Bob Mackin
The B.C. Court of Appeal decision on a journeyman welder’s discrimination case against one of Canada’s biggest mines is an “important step forward,” according to the province’s Human Rights Commissioner.
Gibraltar Mine (Taseko)
In the unanimous, April 21-released verdict in the B.C. Human Rights Tribunal versus Gibraltar Mines Ltd., B.C.’s top court ruled that a term or condition of employment need not be changed in order for an employer to be found in contravention of the B.C. Human Rights Code.
“I conclude that for purposes of assessing conflicts between work requirements and family obligations, prima facie [or apparent] discrimination is made out when a term or condition of employment results in a serious interference with a substantial parental or other family duty or obligation,” wrote Justice John Hunter.
Four other judges, including Chief Justice Robert Bauman, concurred.
By allowing the B.C. Human Rights Tribunal’s appeal, they set aside a lower court judge’s decision and remitted the case back to the B.C. Supreme Court to decide remaining issues.
Commissioner Kasari Govender said that the ruling clarifies rights of parents and caregivers who seek accommodation to balance professional and personal obligations. Govender became an intervenor for the hearing, which took place last Oct. 24 and 27, because she felt B.C. Supreme Court Justice Margot Fleming’s March 2022 decision perpetuated gender inequality due to women often being the primary caregivers.
“The [appeal] court’s decision is welcome and is a significant win for gender equality in the workplace in many ways,” Govender said in a statement. “It is an important step forward, but there remain outstanding issues that need to be resolved to ensure that mothers and other caregivers are able to access the full protection of human rights law.”
Complainant Lisa Harvey was a journeyman welder at the the 87.5% Taseko-owned Gibraltar mine, 60 kilometres north of Williams Lake. Harvey and her husband, a journeyman electrician, were both union members, working the same 12-hour shifts, but sometimes on different night shifts.
Harvey became pregnant in fall 2016 and gave birth to her first child in August 2017. Near the end of her maternity leave, the new mother and her husband sought Gibraltar’s permission to change their work schedules to meet their parenting duties.
But Harvey and the company failed to agree. The company later proposed the couple work opposing 12-hour shifts. She filed a human rights complaint, alleging Gibraltar discriminated against her family status, marital status and sex under the Human Rights Code.
Gibraltar asked the tribunal to quash the complaint because it did not arise from a change in terms or conditions of Harvey’s employment. The tribunal dismissed Harvey’s sex and marital status complaints, but declined to throw out the family status complaint.
A judicial review in B.C. Supreme Court overturned the tribunal’s decision. Fleming decided that the tribunal was bound by a previous court decision and must dismiss the case. Fleming ruled that family status discrimination happens only when an employer changes a condition of employment.
“The Tribunal is pleased to have clarity on the substance of the applicable legal test in employment cases alleging discrimination based on family status related to care giving responsibilities,” chair Emily Ohler said of the appeal court ruling. “Given that the Tribunal is a neutral body responsible for applying the law to the cases before it, I cannot comment further.”
The Taseko (TSX:TKO) Gibraltar copper-molybdenum mine is the second largest open pit copper mine in Canada. Taseko has not responded for comment.
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