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3 factors to Make or Break a Case

May 31, 2024

3 factors to Make or Break a Case

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Byron Bach was a unionized employee with the BC Liquor Distribution Branch (“LDB”). Mr. Bach had  been employed with the LDB as an auxiliary employee since 1999. Since 1996, Mr. Bach was also employed with Save-On-Foods (“Save-On”). From 2005 to April 2021, Mr. Bach worked graveyard shifts at Save-On, and then auxiliary shifts at the LDB from 2:00PM until closing. Mr. Bach worked these shifts, full-time, in order to financially provide for his wife and three children, as his wife could not work for health reasons. In April 2021, the LDB attempted to convert Mr. Bach from an auxiliary employee to a regular employee, and subsequently, attempted to alter Mr. Bach’s working schedule with the LDB. Mr. Bach objected to the changes and filed a Human Rights Tribunal complaint alleging discrimination on the basis of family status.

The LDB filed an application to dismiss Mr. Bach’s complaint on the grounds that it had “no reasonable prospect of success", citing Mr. Bach’s decision to hold a second job, which the new schedule would interfere with, was a “personal preference” that Mr. Bach did not hold a right to. In order to assess Mr. Bach’s complaint, the Tribunal analyzed the three requirements Mr. Bach would have to prove to make his case at a hearing – (1) he has a personal characteristic that is protected by the Code, (2) he was adversely impacted in employment, and (3) his personal characteristic was a factor in the adverse impact (Moore v. British Columbia (Education), 2012 SCC 61; British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168). Ultimately, the Tribunal found that Mr. Bach’s complaint passed the three elements needed to stave off dismissal and dismissed the LDB’s application. In doing so, the Tribunal noted that family status complaints typically are related to direct childcare duties or spousal or elder care responsibilities, whereas Mr. Bach’s complaint was “somewhat novel” in nature. It will be interesting to see how the Tribunal continues to apply this relatively new three-part test in future family status complaints, as this area becomes more expansive.

To read the full case, click here.

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