View cases - Stewart McKelvey

26118 This Tribunal has considered the evidentiary requirements to establish a primafacie case in a decision that predates the Ontario case, though is clearly consistentwith its definition:"... the evidence must demonstrate that family status includes thestatus of being a parent and includes the duties and obligations as amember of society and further that the Complainant was a parentincurring those duties and obligations. As a consequence of thoseduties and obligations, combined with an employer rule, theComplainant was unable to participate equally and fully inemployment with her employer" (Brown v. Canada (Department ofNational Revenue, Customs and Excise) [1993] C.H.R.D. No. 7, atp. 13. See also Woiden et al v. Dan Lynn, [2002] C.H.R.D. No. 18,T.D. 09/02)2010 CHRT 23 (CanLII)[97] However, a different enunciation of the evidence necessary to demonstrate a prima faciecase was articulated by the British Columbia Court of Appeal in Health Sciences Assn. of BritishColumbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922,at paragraphs 38 and 39, a decision on which CN put a lot of weight during its closing arguments.In that decision the British Columbia Court of Appeal decided that the parameters of family statusas 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.[98] 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: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, be