By Laura Track

Many BC parents will be familiar with the difficulties of accessing quality, affordable childcare in this province. Wait lists are long, costs are high, and there are simply not enough spaces for all the kids who need them.

The lack of meaningful childcare options affects many families, and hurts women the most. As the women’s rights organization West Coast LEAF has pointed out, women continue to perform the majority of unpaid caregiving in our society. As they try to balance caregiving and other aspects of their lives, a lack of affordable childcare creates significant barriers to working outside the home, creating financial security, and securing independence. West Coast LEAF also points out that while international human rights agreements that Canada has signed, including the Convention on the Elimination of all forms of Discrimination Against Women and the International Covenant on Economic, Social and Cultural Rights do speak to a need for government investment in childcare, inadequate and unaffordable childcare is seldom identified as a legal human rights violation.

A lack of affordable childcare creates significant barriers to working outside the home, creating financial security, and securing independence.

So it is interesting to look at a recent BC Human Rights Tribunal decision where the lack of childcare options was squarely at issue in a human rights dispute. In Ziegler v Pacific Blue Cross, 2018 BCHRT 151, the complainant was forced to quit a job she’d worked at for 11 years because of the impossibility of arranging suitable childcare for her one year-old child.

For a number of years, Ms. Ziegler had worked an 8am-3:30pm shift, which allowed her to travel from her workplace to her son’s daycare to pick him up before the daycare closed at 6pm. However, in early January 2017, the employer advised its employees that it would be moving to a new scheduling system at the end of the month. Employees would no longer be guaranteed set shifts, and could be required to start work any time between 7:30am and 9:30am.

Ms. Ziegler told her employer that she could not work the 9:30am-5pm shift and still arrive at the daycare before it closed at 6pm. She raised the difficulty of making new childcare arrangements with only a month’s notice. The evidence indicated that Ms. Ziegler was her son’s sole caregiver and did not have support from other family members.

The employer told Ms. Ziegler its scheduling hours and practice were well within reason and that it was not in a position to accommodate “employee preferences.” She was told that if the employer provided her with a shift accommodation based on her family status, other employees in the department might think it was providing her with preferential treatment.

The employer agreed to give her an additional four weeks to “sort out her childcare arrangements,” following which there would be no exceptions or accommodations.

Ms. Ziegler called numerous childcare providers over the next several weeks and none had space for her son. Ms. Ziegler felt she had no choice but to resign her employment. She filed a human rights complaint alleging discrimination on the basis of family status. The employer applied to have the complaint dismissed.

Since the BC Court of Appeal’s decision in Health Sciences Association of BC v Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”), a complainant alleging discrimination on the basis of family status in BC must show:

  1. The employer imposed a change in a term or condition of employment, and
  2. The change resulted in a serious interference with a substantial parental or other family duty or obligation.

Under these requirements, ordinary parental responsibilities will not be sufficient to prove the case. The parent will have to demonstrate extraordinary conditions.  The Court in Campbell River was concerned about opening the floodgates to potential discrimination cases every time work came in conflict with parental responsibilities. It intended this test to be very difficult and rarely passed.

The Campbell River test has been criticized for imposing a higher standard on complainants alleging discrimination based on family status compared with complainants alleging discrimination based on other protected characteristics. In the leading case describing what a complainant has to show to prove discrimination, the Supreme Court of Canada said that complainants must simply show that they have a protected characteristic (such as family status); that they experienced an adverse impact regarding employment; and that their family status was a factor in the adverse impact (Moore v British Columbia, 2012 SCC 61.

Is it fair to require complainants in family status cases to do more than this, by requiring them to show a serious interference with a substantial parental or other family obligation?

A couple of recent decisions from the Tribunal suggest that it is not: see Suen v Envirocon Environmental Services (No. 2), 2017 BCHRT 226, aff’d 2018 BCSC 1367 and Adair v Forensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147. These decisions suggest that the Campbell River test may no longer be good law. However, because Campbell River is a BC Court of Appeal decision that has not yet been clearly overturned, the Tribunal continues to apply it.

(Note that many other Canadian jurisdictions apply a different test, set out in Canada (Attorney-General) v Johnstone 2014 FCA 110, where the court rejected Campbell River and adopted a different and more liberal approach. In Alberta, the test is different still; see SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162.)

In Ms. Ziegler’s case, the Tribunal denied the respondent’s application to dismiss her complaint. The Tribunal held that there was a reasonable chance that she would be able to prove that the company’s change to its scheduling practices interfered with a substantial parental obligation – the care of her one year-old child – and met the Campbell River test. The fact that her child did not have any special care needs and her situation was not particularly unique was not, the Tribunal said, a reason to dismiss her claim. The case will now be set for a full hearing.

Another case where the respondents tried to have a family status complaint dismissed on the basis, among other things, that the complainant’s situation was common and not particularly unique, and therefore did not warrant a hearing, was Suen. In Suen, the employer wanted the father of a newborn infant to relocate to Manitoba full-time for two-and-a-half months. One of the employer’s arguments was that Mr. Suen’s wife was the primary caregiver, was on maternity leave, and that his role was “limited to assisting his wife.” They argued that Mr. Suen “does not have any special skill or ability which renders him indispensable in the care of his daughter.”

The Tribunal forcefully rejected this premise and allowed the complaint to proceed. This decision was upheld by the BC Supreme Court, and the hearing is scheduled for November, 2018. [1] 

The Member stated that the employer’s reasoning “fundamentally reinforces stereotypical views of the respective roles of mothers and fathers in both the public and private spheres – views that are harmful to both men and women in entrenching expectations and patterns of behaviour.” The Tribunal continued:

Childcare is not just women’s responsibility.

Women’s struggles to escape stereotypical notions of their roles and responsibilities respecting public and private life are well documented and well litigated. But there is a companion stereotype applied to men that has served to limit their ability to participate in the private sphere, particularly in respect of childcare and men’s inclusion in dialogue surrounding how to balance the responsibilities of work and family. … The outcome of such stereotypes is not only harmful to women in their ability to participate free of impediment in social and economic life at the workplace, but also to men and their ability to participate in social and cultural life at home.

Childcare is not just women’s responsibility. It’s a family responsibility and, under international human rights law, a collective responsibility requiring government investment. Many advocacy groups have been calling for this increased government investment for years. As employers’ duty to accommodate their employees’ childcare obligations under human rights law butts up against the lack of realistic options currently available for many families, perhaps more employers will add their voices to these calls.

[1] On February 5, the Court of Appeal overturned the Tribunal’s decision. Mr. Suen is seeking leave to appeal to the Supreme Court of Canada.