Columbia Court of Appeal's]analysis. Human rights codes, because of their status as 'fundamental law,' must beinterpreted liberally so that they may better fulfill their objectives (Ontario HumanRights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 atp. 547, Canadian National Railway Co. v. Canada (Canadian Human RightsCommission), [1987] 1 S.C.R. 1114 at pp. 1134-1136; Robichaud v. Canada(Treasury Board) [1987] 2 S.C.R. 84 at pp. 89-90). It would, in my view, beinappropriate to select out one prohibited ground of discrimination for a morerestrictive definition.121 In my respectful opinion, the concerns identified by the Court of Appeal,being serious workplace disruption and great mischief, might be proper matters forconsideration in the Meiorin analysis and in particular the third branch of theanalysis, being reasonable necessity. When evaluating the magnitude of hardship,an accommodation might give rise to matters such as serious disruption in theworkplace, and serious impact on employee morale are appropriate considerations(see Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990]2 S.C.R. 489 at pp. 520 - 521). Undue hardship is to be proven by the employer ona case by case basis. A mere apprehension that undue hardship would result is nota proper reason, in my respectful opinion, to obviate the analysis. (The underliningis mine.)[145] In addition to the compelling logic of the Tribunal’s decision in Hoyt for not following theapproach in Campbell River, this Tribunal concludes that the approach suggested in that caseimposes an additional burden on the Complainant by suggesting that the protected ground offamily status includes proof of a “serious interference with a substantial parental or other family