Newborn’s parent may be fired for refusing work

Supreme Court of Canada refuses to hear appeal of B.C. high court ruling

A parent of a newborn may be fired for refusing to take an out-of-province work assignment, the Supreme Court of Canada has said in denying the appeal of a B.C. Appeal court ruling.

B.C.’s top court said in February an employee had not established that his being ordered to work out of town for a period would harm the care his newborn first child would receive.

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The Supreme Court’s Aug. 8 denial of leave to appeal upholds that decision.

“There are many parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children,” the appeal court said Feb. 5 in ordering the case returned to B.C.’s Human Rights Tribunal.

That decision overturned earlier ones from both the Supreme Court of B.C. and the tribunal.

The Supreme Court of Canada does not give reasons for decisions denying a leave to appeal.

Brian Suen alleged before the tribunal that Burnaby-based Envirocon Environmental Services discriminated against him on the basis of family status when, shortly after the birth of his daughter, who had jaundice, it assigned him in January 2016 to a Manitoba project requiring him to be away from home for eight to 10 weeks.

On previous out-of-town assignments, the company had rotated Suen home.

Considering his family situation, Suen refused, saying in “consideration of my wife and four-month-old baby, I will not be going to Manitoba.”  

The company director of projects replied in an email that Suen’s response was insubordinate. He was immediately fired.

The tribunal decision said the company asserted it was a condition of Suen’s employment that he could be assigned to work on projects away from Burnaby, an assertion Suen denied.

Suen filed a complaint with the tribunal, which Envirocon applied to have dismissed. Tribunal member Emily Ohler ruled evidence justified the case going to a hearing, a decision B.C. Supreme Court Justice Miriam Maisonville called reasonable.

Envirocon appealed and won in the appeal court.

The Supreme Court of Canada case summary said the B.C. Appeal Court had ruled the facts alleged by Suen “could not establish that the change in the term or condition of employment had resulted in a serious interference with a substantial parental or other family duty or obligation.”

Suen then applied for the Ottawa court to hear the case.

Envirocon lawyer James Kondopulos said the high court considered written submissions before denying the application for a hearing.

“I would argue that is an implicit recognition that the B.C. Court of Appeal got it right,” Kondopulos said.

“We took the view that there was nothing really special about Mr. Suen’s circumstances,” Kondopulos said. “These were commonplace parental obligations.”

He said this case is the first time the high court has considered such a case.

Suen’s lawyer, Fred Wynne, said this decision is only one of two in the case with another part of it referred back to the tribunal yet to come.

He said the current part just dealt with is about the legal test for accommodation while the next is about termination of employment relative to the family status of the father.

He said the court decides to hear cases having to do with issues in the national interest. And, he noted, there was no order of costs on the leave to appeal.

“That’s not usual,” he said. “It could mean there was some merit to the appeal but not quite enough.”

Note: This story has been updated since first posted.

Reporter Jeremy Hainsworth can be contacted at jhainsworth@glaciermedia.ca

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