View cases - Stewart McKelvey

Federal CourtCour fédéraleOttawa, Ontario, February 3, 2011PRESENT: The Honourable Madam Justice MactavishBETWEEN:AIR CANADA PILOTS ASSOCIATIONandDate: 20110203Docket: T-1615-09T-1606-09Citation: 2011 FC 120Docket: T-1615-09Applicant2011 FC 120 (CanLII)ROBERT NEIL KELLY, GEORGE VILVEN,CANADIAN HUMAN RIGHTS COMMISSION,and AIR CANADARespondentsAND BETWEEN:AIR CANADAandDocket: T-1606-09ApplicantROBERT NEIL KELLY, GEORGE VILVEN,CANADIAN HUMAN RIGHTS COMMISSION,and AIR CANADA PILOTS ASSOCIATIONRespondents

REASONS FOR JUDGMENT AND JUDGMENT2011 FC 120 (CanLII)

TABLE OF CONTENTSPARA.I. Introduction..................................................................................................................... 1II. Background..................................................................................................................... 7A. Mandatory Retirement at Air Canada ..................................................................... 8B. George Vilven’s Career ......................................................................................... 10C. Robert Neil Kelly’s Career .................................................................................... 15III. The Human Rights Complaints.................................................................................... 20IV. Procedural History........................................................................................................ 242011 FC 120 (CanLII)V. The Tribunal’s Second Decision.................................................................................. 31VI. The Issues...................................................................................................................... 43VII. Standard of Review ...................................................................................................... 45VIII.Is Paragraph 15(1)(c) of the Canadian Human Rights Act aReasonable Limit in a Free and Democratic Society?................................................ 50A. The Supreme Court of Canada’s Mandatory Retirement Jurisprudence............. 54i) Ontario (Human Rights Commission) v. Etobicoke...................................... 55ii) McKinney v. University of Guelph................................................................. 59iii) Harrison v. University of British Columbia.................................................. 80iv) Douglas/Kwantlen Faculty Assn v. Douglas College.................................. 82v) Stoffman v. Vancouver General Hospital..................................................... 83vi) Dickason v. The Governors of the University of Alberta............................. 86vii) New Brunswick v. Potash Corporation of Saskatchewan Inc. ..................... 96B. Why the Supreme Court’s Decision in McKinney does not Determine theResult of this Case.................................................................................................. 98i) The Differences Between the Legislative Provisions .................................103ii) McKinney did not Purport to be the Final Word on the Subject ofMandatory Retirement .................................................................................130iii) The Differences in the Evidentiary Records ...............................................142iv) The New Developments in Public Policy....................................................147v) Other Post-McKinney Mandatory Retirement Jurisprudence.....................157

a) Greater Vancouver Regional District Employees’ Union v.Greater Vancouver Regional District .....................................................159b) Assn. of Justices of the Peace of Ontario v.Ontario (Attorney General) ....................................................................164c) CKY-TV v. Communications, Energy and PaperworkersUnion of Canada, Local 816..................................................................167d) Bell v. Canada (Canadian Human Rights Commission);Cooper v. Canada (Canadian Human Rights Commission) .................174C. Is Paragraph 15(1)(c) of the CHRA Justifiable Under Section 1 of theCharter? ...............................................................................................................186i) The Section 1 Analytical Framework..........................................................187ii) What are the Objectives of Paragraph 15(1)(c) of the CHRA? ..................195iii) Are the Objectives of Paragraph 15(1)(c) of the CHRAPressing and Substantial?.............................................................................197iv) The Proportionality Component of the Oakes Test ...................................205v) Rational Connection ....................................................................................208vi) Minimal Impairment....................................................................................2182011 FC 120 (CanLII)a) The Applicable Legal Principles............................................................219b) The Tribunal’s Findings with Respect to Minimal Impairment ..........226c) Air Canada and ACPA’s Arguments with Respect to MinimalImpairment ............................................................................................227d) The Expert Evidence ............................................................................ 234e) The Application of the Minimal Impairment Test ..............................281f) Conclusion on the Minimal Impairment Issue .....................................323vii) Proportionality between the Effects of the Legislationand its Objectives ........................................................................................327viii) Conclusion on the Charter Issue ................................................................350IX. Is Age a Bona Fide Occupational Requirement for Air Canada Pilots? .................352A. Legal Principles Governing Bona Fide Occupational Requirements................353B. The Tribunal’s Decision ......................................................................................359C. The Significance of the ICAO Standards............................................................377D. Timing and the Duty to Accommodate...............................................................381E. Factors to Consider in Relation to the Issue of Accommodation ......................386F. Accommodation in the Pre-November 2006 Period ..........................................405i) The Accommodation of Mr. Vilven in the Pre-November 2006 Period......408ii) The Accommodation of Mr. Kelly in the Pre-November 2006 Period .......415

G. Accommodation in the Post-November 2006 Period.........................................429i) The Tribunal’s Treatment of Captain Duke’s Evidence...............................431ii) The Tribunal’s Finding Regarding the First Two Elements of theMeiorin Test ...................................................................................................466X. Remedy .......................................................................................................................472XI. Conclusion ..................................................................................................................490XII. Costs............................................................................................................................4932011 FC 120 (CanLII)

Page: 1I. Introduction[1] Paragraph 15(1)(c) of the Canadian Human Rights Act, R.S., 1985, c. H-6, [CHRA] allowsan employer to terminate the employment of an individual if that person has reached the “normalage of retirement” for those working in similar positions.[2] This Court has previously found that paragraph 15(1)(c) of the Act violates subsection 15(1)of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (UK), 1982 c.11, as it denies the equal protection and equal2011 FC 120 (CanLII)benefit of the law to workers over the normal age of retirement for similar positions. In so doing,paragraph 15(1)(c) has the effect of perpetuating the group disadvantage and prejudice faced byolder workers by promoting the stereotypical view that older workers are less capable, or lessdeserving of recognition or value as human beings or as members of Canadian society: see Vilven v.Air Canada, [2010] 2 F.C.R. 189, [2009] F.C.J. No. 475, at paras. 9 and 337-339 (“Vilven #1”).[3] These reasons pertain to two applications for judicial review of a subsequent decision of theCanadian Human Rights Tribunal which found that paragraph 15(1)(c) is not a reasonable limitjustifiable in a free and democratic society as contemplated by section 1 of the Charter. Oneapplication is brought by Air Canada and the other by the Air Canada Pilots Association (or“ACPA”), the bargaining agent for Air Canada pilots. The applications were consolidated by orderof this Court.[4] For the reasons that follow, I find that the Tribunal’s decision on the Charter issue wascorrect. As a result, ACPA’s application, which only raises the Charter issue, will be dismissed.

Page: 2[5] Also at issue in Air Canada’s application for judicial review is whether the Tribunal’sfinding that Air Canada had failed to demonstrate that age was a bona fide occupational requirementfor its pilots was reasonable. I have concluded that the Tribunal erred in its analysis of the bona fideoccupational requirement issue as it related to the period after November of 2006. Consequently,Air Canada’s application for judicial review will be granted in part.[6] What is not in issue in these proceedings is any question relating to pilot safety. The fitnessof individual pilots to fly is determined not by Air Canada, but by Transport Canada as part of its2011 FC 120 (CanLII)pilot licensing regime. If, after an individualized assessment, Transport Canada determines that anindividual is no longer fit to fly, then that individual’s pilot’s license will not be renewed.II.Background[7] In order to provide a context for these reasons, I will provide a brief summary of the facts,which is largely taken from my decision in Vilven #1.A. Mandatory Retirement at Air Canada[8] Mandatory retirement for pilots at Air Canada was initially a company policy. Since 1957,the Air Canada pension plan has identified 60 as the compulsory retirement age for pilots. As of theearly 1980’s, provisions mandating retirement at age 60 have been included in the collectiveagreement in force between Air Canada and its pilots’ union. ACPA began representing AirCanada pilots in 1995.

Page: 3[9] Shortly before the commencement of the initial Tribunal hearing of Messrs. Vilven andKelly’s human rights complaints, ACPA held a referendum on the mandatory retirement issue.Seventy-five percent of ACPA members voted in favour of retaining mandatory retirement for AirCanada pilots.B. George Vilven’s Career[10] George Vilven was hired by Air Canada in May of 1986. Over the ensuing years, he wasable to use his seniority to bid on a succession of higher status and higher paying positions on2011 FC 120 (CanLII)increasingly larger aircraft. In his last position with Air Canada, Mr. Vilven was flying as a FirstOfficer on Airbus 340 aircraft.[11] Mr. Vilven turned 60 on August 30, 2003. In accordance with the mandatory retirement ageprovisions of the Air Canada/ACPA collective agreement and the Air Canada pilot pension plan, hewas required to retire on the first day of the month following his 60th birthday.[12] There is no suggestion that there were any performance problems or medical fitness issueswith respect to Mr. Vilven. Indeed, it is common ground that the only reason for the termination ofhis employment was the application of the mandatory retirement provisions of the AirCanada/ACPA collective agreement and the Air Canada pilot pension plan, which is incorporatedby reference into the collective agreement.

Page: 4[13] Based upon his years of service with Air Canada and his pre-Air Canada military service(which are included as years of service for the purpose of Air Canada’s pension plan), Mr. Vilven isentitled to receive substantial pension benefits until his death.[14] After leaving Air Canada, Mr. Vilven was able to continue his career in aviation. He flewwith Flair Airlines from April of 2005 until May of 2006, when he quit flying in order to prepare forhis Tribunal hearing. At the time of the original Tribunal hearing, Mr. Vilven continued to hold avalid Canadian Air Transport Pilot’s License.2011 FC 120 (CanLII)C. Robert Neil Kelly’s Career[15] Robert Neil Kelly was hired by Air Canada in September of 1972. At the time of hisretirement from Air Canada, he was flying as the Captain and Pilot-in-command of Airbus 340’s.[16] The term “Pilot-in-command” should not be confused with that of “Captain”. Pilotpositions at Air Canada include Captains, First Officers and Relief Pilots. The InternationalStandards on Personnel Licensing promulgated by the International Civil Aviation Organization (or“ICAO”), the United Nations organization charged with fostering civil aviation safety, requires thatone pilot on each flight be designated as the Pilot-in-command of the flight: see the Convention onInternational Civil Aviation: Annex 1 - International Standards and Recommended Practices -Personnel Licensing (Chicago Convention), 7 December 1944, 15 UNTS 295 (entered into force 4April 1947), see Annex I (Personnel Licensing, 10th ed., 2006). Although the Captain of an aircraftis ordinarily the Pilot-in-command, this is not necessarily always the case.

Page: 5[17] Mr. Kelly turned 60 on April 30, 2005, and was forced to retire from Air Canada on May 1,2005. As was the case with Mr. Vilven, there was no issue as to Mr. Kelly’s capacity to fly safely,and the parties acknowledge that the only reason for the termination of his employment was theapplication of the mandatory retirement provisions found in the governing pension plan andcollective agreement.[18] Like Mr. Vilven, Mr. Kelly is entitled to receive substantial pension benefits for the rest ofhis life.2011 FC 120 (CanLII)[19] Mr. Kelly was also able to continue his flying career after leaving Air Canada. He initiallyworked on contract as a First Officer with Skyservice Airlines. At the time of the original Tribunalhearing, he was working for Skyservice as a Captain and Pilot-in-command, flying routes, includinginternational routes, on Boeing 757’s.III.The Human Rights Complaints[20] Mr. Vilven filed his complaint against Air Canada with the Canadian Human RightsCommission in August of 2004. His complaint asserted that by forcing him to retire at age 60, AirCanada violated sections 7 and 10 of the CHRA. The full text of the relevant statutory provisions isattached as an appendix to these reasons.[21] Mr. Kelly’s human rights complaint was filed on March 31, 2006 and was brought againstboth Air Canada and ACPA. His complaint alleged discrimination on the basis of age, contrary tothe provisions of sections 7, 9 and 10 of the Act.

Page: 6[22] Both complaints were referred to the Canadian Human Rights Tribunal by the Commission,and the two cases were heard and decided together.[23] In the course of the parties’ oral submissions, I was advised that the Tribunal has now held ahearing in relation to 68 additional complaints brought by former Air Canada pilots who wereforced to retire against their will. The Tribunal currently has its decision with respect to that caseunder reserve. I was also advised that there is another “large group” of former Air Canada pilots2011 FC 120 (CanLII)whose human rights complaints have been referred to the Tribunal by the Canadian Human RightsCommission, and still another “large group” of former Air Canada pilots who have agediscrimination complaints pending before the Commission.IV.Procedural History[24] In order to put the issues into context, it is necessary to understand the procedural historygiving rise to the applications currently before the Court.[25] The original hearing into Messrs. Vilven and Kelly’s complaints took place in 2007. ACPAwas granted “interested party” status before the Tribunal in relation to Mr. Vilven’s complaint. TheTribunal also granted interested party status to the “Fly Past 60 Coalition”, a group of current andformer Air Canada pilots who are united in their goal of eliminating mandatory retirement at AirCanada.

Page: 7[26] In advance of the Tribunal hearing, the Fly Past 60 Coalition served a Notice ofConstitutional Question on the federal and provincial Attorneys General, advising that theconstitutionality of paragraph 15(1)(c) of the CHRA was in issue in the proceeding. As was notedearlier, paragraph 15(1)(c) of the Act provides that it is not a discriminatory practice if anindividual’s employment is terminated “because that individual has reached the normal age ofretirement for employees working in positions similar to the position of that individual”.[27] In a decision rendered in August of 2007, the Tribunal dismissed Messrs. Vilven and2011 FC 120 (CanLII)Kelly’s human rights complaints: Vilven v. Air Canada; Kelly v. Air Canada and Air Canada PilotsAssociation, 2007 CHRT 36 (Tribunal decision #1). The Tribunal found that 60 was the normal ageof retirement for persons working in similar positions, and further found that paragraph 15(1)(c) ofthe Act did not contravene subsection 15(1) of the Charter. Because of its finding on the section 15Charter issue, the Tribunal did not have to decide whether paragraph 15(1)(c) of the CHRA couldbe justified under section 1 of the Charter.[28] On judicial review, I found that although there were errors in the Tribunal’s analysis, thefinding that 60 was the normal age of retirement for individuals employed in positions similar tothose occupied by Messrs. Vilven and Kelly prior to their retirement was reasonable: Vilven #1 atpara. 174.[29] However, as noted earlier, I concluded that paragraph 15(1)(c) of the Act violatedsubsection 15(1) of the Charter, as it denies the equal protection and equal benefit of the law toworkers over the normal age of retirement for similar positions. Consequently, I quashed the

Page: 8Tribunal’s decision as it related to the Charter issue, and remitted the matter to the Tribunal for it todetermine whether paragraph 15(1)(c) of the Act could be demonstrably justified as a reasonablelimit in a free and democratic society: Vilven #1, at para. 340.[30] In the event that the Tribunal determined that paragraph 15(1)(c) of the CHRA was notsaved under section 1 of the Charter, I directed that it address the merits of Messrs. Vilven andKelly’s human rights complaints. This would require the Tribunal to consider Air Canada’sargument that requiring that all of its pilots be younger than 60 constituted a bona fide occupational2011 FC 120 (CanLII)requirement within the meaning of paragraph 15(1)(a) of the CHRA: Vilven #1, at para. 341.V. The Tribunal’s Second Decision[31] In August of 2009, the Tribunal issued a second decision with respect to Messrs. Vilven andKelly’s human rights complaints: Vilven v. Air Canada; Kelly v. Air Canada and Air Canada PilotsAssociation, 2009 CHRT 24 (Tribunal decision #2).[32] In assessing whether paragraph 15(1)(c) of the CHRA was saved under section 1 of theCharter, the Tribunal applied the test articulated by the Supreme Court of Canada in R. v. Oakes,[1986] 1 S.C.R. 103, [1986] S.C.J. No. 7. The Oakes test requires that two criteria be satisfied: theobjective of the law must relate to a societal concern that is “pressing and substantial”, and themeans used to attain the objective must be “proportional”.[33] The Tribunal noted that in order to be proportional, the measures selected “must berationally connected to the objective and should impair as little as possible the right or freedom in

Page: 9question. It also requires that there be proportionality between the objectives and the effects”:Tribunal decision #2 at para. 12, citing Oakes at para. 70.[34] The Tribunal recognized that in cases such as McKinney v. University of Guelph, [1990] 3S.C.R. 229, [1990] S.C.J. No. 122, and Harrison v. University of British Columbia, [1990] 3 S.C.R.451, [1990] S.C.J. No. 123, the Supreme Court of Canada had found that provisions in the Ontarioand British Columbia human rights codes limiting the protection of the legislation to those under 65were reasonable limitations within the meaning of section 1 of the Charter.2011 FC 120 (CanLII)[35] The Tribunal also noted that the majority judgment in McKinney accorded a high degree ofdeference to the Legislature, as the issue of mandatory retirement involved a complex balancing ofcompeting interests upon which expert opinion was divided. The Tribunal went on, however, toobserve that several more recent decisions had determined that the social and economic context hadchanged sufficiently since McKinney and Harrison were decided as to render those decisions nolonger applicable to present day circumstances: Tribunal decision #2, at paras. 18 and 19.[36] The Tribunal compared the factual and social context of this case to that which was beforethe Supreme Court in McKinney, finding that the evidence before it demonstrated that mandatoryretirement was no longer as prevalent as it had been when McKinney was decided. At the time ofthe hearing, only three provinces allowed for the imposition of mandatory retirement. In all of theother provinces, mandatory retirement was either prohibited, or was permitted only where it wasbased on a bona fide occupational requirement or bona fide pension or retirement plan: Tribunaldecision #2, at paras. 26 and 27.

Page: 10[37] The Tribunal observed that the abolition of mandatory retirement in these provinces had notspelled the end of deferred compensation, pension and benefit schemes, and seniority arrangements:Tribunal decision #2, at paras. 29 and 34. The Tribunal also noted that the expert evidence before itcalled into question the concerns identified by the Supreme Court in McKinney as to the potentialnegative consequences that could flow from the abolition of mandatory retirement for matters suchas pension plans and deferred compensation schemes. Consequently, the Tribunal concluded thatparagraph 15(1)(c) of the CHRA could not be justified under any of the elements of the Oakes test.2011 FC 120 (CanLII)[38] It was thus necessary for the Tribunal to go on to consider whether Air Canada and ACPAhad demonstrated that mandatory retirement at 60 constituted a bona fide occupational requirementfor Air Canada pilots.[39] In answering this question, the Tribunal applied the test established by the Supreme Court inBritish Columbia (Public Service Employee Relations Commission) v. British ColumbiaGovernment and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3,[1999] S.C.J. No. 46 at para. 54.[40] According to the Tribunal, neither Messrs. Vilven and Kelly nor the Commission disputedthat the first two components of the Meiorin test had been satisfied: that is, that the mandatoryretirement provisions of the Air Canada pension plan and the Air Canada/ACPA collectiveagreement had been adopted for a purpose that was rationally connected to the performance of the

Page: 11job, and that the provisions had been adopted in the honest and good faith belief that they werenecessary to the fulfillment of a legitimate work-related purpose.[41] The “real issue” for the Tribunal was whether Messrs. Vilven and Kelly could beaccommodated without causing undue hardship to Air Canada and/or ACPA: Tribunal decision #2,at paras. 82-83.[42] After examining the evidence adduced by the applicants in this regard, the Tribunal found2011 FC 120 (CanLII)that neither Air Canada nor ACPA had established that the retirement of Air Canada pilots at age 60constituted a bona fide occupational requirement. Consequently, Messrs. Vilven and Kelly’s humanrights complaints were deemed to have been substantiated, and the Tribunal retained jurisdiction todeal with the issue of remedy.VI.Issues[43] There are two issues on these applications for judicial review. The first is whether theTribunal erred in finding that paragraph 15(1)(c) of the CHRA is not a reasonable limit justifiable ina free and democratic society within the meaning of section 1 of the Charter.[44] The second issue is whether the Tribunal erred in determining that Air Canada had notestablished that the mandatory retirement age provisions of the Air Canada Pension Plan and the AirCanada/ACPA collective agreement constituted a bona fide occupational requirement.

Page: 12VII.Standard of Review[45] Messrs. Vilven and Kelly, Air Canada and ACPA all agree that the Tribunal’s finding as towhether paragraph 15(1)(c) of the CHRA is saved by section 1 of the Charter is reviewable againstthe standard of correctness. The Commission takes no position on the Charter issue.[46] I agree that correctness is the appropriate standard with respect to this aspect of theTribunal’s decision. Charter questions must be decided consistently and correctly: see Dunsmuir v.New Brunswick, 2008 SCC 9, at paras. 58 and 163, [2008] S.C.J. No. 9 (QL); Nova Scotia2011 FC 120 (CanLII)(Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 32. Thatsaid, purely factual findings made by the Tribunal in the course of its constitutional analysis areentitled to deference: see, for example, Consolidated Fastfrate Inc. v. Western Canada Council ofTeamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at para. 26.[47] Messrs. Vilven and Kelly, the Commission and Air Canada also agree that the Tribunal’sfinding as to whether Air Canada had established a bona fide occupational requirement defence isreviewable on the reasonableness standard. ACPA takes no position on the bona fide occupationalrequirement issue.[48] I agree that reasonableness is the applicable standard of review with respect to this aspect ofthe Tribunal’s decision. The question of whether a bona fide occupational requirement defence hasbeen made out in a particular case is a question of mixed fact and law, requiring the Tribunal toapply its enabling legislation to the facts before it. Such a finding attracts judicial deference: Brownv. Canada (National Capital Commission), 2009 FCA 273, [2009] F.C.J. No. 1196, at para. 5.

Page: 13[49] In applying the reasonableness standard, the Court must consider the justification,transparency and intelligibility of the decision-making process, and whether the decision falls withinthe range of possible acceptable outcomes which are defensible in light of the facts and the law: seeDunsmuir, at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1S.C.R. 339, at para. 59.VIII. Is Paragraph 15(1)(c) of the Canadian Human Rights Act a Reasonable Limit in a Freeand Democratic Society?2011 FC 120 (CanLII)[50] Before examining this issue, it should be noted that ACPA served a Notice of ConstitutionalQuestion on the Federal and Provincial Attorneys General pursuant to the provisions of section 57of the Federal Courts Act, R.S., 1985, c. F-7, advising that the constitutional validity of paragraph15(1)(c) of the CHRA is in issue in these applications. None of the Attorneys General have electedto participate in these proceedings.[51] There is no question that the Canadian Human Rights Tribunal has the power to decideCharter questions, as the CHRA statutorily empowers the Tribunal to decide questions of law: seesubsection 50(2), and Nova Scotia (Workers' Compensation Board) v. Martin, above, at para. 3.[52] The parties agree that the onus of justifying the limitation on Messrs. Vilven and Kelly’sequality rights rests on Air Canada and ACPA: see Stoffman v. Vancouver General Hospital, [1990]3 S.C.R. 483, [1990] S.C.J. No. 125, at para. 50. The standard of proof under section 1 of theCharter is the ordinary civil standard, that is, the balance of probabilities: Oakes, at para. 67.

Page: 14[53] There is also no dispute that the Oakes test applied by the Tribunal in deciding whetherparagraph 15(1)(c) of the CHRA can be justified under section 1 of the Charter is the appropriatetest.A. The Supreme Court of Canada’s Mandatory Retirement Jurisprudence[54] The issue of mandatory retirement has been considered by the Supreme Court of Canada ona number of occasions in the last 30 years. Before applying the Oakes test to the facts of this case,and in order to put that discussion into context, it is helpful to start by looking at what the Supreme2011 FC 120 (CanLII)Court has said on the subject.i) Ontario (Human Rights Commission) v. Etobicoke[55] Mandatory retirement first came before the Supreme Court in the early 1980’s in Ontario(Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, [1982] S.C.J. No. 2.The appellants in that case were firemen employed by the Borough of Etobicoke. Each had filed acomplaint under the Ontario Human Rights Code, R.S.O. 1970, c. 318, because he had been forcedto retire at age 60 pursuant to the collective agreement governing the terms of his employment.[56] The Ontario Human Rights Code provided that the prohibition on age discrimination did notapply in cases where age could be shown to be a bona fide occupational requirement for the positionin question. A human rights Board of Inquiry determined that the municipality had not establishedthe existence of a bona fide occupational requirement for its firefighters. That decision wasoverturned by the Ontario Divisional Court, and the Divisional Court’s decision was subsequentlyconfirmed by the Ontario Court of Appeal.

Page: 15[57] In restoring the decision of the Board of Inquiry, the Supreme Court found that the evidenceadduced by the employer failed to establish that being under 60 was a bona fide occupationalrequirement. The Court observed that everyone ages chronologically at the same rate, but thatindividuals may age in a “functional sense” at very different and largely unpredictable rates. TheCourt went on to observe that in cases where the employer's concern is one of productivity ratherthan safety, “it may be difficult, if not impossible, to demonstrate that a mandatory retirement at afixed age, without regard to individual capacity, may be validly imposed under the Code”: at p. 209.2011 FC 120 (CanLII)[58] The Court rejected the employer’s argument that the mandatory retirement age at issueshould be considered to be a bona fide occupational requirement as it had been agreed to as part of acollective agreement: at p. 212. As the Code had been enacted for the benefit of both the communityat large and of its individual members, the Supreme Court was of the view that its protection couldnot be waived or varied by private contract: at pp. 213-214.ii)McKinney v. University of Guelph[59] The issue of mandatory retirement was back before the Supreme Court in the early 1990’s ina series of cases brought under section 15 of the Charter: McKinney; Harrison; Stoffman; DouglasKwantlen Faculty Assn. v. Douglas College [1990] S.C.J. No. 124; [1990] 3 S.C.R. 570.[60] The judgments in all four cases were rendered at the same time, with McKinney as the leaddecision. Air Canada and ACPA argue that McKinney was binding on the Tribunal, and should havedictated a finding by the Tribunal that paragraph 15(1)(c) of the CHRA was saved by section 1 of

Page: 16the Charter. By failing to follow McKinney, the applicants say that the Tribunal erred in law. Inlight of this argument, it is necessary to examine the Court’s reasoning in McKinney in some detail.[61] The appellants in McKinney were university professors at four Ontario universities whowere forced to retire at age 65, in accordance with the universities’ mandatory retirement policies.As in the present case, the professors were unable to seek recourse under human rights legislation,because subsection 9(a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, limited theprotection against age discrimination in employment afforded by the Code to those between the2011 FC 120 (CanLII)ages of 18 and 65.[62] The majority judgment held that universities do not form part of “government”, and that thereach of the Charter is limited to government action. However, the Court went on in obiter toexamine the universities’ retirement policies on the assumption that the universities weregovernment actors, finding them to be justifiable.[63] Insofar as the constitutionality of subsection 9(a) of the Ontario Human Rights Code wasconcerned, the Supreme Court was unanimous in finding that the statutory provision in issueviolated subsection 15(1) of the Charter, as it deprived individuals of a benefit under the Code onthe basis of an enumerated ground. The Court was, however, divided on the question of whether theprovision was justifiable under section 1 of the Charter.[64] Justice La Forest wrote the majority judgment, with Chief Justice Dickson and JusticeGonthier concurring. Justices Cory and Sopinka each wrote separate reasons, concurring in the

Page: 17result. Justices Wilson and L’Heureux-Dubé each wrote dissenting judgments disagreeing with themajority as to whether subsection 9(a) of the Code could be justified under section 1.[65] Justice La Forest began by reviewing the history and role of mandatory retirement inCanada. He observed that by 1970, public and private pension plans had been established toprovide income security after the age of 65 and that as of 1990, mandatory retirement was “part ofthe very fabric of the organization of the labour market in this country”: at para. 84.2011 FC 120 (CanLII)[66] The objectives of the legislation were described by Justice La Forest as being an effort tobalance the Legislature’s concern for denying protection beyond age 65 against the fear that such achange could result in delayed retirement and delayed benefits for older workers. Concern was alsoexpressed as to the potential impact that a change would have for labour markets and pensions. InJustice La Forest’s view, these objectives were pressing and substantial.[67] The majority also found that subsection 9(a) of the Code was rationally connected to theseobjectives. In this regard, Justice La Forest observed that “there is nothing irrational in a systemthat permits those in the private sector to determine for themselves the age of retirement suitable to aparticular area of activity”: at para. 101.[68] In relation to the issue of minimal impairment, Justice La Forest noted that where theLegislature was faced with competing socio-economic theories and social science evidence, it wasentitled to choose between them and to proceed cautiously in effecting change. The question for theCourt was whether the government had a reasonable basis for concluding that the legislation

Page: 18impaired the relevant right as little as possible, in light of the government's pressing and substantialobjectives: at para. 123, emphasis added.[69] In addressing this question, Justice La Forest described the issue of mandatory retirement asbeing a complex socio-economic one, which involved “the basic and interconnected rules of theworkplace throughout the whole of our society”: at para. 96. He explained that mandatoryretirement was part of “a complex, interrelated, lifetime contractual arrangement involvingsomething like deferred compensation”, particularly in union-organized workplaces, where2011 FC 120 (CanLII)“seniority serves as something of a functional equivalent to tenure”: at para. 108.[70] Justice La Forest further observed that the ramifications that the abolition of mandatoryretirement would have for the organization of the workplace, and for society in general, were thingsthat could not readily be measured: at para. 104.[71] Finally, Justice La Forest found that there was proportionality between the effects ofsubsection 9(a) of the Code on the guaranteed right, and the objectives of the provision. Heobserved that a Legislature is not obliged to deal with all aspects of a problem at once, and that itshould be permitted to take incremental measures in relation to issues such as mandatory retirement:at para. 129.[72] Justices Cory and Sopinka agreed in their concurring reasons that subsection 9(a) of theCode was saved under section 1 of the Charter.

Page: 19[73] In contrast, Justice Wilson observed that subsection 9(a) of the Code did not only allow formandatory retirement; it also permitted age discrimination in the employment context in all itsforms for those over the age of 65. As a consequence, she was of the view that the rationalconnection branch of the Oakes test had not been met: at para. 350.[74] More importantly for our purposes, Justice Wilson found that the legislation did not meetthe minimal impairment component of the Oakes test. She noted that older workers would sufferdisproportionately greater hardship as a result of the infringement of their equality rights. She also2011 FC 120 (CanLII)observed that women are negatively affected by mandatory retirement, as they often haveinterrupted work histories as a result of their having assumed childcare responsibilities, with theresultant loss of pensionable earnings: at paras. 351-353.[75] Justice Wilson recognized that mandatory retirement requirements are often the product ofcollective bargaining. However, she also observed that even if it were acceptable for citizens tobargain away their fundamental human rights in exchange for economic gain, the fact was that themajority of working people in Ontario did not have access to such beneficial contractualarrangements: at para. 352.[76] Justice L’Heureux-Dubé agreed with Justice Wilson that subsection 9(a) of the Code couldnot be justified under section 1 of the Charter. She found that there was no convincing evidence thatmandatory retirement was intimately related to the tenure system. In her view, the value of tenurewas threatened, not by the aging process, but by the incompetence of individual workers.Discrepancies between the physical and intellectual abilities of older workers versus younger

Page: 20workers were compensated for by older workers’ increased experience and wisdom, as well as theskills they had acquired over time. Consequently she found there to be no pressing and substantialobjective addressed by the Universities’ mandatory retirement policy: at paras. 389-393.[77] Justice L’Heureux-Dubé was further of the view that the means chosen by the Legislaturewere too intrusive. Individuals over 65 were excluded from the protection of the Code solelybecause of their age, without regard to their individual circumstances. She noted that the adverseeffects of mandatory retirement are most painfully felt by the poor, and that women are particularly2011 FC 120 (CanLII)negatively affected as they are less likely to have accumulated adequate pensions: at paras. 398-399.[78] In the absence of a reasonable justification for a legislative scheme permitting compulsoryretirement at age 65, Justice L’Heureux-Dubé would have struck out subsection 9(a) of the Code inits entirety as unconstitutional.[79] At the same time that it rendered judgment in McKinney, the Supreme Court of Canada alsoreleased its decisions in the three companion cases of Harrison, Stoffman and Douglas College. Asthese cases relied heavily on the reasoning in McKinney, I will refer to each of them only briefly.iii)Harrison v. University of British Columbia[80] Harrison involved a challenge to the University of British Columbia’s mandatory retirementpolicy. There was also a challenge to the constitutionality of the definition of “age” in section 1 ofthe British Columbia Human Rights Act, S.B.C. 1984, c. 22, which limited the protection of the Actto those between the ages of 45 and 65.

Page: 21[81] The majority decision held that because the facts, issues and constitutional questions inHarrison were similar to those considered in McKinney, Harrison was governed by that case. As aconsequence, Harrison adds little to the analysis. However, it does bear noting that Justices Wilsonand L’Heureux-Dubé once again dissented on the section 1 issue.iv) Douglas/Kwantlen Faculty Assn. v. Douglas College[82] The appeal in Douglas College involved another challenge to a mandatory retirement2011 FC 120 (CanLII)provision in a collective agreement. The case was disposed of on jurisdictional grounds, thequestion being whether the arbitrator had jurisdiction to decide Charter issues. The Courtdetermined that the arbitrator did indeed have jurisdiction to decide Charter issues. However, as thearbitrator had not considered whether the breach of section 15 of the Charter was justified undersection 1 of the Charter, the Court did not deal with this question.v) Stoffman v. Vancouver General Hospital[83] Stoffman involved a challenge brought by doctors with admitting privileges at theVancouver General Hospital. A hospital Medical Staff Regulation stipulated that doctors had toretire at the age of 65, unless they were able to demonstrate that they could offer something uniqueto the hospital.[84] The doctors were not hospital employees, and thus did not benefit from the protectionagainst age-based employment discrimination provided by the British Columbia Human Rights Act.

Page: 22The Supreme Court found that the doctors were also unable to claim the protection of the Charter,as hospitals were not part of government.[85] Even if the Charter had applied, the majority would have found that the discriminatorymandatory retirement Regulation would have been saved by section 1 for the reasons given inMcKinney. Justices Wilson, L'Heureux-Dubé and Cory dissented.vi) Dickason v. University of Alberta2011 FC 120 (CanLII)[86] Two years after rendering its decisions in McKinney and its companion cases, the issue ofmandatory retirement in the university setting was back before the Supreme Court in Dickason v.University of Alberta, [1992] 2 S.C.R. 1103, [1992] S.C.J. No. 76.[87] The issue in Dickason was whether McKinney fully decided “whether a mandatoryretirement policy in a private employment setting can be justified pursuant to the provisions of s.11.1 of the IRPA [Individual’s Rights Protection Act, R.S.A. 1980, c. I-2]?”: at para. 33. Onceagain, the majority and dissenting judgments revealed deep divisions within the Supreme Court onthis issue.[88] As in McKinney, the appellant in Dickason was a tenured professor who was forced to retireat age 65, in accordance with a clause in her collective agreement. Dr. Dickason filed a complaintwith the Alberta Human Rights Commission alleging that the mandatory retirement provision of thecollective agreement violated the IRPA.

Page: 23[89] Unlike the Ontario and British Columbia human rights legislation at issue in McKinney andHarrison, the IRPA did not limit its protection against age-based employment discrimination tothose under the age of 65. Rather, section 11.1 of the Individual’s Rights Protection Act prohibitedsuch discrimination unless an employer could demonstrate that it was “reasonable and justifiable inthe circumstances”. Dr. Dickason did not challenge the constitutional validity of section 11.1 underthe Charter, but rather the university’s claim that the mandatory retirement requirement in issue wasreasonable and justifiable.2011 FC 120 (CanLII)[90] In rejecting Dr. Dickason’s appeal from the dismissal of her human rights complaint, JusticeCory (writing for a majority including Justices La Forest, Gonthier and Iacobucci), discussed thedifference between the rights conferred by human rights legislation and those conferred by theCharter. He noted that human rights legislation is aimed at regulating the action of privateindividuals, whereas the Charter's goal is to regulate government action: at para. 18.[91] As a consequence, although the decision in McKinney provided guidance, Justice Cory heldthat it did not determine the outcome of Dr. Dickason’s case, as no deference was owed to thepolicy choices of the university as a private institution: at para. 22.[92] While recognizing that parties may not generally contract out of human rights statutes,Justice Cory noted that the mandatory retirement provision at issue was arrived at through thecollective bargaining process. In his view, this could provide evidence of the reasonableness of apractice which appeared on its face to be discriminatory: at para. 39.

Page: 24[93] With this in mind, Justice Cory examined whether the objectives of promoting tenure,academic renewal, planning and resource management, and retirement with dignity justified theplacing of age limits on the substantive rights to equal treatment: at para. 33. The evidenceregarding the role of mandatory retirement in this context was very similar to that which was beforethe Court in McKinney, and the majority concluded that the mandatory retirement policy wasreasonable and justifiable.[94] Justices L’Heureux-Dubé and McLachlin dissented, finding the university’s mandatory2011 FC 120 (CanLII)retirement policy to be neither reasonable nor justifiable. Given that parties generally cannotcontract out of human rights legislation, the dissenting judges were of the view that the fact that themandatory retirement requirement was found in a collective agreement was not evidence of thereasonableness of the discriminatory practice in Dr. Dickason’s case. While accepting that thiscould be a factor to consider in exceptional circumstances, the collective agreement wouldnevertheless have to be carefully scrutinized in order to ensure that it was truly freely negotiated,and did not discriminate unfairly against a minority of the union membership: at para. 118.[95] Justice Sopinka concurred with Justices L’Heureux-Dubé and McLachlin, holding that Dr.Dickason’s appeal should be allowed on the basis that the Board of Inquiry had found only a weakconnection between the University’s objective and its mandatory retirement policy. The Board hadalso found that there were other, more reasonable ways for the University to achieve its objectives,and that no valid reason for disturbing these factual findings had been demonstrated.

Page: 25vii)New Brunswick v. Potash Corporation of Saskatchewan Inc.[96] As will be discussed below, there have been calls in recent years for the Supreme Court ofCanada to revisit the issue of mandatory retirement. This was explicitly recognized by the Courtitself in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.,2008 SCC 45, [2008] 2 S.C.R. 604.[97] The Supreme Court left the door open for a reconsideration of mandatory retirement in theappropriate case: at para. 4. However, the facts of the Potash case did not present the proper2011 FC 120 (CanLII)opportunity for such a reconsideration, as no constitutional challenge had been made to the relevantprovision of the New Brunswick Human Rights Code, R.S.N.B. 1973, c. H-11.B. Why the Supreme Court’s Decision in McKinney does not Determine the Result of thisCase[98] Air Canada and ACPA argue that the Supreme Court’s decision in McKinney was bindingon the Tribunal, and, as such, should have dictated a finding that paragraph 15(1)(c) of the CHRAwas saved by section 1 of the Charter. According to Air Canada and ACPA, there are no factual orevidentiary differences in this case that are sufficiently material as to justify a different conclusionon the section 1 issue.[99] The applicants contend that the only real change that had taken place between the time ofthe Supreme Court’s decision in McKinney and the hearing before the Tribunal in this case was thatmandatory retirement had been abolished in Ontario, a development that occurred after thetermination of Messrs. Vilven and Kelly’s employment with Air Canada. This single developmentdid not, in the applicants’ view, permit the Tribunal to refuse to follow McKinney.

Page: 26[100] Our legal system operates on the principle of stare decisis. That is, in the interest ofproviding certainty to the law, decisions of appellate courts are binding on trial courts and shouldordinarily be followed in cases involving similar facts.[101] While recognizing that Supreme Court of Canada decisions are unquestionably binding onboth the Tribunal and on this Court, there are four reasons why the Supreme Court’s decisions inMcKinney and its companion cases should not dictate the result of this case. These are:2011 FC 120 (CanLII)1. The significant differences between the legislative provisions inissue;2. The clear indication in McKinney that the Supreme Court did notintend that the decision be the final word on the subject ofmandatory retirement for all time;3. The differences in the evidentiary records that were before theSupreme Court and the Tribunal; and4. The developments in public policy that have occurred sinceMcKinney was decided.[102] Each of these reasons will be discussed in turn.i) The Differences Between the Legislative Provisions[103] While there are similarities between paragraph 15(1)(c) of the CHRA and the provisions ofthe Ontario and British Columbia human rights legislation that were at issue in McKinney andHarrison¸ there are also significant differences in the legislation.

Page: 27[104] The Ontario Human Rights Code provision under consideration in McKinney contained ageneral prohibition against age discrimination in employment. “Age” was defined in section 9 of theCode as being “an age that is eighteen years or more and less than sixty-five years”. As a result,those over the age of 65 did not enjoy the protection of the Code.[105] The provision of the British Columbia Human Rights Act at issue in Harrison defined “age”as being “an age of 45 years or more and less than 65 years”, with a similar result.2011 FC 120 (CanLII)[106] There are undoubtedly similarities between these provisions and paragraph 15(1)(c) of theCHRA, which provides that:15. (1) It is not a discriminatorypractice if…(c) an individual’s employmentis terminated because thatindividual has reached thenormal age of retirement foremployees working in positionssimilar to the position of thatindividual …15. (1) Ne constituent pas desactes discriminatoires :….c) le fait de mettre fin àl’emploi d’une personne enappliquant la règle de l’âge dela retraite en vigueur pour cegenre d’emploi …[107] None of these legislative provisions mandate retirement at a specified age. All arepermissive provisions which limit the protection offered by relevant legislation in the employmentcontext.[108] ACPA and Air Canada submit that paragraph 15(1)(c) of the CHRA is more readilydefensible, as it is narrower than section 9 of the Ontario Human Rights Code. As Justice Wilson

Page: 28observed in her dissenting judgment in McKinney, section 9 of the Code permits all forms ofworkplace age discrimination against those over 65, and not just their mandatory retirement: at para.350. In contrast, the exception created by paragraph 15(1)(c) of the CHRA relates only to the issueof mandatory retirement.[109] I agree that in this respect, paragraph 15(1)(c) of the CHRA is narrower than section 9 of theOntario Human Rights Code. However, there are other significant differences between paragraph15(1)(c) of the CHRA, and the provisions of the Ontario and British Columbia human rights2011 FC 120 (CanLII)legislation that were in issue in McKinney and Harrison that have a bearing on whether paragraph15(1)(c) is saved by section 1 of the Charter.[110] First of all, the legislative history and objectives of each provision is different. Justice LaForest discussed the legislative history and objectives of section 9 of the Ontario Human RightsCode in McKinney. While noting that concern had been expressed by legislators for not affordingprotection in the employment sector to those over 65, in the end, “other considerationspredominated”. These included “the potential for delayed retirement and delayed benefits, as wellas the effect on hiring and personnel practices, and the impact on youth unemployment”: at para. 94.[111] In contrast, when the CHRA was before Parliament, Minister of Justice Ron Basford andAssistant Deputy Minister Barry Strayer testified that the intent of paragraph 15(1)(c) was to leavethe issue of a mandatory retirement age in the private sector to be negotiated between employersand employees: see Vilven #1 at paras. 159-161 and 243-247.

Page: 29[112] Moreover, in both the Ontario and British Columbia human rights legislation, the provincialLegislatures specifically identified the age at which the protection afforded by the law should ceasebeing available to employees. Parliament did not make such a policy choice in enacting paragraph15(1)(c). Rather, it elected to delegate the choice of age at which employees will cease to enjoy theprotection of the CHRA to employers employing a particular class of workers.[113] That is, it is employers who will decide what the “normal age of retirement” will be forvarious types of positions. This decision may be arrived at through the collective bargaining2011 FC 120 (CanLII)process, or may result from the unilateral imposition of employer retirement policies. In practice,paragraph 15(1)(c) of the CHRA applies primarily to private sector employers, as the federalgovernment abolished mandatory retirement for its employees in the 1980’s.[114] There is another difference between the legislation at issue in this case and that at issue inMcKinney. In McKinney, the Supreme Court identified 65 as the “normal age of retirement” inCanadian society: at para. 106. Thus the legislative provisions at issue in both McKinney andHarrison conformed to this societal norm. In contrast, paragraph 15(1)(c) of the CHRA permits theimposition of retirement on employees at an age below 65, so long as it accords with the “normalage of retirement” for a particular type of position.[115] The younger the mandatory age of retirement, the greater the adverse effects will be forthose who have been unable to accumulate sufficient financial resources or pensionable earningsprior to being compelled to retire. The labour economists testifying before the Tribunal agreed thatthis group will be disproportionately made up of women and immigrants.

Page: 30[116] Further, as I observed in Vilven #1, paragraph 15(1)(c) of the CHRA is an unusual provisionto find in human rights legislation, in that it allows for federally-regulated employers to discriminateagainst their employees on the basis of age, as long as that discrimination is pervasive within aparticular industry: at para. 1.[117] The delegation of the choice of the permissible mandatory retirement age to private sectorindustry players has another consequence for federally-regulated employees - one not felt by those2011 FC 120 (CanLII)working in either Ontario or British Columbia at the time that McKinney and Harrison weredecided.[118] That is, employees in both Ontario and British Columbia could readily have discovered theage at which they would cease to enjoy the protection of the relevant provincial human rightslegislation. In contrast, paragraph 15(1)(c) of the CHRA does not clearly inform employees of theirrights. The uncertainty and practical difficulties that the wording of paragraph 15(1)(c) creates areillustrated by the facts of this case.[119] In order to understand his or her rights, a federally-regulated employee would have to knowwhich positions were “similar to the position of that individual”. This would require the employeeto properly identify the appropriate comparator group. This is not an easy task, even for legallytrainedindividuals familiar with human rights principles.

Page: 31[120] Indeed, in this case, the Tribunal determined that the appropriate comparator group for thepurposes of the paragraph 15(1)(c) analysis was “pilots who fly with regularly scheduled,international flights with […] major international airlines”: see Tribunal decision #1 at para. 55.[121] On judicial review, I concluded that the Tribunal had erred in principle in coming to thisconclusion, with the result that its choice of comparator was unreasonable. I found that the propercomparator should be “pilots working for Canadian airlines who fly aircraft of varying sizes andtypes, transporting passengers to both domestic and international destinations, through Canadian2011 FC 120 (CanLII)and foreign airspace”: Vilven #1, at para. 112.[122] Even if the individual was able to properly identify the appropriate comparator group, and toidentify which positions were similar to his or her own job, the employee would then have toassemble the necessary information as to the number of individuals occupying similar positionswith other employers. The individual would also have to be able to find out what the retirementpolicies were governing these other employees. This would be necessary to determine whetherthere was a “normal age of retirement” for these types of positions, and what that age was.[123] Numerical information as to the number of individuals employed in specific positions isoften highly sensitive proprietary information that may not be readily accessible to employees ofother companies. Indeed, there was evidence before the Tribunal in this case as to the difficultiesthat Messrs. Vilven and Kelly encountered in trying to gather this type of information from AirCanada’s competitors. By the time the case came before the Tribunal, the record in this regard wasstill not complete.

Page: 32[124] There is a further consideration that distinguishes paragraph 15(1)(c) of the CHRA from theprovisions of the Ontario and British Columbia human rights legislation at issue in McKinney andHarrison. That is, the upper age limit on the protection against age discrimination specified in theprovincial legislation applied equally to all employees working in the province in question. Incontrast, the age limit contemplated by paragraph 15(1)(c) of the CHRA may vary from industry toindustry and from position to position.2011 FC 120 (CanLII)[125] Moreover, unlike the provincial legislation at issue in McKinney and Harrison, paragraph15(1)(c) of the CHRA permits a single dominant player within an industry to effectively set thenormal age of retirement for the entire industry. Once again, this distinguishing feature is illustratedby the facts of this case.[126] Other Canadian airlines do not require that their pilots retire at age 60. At the time thatMessrs. Vilven and Kelly were forced to retire from Air Canada, several Canadian airlines allowedtheir pilots to fly until they were 65, and one had no mandatory retirement policy whatsoever:Vilven #1, at para. 173.[127] However, Air Canada occupies a dominant position within the Canadian airline industry,employing the majority of pilots flying aircraft of varying sizes and types, transporting passengersto both domestic and international destinations through Canadian and foreign airspace. As a result,Air Canada (with ACPA) is able to set the industry norm, and can effectively determine the ‘normal

Page: 33age of retirement’ for all Canadian pilots for the purposes of paragraph 15(1)(c) of the Act: seeVilven #1, at para. 171.[128] In other words, paragraph 15(1)(c) of the Act allows Air Canada and ACPA’s owndiscriminatory conduct to provide them with a defence to Messrs. Vilven and Kelly’s human rightscomplaints: see Vilven #1, at para. 313.[129] None of these issues were considered by the Supreme Court in McKinney and Harrison in2011 FC 120 (CanLII)determining whether the legislation at issue in those cases was demonstrably justifiable undersection 1 of the Charter. The differences between the provisions of the Ontario and BritishColumbia human rights legislation and paragraph 15(1)(c) of the Canadian Human Rights Act aresufficiently material as to justify the finding that the Supreme Court’s decision in McKinney shouldnot automatically dictate the result of a section 1 Charter analysis in this case.ii)McKinney did not Purport to be the Final Word on the Subject of Mandatory Retirement[130] The second reason for concluding that McKinney does not dictate the result in this case isthat the majority decision in McKinney did not purport to be the final word on the subject ofmandatory retirement for all time.[131] The constitution is a “living tree capable of growth and expansion within its natural limits”.The result of this is that constitutional rights are subject to changing judicial interpretations overtime: see Edwards v. Attorney-General for Canada, [1930] A.C. 124 at p. 136 (P.C.), per LordSankey.

Page: 34[132] However, as the Ontario Superior Court observed in Bedford v. Canada (Attorney General),2010 ONSC 4264, [2010] O.J. No. 4057, while the Supreme Court of Canada has the power torevisit its earlier decisions, “lower courts must only do so in very limited circumstances”: at para.78.[133] As to what those limited circumstances may be, the Court in Bedford quoted comments inWakeford v. Canada (Attorney General) (2001), 81 C.R.R. (2d) 342, [2001] O.J. No. 390 (Ont. Sup.2011 FC 120 (CanLII)Ct.), aff'd (2001), 156 O.A.C. 385, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 72.There, Justice Swinton stated that where a decision of the Supreme Court is squarely on point,“there must be some indication - either in the facts pleaded or in the decisions of the Supreme Court- that the prior decision may be open for reconsideration...: at para.14.[134] As was explained earlier, I am not persuaded that McKinney and the other Supreme Courtmandatory retirement jurisprudence is “squarely on point”. In any event, the Supreme Court clearlyindicated in McKinney that it did not intend that its judgment on the section 1 issue be the final wordon the subject.[135] Justice La Forest observed that “the ramifications of mandatory retirement on theorganization of the workplace and its impact on society generally are not matters capable of precisemeasurement”. He went on to state that “the effect of its removal by judicial fiat is even lesscertain”. He noted that decisions made in relation to such matters “must inevitably be the product of

Page: 35a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs,aspirations and resources of society, and other components”: all quotes from McKinney at para. 104.[136] In discussing the expert evidence provided by labour economists with respect to thepotential consequences of abolishing mandatory retirement, Justice La Forest observed thatmandatory retirement could not be looked at in isolation, and that, according to the experts, “therepercussions of abolishing mandatory retirement would be felt ‘in all dimensions of the personnelfunction: hiring, training, dismissals, monitoring and evaluation, and compensation’”: at para. 109.2011 FC 120 (CanLII)Consequently, Justice La Forest stated that “it should not be altogether surprising that theLegislature opted for a cautious approach to the matter”: at para. 112.[137] However, in the very next paragraph, Justice La Forest went on to note that mandatoryretirement had been abolished in a number of jurisdictions, albeit by legislative choice rather thanjudicial fiat, and that the apprehended effects had not resulted. He observed that “we do not reallyknow what the ramifications of these new schemes will be and the evidence is that it will be some15 to 20 years before a reliable analysis can be made”: at para. 113, emphasis added.[138] Thus, Justice La Forest’s statement that he was “not prepared to say that the course adoptedby the Legislature […] is not one that reasonably balances the competing social demands which oursociety must address” was specifically made in the social and historical context of the early 1990’s:at para. 123. He clearly left the issue open for revisitation in the future, when reliable evidencebecame available as to what actually happened when mandatory retirement was abolished.

Page: 36[139] Where earlier Supreme Court decisions can and should be revisited, “such revisitations mustnecessarily commence at the trial court level”: Leeson v. University of Regina, 2007 SKQB 252,301 Sask. R. 316, at para. 9.[140] This case thus falls within the exceptional circumstances discussed in Wakeford. It wasopen to the Tribunal to revisit the issue of mandatory retirement as it related to paragraph 15(1)(c)of the Canadian Human Rights Act, in light of more recent evidence.2011 FC 120 (CanLII)[141] This then takes us to the third distinguishing feature of this case, which is the differences inthe evidentiary records that were before the Supreme Court in McKinney and the Tribunal in thiscase.iii)The Differences in the Evidentiary Records[142] Supreme Court jurisprudence may also be revisited where there are “new facts that mayhave called into question the basis for the Supreme Court decision”: see Bedford, at para. 80.[143] In Leeson, the Court considered when it is appropriate for a lower court to revisit thedecisions of a higher court. It is noteworthy that this discussion took place in relation to a Charterchallenge brought by university professors to a provision of The Saskatchewan Human Rights Code,S.S.1979, c. S-24.1, limiting the protection against age discrimination provided by the Code to thoseunder 65. This was essentially the issue that was before the Supreme Court of Canada in McKinney.

Page: 37[144] The Court addressed the professors’ argument that the social, political and economicassumptions underlying the McKinney decision were no longer valid. In this regard, the Courtstated that “When such change is alleged, and there are at least some facts alleged which supportsuch change, it is not appropriate to prevent the matter from proceeding on the basis of staredecisis”: Leeson, at para. 9. The Court went on, however, to dismiss the professors’ Charterchallenge on other grounds.[145] It has now been some 18 years since McKinney was decided, and approximately 24 years2011 FC 120 (CanLII)since the evidentiary record would have been assembled in that case. The Supreme Court did notknow what the ramifications of abolishing mandatory retirement would be when it decidedMcKinney. As will be discussed further on in these reasons, there is now expert evidence availableas to the impact that the abolition of mandatory retirement has actually had for traditional labourmarket structures, including deferred compensation and pension schemes, seniority and tenuresystems, and so on.[146] Consequently, I am satisfied that there are new facts available which call into question thefactual underpinning of the Supreme Court’s decision in McKinney.iv)The New Developments in Public Policy[147] Bedford also stated that Supreme Court jurisprudence could be revisited where there were“new developments in public policy … that may have called into question the basis for the SupremeCourt decision”: at para. 80.

Page: 38[148] There have been developments in both public policy and non-Charter human rightsjurisprudence that further call into question the basis for the Supreme Court decisions in McKinneyand related cases.[149] Numerous studies have been carried out since McKinney with respect to the effects ofabolishing mandatory retirement in Canada. Indeed, the author of the majority decision inMcKinney - Justice La Forest himself - examined the issue in his role as Chair of the CanadianHuman Rights Act Review Panel. This Panel recommended 10 years ago that there should no2011 FC 120 (CanLII)longer be blanket exemptions for mandatory retirement policies in the Canadian Human Rights Act:see the Report of the Canadian Human Rights Act Review Panel, Promoting Equality: A NewVision, (Ottawa: Canadian Human Rights Act Review Panel, June 2000), at p.119.[150] While recognizing that further study was required in order to develop alternatives tomandatory retirement, the Report of the Canadian Human Rights Act Review Panel emphasized thatsuch studies should keep equality issues in mind. Significantly, the Report says that “Employersshould not be able to justify forcing someone to retire simply because this has been the normal ageof retirement for similar jobs” (emphasis added). According to the authors, “This is a very arbitraryapproach that incorporates the types of historical assumptions that human rights legislation issupposed to eliminate”: at p.121.[151] The Report does accept that mandatory retirement may be justified in certain workplaces,citing the Canadian Forces as an example. However, it recommends that “In the absence of blanket

Page: 39mandatory retirement defences in the Act, the government should require employers to justify theirmandatory retirement policies with a bona fide occupational requirement”: at pp.120-121.[152] The Report of the Canadian Human Rights Act Review Panel reflects the fact that societalattitudes towards age discrimination have evolved since McKinney was decided. As the OntarioSuperior Court observed in Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General),(2008), 92 O.R. (3d) 16, [2008] O.J. No. 2131, (“Justices of the Peace”), “society’s understandingof age discrimination, prohibited by the Charter, has evolved to the extent that practices considered2011 FC 120 (CanLII)acceptable 20 years ago are now prohibited”: at para. 177.[153] In addition, post-McKinney Supreme Court of Canada human rights jurisprudence in thenon-Charter context has reinforced the need for employers to avoid generalized assumptions as tothe capacity of individual employees.[154] That is, in Meiorin, cited above, and British Columbia (Superintendent of Motor Vehicles) v.British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, [1999] S.C.J. No.73(“Grismer”), the Supreme Court restated the test for discrimination, and imported the duty toaccommodate into cases of direct discrimination under human rights codes.[155] In so doing, the Court emphasized the need for individualized assessments, in order to avoidstereotyping based upon proscribed grounds. In this regard, the Court stated that employers “mustaccommodate factors relating to the unique capabilities and inherent worth and dignity of everyindividual, up to the point of undue hardship”: Meiorin at para. 62.

Page: 40[156] These circumstances further support the view that the Supreme Court’s decision inMcKinney should not dictate the result of a section 1 Charter analysis in this case.v) Other Post-McKinney Mandatory Retirement Jurisprudence[157] Before leaving this issue, I would note that my conclusion that the Supreme Court’sdecisions in McKinney and its companion cases do not require a finding that paragraph 15(1)(c) ofthe CHRA is saved by section 1 of the Charter is reinforced by a review of several lower court post-2011 FC 120 (CanLII)McKinney decisions.[158] These cases deal either with the constitutional validity of mandatory retirement policies or oflegislation, and, in one case, deal specifically with the constitutional validity of paragraph 15(1)(c)of the Canadian Human Rights Act itself. In each of these cases, superior or appellate Courts inthree different provinces have concluded that the contextual assumptions upon which the SupremeCourt’s decision in McKinney was founded are no longer valid.a) Greater Vancouver Regional District Employees’ Union v. Greater Vancouver RegionalDistrict[159] The first of these decisions is the judgment of the British Columbia Court of Appeal inGreater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District,2001 BCCA 435, 206 D.L.R. (4th) 220. This case did not involve a Charter challenge to humanrights legislation, but rather the review of an arbitrator’s decision striking down an employer’smandatory retirement policy.

Page: 41[160] In dismissing the employer’s appeal, the Court held that the mandatory retirement policywas discriminatory, and that the employer had not met its burden of establishing that the policy wasjustified under section 1 of the Charter. In coming to this conclusion, the Court was not persuadedthat McKinney and subsequent decisions had decided that “all mandatory retirement policies in thepublic sector are saved under s.1 of the Charter simply because they do not contravene relevantprovincial human rights legislation”: Greater Vancouver, at para. 120.[161] Of particular significance are the comments in Greater Vancouver with respect to the2011 FC 120 (CanLII)ongoing relevance of the McKinney decision. In this regard, the Court observed that McKinney wasnot intended to be a final determination of the mandatory retirement question, and that, as I havenoted earlier, there were intimations in the reasons of the majority that the issue should be revisitedin the future: at para. 28.[162] The majority decision in Greater Vancouver goes on to observe that “Since it is now 11years since McKinney was decided, and since the issue of mandatory retirement is one ofconsiderable importance and concern in our society, I respectfully suggest that the time forrevisiting the issue is upon us”: at para. 28.[163] Under the heading “Time for Reconsideration”, the majority in Greater Vancouver concludewith the following cri de cœur urging the Supreme Court of Canada to reconsider the issue ofmandatory retirement:Eleven years have now passed since McKinney was decided. Thedemographics of the workplace have changed considerably, not onlywith respect to the university community, but also in the workplaceat large. At least two other countries, Australia and New Zealand

Page: 42have abolished mandatory retirement. Recent studies have been doneon the effect of abolishing mandatory retirement in Canada andelsewhere. (See, for example, The Report of the Canadian HumanRights Act Review Panel […] and Ontario Human RightsCommission, Time for Action: Advancing Human Rights for OlderOntarians (Toronto: Queen's Printer for Ontario, 28 June 2001). Theextent to which mandatory retirement policies impact on otherequality rights, and on the mobility of the workforce, have becomeprominent social issues. The social and legislative facts nowavailable may well cast doubt on the extent to which the courtsshould defer to legislative decisions made over a decade ago. Theissue is certainly one of national importance.2011 FC 120 (CanLII)b) Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General)[164] Seven years later, the Ontario Superior Court was called upon to consider a constitutionalchallenge to legislation requiring that Justices of the Peace retire at age 70, rather than age 75, as isthe case for judges: Justices of the Peace, above.[165] To the extent that much of the decision focuses on mandatory retirement as it relates tojudicial independence, the decision is not directly on point. That said, the Court goes through adetailed discussion of the “striking change” that had taken place in Ontario with respect tomandatory retirement since the time that McKinney was decided, in both legislation and publicattitudes: see paras. 33-45. The Court observed that where mandatory retirement had once beengenerally accepted as a social norm, “it is now the exception, applicable to only a select fewoccupations for which it is viewed as necessary”: at para. 33.[166] After reviewing various studies and legislative initiatives advocating the abolition ofmandatory retirement in Ontario, the Court concluded its analysis by observing that since McKinneywas decided, “there has been a sea change in the attitude to mandatory retirement in Ontario, led by

Page: 43the efforts of the [Ontario Human Rights] Commission”. This attitudinal change had culminated inlegislative reform, with the Ontario Legislature having recognized that “mandatory retirement is aserious form of age discrimination”, leading to its abolition in both the public and private sectors inthat province: at para. 45.c) CKY-TV v. Communications, Energy and Paperworkers Union of Canada, Local 816[167] The most recent and most directly relevant cases are a pair of decisions rendered first by alabour arbitrator, and then by the Manitoba Court of Queen’s Bench, expressly dealing with the2011 FC 120 (CanLII)constitutionality of paragraph 15(1)(c) of the CHRA. Both decisions conclude that paragraph15(1)(c) violates subsection 15(1) of the Charter and that it is not saved by section 1.[168] CKY-TV v. Communications, Energy and Paperworkers Union of Canada (Local 816)(Kenny Grievance), [2008] C.L.A.D. No. 92 is the arbitral decision dealing with the mandatoryretirement of a maintenance technician with CKY-TV at age 65 in accordance with a companypolicy. The employee’s union grieved the termination of his employment, also challenging theconstitutionality of paragraph 15(1)(c) of the CHRA.[169] In concluding that paragraph 15(1)(c) violated subsection 15(1) of the Charter and was notsaved by section 1, Arbitrator Peltz found that the Supreme Court had proceeded on the basis ofcontextual assumptions in McKinney, which assumptions were no longer valid in light of the expertevidence before him.

Page: 44[170] The arbitrator’s section 1 analysis turned on the issue of minimal impairment, with thearbitrator concluding that the evidence before him did not establish that “there is a reasonable basisfor believing that the employment regime of pensions, job security, good wages and reasonablebenefits requires the maintenance of mandatory retirement at age 65 or a predominant age”: at para.216.[171] The arbitrator’s decision was subsequently confirmed by the Manitoba Court of Queen’sBench: see CKY-TV v. Communications, Energy and Paperworkers Union of Canada, Local 816,2011 FC 120 (CanLII)2009 MBQB 252, [2009] M.J. No. 336. The Court agreed with the arbitrator that the employer hadnot satisfied the minimal impairment component of the Oakes test, in light of the evidence in therecord regarding current social and economic conditions.[172] The Court observed that the operation of paragraph 15(1)(c) was not limited to situationswhere unions or employees had negotiated or agreed to mandatory retirement at any particular age.Rather, the exception to the prohibition on age discrimination created by paragraph 15(1)(c) went“far beyond limiting the discriminatory practice to those situations where contracts are trulynegotiated”: at para. 32.[173] Indeed, the Court found that paragraph 15(1)(c) “purports to permit an employer toterminate a person's employment simply by establishing or proving a ‘normal age of retirement’ forworkers in similar positions”. As a consequence, the Court was satisfied that the arbitrator’sconclusion on the issue of minimal impairment was correct: at para. 32.

Page: 45d) Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (CanadianHuman Rights Commission)[174] Before leaving this issue, there is one other post-McKinney decision that bears comment.This is the decision of the Supreme Court in Bell v. Canada (Canadian Human RightsCommission); Cooper v. Canada (Canadian Human Rights Commission), [1996] S.C.J. No. 115(“Bell and Cooper”).[175] Bell and Cooper is not technically a mandatory retirement decision, inasmuch as the issue2011 FC 120 (CanLII)before the Supreme Court was whether either the Canadian Human Rights Commission or theTribunal had jurisdiction to consider the constitutional validity of a provision of the CHRA.[176] What is noteworthy, however, is that the statutory provision at issue in Bell and Cooper wasparagraph 15(1)(c) of the Act, and that the case arose in the context of human rights complaintsbrought by two former Canadian Airlines pilots. Messrs. Bell and Cooper alleged that they had beenthe victims of age discrimination when they were forced to retire from Canadian Airlines at the ageof 60, in accordance with the provisions of their collective agreement.[177] The human rights complaints were investigated by the Commission, and the investigatorfound that 60 was the normal age of retirement for airline pilots. However, before a decision couldbe made by the Commission with respect to the complaints, the Supreme Court released its decisionin McKinney. The Commission subsequently advised the complainants that a Tribunal inquiry intotheir complaints was not warranted, and that the Commission was bound by McKinney.

Page: 46[178] As noted earlier, the issue that ultimately came before the Supreme Court was ajurisdictional one. The majority of the Court found that neither the Commission nor the Tribunalhad the jurisdiction to consider the constitutional validity of paragraph 15(1)(c) of the CHRA.Consequently, the majority did not address the significance of McKinney for Messrs. Bell andCooper’s human rights complaints.[179] In their dissenting judgment, Justices McLachlin and L’Heureux-Dubé found that both theCommission and the Tribunal had the power to consider whether the Charter rendered the normal2011 FC 120 (CanLII)age of retirement defence invalid.[180] More importantly for the purposes of this case, the dissenting judges rejected the airline’sargument that McKinney provided a complete answer to Messrs. Bell and Cooper’s human rightscomplaints. They noted that “Everyone agrees that the issue of whether a section of the CanadianHuman Rights Act has been invalidated by s. 15 of the Charter and s. 52 of the Constitution Act,1982 is an important issue for the appellants and for Canadians generally”: at para. 69.[181] Justices McLachlin and L’Heureux-Dubé did not accept the airline’s contention that becauseMcKinney held that age 65 was the normal age of retirement for the university professors, itnecessarily followed that a statute providing for retirement at the normal age for the occupation inquestion must also be saved under section 1.[182] According to the dissenting judges, “this argument oversimplifies the process envisagedunder s. 1 of the Charter”. They stated that “Even if one were to accept the doubtful submission that

Page: 47the conclusion that the infringement in McKinney was justified under s. 1 of the Charter solely onthe ground that this was the normal age of retirement, one cannot conclude that that factor alonewould suffice in all cases to justify an infringement of s. 15”: at para. 106.[183] Justices McLachlin and L’Heureux-Dubé held that section 1 “is about much more than whatis usual or ‘normal’”. They were of the view that a usual practice “may be unjustifiable, havingregard to the egregiousness of the infringement or the insubstantiality of the objective alleged tosupport it”. As a result, each case had to be examined in light of its own circumstances: at para. 106.2011 FC 120 (CanLII)[184] Consequently, the dissenting judges found that the Commission had erred in concluding thatMcKinney presented a complete answer to Messrs. Bell and Cooper’s human rights complaints.[185] It is thus clear that for at least two judges of the Supreme Court, the decision in McKinneydoes not provide a complete answer to a challenge to the constitutional validity of paragraph15(1)(c) of the CHRA.C. Is Paragraph 15(1)(c) of the CHRA Justifiable Under Section 1 of the Charter?[186] Having thus determined that McKinney does not provide a complete answer to Messrs.Vilven and Kelly’s Charter challenge, the question for this Court is whether the Tribunal’s findingthat paragraph 15(1)(c) of the CHRA is not saved by section 1 of the Charter is correct.

Page: 48i) The Section 1 Analytical Framework[187] As was previously noted, the parties agree that the Oakes test should be applied by the Courtin determining whether paragraph 15(1)(c) of the CHRA is saved by section 1 of the Charter. Inorder to satisfy this test, Air Canada and ACPA must demonstrate that:(1) the objective of the legislation is pressing and substantial; andthat(2) the impairment of the right is proportional to the importance ofthe objective in that(a) the means chosen are rationally connected to thelegislative objective;(b) the means chosen impairs the Charter rightminimally or “as little as possible”; and(c) there is a proportionality between any deleteriouseffects of the legislation and its salutary objective, sothat the attainment of the legislative goal is notoutweighed by the abridgment of the right inquestion.2011 FC 120 (CanLII)See Oakes at paras. 69 and 70. See also R. v. Edwards Books & Art Ltd., [1986] 2 S.C.R. 713,[1986] S.C.J. No. 70 (QL); RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R.199, [1995] S.C.J. No. 68; Irwin Toy v. Québec (Attorney General), [1989] 1 S.C.R. 927, [1989]S.C.J. No. 36.[188] The starting point of a section 1 inquiry is to identify the objectives of the law, in order todetermine whether these objectives are sufficiently important as to warrant the limitation of aconstitutional right: see Stoffman, above, at para. 50.[189] In order to identify the objectives of the law, the Court must examine the nature of the socialproblem that the legislation addresses. The context of the impugned legislation “is also important inorder to determine the type of proof which a court can demand of the legislator to justify its

Page: 49measures under section 1”: see Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1S.C.R. 877, [1998] S.C.J. No. 44, at paras. 87 and 88. As the Supreme Court observed in Eldridge v.British Columbia (Attorney General), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, “where thelegislation under consideration involves the balancing of competing interests and matters of socialpolicy, the Oakes test should be applied flexibly, and not formally or mechanistically”: at para. 85.[190] The Supreme Court also observed in Eldridge that the application of the Oakes test“requires close attention to the context in which the impugned legislation operates”: at para. 85.2011 FC 120 (CanLII)[191] Relevant contextual factors may include the nature of the harm addressed, the vulnerabilityof the group protected, subjective fear and apprehension of harm, and the nature and importance ofthe infringed activity: see R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527, at para. 10. See alsoThomson Newspapers Co., and Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1S.C.R. 827.[192] Although this Charter challenge arises in the context of the forced retirement of two AirCanada pilots, I agree with the parties that my section 1 analysis should not be restricted to thiscontext. Messrs. Vilven and Kelly were not denied the protection of the CHRA because they wereairline pilots working for Air Canada, but because they had reached the “normal age of retirement”for similar positions, as contemplated by paragraph 15(1)(c) of the CHRA.[193] As the Supreme Court observed in McKinney, to limit a section 1 analysis to the specificfactual context in which the challenge arises would be inconsistent with the Oakes test, which

Page: 50requires a consideration of whether the measures adopted have been carefully designed to achievethe objective in question. Paragraph 15(1)(c) of the CHRA is not restricted to the airline industry,and while evidence relating to the specific situation of Air Canada pilots may “serve as an exampleto demonstrate the reasonableness of the objectives, it must not be confused with those objectives”:McKinney, at para. 91.[194] With these principles in mind, I now turn to consider paragraph 15(1)(c) of the CHRA inlight of the Oakes test.2011 FC 120 (CanLII)ii)What are the Objectives of Paragraph 15(1)(c) of the CHRA?[195] The first element of the Oakes test requires the Court to identify the objectives of thelegislative provision in question. I identified the objectives of paragraph 15(1)(c) of the CanadianHuman Rights Act in Vilven #1 in the following terms:[243] The Tribunal described the purpose of paragraph 15(1)(c) ofthe Canadian Human Rights Act as being “to strike a balancebetween the need for protection against age discrimination and thedesirability of those in the workplace to bargain for and organizetheir own terms of employment …” : at para. 98.[244] The Tribunal’s description of the purpose of the provision isaccurate, as far as it goes. A more fulsome description of thepurpose of the impugned legislation was provided by the arbitrator inthe CKY-TV case cited earlier. In this regard, the arbitrator observedthat the legislative objective underlying paragraph 15(1)(c) of the Act“was to protect a longstanding employment regime”.[245] Referring to the comments of Minister Basford cited earlier inthese reasons, the arbitrator noted that the Minister had madereference to the “‘many complex social and economic factors’involved in mandatory retirement”, leading the arbitrator to concludethat “the government's stated preference was to continue thetraditional approach whereby the issue in the private sector was

Page: 51addressed between employers and employees”: CKY-TV, at para..210.[246] The arbitrator further held that the objective of paragraph15(1)(c) of the Act was to allow for the continuation of a sociallydesirable employment regime, which included pensions, job security,wages and benefits. This was to be achieved by allowing mandatoryretirement “if the age matched the predominant age for the position”:CKY-TV, at para.. 211.[247] It is clear from the statements made by Minister Basford andAssistant Deputy Minister Strayer at the time that the CanadianHuman Rights Act was enacted that paragraph 15(1)(c) of the Actwas intended to create an exception to the quasi-constitutional rightsotherwise provided by the Act, so as to allow for the negotiation ofmandatory retirement arrangements between employers andemployees, particularly through the collective bargaining process.2011 FC 120 (CanLII)[196] No appeal was taken from my decision in Vilven #1, and ACPA and Air Canada do not nowtake issue with my characterization of Parliament’s objectives in enacting paragraph 15(1)(c) of theCHRA. Rather, their argument is that the Tribunal erred by failing to find that these objectives werepressing and substantial.iii)Are The Objectives of Paragraph 15(1)(c) of the CHRA Pressing and Substantial?[197] The Tribunal found that Parliament’s objectives in enacting paragraph 15(1)(c) of the CHRAwere neither pressing nor substantial, as the alternatives to mandatory retirement used in otherjurisdictions preserve the benefits of current labour market structures, such as deferredcompensation and pension schemes, without discriminating on the basis of age. In light of this, theTribunal asked how the goal of permitting freedom of contract could be sufficiently important as tojustify overriding a constitutional right: Tribunal decision #2, at para. 45.

Page: 52[198] The Tribunal further found that the link between mandatory retirement and the benefitstraditionally associated with it was not as strong as was once believed: at para. 47. As these benefitscould be achieved without mandatory retirement, the Tribunal held that it was “difficult to see howpermitting it to be negotiated in the workplace is important enough to warrant the violation ofequality rights that was identified by the Federal Court in the present case”: at para. 49.[199] Having regard to the aging of the workforce, and the fact that many individuals want or needto continue working, the Tribunal concluded that preventing, rather than permitting, age2011 FC 120 (CanLII)discrimination after the normal age of retirement has become a pressing and substantial need insociety: at para. 48.[200] In my view, the Tribunal erred by conflating elements of the proportionality analysis with itsassessment of whether Parliament’s objectives in enacting paragraph 15(1)(c) of the CHRA werepressing and substantial.[201] I have previously found that the objective of paragraph 15(1)(c) was to permit thenegotiation of mandatory retirement arrangements between employers and employees, particularlythrough the collective bargaining process, so as to allow for the preservation of socially desirableemployment regimes which include matters such as pensions, job security, wages and benefits.Such an objective continues to be a pressing and substantial one in our society. Indeed, I note thatthis point was conceded by the union in CKY-TV.[202] The means chosen by Parliament to achieve this objective was the enactment of the

Page: 53permissive provision in the CHRA that allows mandatory retirement where the retirement agematches the “normal age of retirement” for similar positions. Whether the means chosen to attainthe objectives of paragraph 15(1)(c) can still be shown to be rationally connected to the preservationof socially desirable employment regimes in light of current social science evidence is anotherquestion altogether, one that properly forms part of the proportionality analysis.[203] Similarly, the aging of the workforce and the fact that many individuals may want or need tocontinue working are matters that should properly form part of the minimal impairment analysis.2011 FC 120 (CanLII)These matters also factor into the assessment of whether there is proportionality between thedeleterious effects of the legislation and its salutary objectives.[204] Having concluded that Parliament’s objectives in enacting paragraph 15(1)(c) of the CHRAare still pressing and substantial, it remains to be determined whether the means employed byParliament to achieve this objective are proportional, having regard to the remaining elements of theOakes test.iv)The Proportionality Component of the Oakes Test[205] Once the objectives of the legislation in issue have been identified and are determined to bepressing and substantial, the impugned law is then subjected to the proportionality test. Thisassesses whether the means chosen by Parliament to achieve its objectives are proportional orappropriate to the ends. Context infuses every aspect of this component of the Oakes test: HealthServices and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,[2007] S.C.J. No. 27, at para. 195.

Page: 54[206] At this stage of the analysis, the objectives of the legislation are to be balanced against “thenature of the right it violates, the extent of the infringement and the degree to which the limitationfurthers other rights or policies of importance in a free and democratic society”: Stoffman, at para.50, per Justice Wilson dissenting, but not on this point.[207] Put another way, the task for the Court at this stage of the inquiry is to determine whetherimpugned legislation is “carefully designed, or rationally connected, to the objective”. Legislation2011 FC 120 (CanLII)“must impair the right in issue as little as possible”, and the effect of the legislation “must not soseverely trench on individual or group rights that the legislative objective, albeit important, isnevertheless outweighed by the abridgment of rights”: see R. v. Edwards Books, above, at para.117.v) Rational Connection[208] The first question, then, is whether there is a rational connection between the legislativeobjective and the provision in the CHRA that permits mandatory retirement at the “normal age ofretirement” for similar positions.[209] As Chief Justice Dickson observed in Canada (Human Rights Commission) v. Taylor,[1990] 3 S.C.R. 892, [1990] S.C.J. No. 129, “... as long as the challenged provision can be said tofurther in a general way an important government aim it cannot be seen as irrational”: at para. 56,emphasis added.

Page: 55[210] Justice Wilson observed in her dissenting opinion in Stoffman that the rational connectionelement of the proportionality test is meant to “engage the Court in an examination of whethergovernment is proceeding logically in the pursuit of its aims”. She noted that “all the rationalconnection branch of s. 1 requires is a demonstration that there is some logical connection, howeverslight, between the objective and the means by which it is sought to be achieved” [emphasis added].She did, however, go on to note that “the quality and extent of the connection becomes crucial” inrelation to the last two elements of the Oakes test: all quotes at para.118.2011 FC 120 (CanLII)[211] The Supreme Court has recently stated that the party invoking section 1 of the Charter mustshow that it is “reasonable to suppose that the limit may further the goal, not that it will do so.”:Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 48,emphasis added.[212] In this case, the Tribunal noted my observation in Vilven #1 that the ‘normal age ofretirement’ rule in paragraph 15(1)(c) allows a dominant player in an industry to set the mandatoryretirement age for the entire industry. According to the Tribunal, the result is that employees insmaller companies, who have not negotiated mandatory retirement in exchange for wage andpension benefits, could still be subject to the mandatory retirement age set by the dominant industryplayer: at paras. 54-56.[213] The Tribunal concluded that the ‘normal age of retirement’ criterion was not rationallyconnected to the goal of allowing for negotiated mandatory retirement, as it permitted mandatory

Page: 56retirement to be imposed upon workers without negotiation, as long as the retirement agecorresponded to the industry norm.[214] Keeping in mind Chief Justice Dickson’s admonition in Taylor that a legislative provisioncannot be seen to be irrational as long as it can be said to further an important government aim in ageneral way, I am satisfied that there is indeed a logical connection between paragraph 15(1)(c) ofthe CHRA and the objectives that it seeks to accomplish. I note that my conclusion in this regard isconsistent with the finding of the Manitoba Court of Queen’s Bench in CKY-TV: at para. 27.2011 FC 120 (CanLII)[215] Moreover, it is clear that in at least some workplaces, mandatory retirement is negotiatedthrough the collective bargaining process in exchange for wage, pension, and other benefits. To theextent that paragraph 15(1)(c) eliminates a legal barrier to mandatory retirement, it is rationallyconnected to the legislative objective of preserving socially desirable employment regimes that arebeneficial to both employers and employees.[216] As the Tribunal noted, there is a real question as to the extent to which mandatory retirementis a necessary and integral part of such labour market structures. However, the fact that mandatoryretirement may not be essential to the preservation of socially desirable employment regimes doesnot mean that paragraph 15(1)(c) of the CHRA fails the rational connection test, as mandatoryretirement is logically connected to the maintenance of such schemes: see McKinney, at para. 63.[217] As was noted earlier, the connection between impugned legislation and its objectives needonly be slight. The quality and extent of the connection are relevant, and indeed crucial

Page: 57considerations, but the place for such considerations to be taken into account is in relation to thesecond and third elements of the Oakes proportionality test, to which I now turn.vi) Minimal Impairment[218] The next stage of the Oakes analysis requires the Court to examine whether paragraph15(1)(c) of the CHRA impairs the Charter rights of workers over the normal age of retirement fortheir type of position minimally or “as little as possible”: R. v. Edwards Books, above, at para. 117.2011 FC 120 (CanLII)a) The Applicable Legal Principles[219] As the Supreme Court observed in Health Services and Support, the contextual factorsrelevant to a particular case affect the overall degree of deference to be afforded to the governmentin determining whether the legislative measures in issue are demonstrably justified: at para. 195.Greater deference should be shown to Parliament where the Court is examining a legislativeprovision that attempts to strike a balance between the claims of competing groups on the basis ofconflicting social science evidence, as opposed to cases involving a contest between an individualand the State: see Irwin Toy Ltd., above, at para. 79 and RJR-MacDonald, above, at para. 135.[220] When dealing with such polycentric issues, “considerable flexibility must be accorded to thegovernment to choose between various alternatives”: Tétreault-Gadoury v. Canada (Employmentand Immigration Commission), [1991] 2 S.C.R. 222, [1991] S.C.J. No. 41, at para. 47. This isespecially so when dealing with policy issues in the field of labour relations, which are generallybest left to the political process: R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3S.C.R. 209, at para. 257.

Page: 58[221] As the Supreme Court observed in McKinney, the question under the relaxed minimalimpairment test articulated in Irwin Toy is “whether the government had a reasonable basis forconcluding that it impaired the relevant right as little as possible given the government's pressingand substantial objectives”: at para. 68, emphasis added.[222] This does not “absolve the judiciary of its constitutional obligation to scrutinize legislativeaction to ensure reasonable compliance with constitutional standards”. It does, however, require that2011 FC 120 (CanLII)the reviewing court utilize greater circumspection in such cases: McKinney, at para. 104.[223] The question of minimal impairment, once decided, is not necessarily cast in stone for alltime. Rather, it must be assessed in the context of the current social and historical context: seeMcKinney, at para. 123.[224] As the British Columbia Court of Appeal observed in Greater Vancouver, the Legislaturemay have had limited facts at its disposal, such that no legislative deference will be appropriate.Alternatively, the Court may be presented with arguments that were not considered by theLegislature in making its policy choices: at para. 84.[225] Thus the question for this Court is whether, in light of the evidence before it, the Tribunalwas correct in finding that Air Canada and ACPA had failed to demonstrate that the governmentcontinued to have a reasonable basis for concluding that paragraph 15(1)(c) of the CHRA interferesas little as possible with the equality rights of workers over the normal age of retirement, having

Page: 59regard to the government’s pressing and substantial objectives: see the arbitrator’s decision in CKY-TV at para. 216, and the Manitoba Court of Queen’s Bench decision at para. 31.b) The Tribunal’s Findings with Respect to the Minimal Impairment Issue[226] The Tribunal found that paragraph 15(1)(c) did not minimally impair older workers’equality rights as far less intrusive options could be, and are used, rather than simply allowing formandatory retirement. These other legislative options include bona fide occupational requirementand bona fide retirement or pension plan justifications. According to the Tribunal, the use of these2011 FC 120 (CanLII)types of less intrusive measures have not caused the collapse of employee pension and benefitschemes in the jurisdictions where they were in effect. The Tribunal did, however, find that a morecarefully tailored provision might satisfy the minimal impairment component of the Oakes test:Tribunal decision #2, at paras. 57-64.c) Air Canada and ACPA’s Arguments with Respect to Minimal Impairment[227] Air Canada and ACPA submit that the Tribunal erred by requiring that the governmentselect the least intrusive possible option, rather than one that fell within a range of reasonableoptions. They say that the Supreme Court had already determined in McKinney and Harrison thatlimiting the availability of mandatory retirement to cases where age could be shown to be a bonafide occupational requirement could not satisfy the objectives of similar provisions in Ontario andBritish Columbia human rights legislation.[228] The applicants further submit that the fact that other jurisdictions may have adopteddifferent approaches to the issue of mandatory retirement simply shows that some provincial

Page: 60legislatures have struck a different balance in relation to a complex set of competing values: citingMcKinney, at para. 123.[229] The task of the Tribunal was not, the applicants say, to step into the shoes of Parliament, andreweigh the pros and cons of mandatory retirement in light of the available social science evidence.Rather, the question for the Tribunal was whether the government had a reasonable basis forconcluding that the impugned legislation impaired the relevant right as little as possible, havingregard to the government’s pressing and substantial objectives: citing McKinney, at para.112, and2011 FC 120 (CanLII)Irwin Toy, at para. 81.[230] The applicants contend that the Tribunal also erred by failing to give due consideration tothe existence of the collective agreement freely negotiated between Air Canada and ACPA. Theypoint out that the Supreme Court recognized in Dickason that collective agreements authorizingmandatory retirement can represent carefully constructed, fairly negotiated bargains betweenemployer and employees, which can be indicative of the reasonableness of the practice.[231] Air Canada and ACPA point out that in Health Services and Support, the Supreme Courtaffirmed that values such as human dignity, equality, liberty, respect for the autonomy of the personand the enhancement of democracy are all complemented and promoted by collective bargaining: atpara. 81.[232] The applicants contend that the Tribunal disregarded the benefits conferred by the collectiveagreement and the fact that the agreement reflected Charter values, including dignity of the

Page: 61individual. The Tribunal also failed to properly consider the fact that the collective agreementprovided evidence of the reasonableness of the mandatory retirement policy.[233] Instead, the applicants say that the Tribunal approached its minimal impairment analysis asif it had a free hand in directing what Parliament’s choices should have been. In so doing, theTribunal disregarded the admonition of the Supreme Court in McKinney that decision-makersshould not lightly use the Charter to second-guess legislative decisions as to how quickly it shouldproceed in moving forward toward the ideal of equality: citing McKinney, at para. 131.2011 FC 120 (CanLII)d) The Expert Evidence[234] As the Supreme Court observed in Newfoundland (Treasury Board) v. Newfoundland andLabrador Assn. of Public and Private Employees (N.A.P.E.), 2004 SCC 66, [2004] 3 S.C.R. 381,the evidence led in support of a section 1 justification will be very important to the outcome wherethe Court is dealing with matters that require close attention to context: at para. 55.[235] I will therefore start my analysis by examining the evidence that was before the Tribunal inrelation to the minimal impairment issue. This primarily took the form of expert evidence fromlabour economists led by Air Canada and the Commission with respect to the justification formandatory retirement. Neither side contested the expertise of the opposing witness in laboureconomics, specifically the economic theory underlying mandatory retirement. ACPA and Messrs.Vilven and Kelly chose not to lead any expert evidence on this issue.

Page: 62[236] Air Canada’s expert was Dr. H. Lorne Carmichael, a Professor of Economics at Queen'sUniversity. Dr. Carmichael holds a PhD in Economics from Stanford University, and chairs theundergraduate studies program at Queen’s. Dr. Carmichael has written extensively on labour marketinstitutions, and has also edited several leading economics journals.[237] The Commission’s expert was Dr. Jonathan Kesselman. Dr. Kesselman is a professor in thePublic Policy Program at Simon Fraser University, and holds a Canada Research Chair in PublicFinance. He has worked and published in the field for many years, and has also edited several2011 FC 120 (CanLII)leading journals in the field of public policy and taxation.[238] In order to put the evidence of the experts into context, it is helpful to start by recalling someof the key findings in the majority decision in McKinney with respect to the issue of minimalimpairment.[239] Justice La Forest observed that by 1990, roughly 50% of the Canadian work force heldpositions that were subject to mandatory retirement, and that approximately two-thirds of collectiveagreements provided for mandatory retirement at the age of 65: at para. 83. Sixty-five had becomethe “normal” age of retirement in Canada, and had become “part of the very fabric of theorganization of the labour market in this country”: at para. 84. Mandatory retirement had profoundimplications for the structuring of pension plans, for fairness and security of tenure in theworkplace, and for work opportunities for others.

Page: 63[240] Justice La Forest acknowledged that age had not been historically recognized as anunacceptable ground of discrimination, although he recognized that there had been “a profoundalteration in society's view of age discrimination in recent years and, in consequence, of mandatoryretirement”: at paras. 85-86.[241] In finding that the Legislature had a reasonable basis for concluding that subsection 9(a) ofthe Code impaired older workers’ right to equality as little as possible, Justice La Forestcharacterized the issue of mandatory retirement as “a complex socio-economic problem that2011 FC 120 (CanLII)involves the basic and interconnected rules of the workplace throughout the whole of our society”:at para. 96. Mandatory retirement is part of “a complex, interrelated, lifetime contractualarrangement involving something like deferred compensation”, particularly in union-organizedworkplaces, where “seniority serves as something of a functional equivalent to tenure”: at para. 108.[242] Justice La Forest observed that the ramifications that abolishing mandatory retirementwould have for the organization of the workplace, and for society in general, were things that couldnot readily be measured: at para. 104. He anticipated, however, that evidence as to the actualimpact of the abolition of mandatory retirement would be available in 15-20 years, in light of thefact that by 1990, mandatory retirement had been abolished in several provinces: at para. 113.[243] The evidence of the labour economists in this case was given with the benefit of twodecades of experience as to the impact that the abolition of mandatory retirement in Canada hasactually had for organization of the workplace, including its impact on matters such as deferredcompensation and seniority, pension and benefit schemes. This evidence seriously calls into

Page: 64question the assumption underlying the majority decision in McKinney that mandatory retirement isinextricably linked to the preservation of these beneficial employment regimes.[244] According to Dr. Kesselman, the real-world experience in the jurisdictions where mandatoryretirement has been abolished for some time has shown that the abolition of mandatory retirementhas not, in fact, led to the end of such beneficial workplace arrangements. None of the adverseconsequences that have traditionally been expected to flow from the abolition of mandatoryretirement have actually materialized in jurisdictions such as Manitoba and Quebec, where2011 FC 120 (CanLII)mandatory retirement was abolished many years ago.[245] Dr. Kesselman explained that one of the principal justifications for mandatory retirementhas traditionally been that it allows for older employees to benefit from deferred compensation.Deferred compensation is the practice of paying workers less than their productivity would warrantin the earlier years of their employment, and more than their productivity would justify in theemployees’ later years. As part of such arrangements, most deferred compensation systems(including Air Canada’s) provide pensions and other post-retirement benefits, the value of whichincrease with years of service.[246] Deferred compensation systems benefit both employers and employees. Employees’earnings rise over time. This promotes loyalty, as workers will want to stay with their employer fora long time in the expectation of rich salary and pension benefits down the road. This in turnencourages employers to invest in employee training, in the knowledge that employees will bearound long enough to allow the employers to reap the rewards of their investment.

Page: 65[247] Another traditional justification for mandatory retirement is that the existence of a fixedmandatory retirement age allows employers to plan for employee turn-over, and frees up positionsfor younger workers. It avoids the need for close and potentially demeaning performancemonitoring for employees whose productivity may have declined with age. It also imposes a cap onthe number of years in which an older employee’s pay can exceed his or her productivity, therebyencouraging more efficient agreements.2011 FC 120 (CanLII)[248] Dr. Kesselman says that there are three flaws in the traditional justification for mandatoryretirement.[249] The first flaw is that it assumes that agreements allowing for mandatory retirement areconsensual arrangements between contracting parties. Dr. Kesselman says that in actual fact, mostmandatory retirement provisions have their source in collective agreements rather than individualemployment contracts. This allows the will of the majority to trump the equality rights of individualemployees who may need or want to continue working after the mandatory age of retirement.[250] Dr. Kesselman’s thesis is borne out by the facts of this case. That is, 25% of Air Canadapilots supported the abolition of mandatory retirement in the referendum carried out by ACPAshortly before the Tribunal hearing. Nevertheless, the mandatory retirement provision was retainedin the Air Canada/ACPA collective agreement in accordance with the wishes of the majority.

Page: 66[251] Dr. Kesselman confirmed Justice L’Heureux-Dubé’s observation in McKinney that thegroup of employees who will want and need to continue working will be disproportionately madeup of women who may have entered the workforce late, or who may have taken time away from thepaid workforce because of family responsibilities. Recent immigrants will also bedisproportionately negatively affected by mandatory retirement policies because of their late entryinto the Canadian workforce. Both groups may be unable to accumulate the necessary pensionableearnings as to allow them to retire with the financial security available to others.2011 FC 120 (CanLII)[252] Dr. Kesselman points out that people who want or need to continue working will also facedifficulties obtaining alternate employment after their forced retirement because of societal attitudestowards older workers, and because it may be uneconomical for new employers to provide themwith the necessary training. These negative financial consequences may be all the more severe forwomen, because of their longer life expectancy.[253] According to Dr. Kesselman, the second flaw in the traditional justification for mandatoryretirement relates to the benefits that it purportedly confers on both employers and employees.[254] Mandatory retirement is said to benefit younger workers because it frees up jobs. However,Dr. Kesselman points out that Canada is currently facing a shortage of skilled workers. As aconsequence, the economy would actually benefit from experienced older workers beingencouraged to continue working.[255] Moreover, Dr. Kesselman says that experience has shown that the number of workers who

Page: 67would actually continue working is relatively small. Unconstrained by mandatory retirementpolicies, two-thirds of employees still choose to retire before age 65, with the average age ofretirement being 61. Empirical research suggests that there would be little effect on job creation foryounger workers if mandatory retirement were abolished.[256] As for the benefit of avoiding potentially demeaning performance monitoring for thoseemployees whose productivity may have declined with age, Dr. Kesselman observes that there is noevidence that ability or productivity abruptly declines at a specific age. He points out, somewhat2011 FC 120 (CanLII)ironically, that the mean age of the judges deciding McKinney was 65 years of age, and that severalof the judges were over that age.[257] Experience and reliability can compensate for declining abilities, says Dr. Kesselman.Moreover, employees whose abilities are in fact declining will be the ones most likely to choosevoluntary retirement.[258] Dr. Kesselman also points out that employers already need to have reliable performancemonitoring systems in place, and that such systems are all the more necessary for workers who havemany years in the workforce ahead of them. More importantly, he notes that there is no evidencethat costly new performance monitoring systems have in fact been implemented in jurisdictions thathave abolished mandatory retirement.[259] Dr. Kesselman says that mandatory retirement is not essential to the maintenance ofdeferred compensation schemes, given the evidence indicating that few workers would actually

Page: 68choose to continue working. If three to ten percent of employees over 65 were to continue workingfor an additional three years, the average length of a career would only rise by one to four months -hardly enough to upset deferred compensation schemes.[260] Dr. Kesselman also questions the premise that deferred compensation provides a usefulincentive for employers to invest in training their employees at the beginning of their careers,allowing employers to benefit from that investment over the career of the individual. He notes thatthe more rapid obsolescence of skills in today’s workplace means that employee training has2011 FC 120 (CanLII)become an ongoing process.[261] The third flaw in the traditional economic analysis of mandatory retirement identified by Dr.Kesselman is that it fails to consider the cost that compulsory mandatory retirement imposes on therest of society.[262] Older employees forced to leave their employment pay less in income and other taxes.Some begin drawing public pension benefits earlier than they might otherwise have done, and fewerbenefits get clawed-back through the tax system. The decrease in tax revenues and increase inpublic pension claims will impose a bigger drain on systems already under strain as the populationages. In this regard, Dr. Kesselman notes that while only 7.6% of the Canadian population was over65 in the mid-1960s, they made up 12% of the population by 2004 and are projected to make up23% of the population by 2030.

Page: 69[263] Other costs to the public purse include increased demands on the health-care system byemployees who have lost their private, work-related supplemental insurance coverage, and byindividuals whose loss of employment results in them qualifying for means-based benefits. Dr.Kesselman also points to research indicating that physical and mental inactivity can contribute to avariety of health problems, imposing a further strain on the public purse.[264] Dr. Kesselman says that to the extent that mandatory retirement decreases tax revenues andincreases public expenditures, it will put upward pressure on income tax rates for Canadians. These2011 FC 120 (CanLII)pressures will increasingly be felt as baby-boomers leave the workforce. The aging of theworkforce combined with increasing life expectancies means that mandatory retirement will have amuch greater adverse impact on the economy in the future than it has in the past.[265] Dr. Kesselman identifies several ways in which compensation, pension and employeebenefit plans can be modified so as to allow for the continued employment of older workers. Theseinclude eliminating long term disability insurance for employees over the age of 65 and reducingcoverage for employer-paid life insurance.[266] Dr. Kesselman says that “the case for allowing [compulsory mandatory retirement] tocontinue is based on economic analysis that presumes markets always produce desirable results”:Johnathan R. Kesselman, “Mandatory Retirement and Older Workers: Encouraging LongerWorking Lives” (2004) 200 C.D. Howe Institute Commentary 1, at p. 18. This presumption, he says,was accepted by the Supreme Court of Canada in McKinney, which found age discrimination in theform of mandatory retirement to be justifiable on the grounds of its asserted economic benefits.

Page: 70[267] However, Dr. Kesselman observes that market forces once perpetuated discrimination onthe basis of sex and race in hiring and compensation practices. Indeed, it was not so long ago thatmarried women in Canada were forced out of the workplace by market pressures in order to free uppositions for men. As Dr. Kesselman points out, it is no different to say that older workers should becompelled to leave the workforce to create positions for younger workers.[268] The burden is, of course, on Air Canada and ACPA to demonstrate that paragraph 15(1)(c)2011 FC 120 (CanLII)of the CHRA is a reasonable limit in a free and democratic society, and that the governmentcontinues to have a reasonable basis for believing that it impairs the Charter rights of workers overthe normal age of retirement for their type of position “minimally” or “as little as possible”. Withthis in mind, it is necessary to examine what Dr. Carmichael had to say about the economic theoryjustifying the continued perpetuation of mandatory retirement for federally-regulated employees.[269] Dr. Carmichael describes mandatory retirement as an institution that has evolved in labourmarkets where employees - often represented by strong unions - have been free to negotiate theirown employment conditions with employers. These negotiations result in arrangements that arebeneficial to both sides, particularly when viewed over the entire life-cycle of individual careers.[270] The benefits that Dr. Carmichael says flow from labour market structures that includemandatory retirement are many of the same advantages identified by the Supreme Court of Canadain McKinney. As these have already been discussed at some length earlier in these reasons, I willreview Dr. Carmichael’s evidence on this point somewhat briefly.

Page: 71[271] Dr. Carmichael says that mandatory retirement is an integral part of the overall package ofbenefits and obligations that comprise the employment relationship. This package includes seniorityand deferred compensation systems, whereby employees are able to earn higher wages, receivebetter employment security and opportunities and better pensions over time. Mandatory retirementopens up job opportunities for younger workers, facilitates planning by both employers andemployees, allows for less stringent monitoring of older workers, and allows employees to leave theworkforce with dignity. According to Dr. Carmichael, mandatory retirement is the quid pro quo for2011 FC 120 (CanLII)these benefits, and that the interdependence of mandatory retirement and deferred compensationschemes “is evident from the data”.[272] Insofar as the aging of the population is concerned, Dr. Carmichael says that older workersdo not necessarily have to leave the workforce after being forced to retire from their jobs. Workersmay find alternate employment, and may even be able to continue working for their formeremployer under renegotiated conditions that better reflect the workers’ current productivity.[273] While recognizing that mandatory retirement can have an adverse differential impact onwomen and immigrants, Dr. Carmichael says that good public policy requires that the effects of aninstitution be evaluated for all of the groups affected, and that some balance be maintained.[274] The groups that would benefit most from the abolition of mandatory retirement are olderworkers who have already benefited from the seniority system. According to Dr. Carmichael, thisgroup is predominately made up of men from the baby boom generation, many of whom do not

Page: 72need the money. Those who would lose out would be younger men and women, as well as thosewho entered the workforce later in life. According to Dr. Carmichael, there are better ways toaddress the plight of this latter group, such as financial support and the recognition of foreigncredentials for immigrants.[275] Dr. Carmichael agrees with Dr. Kesselman that abolishing mandatory retirement will nothave a major impact on the average age of retirement in the economy as a whole, as mostindividuals will choose to retire at the same age as would otherwise have been imposed upon them.2011 FC 120 (CanLII)It could, however, have a more significant impact in relation to airline pilots, given their high rate ofpay and significant level of job satisfaction.[276] Dr. Carmichael also agrees with Dr. Kesselman that the costs associated with theelimination of mandatory retirement would be “relatively small”: transcript, at p.1524.[277] It was evident from the cross-examination of Dr. Carmichael that the philosophicalunderpinning of his opinion is his belief that mandatory retirement is something that is “freelynegotiated” by knowledgeable individuals. Indeed, Dr. Carmichael stated that he “would alwayssupport something that had been freely negotiated”: transcript, at p.1537.[278] Dr. Carmichael conceded that an agreement between two groups could cause hardship tothird parties, and that society may legitimately refuse to enforce such agreements. However, he saysthat no third parties are hurt when an employer and a union negotiate a collective agreement thatinvolves mandatory retirement. Workers enter into arrangements that positively affect their own

Page: 73future compensation and job security, and their welfare has to be judged over the entire life-cycle oftheir careers: Carmichael Report, at pp. 8-10.[279] However, as was noted earlier, Dr. Carmichael acknowledged that mandatory retirement canindeed have an adverse differential impact on women and immigrants, whose interests may be “lostin the mix”: transcript at p. 1573. He believes that may be the strongest argument advanced againstmandatory retirement. At the same time, he states that “it is not clear that it discriminates againstwomen as a group”: Carmichael Report at pp.1 and 13.2011 FC 120 (CanLII)[280] With this understanding of the expert evidence, I turn now to the application of the minimalimpairment test.e) The Application of the Minimal Impairment Test[281] I recognize at the outset that significant deference is to be shown to Parliament where theCourt is examining a legislative provision that attempts to strike a balance between the claims ofcompeting groups on the basis of potentially conflicting social science evidence. That said, as wasnoted earlier, this deference does not absolve the Court of its constitutional obligation to scrutinizelegislative action to ensure reasonable compliance with Charter standards.[282] As the Supreme Court observed in RJR-MacDonald, “Deference must not be carried to thepoint of relieving the government of the burden which the Charter places upon it of demonstratingthat the limits it has imposed on guaranteed rights are reasonable and justifiable”: at para. 136.

Page: 74[283] While Chief Justice McLachlin recognized the role of Parliament to choose the appropriateresponse to social problems, she nevertheless went on in RJR-MacDonald to observe that it was therole of the courts to determine whether Parliament’s choice fell within the limiting framework of theConstitution. In this regard she cautioned that “To carry judicial deference to the point of acceptingParliament’s view simply on the basis that the problem is serious and the solution difficult, wouldbe to diminish the role of the courts in the constitutional process and to weaken the structure ofrights upon which our constitution and our nation is founded”: at para. 136.2011 FC 120 (CanLII)[284] The question, then, is whether the government continues to have a reasonable basis forconcluding that paragraph 15(1)(c) of the CHRA minimally impairs the rights of workers over thenormal age of retirement for their positions.[285] ACPA and Air Canada argue that this is indeed the case, particularly in light of the fact thatsince McKinney was decided, the Supreme Court has itself recognized the importance of collectivebargaining and its role as a Charter value.[286] While acknowledging the importance of collective bargaining as a Charter value, it mustalso be recognized that paragraph 15(1)(c) of the CHRA does not permit mandatory retirement at aspecific age to be imposed only in cases where it has been freely negotiated, either as a term in anindividual’s employment contract, or through the collective bargaining process. Indeed, as long asthe age selected by an employer conforms to the “normal age of retirement” for a particular class ofpositions, paragraph 15(1)(c) permits employers to unilaterally impose mandatory retirement onunwilling employees.

Page: 75[287] It is true mandatory retirement is often a feature of unionized workplaces, and can benegotiated through the collective bargaining process in exchange for benefits such as good pensionsand employment security. However, it must also be recognized that a significant number offederally-regulated employers (such as the entire banking industry) are not unionized.[288] Moreover, even in cases such as this one, where the mandatory retirement provision in theAir Canada/ACPA collective agreement was freely negotiated between an employer and a strong2011 FC 120 (CanLII)union, it can nevertheless be imposed on the one-quarter of ACPA members who voted against thepreservation of mandatory retirement. This was referred to by Dr. Carmichael as the “tyranny of themajority” argument.[289] Dr. Carmichael says that this “is a strange argument, given that all of our valued democraticinstitutions are based on the idea that collective decisions should be guided by the wishes of themajority”: Carmichael report, at page12.[290] While this is unquestionably true in many contexts, it is nevertheless a basic principle ofCanadian law that the fundamental human rights of individuals cannot be compromised simplybecause a majority may not believe them to be worthy of recognition.[291] If it were otherwise, there would be no obligation on an employer to accommodate anemployee whose religious beliefs precluded work on Saturdays, if the majority of the individual’sco-workers were unwilling to accept any modifications to their own work schedules so as to allow

Page: 76for the accommodation of the individual: see Central Alberta Dairy Pool v. Alberta (Human RightsCommission), [1990] 2 S.C.R. 489, [1990] S.C.J. No. 80.[292] Nor would there be any obligation on the government to provide sign-languageinterpretation for deaf patients dealing with health-care providers, if the majority of taxpayers didnot believe that such services should be paid out of the public purse: see Eldridge, above.[293] As the British Columbia Court of Appeal observed in Greater Vancouver, the problem with2011 FC 120 (CanLII)according too much deference to the demands of organized labour in examining a section 1justification for a breach of section 15 equality rights is that collective bargaining may “focus onmajority rule, rather than on the protection of minority rights”: at para. 83.[294] The Court went on in Greater Vancouver to note that not every provision of a collectiveagreement will necessarily protect minority rights. The Court observed that “little credence” wouldbe given to legislative or labour preferences “if the groups subjected to discriminatory treatmentwere women or ethnic minorities”. Why, then, the Court asks, “should the courts give credence tothese views where the group discriminated against is the elderly and where the sole basis ofdiscrimination is that they are elderly?”: at para. 83.[295] As Justice Cory observed in Dickason, a collective agreement can provide evidence of thereasonableness of a practice which appears on its face to be discriminatory. He went on to qualifythis statement, however, by noting that not only would it have to be shown that the agreement was

Page: 77indeed freely negotiated, but also that it did not discriminate unfairly against individuals on the basisof a proscribed ground: at para. 39.[296] Moreover, as Justices L’Heureux-Dubé and McLachlin noted in Bell and Cooper, theinvolvement of unions in determining what will be a “normal age of retirement” does notautomatically guarantee that it is justifiable. They observed that “there may be many reasons why aunion does not take up a particular cause. The concern may be of interest only to a minority of itsmembers, or the union may have other more important issues on the bargaining table”: at para.107.2011 FC 120 (CanLII)[297] In this case, Dr. Carmichael and Dr. Kesselman agree that mandatory retirement provisionsin collective agreements such as that between Air Canada and ACPA have an adverse differentialimpact on both women and immigrants. Dr. Carmichael suggests that rather than limiting thefreedom of employers and employees to negotiate mandatory retirement, programs could bedesigned to compensate these groups for the financial disadvantages resulting from forcedretirement. However, as the Tribunal observed, not only is it questionable whether financial aidwould provide a sufficient degree of income security, more importantly, Dr. Carmichael’ssuggestion “does not address, and indeed may even exacerbate the loss of dignity and pride thatflows from being unemployed”: Tribunal decision #2, at para. 69.[298] By the time the Tribunal heard Messrs. Vilven and Kelly’s human rights complaints,mandatory retirement had been abolished in the Province of Ontario, and several other provincesonly allowed for compulsory retirement at a specified age in cases where employers coulddemonstrate that it was based on bona fide retirement or pension plans, or bona fide occupational

Page: 78requirements. As a consequence, mandatory retirement is no longer as integral to the organizationof the Canadian labour market as it was in 1990, when McKinney was decided.[299] Air Canada and ACPA argue that the fact that mandatory retirement had been abolished inOntario should not have been considered by the Tribunal, as it occurred in 2006 - after thetermination of Messrs. Vilven and Kelly’s employment with Air Canada. According to theapplicants, the question of whether or not paragraph 15(1)(c) of the CHRA is a reasonable limit in afree and democratic society should have been assessed as of 2003 and 2005.2011 FC 120 (CanLII)[300] The ongoing constitutional validity of legislation is surely a matter best determined on thebasis of up-to-date evidence. As the Supreme Court observed in Irwin Toy Ltd., above, once thelegislative objective has been characterized, “the government surely can and should draw upon thebest evidence currently available” to prove that this original objective remains pressing andsubstantial: at para. 66. One can infer from this that this “best evidence” standard could be used inthe minimal impairment and proportionality stages of the Oakes test as well: see Matthew Taylorand Mahmud Jamal, The Charter of Rights in Litigation: Direction from the Supreme Court ofCanada, loose-leaf (Aurora: Canada Law Book, 1990) s. 6:12, p. 6-78.[301] This view is borne out when one examines the way in which social science evidence hasbeen treated by the Supreme Court in section 1 cases. For example, the professor in Dickason wasforced to retire on June 30, 1985. However, the Supreme Court considered journal articles from1986 and 1988 in its decision. Similarly, the professors in McKinney were forced to retire in 1985

Page: 79and 1986, but the Court considered several journal articles from 1987 to 1989 in assessing theconstitutionality of the legislation.[302] Moreover, the Supreme Court held in McKinney that the issue of minimal impairment mustbe assessed in the context of the current social and historical context: at para. 123.[303] Even if I am wrong in this regard, and the Tribunal should not have considered the after-thefactabolition of mandatory retirement in Ontario, the evidence adduced by Air Canada and ACPA2011 FC 120 (CanLII)simply did not establish that the negative consequences for employment regimes apprehended bythe Supreme Court in its mandatory retirement jurisprudence have materialized in the otherCanadian jurisdictions where mandatory retirement has long been abolished.[304] Dr. Kesselman says that experience in the years since McKinney has shown that theabolition of mandatory retirement has not had any demonstrable negative impact on beneficialworkplace arrangements such as deferred compensation and pension schemes, seniority systems andthe like. This leads him to conclude that mandatory retirement is not in fact integral to thepreservation of these labour market structures in the way that it was understood to be at the time thatMcKinney was decided.[305] Dr. Carmichael takes issue with this conclusion, arguing that “it is evident from the data”that mandatory retirement is indeed integrally connected to beneficial employment regimes. Thedata that he cites to support his view is found in a 1981 American study entitled “MandatoryRetirement Study: Final Report (Washington: Urban Institute,1981), and in a Canadian study by

Page: 80Gunderson and Pesando entitled “The Case for Allowing Mandatory Retirement”, (1988) 14Canadian Public Policy, at pp. 32-39.[306] Although I have not been provided with the actual studies relied upon by Dr. Carmichael,the studies do not appear to have been based upon long-term, real-life experience. I say thisbecause, according to Dr. Carmichael’s own report, the American study was carried out beforemandatory retirement was abolished in the United States. The Canadian study was published in1988 - before the decision of the Supreme Court of Canada in McKinney, and before reliable2011 FC 120 (CanLII)evidence was available as to the actual, non-speculative and non-theoretical consequences of theabolition of mandatory retirement in Canada.[307] Indeed, in McKinney, the Supreme Court relied heavily on work by Gunderson and Pesandoin coming to the conclusion that the permissive legislative provision at issue in that case was savedby section 1 of the Charter. However, as was discussed earlier in these reasons, the Court wasclearly troubled by the fact that reliable evidence regarding the actual impact that the abolition ofmandatory retirement had in fact had for deferred compensation and other beneficial employmentregimes was not yet available.[308] Dr. Kesselman’s evidence thus calls into question a major underlying premise of Dr.Carmichael’s evidence - namely that mandatory retirement is an integral part of traditional labourmarket structures that include seniority systems, deferred compensation and pension schemes andthe like, and is essential to the preservation of these arrangements for the benefit of employees andemployers alike.

Page: 81[309] We now have long-term, real-life experience in Canadian jurisdictions where mandatoryretirement has been abolished. This experience goes back more that 25 years in the cases ofManitoba and Québec. Thus the actual impact of the abolition of mandatory retirement in thesejurisdictions could be evaluated, and evidence adduced as to the consequences that the abolition ofmandatory retirement has actually had for matters such as seniority systems, deferred compensationand pension schemes.2011 FC 120 (CanLII)[310] Dr. Carmichael did not identify any significant negative consequences that have actuallycome to pass in those jurisdictions where mandatory retirement has been prohibited for some time.Indeed, he appeared to concede in cross-examination that mandatory retirement is not essential tothe maintenance of mutually advantageous labour market structures: see transcript, at p.1556.[311] The onus is on ACPA and Air Canada to demonstrate that Parliament continues to have areasonable basis for believing that paragraph 15(1)(c) minimally impairs the rights of those affectedby it. One would have thought that if there was current empirical evidence available to demonstratethe negative effects that the abolition of mandatory retirement has in fact had for beneficialworkplace arrangements, it would have been put before the Tribunal by the applicants in order toshow that mandatory retirement is indeed integral to the preservation of these labour marketstructures. It was not.[312] It was also evident from Dr. Carmichael’s testimony that his opinion was based upon hisbelief that older workers have already enjoyed their share of the benefits associated with

Page: 82employment arrangements involving seniority and deferred compensation systems. In his view, theconcern should be for younger workers. He testified that “I don't think the baby-boomers need anymore benefits, they have done extremely well. I think we should be more concerned about thepeople who follow behind them and how they are going to do”: transcript, at p.1542.[313] I would first note that there has been no suggestion that “younger workers” constitute ahistorically disadvantaged group who are being targeted by the legislation. Moreover, the SupremeCourt held in McKinney that the plight of younger workers was a matter that should not be accorded2011 FC 120 (CanLII)a central role in the debate on mandatory retirement: at para.102.[314] Justice La Forest observed that if a free and democratic society’s values include respect forthe inherent dignity of the individual and a commitment to social justice and equality, then forcingolder workers to retire in order to free up positions for younger workers would itself bediscriminatory. This is because “it assumes that the continued employment of some individuals isless important to those individuals, and of less value to society at large, than is the employment ofother individuals, solely on the basis of age”: McKinney, at para. 97.[315] Furthermore, Dr. Carmichael himself conceded that the abolition of mandatory retirementwould not significantly change the age at which most individuals would choose to retire, and that itwould have little impact on the average age of retirement in the economy as a whole. As a result, thenumber of employment opportunities for younger workers would not be greatly affected by theabolition of mandatory retirement.

Page: 83[316] I do accept Dr. Carmichael’s point that a higher than average percentage of Air Canadapilots may wish to continue working, given their high rate of pay and significant level of jobsatisfaction. I also recognize that there are some unique features of Air Canada pilot positions -particularly with respect to the steepness of the wage curve and the extent to which the positions arein demand.[317] However, what is at issue here is not a Charter challenge to the mandatory retirementprovisions of the Air Canada pension plan and the Air Canada/ACPA collective agreement, but2011 FC 120 (CanLII)rather a challenge to the permissive provision of the CHRA that allows for the promulgation of sucharrangements. Indeed, Air Canada and ACPA agree that the Court’s section 1 analysis should notbe limited to the specific context of Air Canada pilots.[318] Air Canada and ACPA argue that the fact that most people would not change theirbehaviour and choose to retire at an older age if mandatory retirement was no longer permittedmeans that only a few people are actually negatively affected by paragraph 15(1)(c) of the CHRA.With respect, in examining the issue of minimal impairment, it is the quality of the impact on theCharter rights of older workers that is in issue, and not the number of older workers who wouldotherwise have wished to continue working.[319] Dr. Carmichael also testified before the arbitrator in CKY-TV. The arbitrator described hisevidence in that case as providing “a coherent defence of mandatory retirement”. The arbitratornoted that “the employment life cycle and the regime of pensions, security and favourablecompensation were seen for many years as an integrated whole”, and that mandatory retirement

Page: 84assisted employers in managing salary expenses and planning their financial obligations: at para.217. This was the view espoused by the Supreme Court at the time that McKinney was decided.[320] However, as the arbitrator observed, Dr. Carmichael’s position is sound, “but only on thepremise that mandatory retirement is necessary to the realization of all the foregoing”: at para. 217.As was explained earlier in these reasons, the evidence in this case does not establish thatmandatory retirement is in fact an integral and necessary part of traditional labour market structures,as was previously believed. Nor does it demonstrate that employment regimes that include seniority,2011 FC 120 (CanLII)pension, deferred compensation and the like have been negatively affected in the Canadianjurisdictions in which mandatory retirement has been prohibited for many years.[321] In Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, theSupreme Court stated that the minimal impairment test is intended to determine whether there is anefficiency between the infringing measure and the justified purpose. The question at this stage of theanalysis is whether the impugned provision infringes the relevant Charter rights to the minimumextent possible, while still fulfilling the justified purpose: at para. 124.[322] If permitting the negotiation of mandatory retirement is not necessary in order to maintainthe longstanding and beneficial employment regimes described by Dr. Carmichael and discussed bythe Supreme Court in McKinney, there is little efficiency between the infringing measure and thejustified purpose, and the legislation does not fulfill that purpose. Thus it cannot be said that olderworkers’ Charter rights are minimally impaired by the legislation.

Page: 85f) Conclusion on the Minimal Impairment Issue[323] While accepting that the government is entitled to a significant degree of deference inlegislating in this area, the evidence before the Tribunal did not demonstrate that the governmentcontinues to have reasonable basis for concluding that allowing parties to negotiate mandatoryretirement arrangements is necessary for the achievement of the objectives of paragraph 15(1)(c) ofthe CHRA, to the extent that these objectives relate to the preservation of mutually-beneficial labourmarket structures.2011 FC 120 (CanLII)[324] Consequently, I find that the Tribunal was correct in finding that ACPA and Air Canadahave not established that older workers’ Charter rights are minimally impaired by paragraph15(1)(c) of the Canadian Human Rights Act. Parliament’s objectives can be attained withoutimpairing the Charter rights of workers over the normal age of retirement to the extent permitted byparagraph 15(1)(c) of the CHRA.[325] Before leaving this issue, I would note that I do accept that there could potentially bespecific employment situations where mandatory retirement could be demonstrably necessary forthe maintenance of a particular negotiated package of rights and benefits. As the arbitrator observedin CKY-TV, “A more carefully tailored version of section 15(1)(c), which limited the exception tothose kinds of circumstances, might pass the section 1 test”: at para. 218. That is, however, an issuefor another day.[326] In light of my conclusion with respect to the minimal impairment issue, it is not necessary toexamine the Tribunal’s finding with respect to the proportionality between the effects of paragraph

Page: 8615(1)(c) of the CHRA and the objectives of the legislation. I will do so, however, in case areviewing Court takes a different view of the minimal impairment issue.vii) Proportionality between the Effects of the Legislation and its Objectives[327] In R. v. Edwards Books, the Supreme Court described this final element of theproportionality component of the Oakes test as requiring the Court to determine whether the effectsof the legislation “so severely trench on individual or group rights that the legislative objective,albeit important, is nevertheless outweighed by the abridgment of rights”: at para.117.2011 FC 120 (CanLII)[328] There was criticism of this formulation, which was viewed by some as simply duplicatingwhat had already been accomplished through the first two elements of the proportionality analysis.More recent Supreme Court jurisprudence has reformulated this component of the Oakes test so as“to give it a distinct scope and function”: see Thomson Newspapers Co., at paras.123-124.[329] The Supreme Court observed in Thomson Newspapers that the focus of the first two steps ofthe Oakes proportionality analysis “is not the relationship between the measures and the Charterright in question, but rather the relationship between the ends of the legislation and the meansemployed”. In contrast, this last stage of the proportionality analysis allows the Court to “assess, inlight of the practical and contextual details which are elucidated in the first and second stages,whether the benefits which accrue from the limitation are proportional to its deleterious effects asmeasured by the values underlying the Charter”: at para.125.

Page: 87[330] This analysis involves many of the same considerations that were discussed in connectionwith the issue of minimal impairment, albeit through the lens described in Thomson NewspapersCo.: see McKinney, at para. 126.[331] The Tribunal found that allowing the negotiation of mandatory retirement in the workplaceprovides “a powerful bargaining chip” for unions and employees. It allows them to negotiate “anumber of important benefits including deferred compensation, the equitable distribution of benefitsand job advancement opportunities”. According to the Tribunal, mandatory retirement also “allows2011 FC 120 (CanLII)employers to plan for the flow of labour into a workplace, to manage wage bills and to plan theirfinancial obligations: Tribunal decision #2, at para. 66.[332] At the same time, the Tribunal found that depriving individuals over the normal age ofretirement of the protection of the CHRA produced significant deleterious effects that outweighedthe benefits generated by paragraph 15(1)(c) of the CHRA: Tribunal decision #2, at paras. 65-70.[333] The Tribunal noted that Dr. Kesselman and Dr. Carmichael agreed that mandatoryretirement had a particularly negative impact on people who needed to work past the normal age ofretirement - a group predominantly made up of women and immigrants. These individuals faceconsiderable hardship when they are forced to retire, as they have not had the time to accumulatesignificant pension benefits. They may also face significant difficulties finding alternateemployment that fully utilizes their skills and experience. This results in “a heavy personal andfinancial blow to the individual”: see Tribunal decision #2, at para. 68.

Page: 88[334] The Tribunal rejected Dr. Carmichael’s claim that it would be better to create programs tocompensate these individuals for the financial disadvantages that result from mandatory retirement,rather than eliminating the freedom to negotiate mandatory retirement. As was noted earlier, theTribunal questioned whether financial aid would provide a sufficient degree of income security.Moreover, Dr. Carmichael’s proposal did not address and could even exacerbate the loss of dignityand pride that flows from being unemployed: Tribunal decision #2, at para. 69.[335] Paragraph 15(1)(c) of the CHRA has the effect of depriving individuals of legal redress for2011 FC 120 (CanLII)the harm suffered when they are forced to retire at the “normal age of retirement”. In the Tribunal’sview, the negative effects of depriving individuals of the protection of a quasi-constitutional statuteoutweighed the positive benefits associated with paragraph 15(1)(c) of the Act: Tribunal decision#2, at para.70.[336] The Tribunal concluded its Charter analysis by observing that “perhaps one of the mostdisturbing aspects of this provision was the one first noted by the Court in Vilven [#1]: it allowsemployers to discriminate against their employees on the basis of age so long as that discriminationis pervasive in the industry”: at para. 70.[337] The Tribunal was correct in its assessment of the proportionality issue.[338] The focus of the analysis at this stage of the inquiry is on whether the salutary benefits of theimpugned legislation outweigh its deleterious effects. The Tribunal described the benefits of

Page: 89paragraph 15(1)(c) of the CHRA for both employers and employees. Some of these benefits areenjoyed by employees throughout the life-cycle of their employment.[339] It has not, however, been established that such beneficial employment regimes require thatparties be free to negotiate employment terms that include mandatory retirement in order for suchregimes to continue. Indeed, the evidence before the Tribunal clearly demonstrated that the benefitsof such regimes have continued in jurisdictions where mandatory retirement has been eliminated.2011 FC 120 (CanLII)[340] In the absence of evidence that any of the benefits associated with traditional labour marketstructures have been lost in provinces that have abolished mandatory retirement, how can it be saidthat the benefits associated with permitting mandatory retirement outweigh its deleterious effects?[341] It is also important to have regard to the nature of the interest affected, in assessing whetherthe salutary benefits of paragraph 15(1)(c) outweigh its deleterious effects. For individuals over thenormal age of retirement, the interest at stake is the ability of the individual to continue working inthe career of his or her choice. As I said in Vilven #1, “the importance of this interest cannot beoverstated”, as “Canadian jurisprudence is replete with references to the crucial role thatemployment plays in the dignity and self-worth of the individual”: at para. 293.[342] For example, in Reference re Public Sector Employee Relations Act (Alberta) [1987] 1S.C.R. 313, [1987] S.C.J. No.10, the Supreme Court of Canada stated that “Work is one of the mostfundamental aspects in a person's life, providing the individual with a means of financial supportand, as importantly, a contributory role in society”: at para. 91.

Page: 90[343] Indeed, the majority in McKinney observed that “In a work-oriented society, work isinextricably tied to the individual's self-identity and self-worth”: at para. 93. With this in mind,Justice La Forest went on to draw a link between mandatory retirement and the loss of anindividual’s self-worth, identity and emotional well-being, stating that “Mandatory retirement takesthis away, on the basis of a personal characteristic attributed to an individual solely because of hisassociation with a group”: McKinney, at para. 52.2011 FC 120 (CanLII)[344] There are other deleterious effects associated with paragraph 15(1)(c) of the CHRA. Unlikethe situation facing the Supreme Court in McKinney and Harrison, Parliament has not itself chosenwhat the appropriate age of retirement should be for federally-regulated employees. Instead, it hasleft it to private parties to decide what the “normal age of retirement” should be for specific types ofpositions. As was explained earlier, this can create uncertainty as to the scope of employees’ rightsunder the CHRA, as it may be very difficult for an individual to ascertain exactly what the normalage of retirement is for his or her particular type of position.[345] There is no doubt that collective bargaining is itself a Charter value, and that this is aconsideration that must be weighed in the mix. However, while a mandatory age of retirement maybe freely negotiated in some cases through the collective bargaining process in exchange for otheremployment benefits, paragraph 15(1)(c) of the CHRA does not require that this be so.[346] Moreover, paragraph 15(1)(c) does not just permit the unilateral imposition of mandatoryretirement by employers on unwilling employees, it also allows for the dominant player in an

Page: 91industry to set the industry norm. In other words, paragraph 15(1)(c) allows a single private sectoremployer to determine the extent of the quasi-constitutional rights of an entire class of federallyregulatedemployees.[347] Air Canada and ACPA argue that a company’s role as a dominant industry player is not castin stone for all time, and that the “normal age of retirement” may change as companies come andgo. While this may be true, it also undermines one of the claimed salutary effects of paragraph15(1)(c) of the CHRA - namely the certainty that a fixed retirement age provides to employers,2011 FC 120 (CanLII)allowing them to plan for the flow of labour, and to manage wages and other financial obligations.[348] Also troubling is the fact that even in industries that are not dominated by a single player,age-based discrimination is permitted by paragraph 15(1)(c) of the CHRA, as long as thatdiscrimination is pervasive within an industry.[349] As a result, the Tribunal was correct in finding that the benefits that accrue from paragraph15(1)(c) of the CHRA are outweighed by its deleterious effects, when measured by the valuesunderlying the Charter.viii)Conclusion on the Charter Issue[350] I found in Vilven #1 that paragraph 15(1)(c) of the CHRA violates subsection 15(1) of theCharter, as it denies the equal protection and equal benefit of the law to workers over the normalage of retirement for similar positions.

Page: 92[351] For the reasons given in this case, I find that the Tribunal was correct in concluding that AirCanada and ACPA had not satisfied the onus on them to demonstrate that paragraph 15(1)(c) of theCHRA is saved under section 1 of the Charter. Air Canada and ACPA have not shown that thebroadly-worded exception to the otherwise discriminatory practice of mandatory retirementcontained in paragraph 15(1)(c) of the CHRA is a reasonable limit justifiable in a free anddemocratic society.IX. Is Age a Bona Fide Occupational Requirement for Air Canada Pilots?2011 FC 120 (CanLII)[352] Having concluded that paragraph 15(1)(c) of the CHRA does not provide Air Canada andACPA with a defence to Messrs. Vilven and Kelly’s human rights complaints, the next question iswhether the Tribunal’s finding that Air Canada had not established that being under 60 was a bonafide occupational requirement for its pilots was reasonable.A. Legal Principles Governing Bona Fide Occupational Requirements[353] Paragraph 15(1)(a) of the CHRA provides that it is not a discriminatory practice if “anyrefusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to anyemployment is established by an employer to be based on a bona fide occupational requirement”.[354] The test to be applied for determining whether an employer has established a bona fideoccupational requirement is that articulated by the Supreme Court of Canada in Meiorin, above, atpara. 54.[355] That is, an employer must establish on a balance of probabilities that:

Page: 93(1) The employer adopted the standard for a purpose rationallyconnected to the performance of the job;(2) The employer adopted the particular standard in an honest andgood faith belief that it was necessary to the fulfillment of thatlegitimate work-related purpose; and(3) The standard is reasonably necessary to the accomplishment ofthat legitimate work-related purpose. To show that the standard isreasonably necessary, it must be demonstrated that it is impossible toaccommodate individual employees sharing the characteristics of theclaimant without imposing undue hardship upon the employer.2011 FC 120 (CanLII)[356] The first and second steps of the Meiorin test require an assessment of the legitimacy of thestandard’s general purpose, and the employer’s intent in adopting it. This is to ensure that, whenviewed both objectively and subjectively, the standard does not have a discriminatory foundation.The third element of the Meiorin test involves the determination of whether the standard is requiredto accomplish a legitimate purpose, and whether the employer can accommodate the complainantwithout suffering undue hardship: McGill University Health Centre v. Syndicat des employés del'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, at para.14.[357] As the Supreme Court of Canada observed in Hydro-Québec v. Syndicat des employé-e-s detechniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008SCC 43, [2008] 2 S.C.R. 561, the use of the word “impossible” in connection with the third elementof the Meiorin test had led to a certain amount of confusion. The Court clarified that what isrequired is “not proof that it is impossible to integrate an employee who does not meet a standard,but proof of undue hardship, which can take as many forms as there are circumstances”: at para.12.

Page: 94[358] As to the scope of the duty to accommodate, the Supreme Court stated that “The employerdoes not have a duty to change working conditions in a fundamental way, but does have a duty, if itcan do so without undue hardship, to arrange the employee's workplace or duties to enable theemployee to do his or her work: Hydro-Québec, at para.16.B. The Tribunal’s Decision[359] Because Canada is a signatory to the Chicago Convention, Air Canada is governed by thestandards and recommended practices developed by ICAO.2011 FC 120 (CanLII)[360] Air Canada’s position before the Tribunal was that it could not accommodate pilots over theage of 60 without experiencing undue hardship in light of the constraints imposed on it by the ICAOstandards governing international flights. According to Air Canada, being able to fly lawfully overforeign countries is an integral part of the pilot job at Air Canada.[361] ACPA submitted that the abolition of the mandatory retirement provision in the Air Canadapension plan and the Air Canada/ACPA collective agreement would cause undue hardship to itsmembers as it would limit the number of positions available to pilots under 60 years of age andwould dilute their seniority. It would, moreover, interfere with the ability of younger pilots to planfor their retirement, which would in turn have a negative effect on pilot morale.[362] Prior to November of 2006, ICAO’s standards stipulated that Pilots-in-command over theage of 60 could not fly internationally. There was, however, no mandatory upper age limit for First

Page: 95Officers, although ICAO recommended that individuals over the age of 60 not be permitted to copilotaircraft engaged in international air transport operations.[363] The ICAO standards were amended on November 23, 2006. As of that date, ICAO’s rulesprovided that Pilots-in-command under the age of 65 could fly internationally, as long as one of thepilots in a multi-pilot crew was under 60 (known as the “over/under rule”). ICAO alsorecommended, but did not require, that First Officers cease commercial flying after reaching age 65.2011 FC 120 (CanLII)[364] The Tribunal found that there was no bar to Mr. Vilven flying internationally as an over-60First Officer under the pre-November 2006 ICAO standards, and that Air Canada had not offeredany evidence to show that allowing him to do so would cause it any undue hardship.[365] While accepting that Mr. Kelly could not have flown as a Captain/Pilot-in-commandbetween the time that he turned 60 in 2005 and November of 2006, the Tribunal found that therewas no reason why he could not have continued to fly for Air Canada as a First Officer.[366] Consequently, the Tribunal found that Air Canada and ACPA had not established a bonafide occupational requirement defence for their discriminatory conduct in relation to either Mr.Vilven or Mr. Kelly during the period up to November of 2006.[367] Air Canada’s evidence on the issue of undue hardship concentrated on the period afterNovember of 2006 and came primarily from Captain Steven Duke. Captain Duke is a “Six SigmaBlack Belt for Flight Operations” at Air Canada, a management position that he had held since

Page: 962006. Six Sigma is a business improvement process adopted by Air Canada. The description ofCaptain Duke as a “Black Belt” recognizes his expertise in this process.[368] The focus of Captain Duke’s evidence was on the impact that having pilots over the age of60 would have for Air Canada’s operations - particularly as it related to the issue of pilot scheduling- in light of Air Canada’s international obligations.[369] According to Captain Duke, the requirements of the over/under rule meant Air Canada2011 FC 120 (CanLII)could only accommodate a very limited number of potentially restricted pilots before pilotscheduling would become unworkable. “Potentially restricted pilots” were described by theTribunal as Captains over 60 and under 65 and First Officers over 60.[370] The Tribunal accepted that Air Canada could not schedule Pilots-in-command over 65 yearsof age to fly internationally, as this would prevent Air Canada from flying many of its internationalroutes: Tribunal decision #2, at para.100.[371] However, the Tribunal found that there were numerous deficiencies in Captain Duke’sevidence with respect to the scheduling difficulties that would result if Air Canada were required toaccommodate pilots over the age of 60 who were not flying as Pilots-in-command. This led theTribunal to conclude that Captain Duke’s evidence was not sufficient to establish undue hardship toAir Canada: Tribunal decision #2 at para.122.[372] Insofar ACPA was concerned, the Tribunal examined the issue of hardship to the union in

Page: 97light of the principles articulated by the Supreme Court in Central Okanagan School District v.Renaud, [1992] 2 S.C.R. 970, [1992] S.C.J. No. 75. The Tribunal had particular regard for theeffect that accommodative measures would have had on other ACPA members.[373] The Tribunal found that there was no evidence to show that a delay in the career progressionand salary increases of younger pilots would cause substantial interference with the rights of theseemployees: Tribunal decision #2, at para.140. According to the Tribunal, forcibly retiring olderworkers in order to make way for younger workers would itself be discriminatory, as it assumed2011 FC 120 (CanLII)that the continued employment of older individuals is less important to those individuals and of lessvalue to society at large than the continued employment of younger individuals.[374] Seniority at Air Canada determines, amongst other things, the equipment that a pilot will flyon and the schedule that he or she will receive. The Tribunal did not accept ACPA’s argument thataccommodating over-60 pilots would dilute the seniority rights of under-60 pilots, particularly withrespect to scheduling, while giving the seniority rights of over-60 pilots full measure, all to thedetriment of pilot morale.[375] The Tribunal found that there may be ways to address the scheduling problems that wouldpotentially arise from the implementation of the over/under rule. For example, the Tribunal said thatrather than requiring under-60 First Officers to accommodate the over-60 Captains, ACPA and AirCanada could agree that in the event of a scheduling problem, over-60 Captains would be requiredto bid into positions where they could be accommodated: Tribunal decision #2, at para. 149.

Page: 98[376] The Tribunal also found that ACPA had failed to establish that the level of disruption andthe inevitable prospect of interference with other employees' rights that would result from theremoval of the mandatory retirement provision in the collective agreement constituted an unduehardship. ACPA has not challenged the Tribunal’s bona fide occupational requirement finding in itsapplication for judicial review.C. The Significance of the ICAO Standards[377] To properly understand Air Canada’s position on the bona fide occupational requirement2011 FC 120 (CanLII)issue, and in order to put Captain Duke’s evidence into context, it is first necessary to consider thesignificance of the changes to the ICAO standards that occurred after the termination of Messrs.Vilven and Kelly’s employment.[378] It will be recalled that as of November, 2006, ICAO’s “over/under rule” permitted Pilots-incommandbetween the ages of 60 and 65 to continue to fly internationally, but only if one of theother pilots in a multi-pilot crew is under 60.[379] The ICAO standards only apply to international flights. However, the vast majority of AirCanada flights have an international aspect to them. In fact, 86% of Air Canada flights are either toan international destination, or pass through foreign (primarily American) airspace, en route to aCanadian destination. Between 20 and 25% of the remaining 14% of Air Canada flights have anAmerican airport as an alternate airport where planes are to land if, for example, weather precludeslanding at the regularly-scheduled Canadian airport.

Page: 99[380] The consequences of failing to comply with the over/under rule could potentially be severefor Air Canada, as contracting States may ground aircraft and deny entry into their airspace to anyaircraft flown by pilots who do not meet ICAO standards.D. Timing and the Duty to Accommodate[381] The first question for the Court to consider is when the issues of accommodation and unduehardship had to be assessed in relation to Messrs. Vilven and Kelly’s human rights complaints.2011 FC 120 (CanLII)[382] In some cases, it will not be appropriate to simply examine the situation as of the date of thetermination of an individual’s employment. For example, where an employee is dismissed becauseof health-related absenteeism, the employer’s claim of undue hardship must be assessed globally,taking the entire situation leading up to the termination into account: see Hydro-Québec, at para. 21.[383] In this case, Messrs. Vilven and Kelly had no need of any accommodation until such time asthey reached the age of 60, at which point, their employment was terminated in accordance with themandatory retirement provisions of the Air Canada pension plan and the Air Canada/ACPAcollective agreement. I agree with Air Canada that in these circumstances, the issue ofaccommodation must first be assessed as of the date of termination. In the case of Mr. Vilven, thiswas 2003. In Mr. Kelly’s case, it was 2005.[384] I also agree with Air Canada that having regard to the systemic nature of Messrs. Vilven andKelly’s human rights complaints and the fact that the potential invalidation of the mandatoryretirement provisions in the Air Canada Pension Plan and the Air Canada/ACPA collective

Page: 100agreement would affect other Air Canada pilots, it was also appropriate for the Tribunal to examinethe issue of undue hardship on a going-forward basis, taking into account the subsequent changes tothe ICAO standards.[385] Such a forward-looking examination was also necessitated by the fact that Messrs. Vilvenand Kelly were seeking reinstatement into the positions that they would have held, had they notbeen required to retire at age 60.2011 FC 120 (CanLII)E. Factors to Consider in Relation to the Issue of Accommodation[386] Subsection 15(2) of the CHRA provides that in order to establish the existence of a bona fideoccupational requirement or justification, “it must be established that accommodation of the needsof an individual or a class of individuals affected would impose undue hardship on the person whowould have to accommodate those needs, considering health, safety and cost”. [emphasis added].[387] In assessing whether Air Canada could accommodate pilots over the age of 60, the Tribunaldetermined that it could look at matters other than health, safety and cost. The Tribunal observedthat in Meiorin, the Supreme Court indicated that the factors to be considered in determiningwhether accommodation imposes undue hardship are not entrenched, unless they are expresslyincluded or excluded by statute: Tribunal decision #2, at para. 78, citing Meiorin, at para. 63.[388] The Tribunal further observed that in McGill University Health Centre, above, the SupremeCourt emphasized that the factors that will support a finding of undue hardship should be appliedwith flexibility and common sense. The Court identified the cost of the possible accommodation,

Page: 101employee morale and mobility, interference with other employees' rights, and disruption of thecollective agreement as examples of factors that may be considered: Tribunal decision #2, at paras.79 and 80, citing McGill University Health Centre, at para. 15.[389] This was of particular significance as it related to the Tribunal’s analysis of the unduehardship arguments advanced by ACPA, which were largely based upon the impact on the rights ofother employees that would result from the accommodation of over-60 pilots. As mentioned earlier,ACPA has not challenged the Tribunal’s bona fide occupational requirement finding.2011 FC 120 (CanLII)[390] The undue hardship evidence adduced by Air Canada related primarily to operationalconsiderations that would affect the company’s costs. However, other forms of hardship were alsoidentified by the company, primarily the impact that accommodating pilots over 60 would have onthe seniority rights of other Air Canada employees. The question thus arises as to whether theTribunal was statutorily limited to considering the factors of health, safety and cost in assessingwhether a bona fide occupational requirement defence had been established.[391] I recognize that in determining that it could look at matters other than health, safety and cost,the Tribunal was interpreting its enabling statute and was dealing with the scope of the duty toaccommodate - a matter squarely within the Tribunal’s expertise. As a result, its interpretation ofsubsection 15(2) of the CHRA is entitled to deference: see Celgene Corp. v. Canada (AttorneyGeneral), 2011 SCC 1, at para. 34. Nevertheless, I am satisfied that the Tribunal’s interpretation ofthis provision was unreasonable.

Page: 102[392] It is true that the Supreme Court has identified matters such as employee morale andmobility, interference with other employees’ rights, and disruption of the collective agreement asfactors that may be considered in relation to the question of accommodation. The McGill UniversityHealth Centre decision relied upon by the Tribunal is an example of this. This was not, however, adecision under the CHRA, and did not involve a statutory provision such as subsection 15(2).[393] As the Tribunal itself noted, the Supreme Court stated in Meiorin that the factors to beconsidered in determining whether accommodation imposes undue hardship “are not entrenched,2011 FC 120 (CanLII)unless they are expressly included or excluded by statute”: at para. 63, emphasis added. In this case,Parliament has chosen to specifically identify the matters that may be taken into account by theTribunal in an accommodation analysis: see Russel Zinn, The Law of Human Rights in Canada:Practice and Procedure, loose-leaf, (Aurora: Canada Law Book, 1996) at s. 14:60:2.[394] Moreover, there are two different interpretative principles that were not addressed by theTribunal, both of which suggest that the factors identified in subsection 15(2) of the CanadianHuman Rights Act should be read as an exhaustive list. These are the principle of expressio unius estexclusio alterius; and the approach that is to be taken in interpreting human rights statutes.[395] The “expressio unius est exclusio alterius” maxim refers to a general principle of statutoryinterpretation which suggests that to express one thing is to exclude another: see Ruth Sullivan,Sullivan on the Construction of Statutes, 5 th ed. (Markham: LexisNexis, 2008) at p. 244.

Page: 103[396] That is, the failure of Parliament to mention a thing in a list will give rise to the inferencethat it was deliberately excluded. As Professor Sullivan says, “The force of the implication dependson the strength and legitimacy of the expectation of express reference. The better the reason foranticipating express reference to a thing, the more telling the silence of the legislature”: at p. 244.[397] In this case, a substantial body of Supreme Court jurisprudence had developed well beforethe addition of subsection 15(2) to the CHRA in 1998, with respect to the nature and scope of theduty to accommodate and the factors to be considered in assessing whether that duty had been2011 FC 120 (CanLII)fulfilled: see, for example, Central Alberta Dairy Pool, and Renaud, both previously cited.Parliament would thus have been well aware that factors such as impact on employee morale andinterference with the rights of other employees had been identified as relevant considerations in anaccommodation analysis.[398] Nevertheless, in enacting subsection 15(2) of the CHRA, Parliament did not say that theTribunal was to consider matters “such as” or “including” health, safety and cost, but chose insteadto specifically identify the factors to be considered in relation to the question of accommodation asbeing these three specific matters. These circumstances give rise to a strong inference thatParliament intended the list set out in subsection 15(2) of the CHRA to be an exhaustive one.[399] My conclusion that subsection 15(2) of the Canadian Human Rights Act should beinterpreted as limiting the factors to be taken into account in an accommodation analysis to health,safety and cost is reinforced when the issue is examined in light of the principles to be applied wheninterpreting human rights legislation.

Page: 104[400] That is, while the quasi-constitutional rights conferred by human rights legislation are to bebroadly interpreted, this is not so with respect to the defences provided in the human rights statute inquestion. Defences to the exercise of those rights are to be interpreted narrowly: see Brossard (Town)v. Québec (Commission des droits de la personne), [1988] 2 S.C.R. 279, [1988] S.C.J. No. 79 (QL)at para. 56, and Dickason, at para. 17.[401] As Justice Sopinka observed in Zurich Insurance Co. v. Ontario (Human Rights2011 FC 120 (CanLII)Commission) [1992] 2 S.C.R. 321, [1992] S.C.J. No. 63, human rights legislation is often “...thefinal refuge of the disadvantaged and the disenfranchised”. He went on to observe that “As the lastprotection of the most vulnerable members of society, exceptions to such legislation should benarrowly construed ...”: at para.18.[402] That is not to say that matters such as employee morale and mobility, interference with otheremployees’ rights, and disruption of a collective agreement could never be relevant in a claim underthe CHRA. Rather, my interpretation of the legislation simply means that in order to be taken intoaccount in an accommodation analysis, these matters must be of a sufficient gravity as to have ademonstrable impact on the operations of an employer in a way that relates to health, safety or cost.[403] Before leaving this matter, I would acknowledge that the Superior Court of Québec came toa different conclusion in relation to this question in Syndicat des employées et employésprofessionnelles et professionnels de bureau, section locale 434 (FTQ) c. Gagnon, [2005] J.Q. no9368, at para. 39. There, the Court stated that the list contained in paragraph 15(2) of the CHRA was

Page: 105descriptive, rather than limiting. However, no reasons were provided for this conclusion, and I mustrespectfully disagree with it.[404] Although I have found that the Tribunal erred in its interpretation of subsection 15(2) of theCHRA, as will be explained further on in these reasons, the determinative issue on the bona fideoccupational requirement issue is the Tribunal’s treatment of the evidence regarding cost-relatedoperational matters affecting the Air Canada’s ability to accommodate over-60 pilots in the post-November, 2006 period. Before going there, however, the Court must first consider the2011 FC 120 (CanLII)reasonableness of the Tribunal’s bona fide occupational requirement finding as it relates to the pre-November, 2006 period.F. Accommodation in the Pre-November 2006 Period[405] The next question, then, is whether the Tribunal’s finding that Air Canada had notestablished the existence of a bona fide occupational requirement defence for its discriminatoryconduct vis-à-vis Messrs. Vilven and Kelly during the period prior to the changes to the ICAOstandards in November of 2006 was reasonable.[406] The primary thrust of Air Canada’s argument as it related to the bona fide occupationalrequirement issue was that the Tribunal misunderstood and mischaracterized the evidence putforward by Captain Duke, and ignored important portions of that evidence.[407] Captain Duke’s evidence focused primarily on the operational and scheduling difficultiesthat Air Canada would encounter if mandatory retirement was abolished, in light of the post-2006

Page: 106ICAO standards. Air Canada made only brief submissions to the Court with respect to theTribunal’s bona fide occupational requirement finding regarding the period before November of2006.i) The Accommodation of Mr. Vilven in the Pre-November 2006 Period[408] The burden is on the employer to produce concrete evidence to establish undue hardship:see Hutchinson v. British Columbia (Ministry of Health) (No. 4) (2004), 49 C.H.R.R. D/348, 2004BCHRT 58, at paras. 69 and 230, and Grismer, above, at para. 41.2011 FC 120 (CanLII)[409] The Tribunal found that Air Canada had not offered any evidence to show that allowing Mr.Vilven to continue flying as a First Officer after he turned 60 would have caused it any unduehardship in the pre-November 2006 period. Air Canada says that the Tribunal erred in this regard byonly considering the situation of Mr. Vilven in its undue hardship analysis.[410] By looking only at whether Mr. Vilven could have been accommodated, Air Canada saysthat the Tribunal asked itself the wrong question, given that what the complainants were seekingwas the invalidation of the mandatory retirement requirement for all Air Canada pilots. Air Canadasubmits that the Meiorin test required the Tribunal to determine whether it would have beenpossible for Air Canada to accommodate not just the individual complainant, but all employeessharing the characteristics of the complainant, without imposing undue hardship upon the employer.

Page: 107[411] Air Canada had, however, conceded before the Tribunal that nothing in the ICAO standardsin effect at the time that Mr. Vilven was forced to retire from Air Canada in 2003 prevented over-60First Officers from flying international flights: transcript, at p. 2170.[412] Indeed, Air Canada could not point to any evidence in the record that would suggest that theanswer would have been any different, depending on whether the Tribunal was considering AirCanada’s ability to accommodate Mr. Vilven alone, or all over-60 First Officers in the period priorto November of 2006. Consequently, any error that the Tribunal may have committed in this regard2011 FC 120 (CanLII)was not material to the result.[413] Given that the ICAO standards did not impose any mandatory restrictions on the ability ofover-60 First Officers to continue flying, it follows that Mr. Vilven and other over-60 First Officerscontinued to be able to satisfy the requirements of their jobs, as long as they were able to meetTransport Canada’s licensing requirements.[414] As a result, the Tribunal’s finding of liability on the part of Air Canada for the terminationof Mr. Vilven’s employment was reasonable. The reasonableness of the Tribunal’s findings withrespect to the ability of Air Canada to continue to accommodate Mr. Vilven and other over-60 FirstOfficers after the coming into force of the new ICAO standards in November of 2006 will beaddressed further on in these reasons.

Page: 108ii)The Accommodation of Mr. Kelly in the Pre-November 2006 Period[415] The Tribunal found that although Mr. Kelly could not have continued to fly as aCaptain/Pilot-in-command after he turned 60 in 2005, there was no reason why he could not havecontinued to fly internationally for Air Canada as a First Officer. The Tribunal noted that AirCanada did not consider or offer such accommodation to Mr. Kelly, nor did ACPA make any effortsto seek such an accommodation for Mr. Kelly as it was required to do.[416] As was the case with Mr. Vilven, Air Canada says that the Tribunal erred by only looking at2011 FC 120 (CanLII)whether Mr. Kelly could have been accommodated, rather than considering whether all over-60Captains could have been accommodated by Air Canada.[417] Where accommodation is required, the obligation is not on the employee to originate asolution. It is the employer who will be in the best position to determine how the complainant canbe accommodated without undue interference in the operation of the employer’s business: seeRenaud, above, at para. 44.[418] As the Supreme Court observed in the Hydro-Québec case, an employer has the duty toarrange the employee’s workplace or duties so as to enable the employee to do his or her work, if itcan do so without undue hardship: at para. 16.[419] Where an employer has initiated an accommodation proposal that is reasonable and whichwould, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate theimplementation of the proposal. If the employee fails to take reasonable steps causing the

Page: 109employer’s proposal to founder, the employee’s human rights complaint will be dismissed: Renaud,at para. 44.[420] While the pre-2006 ICAO standards restricted the capacity in which Mr. Kelly could havecontinued to fly for Air Canada once he turned 60, there was no licensing or operational restrictionthat would have prevented him from using his considerable seniority to bid into pilot positions otherthan that of Captain/pilot-in-command, such as a First Officer position.2011 FC 120 (CanLII)[421] Thus, as of the date of the termination of Mr. Kelly’s employment in 2005, there was nolegal impediment, other than the mandatory retirement provisions of the Air Canada pension planand the Air Canada/ACPA collective agreement, that would have precluded him from remainingemployed as a pilot with Air Canada.[422] Meiorin imposes both procedural and substantive obligations on employers when dealingwith discriminatory employment standards. One important question to be considered in determiningwhether these obligations have been satisfied is whether the employer has investigated alternativeapproaches that do not have a discriminatory effect. Another important question is whether there aredifferent ways to perform the job, while still accomplishing the employer's legitimate work-relatedpurpose: see Meiorin, at paras. 65-66.[423] That is, it will be incumbent on an employer to show that it had considered and reasonablyrejected all viable forms of accommodation: see Grismer, at para. 42.

Page: 110[424] The evidence before the Tribunal was that Air Canada never considered whether it waspossible to accommodate its over-60 Captains, including Mr. Kelly.[425] We do not know whether flying as a First Officer would have been an acceptable alternativefor Mr. Kelly. He may well have been willing to start flying as a First Officer after he turned 60, ifthe alternative was that he would have lost his job. We do not know for sure, however, because Mr.Kelly was never given that option. Indeed, no accommodation proposal was ever forthcoming fromAir Canada.2011 FC 120 (CanLII)[426] Air Canada had an obligation to arrange its employees’ duties so as to enable them to dotheir work, if it could do so without undue hardship. Air Canada did not establish that allowing Mr.Kelly to have continued his pilot career with Air Canada, albeit in a different capacity, would havecaused undue hardship to the company in the period leading up to November of 2006.[427] Moreover, as was the case with Mr. Vilven, Air Canada has not pointed to concreteevidence to show that the answer would have been different, if the Tribunal had considered AirCanada’s ability to accommodate all over-60 Captains in the period prior to November of 2006.Consequently, the Tribunal’s finding of liability for the termination of Mr. Kelly’s employment in2005 was reasonable.[428] The next issue, then, is the reasonableness of the Tribunal’s findings with respect to theability of Air Canada to continue to accommodate over-60 pilots after the coming into force of thenew ICAO standards in November of 2006.

Page: 111G. Accommodation in the Post-November 2006 Period[429] As was noted earlier, Air Canada says that the Tribunal misunderstood and mischaracterizedthe evidence put forward by Captain Duke in support of its undue hardship argument. Air Canadaalso contends that the Tribunal ignored important portions of Captain Duke’s evidence as to theoperational and scheduling difficulties that would result if Air Canada were required toaccommodate pilots over the age of 60. According to counsel for Air Canada, it is “whollyunsatisfactory that such an important issue be resolved on the basis of reasons that are flawed,2011 FC 120 (CanLII)unreasonable and inadequate”.[430] As will be explained further on in these reasons, Messrs. Vilven and Kelly also take theposition that the Tribunal erred in its assessment of the bona fide occupational requirement issue,although they say that it ultimately got to the right result, albeit for the wrong reasons.i) The Tribunal’s Treatment of Captain Duke’s Evidence[431] The Tribunal recognized that Air Canada’s ability to accommodate pilots over the age of 60was “more problematic” under the post-November 2006 ICAO standards: Tribunal decision #2, atpara. 95.[432] Captain Duke’s evidence focused on the impact that the elimination of mandatory retirementwould have in relation to several different aspects of Air Canada’s operations. One of the issues thathe addressed was the uncertainty that could result with respect to the hiring and training of pilots ifmandatory retirement were abolished at Air Canada. Captain Duke explained that it takes the

Page: 112company about three months to schedule and train a pilot. As most Air Canada pilots now waituntil they reach 60 to retire, this allows Air Canada to predict its staffing and training needs with arelative degree of certainty.[433] Captain Duke testified that if mandatory retirement were abolished at Air Canada, the airlinecould be caught short if an over-60 pilot suddenly decided to retire, as nothing in the collectiveagreement requires pilots to give advance notice of when they intend to retire. According to CaptainDuke, an unanticipated retirement could have a serious impact on the company’s operations.2011 FC 120 (CanLII)[434] Captain Duke conceded that this would not be an issue if Air Canada and ACPA were toagree to a requirement that pilots give a year’s advance notice of their intention to retire, or if theTribunal were to make such an order. While observing that such a requirement could potentially bedifficult to enforce as it is hard to force someone to work if they do not want to, Captain Dukeacknowledged that economic incentives could be created to encourage the giving of timely notice.[435] Air Canada does not take issue with this assertion, but says that the Tribunal erred in failingto order that such a provision be included in the Air Canada/ACPA collective agreement. I am notpersuaded that the Tribunal erred as alleged.[436] As noted above, Captain Duke’s evidence was that a notice requirement could either beimposed by the Tribunal, or could be negotiated by Air Canada and ACPA. The Tribunal observedthat the burden was on Air Canada and ACPA to demonstrate that the renegotiation of the collectiveagreement would constitute undue hardship, and that it was not sufficient to merely assert that this is

Page: 113so without producing evidence to back it up. The Tribunal went on to note that Captain Duke hadtestified that, with some cooperation from the union, the necessary changes to the workplace rulescould indeed be made.[437] The Tribunal was clearly satisfied that this was a matter that could be worked out betweenAir Canada and ACPA. As the Tribunal observed, Captain Duke himself had testified that “We arebeing pushed into a new world here and we are going together in this, so we have to make it workfor everyone”: transcript, at p. 1438.2011 FC 120 (CanLII)[438] The Tribunal went on to note that “Presumably as a co-respondent and prompted by theTribunal's decision, Air Canada would be motivated to cooperate in this process: see Tribunaldecision #2, at paras. 153-154. As a matter of law, ACPA would also have an obligation to “make itwork”: see Renaud, above.[439] The Tribunal accepted Captain Duke’s evidence on a second point, namely that the post-November 2006 ICAO standards prevented Air Canada from using Captains over the age of 65 onits international flights. I do not understand Messrs. Vilven and Kelly to dispute this finding.[440] The Tribunal did not address Captain Duke’s evidence as it related to Air Canada’s ability tohave Captains over the age of 65 fly purely domestic routes, as Messrs. Vilven and Kelly had eachindicated that they wanted to continue flying internationally. No issue was taken with respect to thispoint by Air Canada.

Page: 114[441] The major focus of Captain Duke’s evidence, and of the Tribunal’s analysis, was on theability of Air Canada to accommodate Captains and First Officers over the age of 60, in light ofimpact of the over/under rule on seniority and scheduling.[442] Captain Duke presented demographic evidence that showed that within five years of theabolition of mandatory retirement at Air Canada, a very substantial percentage of Air Canada pilotswould be over the age of 60, assuming that all of them continued working: see slides 60-68 ofCaptain Duke’s PowerPoint presentation.2011 FC 120 (CanLII)[443] Captain Duke says that Air Canada could only accommodate a very limited number ofpotentially restricted pilots (Captains over 60 but under 65, and First Officers over 60) before pilotscheduling would become unworkable because of the over/under rule.[444] To demonstrate the difficulties that Air Canada would encounter if it were required toaccommodate over-60 pilots, Captain Duke ran a series of experiments examining the schedulingconsequences of having various percentages of A-340 Captains and First Officers being over theage of 60 in Vancouver and Toronto.[445] He found that a schedule could be arrived at if 10% of A-340 Captains and First Officers inVancouver were over 60. It would, however, result in a number of First Officers’ seniority notbeing respected, with some pilots receiving materially lower quality monthly schedules, includingbeing placed on reserve schedules rather than fixed flying schedules. Moreover, the utility of these

Page: 115pilots in providing reserve coverage would be diminished by the fact that potentially restricted pilotscould not replace a First Officer if the Captain on an international flight was over 60.[446] No pilot schedule could be generated if the percentage of potentially restricted Captains inVancouver was increased to 20%, and the percentage of potentially restricted First Officers wasincreased to 11%. This is because there simply would not be enough unrestricted pilots available tofly with the restricted pilots.2011 FC 120 (CanLII)[447] Captain Duke’s Toronto experiments demonstrated that no solution was possible if morethan 30% of A-340 Captains and First Officers were potentially restricted. Similarly, no schedulecould be generated if more than 20% of Captains and 40% of First Officers were potentiallyrestricted.[448] According to Captain Duke, additional pilots would have to be hired by Air Canada toensure that all flights could be properly staffed. At the same time, the airline would have tocontinue paying the over-60 pilots whose services could not be used. The quality of the schedulesgenerated for some pilots would also be negatively affected.[449] The Tribunal identified several deficiencies in Captain Duke’s evidence, which led theTribunal to conclude that the evidence was not sufficient to establish undue hardship to Air Canada:Tribunal decision #2, at para.122. There are, however, a number of problems with the Tribunal’streatment of Captain Duke’s evidence.

Page: 116[450] For example, Captain Duke stated that although a scheduling solution could be found if only10% of Vancouver pilots were “potentially restricted”, it would have resulted in some First Officersreceiving materially lower quality monthly schedules.[451] The Tribunal noted that “There is no evidence as to the actual number of restricted pilotsincluded in the 10% cohort”: Tribunal decision #2, at para.122. However, Captain Duke’sexperiment did not require consideration of the actual number of over-60 Captains and FirstOfficers in Vancouver at the time. The purpose of the experiment was to determine whether a flight2011 FC 120 (CanLII)schedule could be produced if 10% of each group was potentially restricted.[452] The Tribunal discounted Captain Duke’s evidence on this point on the basis that he had notexplained how he had arrived at these conclusions: Tribunal decision #2, at para. 124. In actual fact,Captain Duke had explained that he had used Air Canada’s normal scheduling software, identifiedcertain pilots as restricted under the ICAO standards, and then tried to generate hypotheticalschedules in the same way that Air Canada currently generates real monthly schedules: transcript, atpp. 1409-1411.[453] The Tribunal also found that there was “no evidence as to what is a materially lower qualityschedule or why this is so”: Tribunal decision #2, at para. 125. However, Captain Duke hadexplained in his testimony that a “materially lower quality schedule” was one where senior pilotswere awarded the reserve (or “on-call”) duty that would typically be awarded to more junior pilots,as opposed to a fixed, scheduled block of flying: transcript, at pp.1397-98 and 1410-1411, and slides16-19 of Captain Duke’s PowerPoint presentation.

Page: 117[454] Captain Duke explained that seniority determines the quality of the schedule that a pilot canobtain. More senior pilots can work fewer days in a month (potentially as few as eight) and canavoid working on weekends. Examples of actual pilot schedules of varying qualities (reflectingvarying levels of seniority) were provided to the Tribunal.[455] It is true that a tribunal is not required to refer to every piece of evidence in the record, andwill be presumed to have considered all of the evidence that is before it: see, for example, Hassan v.2011 FC 120 (CanLII)Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946; 147 N.R. 317 (F.C.A.).That said, the more important the evidence that is not specifically mentioned and analyzed in thetribunal’s reasons, the more willing a court may be to infer that the tribunal made an erroneousfinding of fact without regard to the evidence: see Cepeda-Gutierrez v. Canada (Minister ofCitizenship and Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35, at paras.14-17.[456] Captain Duke’s evidence was central to Air Canada’s bona fide occupational requirementdefence. Moreover, this is not merely a situation where the Tribunal failed to specifically refer toevidence contrary to its findings. Rather, the Tribunal stated quite categorically that there was “noevidence” on these points, giving rise to the inescapable inference that important portions of CaptainDuke’s evidence were overlooked.[457] The Tribunal stated that “no explanation” had been provided for why it was that a schedulecould not be generated when the Vancouver experiment shifted to 20% of Captains and 11% ofFirst Officers being potentially restricted: Tribunal decision #2, at para.127. However, Captain

Page: 118Duke explained why a schedule could not be generated in these circumstances: see transcript, atpp.1411-1417. It was open to the Tribunal to reject this explanation, but its statement that “noexplanation” had been provided once again suggests that the evidence on this point was overlooked.[458] The Tribunal also found that the evidence was “lacking” as to the potential cost that wouldbe incurred by Air Canada if it were required to hire at least one additional pilot while continuing topay reserve pilots whose services could not be utilized: Tribunal decision #2, at para. 126.2011 FC 120 (CanLII)[459] However, Air Canada had actually provided detailed evidence as to the cost of hiringadditional pilots in order to ensure that its reserve requirements were met. Captain Duke testifiedthat the average salary and benefits for an Air Canada pilot is $177,000 per year. Mr. HarlanClarke, the Manager, Labour Relations at Air Canada, explained the pay system and pay rates forAir Canada pilots under the terms of the Air Canada/ACPA collective agreement. Mr. Clarke alsotestified that reserve pilots are guaranteed a minimum payment of 71 hours of pay per month.[460] No explanation was provided by the Tribunal as to why this evidence was “lacking”. Thusthis element of the Tribunal’s decision thus lacks the transparency and accountability required of areasonable decision.[461] While agreeing that there were problems with the Tribunal’s analysis, Messrs. Vilven andKelly urge me to find that its overall conclusion that a bona fide occupational requirement defencehad not been made out by Air Canada was reasonable. They say that all of the logistical andscheduling problems identified by Captain Duke could be eliminated if Air Canada simply required

Page: 119that all over-60 pilots work as First Officers. If there were no over-60 Captains/Pilots-in-command,Messrs. Vilven and Kelly say that the over/under rule would never come into play.[462] The difficulty with this argument is that the Tribunal did not offer it as a reason for rejectingAir Canada’s bona fide occupational requirement defence. It did touch on possible changes thatcould be made to the duties of Captains/Pilots-in-command in order to address the schedulingproblems that could result from accommodating over-60 pilots, but did so in the context of its unduehardship analysis as it related to ACPA: Tribunal decision #2, at paras.148-151.2011 FC 120 (CanLII)[463] In reviewing a decision against the reasonableness standard, it is not the role of a reviewingCourt to find facts, to reweigh them, or to substitute its decision for that of the Tribunal: see Leaguefor Human Rights of B'Nai Brith Canada v. Odynsky, 2010 FCA 307, 2010] F.C.J. No. 1424, atpara. 85. See also Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.339, at para. 59.[464] For these reasons, I find that the Tribunal’s bona fide occupational requirement analysis wasnot reasonable as it related to Air Canada’s ability to accommodate pilots over the age of 60 afterNovember of 2006. Consequently, this aspect of the Tribunal’s decision will be set aside.[465] Before leaving the bona fide occupational requirement issue, there is one further matter thatmust be addressed, and that is a further error in the Tribunal’s analysis identified by Messrs. Vilvenand Kelly.

Page: 120ii)The Tribunal’s Finding Regarding the First Two Elements of the Meiorin Test[466] Messrs. Vilven and Kelly take issue with the Tribunal’s statement that they had concededthat the first two requirements of the Meiorin test had been satisfied: see Tribunal decision #2, atpara. 82. They contend they never conceded that the mandatory retirement provision of the AirCanada/ACPA collective agreement had been adopted for a rational purpose connected with theperformance of the job, in the honest and good faith belief that it was necessary to the fulfillment ofthis work-related objective. Indeed, Messrs. Vilven and Kelly have advanced a number ofarguments before this Court as to why the first two elements of the Meiorin test had not been2011 FC 120 (CanLII)satisfied by Air Canada.[467] A review of the record discloses that a concession with respect to the first two elements ofthe Meiorin test was made before the Tribunal by counsel for the Canadian Human RightsCommission: transcript, at p.1984. No such concession appears to have been made by either Mr.Vilven or Mr. Kelly, or by the interested party, the Fly Past 60 Coalition.[468] Complainants and the Commission have separate party status before the Tribunal: seesubsection 50(1) of the CHRA. Interested party status may also be granted to third parties by theTribunal: subsection 48.3(10). The Commission does not represent the interests of complainantsbefore the Tribunal. Rather, the Commission is statutorily mandated to take such position beforethe Tribunal as, “in its opinion, is in the public interest having regard to the nature of thecomplaint”: section 51. As a result, concessions made by the Commission are not binding on eitherthe complainants or on interested parties.

Page: 121[469] I have already found that the Tribunal’s finding with respect to the bona fide occupationalrequirement issue as it related to the period before November of 2006 was reasonable.Consequently, any error on the part of the Tribunal with respect to the first two elements of theMeiorin test is immaterial as it relates to that time frame.[470] However, I have found that there were a number of errors in the Tribunal’s bona fideoccupational requirement analysis as it related to the post-November 2006 period, rendering thisaspect of the Tribunal’s decision unreasonable.2011 FC 120 (CanLII)[471] As a result, the question of whether being under 60 was a bona fide occupationalrequirement for Air Canada pilots after November of 2006 will be remitted to the same panel of theTribunal, with the direction that the issue must be examined in light of all three elements of theMeiorin test.X. Remedy[472] There is a dispute between the parties as to the remedy that should be granted by the Court,in the event that I were to uphold the Tribunal’s decision in relation to the Charter question, as Ihave in fact done.[473] Shortly before the hearing of these applications for judicial review, Messrs. Vilven andKelly brought a motion for leave to amend their memorandum of fact and law. They sought toinclude a request for a declaration that paragraph 15(1)(c) of the CHRA is inconsistent with theCharter and is of no force and effect by operation of subsection 52(1) of the Constitution Act, 1982.

Page: 122[474] Messrs. Vilven and Kelly say that since the commencement of the human rightsproceedings, they have sought an order directing Air Canada to cease applying the mandatoryretirement provisions of the pension plan and collective agreement to all Air Canada pilots.[475] It is evident from the affidavit sworn in support of the motion that the impetus for therespondents’ last-minute motion was a further decision of the Tribunal dealing with the issue of theremedies that were to be granted to Messrs. Vilven and Kelly. This decision was issued a couple of2011 FC 120 (CanLII)weeks before the commencement of the hearing of these applications.[476] In its most recent decision, the Tribunal refused to order Air Canada and ACPA to ceaseapplying the mandatory retirement provisions of the collective agreement and Air Canada pensionplan to all Air Canada pilots. In the Tribunal’s view, Messrs. Vilven and Kelly were seeking to havethe remedies granted by the Tribunal extend beyond their own individual complaints.[477] Citing the decision of the Supreme Court of Canada in Nova Scotia (Workers'Compensation Board) v. Martin, above, the Tribunal observed that it did not have the power tomake a general declaration of legislative invalidity. In the Tribunal’s view, the appropriate remedywas for it to rescind the termination of Messrs. Vilven and Kelly’s employment by ordering AirCanada to cease applying the mandatory retirement provisions of the pension plan to them. TheTribunal further ordered that the discriminatory practice be redressed by directing Air Canada toreinstate Messrs. Vilven and Kelly.

Page: 123[478] Air Canada and ACPA oppose the motion on the basis that, as respondents to applicationsfor judicial review, Messrs. Vilven and Kelly are not entitled to the declaratory relief that they areseeking. According to the applicants, if Messrs. Vilven and Kelly are successful in defending theapplications, the only remedy available to the Court under section 18.1 of the Federal Courts Act isto dismiss the applications.[479] The constitutional remedies available to administrative tribunals (including the CanadianHuman Rights Tribunal) are limited. Tribunals do not have the power to grant general declarations2011 FC 120 (CanLII)of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuantto the Charter will not be binding on future decision-makers: see Nova Scotia (Workers'Compensation Board) v. Martin, at para. 31.[480] This Court clearly possesses the jurisdiction to hear constitutional challenges in the contextof applications for judicial review, and to grant declaratory relief in that regard: see Moktari v.Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341, [1999] F.C.J. No. 1864,(F.C.A.), and Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404,[1999] F.C.J. No. 792 (F.C.A.). It should be noted, however, that in both of these cases it was theapplicant who was seeking the declaratory relief.[481] The Court’s power to grant declaratory relief is predicated upon there first being a findingthat the tribunal in question erred in one of the ways identified in section 18.1(4) of the FederalCourts Act. This provision states that the Federal Court may grant relief (including declaratoryrelief) if it is satisfied that the federal board, commission or other tribunal erred.

Page: 124[482] I have concluded that the Tribunal did not err in finding that paragraph 15(1)(c) of theCHRA is not saved by section 1 of the Charter. Consequently, the remedial powers conferred on theCourt by subsection 18.1(3) of the Federal Courts Act are not engaged. The proper remedy is forthe Court to dismiss Air Canada and ACPA’s applications for judicial review insofar as they relateto the Charter issue.[483] Messrs. Vilven and Kelly argue that despite the wording of section 18.1 of the Federal2011 FC 120 (CanLII)Courts Act, this Court nevertheless has the power to grant a general declaration of invalidity withrespect to paragraph 15(1)(c) of the CHRA under subsection 52(1) of the Charter. Subsection 52(1)states that “The Constitution of Canada is the supreme law of Canada, and any law that isinconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no forceor effect.” They have not, however, identified a single case where declaratory relief, whetherconstitutional or otherwise, has been granted to a respondent on an application for judicial review.[484] Assuming, without deciding, that such a constitutional remedy could ever be granted to aresponding party on an application for judicial review such as this, there are two reasons why I donot think it appropriate to do so here.[485] The first is that what Messrs. Vilven and Kelly are really trying is to do is to mount acollateral attack on the Tribunal’s remedial decision. That decision is not before me. If therespondents are not content with the remedies that were granted by the Tribunal, it is open to themto seek judicial review of the Tribunal’s remedial decision.

Page: 125[486] The second reason that I would decline to grant such relief is that although the federal andprovincial Attorneys General would have been aware that constitutional validity of paragraph15(1)(c) of the CHRA was at issue in this proceeding by virtue of the Notice of ConstitutionalQuestion served by ACPA, this Notice was served in the context of applications for judicial reviewbrought by ACPA and Air Canada, and not by Messrs. Vilven and Kelly.[487] In these circumstances, I do not believe that the Attorneys General could reasonably have2011 FC 120 (CanLII)anticipated that Messrs. Vilven and Kelly would be seeking a general declaration of invalidity withrespect to paragraph 15(1)(c) of the CHRA. This is especially so in light of the fact that there wasno reference to such relief being sought in Messrs. Vilven and Kelly’s memorandum of fact andlaw.[488] A general declaration of invalidity could potentially have widespread implications for manyfederally-regulated workplaces. Had the Attorneys General been aware that such relief was beingsought by the respondents, it could well have affected their decisions as to whether or not toparticipate in this proceeding. It is entirely possible that one or more Attorneys General may havewished to make submissions, either with respect to the constitutional validity of the legislationgenerally, or as to whether any declaratory order should provide for a period of suspension and whatthat period should be.[489] In the absence of any claim of prejudice on the part of Air Canada and ACPA resulting fromthe lateness of the motion, I would grant leave to Messrs. Vilven and Kelly to amend their

Page: 126memorandum of fact and law to seek declaratory relief. However, for the reasons given, I decline togrant the relief sought by the amendment.XI. Conclusion[490] For these reasons I have concluded that the finding of the Canadian Human Rights Tribunalthat paragraph 15(1)(c) of the CHRA is not a reasonable limit demonstrably justifiable in a free anddemocratic society as contemplated by section 1 of the Charter was correct. Consequently, ACPA’sapplication for judicial review is dismissed in its entirety. Air Canada’s application for judicial2011 FC 120 (CanLII)review is also dismissed, as it relates to the Charter issue.[491] The Tribunal’s finding that Air Canada had not established that being under the age of 60was a bona fide occupational requirement for its airline pilots at the time that Messrs. Vilven andKelly’s employment was terminated in 2003 and 2005 respectively was reasonable. However, theTribunal’s finding that Air Canada had not established that age was a bona fide occupationalrequirement for its pilots in light of the post-November 2006 ICAO standards was not reasonable.[492] As result, Air Canada’s application for judicial review as it relates to the bona fideoccupational requirement issue will be allowed in part. The question of whether Air Canada hasestablished that age was a bona fide occupational requirement for its airline pilots after Novemberof 2006 is remitted to the same panel of the Tribunal, if available, for re-determination on the basisof the existing record, in light of all three elements of the Meiorin test.

Page: 127XII.Costs[493] As success in this matter was divided, each party should bear its own costs.2011 FC 120 (CanLII)

Page: 128JUDGMENTTHIS COURT ORDERS AND ADJUDGES that:1. ACPA’s application for judicial review is dismissed.2. Air Canada’s application for judicial review is dismissed, as it relates to the section 1Charter issue.3. Air Canada’s application for judicial review is granted, in part, as it relates to the2011 FC 120 (CanLII)Tribunal’s finding that Air Canada had not demonstrated that age was a bona fideoccupational requirement for its pilots.4. The question of whether age was a bona fide occupational requirement for AirCanada pilots after November of 2006 is remitted to the same panel of the Tribunal,if available, for re-determination in accordance with these reasons, on the basis ofthe existing record.5. Each party shall bear their own costs.“Anne Mactavish”Judge

Page: 1Canadian Human Rights Act, R.S.C. 1985, c.H-6APPENDIX3. (1) For all purposes of this Act, theprohibited grounds of discrimination are race,national or ethnic origin, colour, religion,age, sex, sexual orientation, marital status,family status, disability and conviction forwhich a pardon has been granted.7. It is a discriminatory practice, directly orindirectly,(a) to refuse to employ or continue to employany individual, or(b) in the course of employment, todifferentiate adversely in relation to anemployee, on a prohibited ground ofdiscrimination.9. (1) It is a discriminatory practice for anemployee organization on a prohibitedground of discrimination(a) to exclude an individual from fullmembership in the organization;(b) to expel or suspend a member of theorganization; or(c) to limit, segregate, classify or otherwiseact in relation to an individual in a way thatwould deprive the individual of employmentopportunities, or limit employmentopportunities or otherwise adversely affectthe status of the individual, where theindividual is a member of the organization orwhere any of the obligations of theorganization pursuant to a collective3. (1) Pour l’application de la présente loi,les motifs de distinction illicite sont ceuxqui sont fondés sur la race, l’originenationale ou ethnique, la couleur, lareligion, l’âge, le sexe, l’orientationsexuelle, l’état matrimonial, la situation defamille, l’état de personne graciée ou ladéficience.7. Constitue un acte discriminatoire, s’ilest fondé sur un motif de distinctionillicite, le fait, par des moyens directs ouindirects :a) de refuser d’employer ou de continuerd’employer un individu;b) de le défavoriser en cours d’emploi.9. (1) Constitue un acte discriminatoire,s’il est fondé sur un motif de distinctionillicite, le fait, pour une organisationsyndicale :a) d’empêcher l’adhésion pleine et entièred’un individu;b) d’expulser ou de suspendre unadhérent;c) d’établir, à l’endroit d’un adhérent oud’un individu à l’égard de qui elle a desobligations aux termes d’une conventioncollective, que celui-ci fasse ou non partiede l’organisation, des restrictions, desdifférences ou des catégories ou deprendre toutes autres mesures susceptiblessoit de le priver de ses chances d’emploiou d’avancement, soit de limiter ses2011 FC 120 (CanLII)

Page: 2agreement relate to the individual.(2) Notwithstanding subsection (1), it is not adiscriminatory practice for an employeeorganization to exclude, expel or suspend anindividual from membership in theorganization because that individual hasreached the normal age of retirement forindividuals working in positions similar tothe position of that individual.10. It is a discriminatory practice for anemployer, employee organization oremployer organization(a) to establish or pursue a policy or practice,or(b) to enter into an agreement affectingrecruitment, referral, hiring, promotion,training, apprenticeship, transfer or any othermatter relating to employment or prospectiveemployment, that deprives or tends todeprive an individual or class of individualsof any employment opportunities on aprohibited ground of discrimination.15. (1) It is not a discriminatory practice if(a) any refusal, exclusion, expulsion,suspension, limitation, specification orpreference in relation to any employment isestablished by an employer to be based ona bona fide occupational requirement;[…]chances d’emploi ou d’avancement, ou,d’une façon générale, de nuire à sasituation.(2) Ne constitue pas un actediscriminatoire au sens du paragraphe (1)le fait pour une organisation syndicaled’empêcher une adhésion ou d’expulserou de suspendre un adhérent enappliquant la règle de l’âge normal de laretraite en vigueur pour le genre de posteoccupé par l’individu concerné.10. Constitue un acte discriminatoire, s’ilest fondé sur un motif de distinctionillicite et s’il est susceptible d’annihiler leschances d’emploi ou d’avancement d’unindividu ou d’une catégorie d’individus, lefait, pour l’employeur, l’associationpatronale ou l’organisation syndicale :a) de fixer ou d’appliquer des lignes deconduite;b) de conclure des ententes touchant lerecrutement, les mises en rapport,l’engagement, les promotions, laformation, l’apprentissage, les mutationsou tout autre aspect d’un emploi présentou éventuel.15. (1) Ne constituent pas des actesdiscriminatoires :a) les refus, exclusions, expulsions,suspensions, restrictions, conditions oupréférences de l’employeur qui démontrequ’ils découlent d’exigencesprofessionnelles justifiées;[…]2011 FC 120 (CanLII)

Page: 3(c) an individual’s employment is terminatedbecause that individual has reached thenormal age of retirement for employeesworking in positions similar to the position ofthat individual;[…](2) For any practice mentioned in paragraph(1)(a) to be considered to be based on a bonafide occupational requirement and for anypractice mentioned in paragraph (1)(g) to beconsidered to have a bona fide justification, itmust be established that accommodation ofthe needs of an individual or a class ofindividuals affected would impose unduehardship on the person who would have toaccommodate those needs, consideringhealth, safety and cost.c) le fait de mettre fin à l’emploi d’unepersonne en appliquant la règle de l’âgede la retraite en vigueur pour ce genred’emploi;[…](2) Les faits prévus à l’alinéa (1)a) sontdes exigences professionnelles justifiéesou un motif justifiable, au sens de l’alinéa(1)g), s’il est démontré que les mesuresdestinées à répondre aux besoins d’unepersonne ou d’une catégorie de personnesvisées constituent, pour la personne quidoit les prendre, une contrainte excessiveen matière de coûts, de santé et desécurité.2011 FC 120 (CanLII)Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B.1. The Canadian Charter of Rights andFreedoms guarantees the rights andfreedoms set out in it subject only to suchreasonable limits prescribed by law as canbe demonstrably justified in a free anddemocratic society.15. (1) Every individual is equal beforeand under the law and has the right to theequal protection and equal benefit of thelaw without discrimination and, inparticular, without discrimination based onrace, national or ethnic origin, colour,religion, sex, age or mental or physicaldisability.1. La Charte canadienne des droits etlibertés garantit les droits et libertésqui y sont énoncés. Ils ne peuvent êtrerestreints que par une règle de droit,dans des limites qui soientraisonnables et dont la justificationpuisse se démontrer dans le cadred'une société libre et démocratique.15. 1) La loi ne fait acception depersonne et s'applique également àtous, et tous ont droit à la mêmeprotection et au même bénéfice de laloi, indépendamment de toutediscrimination, notamment desdiscriminations fondées sur la race,l'origine nationale ou ethnique, lacouleur, la religion, le sexe, l'âge oules déficiences mentales ou physiques.

FEDERAL COURTSOLICITORS OF RECORDDOCKET:T-1615-09 / T-1606-09STYLE OF CAUSE: AIR CANADA PILOTS ASSOCIATION v.ROBERT NEIL KELLY ET AL (T-1615-09)AIR CANADA v. GEORGE VILVEN ET AL(T-1606-09)2011 FC 120 (CanLII)PLACE OF HEARING:Ottawa, OntarioDATE OF HEARING: November 22, 23 & 24, 2010REASONS FOR JUDGMENTAND JUDGMENT: Mactavish J.DATED: February 3, 2011APPEARANCES:Mr. Bruce LaughtonMr. Raymond D. HallMr. David BakerMr. Daniel PoulinMr. Gavin MacKenzieMs. Christianna ScottFOR THE APPLICANT(Air Canada Pilots Association)FOR THE RESPONDENTS(Robert Neil Kelly and George Vilven)FOR THE RESPONDENT(Canadian Human Rights Commission)FOR THE RESPONDENT(Air Canada)

Page: 2SOLICITORS OF RECORD:LAUGHTON & COMPANYBarristers and SolicitorsVancouver, B.C.BAKERLAWBarristers and SolicitorsToronto, OntarioCANADIAN HUMAN RIGHTSCOMMISSIONOttawa, OntarioHEENAN BLAIKIE LLPBarristers and SolicitorsMontreal, QuebecFOR THE APPLICANT(Air Canada Pilots Association)FOR THE RESPONDENTS(Robert Neil Kelly and George Vilven)FOR THE RESPONDENT(Canadian Human Rights Commission)FOR THE RESPONDENT(Air Canada)2011 FC 120 (CanLII)

COURT OF APPEAL FOR BRITISH COLUMBIACitation: Health Sciences Assoc. of B.C.v. Campbell River and NorthIsland Transition Society,2004 BCCA 260Between:Health Sciences Association of British ColumbiaDate: 20040510Docket: CA30325Appellant2004 BCCA 260 (CanLII)AndCampbell River and North Island Transition Societyand Community Social Services Employers' AssociationRespondentBefore:The Honourable Mr. Justice LowThe Honourable Madam Justice LevineThe Honourable Mr. Justice SmithRitu N. Mahil, M. Jeanne MeyersMichael A. Wagner, J. D. NicholsPlace and Date of Hearing:Place and Date of Judgment:Counsel for the AppellantCounsel for the RespondentVancouver, British Columbia8 December 2003Vancouver, British Columbia10 May 2004Written Reasons by:The Honourable Mr. Justice LowConcurred in by:The Honourable Madam Justice LevineThe Honourable Mr. Justice Smith

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 2Reasons for Judgment of the Honourable Mr. Justice Low:[1] This is an appeal from a decision of an arbitratorappointed under a collective agreement to adjudicate agrievance brought by the appellant union on behalf of one ofits members, an employee of the respondent transition society.The parties are agreed that this court has jurisdiction tohear the appeal under s. 100 of the Labour Relations Code,2004 BCCA 260 (CanLII)R.S.B.C. 1996, c. 244. There is a general issue of lawinvolved that is not included in s. 99(1).[2] The legal issue turns on the meaning and scope of theterm “family status” found in s. 13(1) of the Human RightsCode, R.S.B.C. 1996, c. 210 (“the Code”). That provisionreads:13(1) A person must not(a) refuse to employ or refuse tocontinue to employ a person,(b) discriminate against a personregarding employment or any term orcondition of employmentbecause of the race, colour, ancestry,place of origin, political belief,religion, marital status, family status,physical or mental disability, sex, sexualorientation or age of that person orbecause that person has been convicted ofa criminal or summary conviction offencethat is unrelated to the employment or tothe intended employment of that person.

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 3[3] The appellant contends that the employer refused tocontinue to employ or otherwise discriminated against theemployee, Shelley Howard, regarding her employment or a termor condition thereof because of her family status. Theappellant says that the respondent, by changing Ms. Howard’shours of work, failed to accommodate her particular familysituation.2004 BCCA 260 (CanLII)[4] The arbitrator stated the union’s position as follows:the employer was “under a duty to accommodate [Ms. Howard’s]hours of work so that she is better able to care for her sonwho has both medical and behavioural problems”.[5] The respondent’s position as stated by the arbitrator wasthat “it is not under any legal duty to accommodate [Ms.Howard], but nonetheless, it has made attempts to accommodateher”.[6] (The second respondent represents the respondent societyand others in collective bargaining and grievance matters. Itwas not a party before the arbitrator. It is not clear to mewhy it was added as a respondent in this court and it did notparticipate in the appeal. In these reasons, I will simplyrefer to the respondent by which I will always mean therespondent society, the employer.)

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 4[7] The facts are easily stated. Ms. Howard is married withfour children, the third of whom, a boy now aged thirteen, hassevere behavioural problems requiring specific parental andprofessional attention. She began working for the respondentin early 1993 as a casual transition house worker and laterthat year became a part–time child and youth support worker.She worked at Ann Elmore Transition House run by therespondent. It is a safe shelter for women suffering marital2004 BCCA 260 (CanLII)abuse, and for their children.[8] The respondent is a non-profit society incorporated in1985 to provide to the community of Campbell River servicesand education directed at ending family violence. In additionto operating the shelter, it offers counselling, assistance tochildren affected by family violence and public education.[9] The arbitrator, Stan Lanyon, Q. C., made the followingfindings of fact with respect to the work schedule of Ms.Howard and the adjustment therein made by the respondent thatgave rise to the grievance:The Grievor is described as a "very good employee".She is hard working and very helpful to otheremployees; a person who is always willing to performduties outside of her job description. She is alsodescribed as very flexible and willing to workadditional hours on short notice. Her normal parttimehours are 24 hours per week, however, she hasagreed on many past occasions to work evenings,

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 5weekends and statutory holidays. A normal shift for"front line workers" is 12 hours a day, 4 days on,and 5 days off.On July 12, 2001, Valery Puetz, Coordinator of theTransition Society, notified the Grievor, that as ofSeptember 4, 2001, her hours would be changed fromher current 8:30 a.m. to 3:00 p.m. shift to 11:30a.m. to 6:00 p.m., Monday through Thursday. She wasinformed that she would continue to have "a flexibleschedule" and that she could adjust her hours toinclude school presentations.The Grievor and Puetz had had previous discussionsabout her reduced workload; the number of childrenrequiring counseling during her shift had graduallydeclined. The Grievor was doing child-minding inthe mornings, which often [proved a] very busyperiod. These discussions concerning the Grievor'sworkload first arose in the year 2000.2004 BCCA 260 (CanLII)In the Spring of 2001 the Grievor and Puetz onceagain discussed her declining workload. They did soin preparation for a strategic planning meetingwhich was to take place in the Summer of 2001.Puetz asked the Grievor to come back with six orseven possible programs for her position. Neitherthe Grievor nor Puetz wanted to lose this part-timeposition. The Grievor came up with some options andthey agreed to take these to the strategic planningcommittee. One such proposal was to expand theexisting healthy relationships program taught in thelocal schools.When the issue of the Grievor's position was raisedat the Board's strategic planning meeting it openedup a wider discussion of her position and her hoursof work. In the end, the Board decided to changethe hours of work for the Grievor's position so thatcounselling services could be offered to a greaternumber of school aged children; thus the change inhours to 11:30 a.m. to 6:00 p.m. (In fact, theposition currently has been operating from 2:30 to9:00 p.m., Tuesdays to Fridays. Puetz stated thatwith these new hours the workload has been"overwhelming" because there has been a substantial

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 6increase in non-resident clients seekingcounselling).[10] Ms. Howard was concerned about her new work hours becauseshe attended to the needs of her son after his school hours.However, she worked the new hours from 4 September to 17September 2001. Later on the 17th, she attended a meeting ofthe board of the respondent to express her concern. She2004 BCCA 260 (CanLII)explained her son’s situation and submitted a letter from Dr.Mark Lund, the boy’s paediatrician. Six fellow employeesprovided written support for Ms. Howard resuming her formerhours of work. They also attended the meeting but were notpermitted to speak. The Board deliberated and decided thatthe new hours would be maintained. The next day Ms. Howardreceived a letter from Ms. Puetz so advising her. The lettercontained a proviso that there would be a reassessment of thenew schedule after six months and that Ms. Howard’s inputwould be welcome.[11] The arbitrator found that on the day she received theletter Ms. Howard had “a severe anxiety or panic attack”. Shedid not return to work. Her doctor diagnosed post traumaticstress disorder and provided a note stating that she needed tobe off work for six weeks. On his advice, Ms. Howard did notreturn to work after that time and she never did return. The

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 7doctor testified before the arbitrator that Ms. Howard’scondition was caused by her employment circumstances.[12] On 26 September 2001, Ms. Puetz sent a letter to Ms.Howard enclosing some forms needed for a claim for sickbenefits. She stated in the letter that she hoped Ms. Howard“will be able to return to work soon”.[13] On 1 October 2001, the appellant union informed the2004 BCCA 260 (CanLII)respondent by letter that the respondent had to accommodateMs. Howard’s family situation and reinstate her hours of workfrom 8:30 a.m. to 3:00 p.m. Ms. Howard remained on sick leavefor a period of time after which she received employmentinsurance benefits. Her doctor testified before thearbitrator that she was fit to return to her employment as ofApril 2002 but that because of the stress she could neveragain work for the respondent. Before the arbitrator, theappellant sought compensation to Ms. Howard for lost salary aswell as punitive damages. It did not seek reinstatement ofMs. Howard.[14] In his medical report dated 16 August 2001, Dr. Lundstated that Ms. Howard’s son “is a very high needs child witha major psychiatric disorder.” His need for consistentparenting is best served by his mother, particularly after

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 8school. The doctor reported that she should be available toher son after school, something he considered to be “anextraordinarily important medical adjunct to [the son’s]ongoing management and progression in life”.[15] Following the decision of the Canadian Human RightsTribunal in Lang v. Employment and Immigration Commission,[1990] 12 C.H.R.R. D/265 and other arbitral authorities,2004 BCCA 260 (CanLII)including Campbell v. Shahrestani, [2001] B.C.H.R.T.D. No. 36,the arbitrator concluded that the term “family status” in s.13(1) of the Code includes the relationship of parent andchild. The respondent does not dispute that conclusion.[16] The arbitrator then noted that the “principalcharacteristic of the parent-child relationship is theparent’s obligation to care for [the] child”. He recognizedthis as a fiduciary obligation, referring to K.M. v. H.M.,[1992] 3 S.C.R. 6. He also referred to sections 2 and 4 ofthe Child Family and Community Service Act, R.S.B.C. 1996, c.46 in which the general nature of parental duties is spelledout.[17] Then the arbitrator defined what he saw as the centralissue before him:

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 9However, what is clear from these fiduciary andstatutory duties is that the fundamental obligationfor the care of children rests with the parent, notthe employer. If that is the case, can theLegislature have intended that the words "familystatus" in the Human Rights Code, be read to shiftsome significant part of that fundamentalobligation, from parents to employers? Is, forexample, an employer legally obligated toaccommodate all employees who have children, simplybecause of their status as a parent?[18] The core of his analysis commences two paragraphs later:2004 BCCA 260 (CanLII)In the case before this board, the Grievor hasexperienced, and continues to experience, bothdemanding and difficult childcare obligations. Herson requires special care. This is supported by themedical evidence. These difficulties are shared byother parents, especially those who have specialneeds children. The circumstances of these parents,as well [as] parents of other children, will varygreatly. Some will have excellent childcarearrangements, others will not; some have extendedfamily members, who can assist, others do not; somewill be able to afford exceptional care, especiallyfor special needs children, and others will not.Thus, the circumstances of child-care will vary fromparent to parent, and indeed may vary for the sameparents, over different periods of time. A parentmay have what they consider to be exceptionalchildcare arrangements one year, and yet besearching desperately the following year to findeven adequate care. Changes in employment may havean adverse [effect] on these childcare arrangements.In other circumstances, changes in employment mayassist a person in their childcare arrangements.Were these different circumstances of employment,and varying degrees of difficulty in child-carearrangements, intended to be captured by the words"family status"?

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 10I conclude that these differing circumstances, manyof which may result in individuals trying to balancework and child-care arrangements, are not the kindof circumstances that raise an issue ofdiscrimination based on the prohibited ground of"family status". Rather, the Legislature bydeliberately employing the words "family status",was concerned with discrimination based upon thevery status of being a parent, or other familymember. For example, had the Employer refused toemploy the Grievor, because she was the parent of aspecial needs child, that would, in my view, violatesection 13 of the Human Rights Code. It would notmake sense, that one could not discriminate, basedon the prohibited grounds set out in section 13,against an employee, but could do so against one oftheir family members. This would defeat the verypurpose of the Human Rights Code.2004 BCCA 260 (CanLII)Thus family status in these circumstances deals withthe status of parent and child, and not with theindividual circumstances of a family's needs, suchas those concerning childcare arrangements. Itherefore conclude that all parents that experiencedifficult childcare arrangements, as a result oftheir employment, are not a class or category thatsection 13 of the Human Right Code seeks to protect.I find that the Employer had the right to change theshift, and that its purpose in wanting to extendcounselling services to school aged children was areasonable one. It would be ironic indeed, if theEmployer was not at liberty to change the hours ofwork of the Grievor's position, in order to makecounselling service available to students, who maywell have needs as serious as those of [theGrievor's son].[19] After considering the decision of the Canadian HumanRights Tribunal in Brown v. Department of National Revenue(Customs and Excise), [1993] 19 C.H.R.R. D/39, the arbitratorsaid (p. 17): “I have found that the words ‘family status’

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 11refers to the status of being a parent per se, and not to theinnumerable (and yet important) circumstances that arise forall families in regard to their daycare needs. I thereforedecline to follow Brown, supra.”[20] The reasons of the arbitrator continue:Does this mean that the Grievor is faced witheither working the new shift or losing her job?Without a finding of discrimination, and no duty toaccommodate, what is the Employer's obligation tothe Grievor? There may well be situations where aGrievor is faced with the Hobson's choice of eitherworking the new shift, or losing their employment.However, most employers, as a matter of good labourrelations, permit employees to deal with a widevariety of family matters: medical emergencies,domestic problems, and childrens' school activities.Many collective agreements provide special leave todeal with such issues (Article 20 of this CollectiveAgreement).2004 BCCA 260 (CanLII)...What were some of the options which the Grievorhad in regard to this workplace under thisCollective Agreement? First, five of the sixemployees who signed the petition testified thatthey were willing to participate in an"accommodation" of the Grievor. This was neverexplored. Second, the Collective Agreement providedsome contractual options: for instance, twoMemoranda of Agreement, attached to the CollectiveAgreement, provide for job sharing and flexible workhours. Third, if extra time was required to obtaina resolution to the dispute there are both paid andunpaid leaves. Fourth, the Grievor could haveassumed casual status and worked relief. Fifth,there were lay-off and bumping rights. It must beremembered that the position held by the Grievorincluded not only that of Child Counsellor, but alsoof Transition House Counselor; other employees were

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 12capable of performing the Child Counselling positionand the Grievor was capable of performing theTransition House Counselling position. Thus, theCollective Agreement offered both the potential ofdifferent hours of work, and differentclassifications.However, what is clear is that the Grievor wasnot entitled to keep either her same hours of workor her same position. The Employer had the right tochange the hours of work of that position in orderto extend a much needed service to the community.2004 BCCA 260 (CanLII)[21] The appellant union does not challenge the conclusions ofthe arbitrator that there was no tort and no breach of thecollective agreement committed by the respondent society. Nordoes it dispute the conclusion of the arbitrator that thechanges in the working hours of Ms. Howard were a work-relatedrequirement of the respondent society made in good faith. Thearbitrator said that the respondent’s “purpose was simply tooffer counselling services to children who would otherwise notbe able to access them.”[22] The appellant union says that the arbitrator erred in notfinding that the respondent breached s. 13(1) of the Code bydiscriminating against Ms. Howard on the basis of familystatus. It also says that the arbitrator erred in decliningjurisdiction under s. 37(2)(d)(iii) of the Code to awarddamages.

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 13[23] The appellant asks this court to set aside the award ofthe arbitrator and to remit the matter back to him with thefollowing directions:(a) that “family status” under s. 13 of the Codeincludes the fiduciary obligation of parents to carefor their children;(b) that the respondent discriminated against Ms. Howard2004 BCCA 260 (CanLII)contrary to s. 13 by not reasonably accommodatingher particular family status; and(c) that the arbitrator must fashion an appropriateremedy in damages under s. 37 of the Code.[24] The appellant begins its argument by referring to theruling of the Supreme Court of Canada that human rightslegislation is “quasi-constitutional” and must be interpreted“in a liberal and purposive manner in order to advance thebroad policy considerations underlying it …”: B. v. Ontario(Human Rights Commission), [2002] 3 S.C.R. 403, at para. 44,and other cases cited therein.[25] The appellant contends that the arbitrator held thatthere had to be an intention on the part of the employer todiscriminate against the employee when he gave an example in

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 14his reasons (quoted at para. 18 above) of a circumstance inwhich the employer would have discriminated “based upon thevery status of being a parent”. The appellant says that thisis contrary to s. 2 of the Code that states that no intentionto contravene the Code is required.[26] I do not accept this argument. The arbitrator gave anexample in which intention to discriminate might be inferred.2004 BCCA 260 (CanLII)But it was an example only and he did not discuss intention.It cannot be said that he required proof of intention. Readas a whole, his reasons do not identify the error alleged. Thearbitrator did not dismiss the grievance on the basis ofabsence of intention to discriminate on the part of therespondent employer.[27] The appellant’s argument continues with the assertionthat the arbitrator failed to apply the law by rejecting aspart of “family status” the parental obligations that flowfrom that status. In Brown, supra, the tribunal considered s.3 of the Canadian Human Rights Act, R.S. 1985, c. H-6 thatcontains wording very similar to the wording of s. 13(1) ofthe Code in this province. One of the issues in the casearose out of denial by the employer of the employee’s requestfor only day-shift work due to difficulties she had

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 15encountered in arranging daycare for her child afterexpiration of her maternity leave.[28] The tribunal in Brown said this:We can therefore understand the obvious dilemmafacing the modern family wherein the present socioeconomictrends find both parents in the workenvironment, often with different rules andrequirements. More often than not, we find thenatural nurturing demands upon the female parentplace her invariably in the position where she isrequired to strike this fine balance between familyneeds and employment requirements.2004 BCCA 260 (CanLII)It is this Tribunal's conclusion that thepurposive interpretation to be affixed to s. 2 ofthe C.H.R.A. is a clear recognition within thecontext of "family status" of a parent's right andduty to strike that balance coupled with a clearduty on the part of an employer to facilitate andaccommodate that balance within the criteria set outin the Alberta Dairy Pool case [[1990] 2 S.C.R.489]. To consider any lesser approach to theproblems facing the modern family within theemployment environment is to render meaningless theconcept of "family status" as a ground ofdiscrimination.[29] The arbitrator declined to follow Brown. He agreed thatit is desirable to expand employer obligations “that better[enable] families to balance the care of their children withtheir work”. But he said that the Legislature has occupiedthis area by enactment of ss. 50 to 54 of the EmploymentStandards Act, R.S.B.C. 1996, c. 113. He held that it was notcorrect to do indirectly through the Code what the Legislature

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 16declined to do directly through specific legislation.Therefore he restricted “family status” under the Code “to thestatus of being a parent per se” without regard to the“innumerable (and yet important) circumstances that arise forall families in regard to their daycare needs.”[30] Sections 50 to 54 of the Employment Standards Act dealwith four specific matters – pregnancy leave, parental leave,2004 BCCA 260 (CanLII)family responsibility leave and bereavement leave. It cannotbe said that the scope of family status in s. 13(1) of theCode is determined by the more specific statute. I cannotfind any wording in either statute that would lead to thatconclusion. Section 13(1) of the Code legislates againstdiscrimination “regarding … any term or condition ofemployment”. On the reasoning of the arbitrator those wordswould be superfluous. In my opinion, the arbitrator erred inconsidering the provisions of the Employment Standards Actwhen attempting to determine the scope of the term “familystatus” in s. 13(1) of the Code.[31] Although it was not so stated by the arbitrator, it seemsto be clear from the authorities that the first issue iswhether the appellant has made out a prima facie case ofdiscrimination that requires consideration of the issue ofaccommodation: see British Columbia (Public Service Employee

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 17Relations Commission) v. British Columbia Government andService Employees’ Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 andBritish Columbia (Superintendent of Motor Vehicles) v. BritishColumbia (Council of Human Rights), [1999] 3 S.C.R. 868, atpara. 20.[32] The appellant argues that the circumstances of this casegive rise to a prima facie case on the basis that family2004 BCCA 260 (CanLII)status should be given a very broad scope as the board did inthe passage quoted above from the decision in Brown. Theappellant also relies on Woiden v. Lynn, [2002] C.H.R.D. No.18, also a decision of the Canadian Human Rights Tribunal.[33] In Woiden, the tribunal considered complaints by fourfemale employees that the respondent, the senior manager attheir place of employment, discriminated against them bysexual harassment and on the basis of sex. One of the fourcomplainants also alleged that the respondent discriminatedagainst her “on the ground of family status by requiring thatshe change her work hours in a manner that was incompatiblewith her obligations as a single mother of three children”.The respondent required that employee to work extended hoursupon pain of dismissal. In the decision, there was noexploration of the evidence on this issue and no elaborationof the facts. There was a finding that “the extended hours

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 18limited [the complainant’s] ability to work because of thebasic needs related to her particular family situation”. Therespondent, who was a manager and not the corporate employerof the complainant, did not appear at the hearing or presentevidence in any other manner. The tribunal apparently assumeddiscrimination and had before it no evidence or submissionthat imposition of the extended hours was a bona fideoccupational requirement and that the respondent could not2004 BCCA 260 (CanLII)accommodate the complainant without incurring undue hardshipto the employer. The tribunal found discrimination based onfamily status. It defined family status discrimination as“practices or attitudes that have the effect of limiting theconditions of employment of, or the employment opportunitiesavailable to, employees on the basis of a characteristicrelating to their family”.[34] The appellant argues that, as the mother of a specialneeds child who required her attention as the person mosteffective in attending to his needs at a critical time of theday, Ms. Howard was discriminated against on the basis offamily status to a greater extent than the employees in theBrown and Woiden cases.[35] In my opinion, the tribunals in both Brown and Woidenconflated the issues of prima facie discrimination and

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 19accommodation. They seem to hold that there is prima faciediscrimination whenever there is a conflict between a jobrequirement and a family obligation. In each decision thereis an overly broad definition of the scope of family statusthat I consider to be unworkable. I find both decisionsunhelpful in defining family status under s. 13(1) of the Codefor the purpose of determining whether prima faciediscrimination is proven.2004 BCCA 260 (CanLII)[36] What then needs to be established in order to prove primafacie discrimination based on family status? The respondentrelies on Wight v. Ontario (Office of the LegislativeAssembly), [1998] O.H.R.B.I.D. No. 13, a decision of theOntario Board of Inquiry (Human Rights Code). In that case,the employee was on pregnancy leave during a high-riskpregnancy and delivery. The employer ordered her to return towork but she refused to do so until she had secured adequatedaycare for her children. She was dismissed from heremployment. One of her complaints under the applicable humanrights code was that her dismissal amounted to discriminationon the basis of family status. In an extremely lengthydecision, the board found that the employer had breached otherprovisions of the code but had not discriminated on the basisof family status. That issue turned on the facts of the case

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 20and I am unable to find in it any useful definition of thescope of family status in human rights legislation.[37] The Supreme Court of Canada did deal with the concept offamily status in human rights legislation in B., supra, and inCanada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. InB. the majority of the court upheld the decision of theOntario Court of Appeal that family status did encompass2004 BCCA 260 (CanLII)discrimination claims based on the particular identity of thecomplainant’s child. Mossop was a bereavement leave claim andturned on whether family status included a homosexualrelationship. The majority determined that it did not.Neither case addressed the question of whether family statusincludes parental or other family obligations.[38] The parties have cited no other cases that assist inproviding a working definition of the parameters of theconcept of family status as the term is used in the Code. Inmy opinion, it cannot be an open-ended concept as urged by theappellant for that would have the potential to causedisruption and great mischief in the workplace; nor, in thecontext of the present case, can it be limited to “the statusof being a parent per se” as found by the arbitrator (and asargued by the respondent on this appeal) for that would notaddress serious negative impacts that some decisions of

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 21employers might have on the parental and other familyobligations of all, some or one of the employees affected bysuch decisions.[39] If the term “family status” is not elusive of definition,the definition lies somewhere between the two extremes urgedby the parties. Whether particular conduct does or does notamount to prima facie discrimination on the basis of family2004 BCCA 260 (CanLII)status will depend on the circumstances of each case. In theusual case where there is no bad faith on the part of theemployer and no governing provision in the applicablecollective agreement or employment contract, it seems to methat a prima facie case of discrimination is made out when achange in a term or condition of employment imposed by anemployer results in a serious interference with a substantialparental or other family duty or obligation of the employee.I think that in the vast majority of situations in which thereis a conflict between a work requirement and a familyobligation it would be difficult to make out a prima faciecase.[40] In the present case, the arbitrator accepted the evidenceof Dr. Lund that Ms. Howard’s son has a major psychiatricdisorder and that her attendance to his needs during afterschoolhours was “an extraordinarily important medical

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 22adjunct” to the son’s wellbeing. In my opinion, this was asubstantial parental obligation of Ms. Howard to her son. Thedecision by the respondent to change Ms. Howard’s hours ofwork was a serious interference with her discharge of thatobligation. Accordingly, the arbitrator erred in not findinga prima facie case of discrimination on the basis of familystatus.2004 BCCA 260 (CanLII)[41] The appellant contends that we should advise thearbitrator that the respondent breached s. 13 of the Code bynot accommodating Ms. Howard’s parental obligation. Thearbitrator did not address that issue and, in my opinion, thiscourt should not do so in the first instance.[42] The issue of accommodation arises out of s. 13(4) of theCode that reads:13(4) Subsections (1) and (2) do not apply with respect toa refusal, limitation, specification or preference based ona bona fide occupational requirement. (emphasis added)[43] In the application of this sub-section and others like itin human rights legislation, McLachlin, J. (as she then was)in the B.C.G.S.E.U. case (cited in para. 31 above) enunciatedthe analysis to be employed:54 Having considered the various alternatives, Ipropose the following three-step test for

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 23determining whether a prima facie discriminatorystandard is a BFOR [bona fide occupationalrequirement]. An employer may justify the impugnedstandard by establishing on the balance ofprobabilities:(1) that the employer adopted thestandard for a purpose rationallyconnected to the performance of thejob;(2) that the employer adopted theparticular standard in an honestand good faith belief that it wasnecessary to the fulfilment of thatlegitimate work-related purpose;and2004 BCCA 260 (CanLII)(3) that the standard is reasonablynecessary to the accomplishment ofthat legitimate work-relatedpurpose. To show that the standardis reasonably necessary, it must bedemonstrated that it is impossibleto accommodate individual employeessharing the characteristics of theclaimant without imposing unduehardship upon the employer.[44] The appellant concedes the first two stages of theanalysis.[45] The authorities make it clear that reasonableaccommodation is the responsibility of both sides – theemployee and the union on the one hand and the employer on theother. The present case has the added factor of the effect ofMs. Howard’s illness on the issue of accommodation. It is forthe arbitrator to resolve this issue.

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 24[46] It is not appropriate for us to discuss the issue ofdamages. That is a matter for the arbitrator to address if hefinds against the respondent on the accommodation issue.[47] I would allow the appeal and remit the grievance back tothe arbitrator.“The Honourable Mr. Justice Low”2004 BCCA 260 (CanLII)I agree:“The Honourable Madam Justice Levine”I agree:“The Honourable Mr. Justice Smith”

Date: July 9, 2004File: 348Indexed as: Derksen v. Myert Corps Inc., 2004 BCHRT 60IN THE MATTER OF THE HUMAN RIGHTS CODER.S.B.C. 1996, c. 210 (as amended)AND IN THE MATTER of a complaint beforethe British Columbia Human Rights TribunalB E T W E E N:Harold DerksenCOMPLAINANTA N D:Myert Corps Inc.RESPONDENTREASONS FOR DECISIONTribunal Member:Counsel for the Complainant:Counsel for the Respondent:Dates of Hearing:Barbara J. JunkerLoryl D. RusselEdward P. GoodJanuary 13 – 16, 20, andFebruary 10, 2004

IINTRODUCTION[1] Mr. Harold Derksen alleges that Myert Corps Inc. (“Myert”) dismissed him fromemployment for reasons relating to his religion, in contravention of s. 13 of the HumanRights Code.[2] Mr. Derksen started working with Myert on July 2, 2002 as a Project Co-ordinatorin the Youth Job Directions Program (the “Program”). Myert denies that Mr. Derksen’sreligion was a factor in his August 12, 2002 dismissal. Myert states that Mr. Derksen’semployment was terminated due to his poor management style and because he took anunapproved day off on August 9, 2002.[3] Mr. Derksen testified on his own behalf. The witnesses for the respondent were:Jacqui Toews, Tina Sangha, Autumn Jenkinson, Sussanna Bottiglieri, Helga Imbenzi, andGeorge Imbenzi.II FINDINGS OF FACTA. Myert and the Program[4] Myert was incorporated in September 1995. It is a for-profit corporationspecializing in programs for challenged youth. Mr. and Mrs. Imbenzi are Myert’sdirectors. In the corporate records, Mrs. Imbenzi is listed as its Secretary and Mr.Imbenzi as its President.[5] Mrs. Imbenzi performs all the financially related work for the company. Her titleis Financial Controller. Mr. Imbenzi, who prefers to be called Imbenzi, is the visionaryand driving force behind the company.[6] Imbenzi is associated with the Mennonite church and has been a licensed ministersince 1994. His Masters degree from Trinity Western University is pending thecompletion of one paper. His motivation in providing the Myert programs is to helpdisplaced youth.1

[7] Myert contracts with provincial or federally funded agencies to provideprevention and intervention programs for youth in such areas as drug addiction, abuse,homelessness and employment. Myert’s payroll varies depending on the number offunded programs ongoing at one time. In 2002 it had approximately 150 clients andemployees combined. Clients may work for the company in practicums. The companyhad about 80 staff members in 2002. Most of the employees are attached to programcontracts and if the program ends, their jobs end and they are unemployed.[8] All funding agencies monitor performance of the programs. If performancerequirements are not met, contracts can be cancelled. Because funding is contractual,there can be gaps in funding where program contracts end and new program contractsstart. This means that individuals who work for Myert, may be “between jobs”.However, Myert endeavours to keep a number of individuals employed as consistently aspossible.[9] Myert does have some employees who are not specifically designated toprograms. In order to ensure the company can maintain the salaries for these employees,it will negotiate ‘contributory agreements’, where there is no profit margin. Under acontributory agreement, Myert gets paid for actual expenditures such as salaries and rent.This allows the company to maintain an operational budget and provides more stabilityfor staff. It also means there will be a close audit of the actual expenses.[10] The Program was funded under a one year contributory agreement with HumanResources Development Canada (“HRDC”) commencing at the beginning of July 2002.The Program objective was to “…provide a variety of workshops and short terminterventions focusing on employability skills, job search, job maintenance skills, to 500insured youth participants in Abbotsford.” The targeted clientele were unemployedyouth. The activities of the program were to include the following:1. Twelve three-week job search sessions including the following topics:- dealing with chronic barriers to employment- identifying employability skills2

- learning how to market those skills- preparing effective résumés and cover letters- obtaining current labour market information- accessing job leads/job search information- preparing a return to work action plan- gaining knowledge about job search tools and resources available2. Provision of short individual workshops, based on the above topics.3. To have clients develop mutually agreed upon return to work action plans.[11] The expected results from the Program were to have the 500 clients in total gothrough the Program. HRDC was to monitor the results quarterly and the expectationwas that 125 clients would start the Program per quarter. The reporting requirementswere that Myert provide data to the HRDC on a monthly basis, by the 10 th of thefollowing month. Myert was to include in the report new activity of existing clients andnew clients. If the objectives of the Program and client numbers were not met, thecontract was subject to cancellation.B. Mr. Derksen and the Program[12] Mr. Derksen’s job description for the Program Co-ordinator provides for thefollowing duties:- Plans, develops, administers and co-ordinates all functions andservices of the Youth Job Directions Program in Mission andAbbotsford. Directs and co-ordinates the activities of programstaff. Exercises responsibility and accountability for budget,personnel and program.- In conjunction with the Myert Corps Program Director, plans andco-ordinates the activities of the program with funders.- Directs and co-ordinates the activities of staff performingprogram-related tasks, and facilitates program development andanalysis.3

- Proportional client case management plus, assigned skills andintervention teaching units.[13] Reporting to Mr. Derksen were Ms. Toews, Ms. Sangha, Ms. Jenkinson andShigali Edward. Ms. Toews was part-time, working Thursday and Friday. Ms. Sanghawas also part-time and worked Monday, Tuesday and Wednesday. Mr. Edward workedfour days on the program and one day outside the program. Ms. Jenkinson was full time.[14] Ms. Toews, Ms. Sangha and Ms. Jenkinson had worked at Myert before on otherprograms. Ms. Toews started in May 1998, working in a variety of capacities under aseries of contracts. Under the Program, she was to act as a client facilitator and provideoffice support such as help covering reception. As a client facilitator, she would do basicclient assessments, assist with job searches and resume changes.[15] Ms. Sangha started with Myert in 1996, and also worked in a variety of capacities.Most of her work was in the areas of life and job skills. Ms. Sangha was a clientfacilitator under the Program. Her duties were to include teaching in the three week jobsearch sessions. At the time she testified, she was no longer working for Myert. Ms.Sangha’s last day of work was August 4, 2002.[16] Ms. Jenkinson started at Myert in October 2000. Her role under the Programincluded client intake liaison and assessments, and office related matters includingpreparing Program statistics. At the time she testified, she was also no longer workingfor Myert.[17] The staff started working on the Program on July 2, 2002 and met with Imbenzi toreview the Program in detail. Present at the meeting were Ms. Jenkinson, Ms. Sangha,Ms. Toews, Mr. Edwards, Mr. Derksen and Imbenzi. Imbenzi impressed upon the staffthat Program success was important as he had been seeking funding for some time for aprogram such as this. Imbenzi warned that unless the Program succeeded, the fundingwould be withdrawn.4

[18] The staff reporting to Mr. Derksen was to work as a team to get the Program upand running. Originally, Mr. Derksen was to report to Alan Timberlake, but after the firstweek he reported directly to Imbenzi.[19] The evidence about the Program under Mr. Derksen’s direction and hisperformance requires that I make findings of fact by resolving issues of credibility. Inassessing credibility, I have considered such factors witness’ demeanour, power ofobservation, opportunity for knowledge, judgment, memory and ability to describeclearly what was seen and heard. I make my credibility findings based on the principlesof Faryna v. Chorney, [1952] 2 D.L.R. 354 (BCCA):The credibility of interested witnesses, particularly in cases of conflict ofevidence, cannot be gauged solely by the test of whether the personaldemeanour of the particular witness carried conviction of the truth. Thetest must reasonably subject his story to an examination of its consistencywith the probabilities that surround the currently existing conditions. Inshort, the real test of the truth of the story of a witness in such a case mustbe its harmony with the preponderance of the probabilities which apractical and informed person would readily recognize as reasonable inthat place and in those conditions (at p. 357)[20] All of the three staff members working for Mr. Derksen disputed his version thanMr. Derksen of what happened under his direction. The two different views as to whywere as follows. Mr. Derksen said that overall the Program was “ramping up”. That is,he was getting marketing brochures prepared, putting together teaching materials, gettingthe computer résumé program up and running, waiting for computers and office furnitureto be delivered, and that Imbenzi had advised him not to start the three-week job searchsession until he gave the go ahead.[21] In contrast, Ms. Toews, Ms. Sangha and Ms. Jenkinson all testified about theirconcern that no progress was being made in recruiting clients for the Program, that Mr.Derksen was doing nothing in that area, and in respect of their suggestions, he would saythings like “I’ll check with management” or “let me get back to you”. All three indicatedthat Mr. Derksen was nice, but too laid back and showed no leadership skills. They wereall anxious about the number of clients enrolled in the Program. They knew from pastexperience that if the numbers were not satisfactory, and because HRDC would be5

scrutinizing closely, the contract could be cancelled. That meant they would be out ofwork. Ms. Jenkinson was particularly worried and towards the end of July let it beknown she was thinking of looking for another job.[22] Their evidence also differed with that of Mr. Derksen’s in respect of theleadership role he took and his activity in getting clients. Ms. Toews said she preparedinstructional materials for the job search sessions, on her own initiative. Mr. Derksensaid he directed her. Ms. Sangha and Ms. Jenkinson said they took it upon themselves totry and get out in the community to liaise with client providers in order to market theProgram and get clients. They said that Mr. Derksen should have been out there as well,meeting with HRDC, and establishing contacts, but he was not. Rather, he worked ontrying to get the résumé program working. Mr. Derksen’s daily time management reviewforms indicate he met with a representative from HRDC on July 24, 2002 over the lunchperiod. Also, the first thing that day, it appears he attended at the Abbotsford YouthCommission, but it was unclear as to what that meant.[23] There were also differences in the evidence with respect to Mr. Derksen’s role inteaching in the Program. There was some evidence that, initially, Mr. Derksen did notexpect that teaching would be a key element in his role. Other evidence indicated that itwas always anticipated to be part of his role. Nevertheless, I find he was eventuallyscheduled to teach a fair amount of the three-week sessions. In addition, Ms. Jenkinsonwas not originally slotted to teach, but was also added to the schedule for the three-weeksessions.[24] By the end of July, there were only 14 clients in the Program. Mr. Derksensuggested that the reason for the low numbers was because it was summertime.Nevertheless, the first three-week session was to start a month after Mr. Derksen washired, during the week of August 5, 2002, but because there were only 14 clients, it didnot go ahead. I find the clearest indicator that the Program was failing was theenrolment. A month had gone by, at which time according to the Program objectives onclient numbers of 125 per quarter, there should have been substantially more than 14clients.6

[25] Imbenzi was less than clear in his testimony, in terms of the performance reviewshe gave Mr. Derksen. However, I am persuaded that during Mr. Derksen’s employmentit was not made known to him that his performance was lacking to the extent hiscontinued employment was in jeopardy.[26] In balancing the evidence to reach my findings I have considered the following.Mr. Derksen had reason to give self-serving testimony in order to persuade me that hewas competent with respect to getting clients into the Program. On the other hand, Ms.Jenkinson and Ms. Sangha are no longer with Myert and had no reason to give evidencethat would curry favour with Myert. I found them both to be extremely credible. Therewas no doubt as to their view of why the Program was failing. They had previouslyworked at Myert and knew what was expected by way of client numbers. Ms. Toewsconfirmed their evidence, and I conclude from all three, that Mr. Derksen’s leadershipskills were less than satisfactory.[27] I find that Mr. Derksen was responsible for the low number of clients in theProgram. It was clear from the numbers of clients in the Program, even if it wassummertime, when direct referrals were to come from HRDC that the Program wasfailing. As Program Co-ordinator, Mr. Derkson was responsible for the Program and itsperformance and thus, its failure rested upon his shoulders.C. Mr. Derksen’s Religion[28] Mr. Derksen is a member of the Christian Churches of God. As he explained hisfaith, adherents to it believe in one true God, the Father, and one mediator, Jesus Christ,but they do not celebrate Christmas, Easter, birthdays or any of the other traditionalChristian celebrations. Adherents recognize a number of religious days including fiveHoly Days per year; weekly Sabbath commencing Friday from “dark to dark”, to the endof evening nautical twilight Saturday; as well as the lunar New Moons which occur every29 ½ days. On any of these religious days no work or trade is to be done for whichmoney is paid. The New Moons and Holy days may fall on regular work days and whenthey do, adherents must not work.7

[29] Two New Moons fell on work days during the period of time Mr. Derksen wasemployed at Myert: July 10 and August 9, 2002. The events surrounding those days andMr. Derksen’s requests for days off are set out below.D. Requests for Time Off[30] At the time Mr. Derksen was interviewed for employment, he did not mention hisreligion and the requirement for the New Moon Days off. He first asked Mr. Timberlakeon July 5, 2002 for time off for the New Moon Day on July 10, 2002. Mr. Derksentestified that Mr. Timberlake asked him to provide the request in writing and outline thereasons for his request. Mr. Timberlake did not testify. Mrs. Imbenzi testified and saidthat Mr. Timberlake told her that he had asked for a business plan, not a religious treatise.Since that is hearsay evidence, the best evidence I have on this point is Mr. Derksen’sdirect evidence and therefore I accept his version of what he was asked to provide. I findthat nothing really turns on this in any event, because what I had before me was thefollowing sequence of events on the request for the first day off.[31] Mr. Derksen outlined his religious beliefs in a memo dated Monday, July 8, 2002,addressed to Imbenzi. Following a meeting first thing that Monday morning, Mr.Derksen asked Imbenzi if he had seen the memo yet. He had not. Imbenzi thought Mr.Derksen was requesting a day off because it was a “statutory holiday”. He therefore didsome checking and found out that it was not, so spoke to Mr. Derksen again forclarification. Imbenzi then had Mrs. Imbenzi fill in a leave request form, granting theunpaid day off. During those conversations, Mr. Derksen did describe his religion, butImbenzi still had not seen the July 8, 2002 memo. He first saw it that evening.[32] The memo sets out that Mr. Derksen is required to have the New Moon Days offfrom work and that he could provide a calendar as to when those dates were. Thefollowing day, July 9 th , Imbenzi left a letter for Mr. Derksen, which said:This letter is a response to a request you made on July 8 th requesting timeoff to observe a religious event. As stated earlier on Monday July 8 th2002, I was under the impression that this was a once a year observation.8

With information that you have provided and the subsequent request ofseeking one day a month, I’m sorry to inform you that Myert Corps Inc.,will not be approving any other days except the one that was agreed on forJuly 10 th 2002.We are bound by employment standards, and to [sic] our best continue toprovide best practices in the work place. Since these days are not part ofwhat is described under current standards, you will need to make otherarrangements so that, your religious commitments do not interfere withwork.If you see this to be an issue with your employment at Myert Corps. Inc.,please advise me as soon as possible.[33] It is important at this juncture to comment on the evidence given by Mr. Derksenand the evidence given by Imbenzi, because my findings about the events surrounding thedays off requests will require that I prefer one or the others’ evidence on certain points. Iuse the same criteria to assess their credibility, and Mrs. Imbenzi’s, as set out at para. 19.[34] In general, I found both Mr. Derksen’s and Imbenzi’s evidence self serving.While Imbenzi seemed to be less than direct in his answers in cross examination, it wasclear this is an emotional issue for him because he himself is a religious person andwould not want to be found to have discriminated on the basis of religion. Some areas ofhis evidence were less than reliable but I prefer some of his evidence over that of Mr.Derksen’s. However, I also prefer the evidence of Mr. Derksen over that of Imbenzi’s oncertain otherpoints.[35] The first credibility issue is whether Imbenzi intended his letter of July 9 th to referto only Mr. Derkson’s probationary period. I find it was not. To start, there wascontroversy about whether Imbenzi handed the letter to Mr. Derksen and discussed itwith him, explaining that it only applied to the probationary period. Based on otherdocumentation provided, such as the detailed proposal for the Program prepared byImbenzi, I find that if Imbenzi had intended the letter only to apply to the probationaryperiod, he would have said so. Further, I find he did not discuss it with Mr. Derksen, butrather, just left it on his desk. Mr. Derksen’s actions in relation to the next requested dayoff lead me to believe the letter shocked him, it could not have been discussed with him,9

and based on the last paragraph of the letter, he became concerned about his employment.I have reached this conclusion from comments in his July 8 th memo:First I would like to thank you for giving me the opportunity to work foryour organization, it has an impeccable reputation in the community. Iconsider it an honour to work for you……If it were possible, I would not submit this at this time, as I am aware thatit may not encourage a favourable impression considering my recentemployment within your organization. Having said that, my values,beliefs and conscience would not allow me to postpone or reconsider.Clearly he valued his employment with Myert and upon receipt of the July 9 th letter,feared his employment might be at risk. I find that explains why he approached therequest for the second day off, August 9, 2002, in the manner he did.[36] Mr. Derksen and Imbenzi met on August 7, 2002 for Mr. Derksen’s secondperformance review. Imbenzi and his family had been on vacation and returned early theweek before because of concerns about the Program. Enrolment numbers continued to below and staff had contacted Imbenzi, while on vacation, about their concerns. The threeweek program was to have commenced Tuesday, August 6, 2002, however, there werenot enough clients signed up for it. Imbenzi testified that he made it clear to Mr. Derksenin the August 7 th meeting that the targets had to be met and that it was his responsibility.Mr. Derksen, however, said that he did not understand from that meeting that hisemployment was in jeopardy. As set out above, I accept that Mr. Derksen did not knowhis performance was lacking to the extent his employment was at risk.[37] During the August 7 th meeting, Mr. Derksen asked permission to have Ms.Jenkinson do some teaching. Mr. Derksen says he also asked Imbenzi for the day off onFriday, August 9 th and Imbenzi approved it. Imbenzi testified however, that when theywere discussing an upcoming training session to be held that day, all Mr. Derksenadvised him of was that he had other commitments on the Friday. Imbenzi said thatbased on that statement and the fact that Ms. Sangha was not going to be there as she wasill; he agreed to move the training session. Imbenzi asked Mr. Derksen to put his request10

to have Ms. Jenkinson do some instruction in writing, because Imbenzi needed the paperwork as back up material to modify the budget for the Program.[38] Lateron August 7, 2002, Mr. Derksen faxed a memo to Imbenzi at the office. Itread as follows:As per our conversation this morning, I would like to request theresponsibilities of teaching and client facilitation to be added to Autumn’sjob description in order to allow for improved client services.Also, I would like to request one day off for Friday, August 9, 2002.Mrs. Imbenzi received the memo in the office and waited until the end of the day todiscuss it with Imbenzi. Imbenzi told her that Mr. Derksen had not earlier asked for theday off. Mrs. Imbenzi testified she decided not to grant the day off because the Programwas in such a sad state. Therefore, the next day, Mrs. Imbenzi sent a leave request formback to Mr. Derksen by fax and denied the leave. Mrs. Imbenzi also dropped a copy ofthe leave form off with Mr. Derkson’s paycheque on August 8, 2002 at the Abbotsfordlocation. She and Imbenzi both testified that at this point they had no idea that therequested day off was for religious purposes.[39] After delivering paycheques on August 8, 2002, Mrs. Imbenzi returned home atabout 4:45 pm. Imbenzi had arrived home a little earlier and taken a call at around 4:30pm from Mr. Derksen. Imbenzi had told him Mrs. Imbenzi would call him back. Mr.Derksen inquired why there had been no response to a faxed memo sent at 3:40 pm andan e-mail sent at 4:26 pm. In the phone call Mr. Derksen mentioned that his request forAugust 9 th off was for religious purposes. He advised that his faxed memo made thatclear, and he was wondering why he did not have an answer about the day off. Mr.Derksen’s faxed memo reads in part as follows:Hello Imbenzi,I received your response via fax regarding my request for one day off thisFriday, August 09/02. It indicates that my request has not been approved.I apologize for not clearly explaining the nature of my request. Thepurpose is to observe a religious Holy Day.11

I understand that I am still in my probation period and I do not wish tocause any disruption in our daily work routine or inconvenience anyone. Iwill make all appropriate arrangements to accommodate my absence.[40] Mr. Derksen’s e-mail set out in part, as follows:As the nature of this request is one of necessity and not luxury, I felt Ishould express that I find myself in an uncomfortable position. I do notwish to cause any problems or difficulties, however as I teach and instructclients in areas such as Human Rights, personal values, principles, andbeliefs, I am compelled to uphold my own standards. As a result, I will beabsent on Friday, August 09/02.I will return to my regular work schedule Monday, August 12/02. Iapologize for any inconvenience.[41] Mrs. Imbenzi spoke to Mr. Derksen who told her that he would not be in to workon Friday. Mrs. Imbenzi advised him that would be an unauthorized day off and that shehoped he would reconsider. Mr. Derksen told Mrs. Imbenzi that Myert had a duty toaccommodate him, to which Mrs. Imbenzi testified that she replied that Mr. Derksen hada duty to let her know why he needed the day off.[42] Mrs. Imbenzi said she would consider Friday an unauthorized day off because bythe time she found out the reason for the request, late on August 8 th , it was too late toprovide coverage for the day. She said she also felt that while the company might have aduty to accommodate Mr. Derksen, he had a duty to the company to meet the contractobligations of the Program and taking the day off when the Program was failing did notmeet this requirement.[43] In setting out the events of August 7 th and 8 th , I have preferred the evidence of theImbenzis over that of Mr. Derksen. Mr. Derkson knew when he got the letter of July 9 ththat Myert was not going to grant him any more days off. He did not challenge that at thetime nor did he raise the duty to accommodate. He remained silent and I find he did sobecause he was concerned about successfully completing his probationary period if hetook the days off against his employer’s direct prohibition. That too is why I find he wasless than candid about requesting August 9 th as a day off. I find that he said in themeeting of August 7 th that he had other commitments for Friday the 9 th , not that he asked12

for the day off for religious reasons. The memo sent following the meeting contained theinformation Imbenzi needed with respect to the change in Autumn’s duties. It alsocontains a statement tacked on to the memo “Also, I would like to request one day off forFriday, August 9/02”. I conclude that it is more in “accordance with the preponderanceof probabilities” that if Imbenzi had approved the day off, Mr. Derksen’s memo wouldhave reflected that approval. Instead, it was framed as a request.[44] Mr. Derksen did not make it clear until late on August 8 th that his request wasbased on religious reasons. That is apparent from his faxed memo. If he had toldImbenzi on August 7 th that he needed a day off for religious reasons on August 9 th , hewould not have made the statement in his memo “I apologize for not clearly explainingthe nature of my request.” Based on the preponderance of probabilities, I find that theImbenzis did not know until late on August 8 th that Mr. Derksen’s request for the day offon Friday was for religious purposes. Mrs. Imbenzi refused to grant the request for theday off, and as a result it became an unauthorized day off.[45] Mrs. Imbenzi testified that she told Imbenzi that it was her view they needed tocut their losses with Mr. Derksen. She based her statement on comments she said she hadfrom staff indicating the Program was not working out. As well, since she did thefinancial reporting to HRDC on the Program, and had to file a first report by September10 th , she knew the Program was not meeting its enrolment target.[46] Mrs. Imbenzi phoned the Abbotsford office on Friday, August 9 th and confirmedthat Mr. Derksen had not reported to work. Over the weekend, the Imbenzis decided toterminate Mr. Derksen’s employment.[47] On Monday, Mrs Imbenzi attended at the Abbotsford office to terminate Mr.Derksen’s employment. Their evidence about what transpired differs.E. Dismissal[48] Mrs. Imbenzi testified that she had never dismissed a Myert employee before, soshe rehearsed what she was going to say and had her key phrases mapped out beforemeeting with Mr. Derksen. She said that her intent was to say that Myert had decided to13

terminate his employment due to his ineffective management style and the unapprovedday off.[49] Mrs. Imbenzi arrived at the Abbotsford office at about 9:30 am. Mr. Derksen wasin his office working on his computer. Mr. Derksen says Mrs. Imbenzi walked in andsaid that he had been terminated because of last Friday. He says he then asked if this wasabout his religious beliefs and that she said yes, and his management style. Mrs. Imbenzisays that when Mr. Derksen said that this was religious discrimination against him, shesaid it was not religious discrimination but because his management style was ineffectiveand because he took the unapproved day off.[50] Mrs. Imbenzi then left while Mr. Derksen gathered his things together. She thenreturned to escort him out of the building. Mrs. Imbenzi testified that Mr. Derksen toldher that he was going to take this matter to human rights. She responded that he shoulddo what he needed to do.[51] I prefer the evidence of Mrs. Imbenzi as to what she said. The Imbenzis made adecision on the weekend to dismiss Mr. Derksen. Mrs. Imbenzi had time to think abouthow she was going to approach that task and what she was going to say. Mr. Derksen,however, did not know what was coming. He had not been previously warned that hisemployment was at risk, and Mrs. Imbenzi did not tell him on August 8 th that hisemployment was in jeopardy if he did not report to work on the Friday. Therefore, thedismissal would have come as a complete shock. Certainly, his testimony as to whathappened after he packed his things and was escorted out of the building indicated that.He said he stood in the parking lot with his attaché case and personal belongings notknowing what to do. Mr. Derksen said he did not want to call his wife, as she was atwork, so he walked to his mother’s, one mile away. Mr. Derksen advised his motherwhat had happened and then phoned his wife. He testified he could not recall whathappened the rest of the day. Mr. Derksen said he was in shock, confused and in a stateof disbelief. He felt helpless; one moment he thought he was a valued employee, thenext, walking down the street with his belongings.14

[52] Based on his state of shock, I find that Mr. Derksen would not have as clear arecollection of the discussion with Mrs. Imbenzi as she did. Mr. Derksen may haveinterpreted her comments about the unauthorized day off on Friday as discriminatingagainst him because the day off was for religious reasons and he was certainly aware ofhis rights. He had expressed those in his e-mail and again to Mrs. Imbenzi just as he wasleaving the building. Therefore, I find that Mrs. Imbenzi avoided engaging in adiscussion about religious discrimination, and did not admit to discriminating against Mr.Derksen.[53] Mrs. Imbenzi filled in Mr. Derksen’s Record of Employment and issued it to himon August 12 th . In the Comments box, she wrote “Not meeting probation requirements.Aug 9, 02 took an unapproved day off”.F. Post Dismissal – The Program[54] The Program was taken over by Dawn Julian. At the end of the first quarter theProgram had 68 clients. There was a steady rise in client numbers after the beginning ofAugust. At six months, the program had 171 clients, which represent 68% of theProgram’s target of 250. At the end of the Program Myert was at 92% of its target of 500clients. The Program’s target was to have 202 clients return to work. A total of 220returned to work, a success rate of 104%. After one year of the Program, HRDC decidedto incorporate it into its own programs, so the contract was cancelled.G. Post Dismissal – Mr. Derksen’s Job Search[55] Mr. Derksen’s application for employment insurance benefits was investigated byHRDC because they wanted to determine if there was any misconduct. They found thatno misconduct was alleged or proven and so Mr. Derksen was advised on September 13 ththat benefits were granted.[56] Mr. Derksen was unable to find work from August 2002 through to July 2003,except for some work in February 2003 as a tile setter for Ceramic Tile by Design andsome other very occasional work. Mr. Derksen did an extensive job search, commencingimmediately upon being dismissed from Myert. Mr. Derksen started a log of his job15

searches in December 2002, which was a requirement of HRDC in order to be eligible totake a course. Because he could not find work with his skill set, he decided to upgradehis qualifications and took a program at Kwantlen College, Career Practitioner Training.The program involved two practicums. Following those, Mr. Derksen started as avolunteer with Pacific Community Resources Society in July 2003. On the second day heworked there, they offered him work as an independent contractor.III ARGUMENT[57] As most of the argument dealt with what conclusions I should draw from theevidence, I will only summarize the principals of each party’s argument.[58] Mr. Derksen alleges that Myert discriminated against him in his employment andrefused to continue to employ him because of his religion, contrary to s. 13 of the Code.He says he has met the evidentiary burden to establish, on a balance of probabilities, thatthe respondent contravened s. 13 of the Code. Mr. Derksen says that he sought to followthe principles of his religion by observing the New Moon Sabbath, but Myert refused toconsider his request. He submits Myert did not give him any explanation why his requestwould result in undue hardship nor did it offer any such proof at the hearing. In responseto Mr. Derksen honouring his religious principles, Myert terminated him.[59] Mr. Derksen says that in its response, Myert has not established a nondiscriminatoryreason for its conduct. Mr. Derksen argues that Myert’s defence that ithad a right to dismiss Mr. Derksen in his probationary period was constructed after thefact. Nevertheless, even if Mr. Derksen’s performance was an issue, the timing of thedismissal, after he took an unauthorized day off to observe a holy day, means thereligious observance was a factor in Myert’s conduct towards him.[60] Myert says that the case is entirely fact driven. It asks that I find the reasons forMr. Derksen’s dismissal were his work performance, not his religion. Myert says if thecomplaint were allowed, the result would be a conclusion that Myert and its principalsdiscriminated on the basis of religion. It submits that it is an absurd proposition. Myertsays the evidence points to a conclusion that Mr. Derksen was dismissed due to his poor16

performance, not his religious beliefs. It says that the complaint should be dismissedwith costs to the respondent. In the alternative, in respect of damages, Myert says that if Ido find that Mr. Derksen was dismissed because he was not granted the day off onAugust 9 th , that I further conclude that he would not have passed his probationary periodin any event, thereby limiting the damages.IV ANALYSIS AND DECISION[61] The issues raised in this case are:1. Was Mr. Derksen’s religion a factor in the decision to terminate him?2. Did Myert discriminate against Mr. Derksen with respect to a term orcondition of his employment because of his religious beliefs?3. Was there a bona fide occupational requirement to refuse the Sabbath dayoff?4. What remedy is appropriate?[62] The relevant parts of s.13 of the Code are:(1) A person must not(a) refuse to employ or refuse to continue to employ a person, or(b) discriminate against a person regarding employment or anyterm or condition of employmentbecause of… religion…[63] A complainant must prove on a balance of probabilities that a respondentdiscriminated against him, in this case, based on religion. A complainant need notestablish that a prohibited ground was the sole or even the most significant factor, onlythat it was a factor that contributed to the discrimination. The overall burden is on acomplainant to show discrimination on the balance of probabilities.[64] If a complainant establishes a prima facie case that a breach of the Code occurred,the evidentiary burden shifts to the respondent to establish a non-discriminatory defence.If the respondent does not establish a defence the ultimate finding is that discriminationoccurred.17

[65] I find that Mr. Derksen has established a prima facie case of discrimination on thebasis of his religion. First, there is the letter of July 9, 2002. I found it did not apply onlyto Mr. Derksen’s probationary period. The denial of the right to his religious days off,establishes a prima facie case of discrimination, or that a case of discriminationapparently occurred. I find the paragraphs below from the letter are key to that finding:With information that you have provided and the subsequent request ofseeking one day a month, I’m sorry to inform you that Myert Corps Inc.,will not be approving any other days except the one that was agreed on forJuly 10 th 2002.We are bound by employment standards, and to [sic] our best continue toprovide best practices in the work place. Since these days are not part ofwhat is described under current standards, you will need to make otherarrangements so that, your religious commitments do not interfere withwork.On its face, this letter denies the right to Mr. Derksen to take any more days off toobserve the New Moons or other religious commitments.[66] Second, there is no doubt that one of the reasons Mr. Derksen was dismissed washis unauthorized absence on August 9, 2002. Not only did Mrs. Imbenzi explain in herevidence that was the case as Myert considered it an unauthorized day off, it wasincluded on his Record of Employment as one of the reasons for dismissal. The onlyreason for Mr. Derksen’s absence on that day was to observe a religious holiday.[67] Having found that a prima facie case has been made out, I must now look at thedefence provided by the respondent. I do not find the evidence was constructed after thefact. What I do find, however, is that Myert did not make it clear to Mr. Derksen that hisemployment was in jeopardy. While Myert may have had reason to dismiss Mr. Derksenbecause of his performance, the decision was made only after he took the unauthorizedday off. It, as Mrs. Imbenzi said, was the event that made her say to Imbenzi that theyshould cut their losses, meaning let Mr. Derksen go. Observation of the New MoonSabbath was therefore a contributing event. Hence, I cannot find that Myert has provideda complete answer to establish a non-discriminatory reason for its conduct; part of it wasdiscriminatory.18

[68] As a result of finding that there is a case establishing that discrimination occurredon the basis of Mr. Derksen’s religion, I must now turn to the duty to accommodate. Inessence, Imbenzi’s directions in his letter of July 9 th , established a rule or policy whichwas prima facie discriminatory. In order to justify that rule, based on the test outlined inBritish Columbia (Public Service Employee Relations Commission) v. B.C.S.G.E.U.,(“Meiorin”), [1993] 3 S.C.R. 3, a respondent must show on the balance of probabilitiesthat:1. The standard was adopted for a purpose or goal that is rationally connectedto the function being performed;2. The standard was adopted in good faith in the belief that it is necessary forthe fulfillment of the purpose or goal; and3. The standard is reasonably necessary to accomplish its purpose or goal, inthe sense that the respondent cannot accommodate persons withcharacteristics of the complainant without incurring undue hardship.[69] Imbenzi required that Mr. Derksen to attend at work, even on days where he wasobligated by his religion to observe a Sabbath. Imbenzi apparently established thestandard to ensure that Mr. Derksen was at work fulfilling his duties as Project Coordinatorof the Program. Therefore, I find it reasonable to conclude that the first twotests in Meiorin are met; Mr. Derksen did not vigorously dispute this point.[70] Myert did introduce some evidence through Ms. Sangha and Ms. Bottiglieri aboutits religious tolerance, but that is not the relevant assessment to be made. What isrequired of an employer is that they assess the individual request as against the standardand determine that a request could not be accommodated without undue hardship. I haveno evidence that Myert made any effort to accommodate Mr. Derksen. Mrs. Imbenzistated that if she had received sufficient notice from Mr. Derksen that he needed the dayoff for religious purposes, she might have been able to accommodate him. However,Myert did not accommodate him and thus, I find it has failed to show that itaccommodated Mr. Derksen to the point of undue hardship.19

[71] Finally, I cannot find that Myert has demonstrated that the refusal to let Mr.Derksen observe his holy days was a bona fide occupational requirement as no evidencewas led for me to be able to reach that conclusion.VREMEDY[72] Section 37 of the Code provides in part:(2) If the member or panel determines that the complaint is justified, themember or panel(a) must order the person that contravened this Code to cease thecontravention and to refrain from committing the same or a similarcontravention,…(d) if the person discriminated against is a party to the complaint, or is anidentifiable member of a group or class on behalf of which a complaintis filed, may order the person that contravened this Code to do one ormore of the following:(i) make available to the person discriminated against theright, opportunity or privilege that, in the opinion of themember or panel, the person was denied contrary to thisCode;(ii) compensate the person discriminated against for all, or apart the member or panel determines, of any wages orsalary lost, or expenses incurred, by the contravention;(iii) pay to the person discriminated against an amount thatthe member or panel considers appropriate to compensatethat person for injury to dignity, feelings and self respector to any of them.Order Under s.37(2)(a)[73] An award under s.37(2)(a) is mandatory when discrimination is found and I soorder.20

Order Under s.37(2)(d)(ii)[74] Mr. Derksen is seeking full restitution for wages lost from August 2002 to July2003, less income earned. He earned $23.00 per hour for 35 hours per week. The totalloss of income claimed, net of his earnings is $32,758.90.[75] I was convinced from the evidence and especially from the low enrolment in theProgram that Mr. Derksen’s job performance was not what was expected of him. Inparticular, I found the lack of clients enrolled in the Program after five weeks was tellingof Mr. Derksen’s lack of leadership skills. I compare those numbers to the number ofclients in the program after he was replaced. As a result of my finding, I am prepared toconclude that Mr. Derksen would not have successfully completed his probationaryperiod, and as a result, I am prepared to award only part of his wage loss. Mr. Derksenwill be awarded lost wages for the period from August 12 to the end of his probationaryperiod on October 1, 2002, based on a calculation of $23.00 per hour for 35 hours perweek for a total of $5,957.00.[76] Mr. Derksen seeks a tax gross-up to offset any income tax liability which wouldaccrue as a result of receiving any income loss awarded in a year in which he is earningthe equivalent of a full time income. Mr. Derksen is awarded a tax gross-up to offset anyincome tax liability as a result of awarding the income loss in a year in which he isearning a full time income.[77] Mr. Derksen is also seeking payment for medical expenses he says would havebeen covered by his extended health care plan at Myert effective October 2, 2002 in theamount of $1,740.00. The expenses submitted cover a period commencing from August11, 2002, when Mr. Derksen would not have qualified for extended health benefits untilOctober 2, 2002. Since I have concluded that Mr. Derksen would not have completed hisprobationary period, he would not have been eligible for the extended health coverage,and therefore I decline to order reimbursement.[78] Mr. Derksen also seeks remuneration for lost wages to attend the hearing; anamount of $770.00 (5.5 days x $140.00 per day). Under s. 32(d)(ii) of the Code, I havethe jurisdiction to award certain wages or salary lost, or expenses incurred by a21

complainant as a result of contravention of the Code. The Tribunal has held that hearingrelated expenses may be covered as expenses incurred by the contravention and hasincluded lost wages as such an expense: Martin v. Carter Chevrolet Oldsmobile, 2001BCHRT 37, and Sauve v. 538185 B. C. Ltd. operating as Capone’s Restaurant & LiveJazz, 2004 BCHRT 42. Therefore, Mr. Derksen is entitled to lost wages to attend thehearing in the amount of $770.00.[79] Mr. Derksen seeks compensation for the legal expenses paid to bring this matterbefore the Tribunal. In the past, the Tribunal has awarded legal fees as expenses under s.37(2)(d)(ii), but those were expenses incurred before a complaint was filed: see Morris v.B.C. Rail, 2003 BCHRT 14. There is a question arising from this request as to theTribunals’s jurisdiction to award legal fees as expenses under s. 37(2)(d)(ii). However,since there was no evidence to prove actual expenses had been incurred by Mr. Derksenpersonally, and because the parties have not made submissions that would lead me toconclude that I have jurisdiction, I decline to award the legal fees and disbursements asan expense under s. 37(2)(d)(ii).Order Under s.37(2)(d)(iii)[80] Mr. Derksen is asking for $6,000.00 for injury to dignity, feelings and selfrespect,pursuant to s. 37(2)(d)(iii) of the Code. Mr. Derksen says that the damage to hisdignity, self-respect and feelings not only began on the day he was fired by Myert; thedamage continued up to the present with the evidence in the hearing about his lack ofcompetence. He relies on Nixon v. Vancouver Rape Relief Society, 2002 BCHRT 1 atpara. 226, for the proposition that it is reasonably foreseeable that Myert wouldexacerbate Mr. Derksen’s hurt and humiliation by maintaining he was fired for cause.However, I have found that Mr. Derksen’s performance was lacking, so therefore, cannotfind that Myert intentionally continued and caused Mr. Derksen’s hurt and humiliation.Nevertheless, Myert did not provide any warning to Mr. Derksen that his employmentwas in jeopardy, and the shock and humiliation he suffered in the way he was fired, isdeserving of some damages. Mr. Derksen relies on Gill v. Grammys Place Restaurantand Bakery Ltd., 2003 BCHRT 88 to argue that as in that case, the witnesses here22

perpetuated a falsehood about what was really the truth. Mr. Derksen says the witnessesagainst him gave partisan and disrespectful evidence, further causing injury to his dignity.[81] Having reviewed the Gill case, I do not find nearly the egregious conduct thatexisted in that case in the circumstances of this case. Furthermore, I did not find theevidence about Mr. Derksen’s performance was partisan or disrespectful. I accepted it asthe truth about Mr. Derksen’s leadership capabilities and failure with the Program.[82] In Nixon, at the paragraph cited by Mr. Derksen, the Tribunal set out thefollowing:The appropriateness of a remedial order in any given case is determined bya number of factors but, of primary importance, is the scope of thecomplaint that is before the member to decide and the evidentiary findingsin the decision. With respect to an award for injury to dignity, feelings andself respect, such awards are not intended to be punitive but compensatory.The goal of a remedial order is, to the extent possible, to make whole thevictim of the discriminatory practice, taking into account principles ofreasonable foreseeability and remoteness. (para. 226)I am satisfied that Mr. Derksen suffered injury to dignity, but I do not find that it amountsto that which was found in Nixon. The most that the Tribunal has awarded for damagesfor loss of dignity in a case where there has been a breach of the Code for discriminatoryconduct in relation to religion is $3,500.00 in Jones v. C.H.E. Pharmacy Inc. et al, 2001BCHRT 1. There the complainant was an employee who had 16 years service, and feltcompelled not to continue his employment because the employer chose not toaccommodate his religious beliefs. I recognize that Gill and Nixon were decidedsubsequent to Jones, but the injury to dignity experienced in both those cases wassubstantial.[83] I understand that Mr. Derksen lives in a small community where his reputationmay have been marred because of his dismissal and the position of Myert that it was dueto his incompetence. I have found Myert dismissed Mr.Derksen without warning becausein part, he took a day off to celebrate the New Moon Sabbath. Taking all of thecircumstances into consideration I award Mr. Derksen an amount of $2,000 for injury todignity.23

Other Orders[84] Mr. Derksen seeks interest payable on all amounts other than the award for injuryto feelings, dignity and self-respect. Mr. Derksen is entitled to interest payable on allamounts other than the award for injury to feelings, dignity and self-respect, and wageloss to attend the hearing, in accordance with the Court Order Interest Act, RSBC 1996,c. 79, as amended, the prevailing rate of which was 2.25% at the time the cause of actionarose.[85] Finally, Mr. Derksen seeks a personal apology from Imbenzi and Mrs. Imbenzi, insuch a form as the parties may agree to. There may be a question of jurisdiction whetherthe Tribunal can award a letter of apology, but this was not argued before me. Further, ifcompelled, I would not think it would be effective. In any event, an order pursuant to s.37(2)(a) constitutes the appropriate order for the purposes of rebuking the respondent forits discrimination. I therefore decline to order a letter of apology from the Imbenzis.VI CONCLUSION[86] I find that Myert discriminated against Mr. Derksen when it dismissed him fromhis employment in part for taking an unauthorized day off to worship his Holy DaySabbath, contrary to s. 13 of the Code.VII ORDERS[87] I make the following remedial orders:1. pursuant to s. 37(2)(a) of the Code that Myert cease its contravention of theCode, and refrain from committing the same or similar contravention;2. pursuant to s. 37(2)(d)(ii) of the Code payment of wages from August 12 toOctober 1, 2002, based on a calculation $23.00 per hour for 35 hours perweek for a total of $5,957.00;3. a tax gross-up to offset any income tax liability as a result of awarding theincome loss in a year in which he is earning a full time income;4. interest payable on the amounts set out above, at 2.25%;24

5. pursuant to s. 37(2)(d)(ii) of the Code, wage loss to attend the hearing in theamount of $770.00; and,6. pursuant to s. 37(2)(d)(iii) of the Code, damages for injury to dignity in theamount of $2,000.00.Barbara J. Junker, Tribunal Member25

Canadian HumanRights TribunalTribunal canadiendes droits de la personneBETWEEN:FIONA ANN JOHNSTONEComplainant2010 CHRT 20 (CanLII)- and -CANADIAN HUMAN RIGHTS COMMISSIONCommission- and -CANADA BORDER SERVICESRespondentDECISIONMEMBER: Kerry-Lynne D. Findlay, Q.C. 2010 CHRT 202010/08/06

TABLE OF CONTENTSPageI. COMPLAINT .............................................................................................................................. 1II. FACTUAL BACKGROUND...................................................................................................... 3III. RESPONDENT’S OPERATIONS .............................................................................................. 7IV. Canadian Human Rights Tribunal (CHRT)/CHRC HISTORY .................................................. 10V. COMPLAINANT’S CASE.......................................................................................................... 19A. Evidence of Fiona Johnstone .............................................................................................. 19B. Evidence of Murray Star .................................................................................................... 25C. Evidence of Expert, Dr. Linda Duxbury............................................................................. 31D. Evidence of Expert, Martha Friendly ................................................................................. 37E. Prima Facie Case ................................................................................................................ 422010 CHRT 20 (CanLII)VI. RESPONDENT’S CASE............................................................................................................. 53A. Evidence of Norm Sheridan................................................................................................ 53B. Evidence of Rhonda Raby .................................................................................................. 64C. Evidence of Expert, Dr. Moore-Ede ................................................................................... 68VII. CONCLUSION/ANALYSIS....................................................................................................... 71VIII. DECISION .................................................................................................................................. 74IX. REMEDY..................................................................................................................................... 75A. Systemic Remedy ............................................................................................................... 75B. General Damages for Pain and Suffering ........................................................................... 77C. Special Compensation......................................................................................................... 77D. Interest ................................................................................................................................ 78E. Solicitor Client Costs .......................................................................................................... 78F. Retention of Jurisdiction..................................................................................................... 80

I. COMPLAINT[1] This complaint arose in April 23, 2004, and is brought pursuant to Sections 7 (b) and10 (a) and (b) of the Canadian Human Rights Act (“the Act”).[2] The Complainant (Ms. Johnstone) alleges that the Respondent (CBSA) has engaged in adiscriminatory practice on the ground of family status in a matter related to employment. Therelevant prohibited ground of “family status” is enumerated in Section 3(1) of the Act.[3] Section 7 (b) of the Act reads:2010 CHRT 20 (CanLII)“It is a discriminatory practice, directly or indirectly,(b) in the course of employment, to differentiate adversely in relation to an employee, on aprohibited ground of discrimination.” [1976-77, c.33, s.7.][4] Sections 10 (a) and (b) of the Act read:“It is a discriminatory practice of an employer, employee organization or employerorganization(a) to establish or pursue a policy or practice, or(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training,apprenticeship, transfer or any other matter relating to employment or prospectiveemployment, that deprives or tends to deprive an individual or class of individuals ofany employment opportunities on a prohibited ground of discrimination.”[R.S., 1985, c. H-6, s. 10; 1998, c. 9, s. 13(E)][5] The practices complained of include failure to accommodate, and adverse differentialtreatment based on family status, which in this case means the raising of two young children.Pursuant to the findings in Moore v. Canada Post Corporation, 2007 CHRT 31, at para. 86“failure to accommodate” is not a discriminatory practice under the Act, as “there is nofree-standing right to accommodation under the CHRA.”[6] The alleged practice against the Complainant began in 2004. Although the Statements ofParticulars of both parties deal primarily with the time period up to and including 2007, the

2complaint filed herein referred to the discrimination as being “ongoing”. Ms. Johnstone took thesame position at the hearing that the discrimination complained of constituted a “continuingevent” and is ongoing. The Canadian Human Rights Commission (CHRC) supported thisapproach.[7] The Respondent objected to the introduction of evidence being led pertaining to the timeperiod after 2007 as constituting “post complaint” allegations, and that such evidence would betoo remote in time in terms of relevancy. The complaint herein was filed April 23, 2004.[8] The Tribunal accepted the Complainant’s and the CHRC’s characterization of thecomplaint as ongoing, and noted that the written complaint made this assertion. The allegationsraised under Section 10 of the Act also speak to the conduct complained of being systemic innature, and remedies sought reflect this position.2010 CHRT 20 (CanLII)[9] Evidence was presented by all parties as to CBSA practices, CBSA written and unwrittenpolicies, a relevant collective agreement as amended over the full time period, the governingVariable Shift Scheduling Agreement (VSSA) in place at the time of the complaint and as lateramended, and implications both past and present of the implementation of those practices,policies and agreements.[10] Ms. Johnstone alleges that the CBSA’s policies forced her into part-time status upon herreturn to work after having each of two children, resulting in her being given fewer hours of workthan she was willing and able to work, with an attendant loss of benefits that are available tofull-time employees, including benefits under her collective agreement and pension entitlementsunder the Public Service Superannuation Act.[11] Both the Complainant and the CBSA were represented by legal counsel at the hearing.CHRC was also represented by legal counsel, but addressed only the Section 10 arguments raisedby the complaint. It was very beneficial to this Tribunal to have experienced senior legal counselacting on behalf of all parties.

3[12] Previous to the hearing, the CBSA had sought to add the Union as a party. One of the mainreasons given by CBSA to add the Union was that the VSSA prevented CBSA from consideringMs. Johnstone’s request for static shifts, encompassing full-time hours over only 3 days per week.This argument was not advanced by CBSA at this hearing.[13] Ms. Johnstone and CHRC opposed the application on the grounds that none of theremedies sought by Ms. Johnstone required amendments to the governing collective agreement orto the VSSA. The Union provided an affidavit to the Tribunal taking a position of support of theComplainant, but did not actively participate. This motion was dismissed by the Tribunal on thebasis that the Union’s participation in the hearing was not necessary for the presentation ofrelevant evidence or the Tribunal’s ability to adjudicate on the matters so raised. It was alsodismissed because the application was made late in the process, and the Union’s participationwould not be necessary to properly dispose of the liability portion of the complaint[See 2009 CHRT 14].2010 CHRT 20 (CanLII)II.FACTUAL BACKGROUND[14] Ms. Johnstone is a Canada Border Services Officer (BSO). She has been in the employ ofCBSA since April 14, 1998. She is presently on leave without pay, the particulars of which aredetailed later in this Decision. At the time of this complaint she worked in Passenger Operationsat the Pearson Airport Terminal (PIA) in Toronto, Canada.[15] By all accounts Ms. Johnstone is an exemplary employee, often exceeding her superiors’expectations and noted up for her diligence, excellent results, and acumen for her work duties.[16] Ms. Johnstone has been married to Jason Noble (Jason) since December 2002. Jason isalso a BSO. During the early relevant time of this complaint, Jason worked for CBSA as aSupervisor also at the PIA. He now works in Ottawa.

4[17] Ms. Johnstone and her husband have two children. The eldest was born in January 2003,with Ms. Johnstone returning to work January 4, 2004. The second child was born inDecember 2004, with Ms. Johnstone returning to work December 26, 2005. Their two childrenwill both be school age by 2010.[18] PIA is a 24 hours, 7 days per week operation. To cover the operational requirementsnecessitated by the workplace, the Collective Agreement is built around a rotating shift planreferred to as ‘the vassa’ but spelled VSSA, an acronym for Variable Shift Schedule Agreement.From the time that Ms. Johnstone commenced working for CBSA, after a relatively short time asa part-time employee, she worked full-time on a schedule of 5 days on, 3 days off rotating shiftsgoverned by the VSSA.2010 CHRT 20 (CanLII)[19] In addition to the rotation, the shifts are irregular and unpredictable. At the time of theevents giving rise to this complaint, full-time employees rotated through 6 different start timesover the course of days, afternoons, and evenings with no predictable pattern. Also, employeesworked different days of the week throughout the duration of the schedule. This schedule wasbased on a 56 day pattern. BSOs were given 15 days’ notice of each new shift schedule. Theemployer can change the schedule on 5 days’ notice.[20] A full-time position within the context of this case, and as contemplated per Article 25.13of the Collective Agreement in place at the time, was 37.5 regularly scheduled hours per week,based on an 8 hour day that included an unpaid ½ hour meal break. Any employee who workedless than 37.5 hours per week was considered part-time. Any employee who worked greater than37.5 hours per week was paid overtime.[21] Overtime hours are required as a BSO. The requirement for overtime is oftenunpredictable, as it may arise due to job duties at any given time in particular circumstances thatcannot be foreseen, e.g. the detention of goods or persons. Sometimes employees know ahead oftime, or are called in by management to work on an overtime basis due to workplace demands asthey arise.

5[22] Jason also worked regularly scheduled full-time hours on rotating shifts governed by theVSSA, and he worked an additional 10:00 am shift. Due to his supervisory duties, he was alsorequired, from time to time, to attend meetings and training sessions on his days off and travel toother ports during job actions.[23] In 2002 to 2004, both before Ms. Johnstone went on her first maternity leave, and as shewas returning from it, she sought accommodation from CBSA due to her new child-rearingresponsibilities. She sought the same accommodation upon her return to work from her secondmaternity leave. Both times she was faced with an unwritten policy of CBSA that will notprovide full-time hours to those requesting accommodation on the basis of child-rearingresponsibilities.2010 CHRT 20 (CanLII)[24] Prior to returning from her first maternity leave, Ms. Johnstone asked CBSA for full-timestatic shifts. Ms. Johnstone wanted to work 3 days per week, 13 hour days, so that she couldremain full-time. A 13 hour shift would include one ½ hour unpaid meal break. She did notspecify a preferred start time. When she was advised by CBSA that this was not possible, she thenmade an alternate request of 3 days per week, 12 hour days. Although she recognized that thissecond position was part-time, she was trying to maximize the hours she would work in order tohave as little negative effect on her pension and benefits as possible.[25] Ms. Johnstone testified that the reason she asked to work over a 3 day period, is that thesewere the 3 days per week during which she could arrange alternate child care. She had threefamily members who were willing to care for her child, and later children, one of the three dayseach. She had no family assistance for a fourth day.[26] Ms. Johnstone also testified that she tried to arrange third party childcare but was unableto do so due to the scheduling difficulties of a rotating shift schedule. She had no greater successon a static shift schedule that was outside normal third party care hours, and that could beunpredictably extended due to overtime requirements.

6[27] Ms. Johnstone testified that the reason she wanted to continue to work full-time hours wasso that her pension entitlements and her promotional opportunities and income would not beadversely affected.[28] CBSA was willing to accommodate Ms. Johnstone, but to the extent only of a static shiftof 3 days per week up to a maximum of 10 hours per day, plus a further 4 hours on a fourth day.[29] Corollary to the above, Ms. Johnstone suggested methods to her employer that wouldallow her to continue to keep her pension at a full-time level while working part-time, but thesesuggestions were refused. This is discussed in more detail below.2010 CHRT 20 (CanLII)[30] There is no dispute that CBSA has an unwritten policy that anyone seekingaccommodation in order to care for children may be accommodated by being given static shifts,but must also go to part-time hours to a maximum of 34 hours per week. This unwritten policydoes not allow employees to have static shifts with full-time hours if the reason for the request ischildcare responsibilities.[31] There is also no dispute that CBSA has and does accommodate employees for medical andreligious reasons by giving them static shifts with full-time hours, from time to time, for varyinglengths of time, and for some on a permanent basis. These requests are assessed on an individualneeds basis, and in the case of medical accommodation CBSA requires medical substantiation ofthe request. There are also instances of employees having been accommodated because they havechildren with medical needs.[32] Further, there was no dispute that this unwritten policy is applied unevenly. There areCBSA employees working part-time at 36 hours per week, employees working full-time staticshifts, and others who have been allowed - although part-time - to maintain the equivalent offull-time pension and benefit entitlements. Although two of CBSA’s management witnessesstated that CBSA wanted to discourage these anomalies, both conceded that these exceptions docontinue to exist.

7III.RESPONDENT’S OPERATIONS[33] The mandate of the CBSA includes the screening and processing of travelers and goodsentering into Canada at each of its airports and land borders on a 24 hours a day, 7 days a weekbasis.[34] The busiest of these airports is PIA. The Passenger Operations District, a component ofthe CBSA’s operations in the Greater Toronto Area (GTA) region, oversees these functions at PIA.[35] Until 1994, customs functions were the responsibility of Customs and Excise within theDepartment of National Revenue. In or around 1994/1995, the federal government decided tocombine customs and excise into a single department, called the Department of NationalRevenue. In November 1999, these functions of the former department were transferred to anewly created agency called the Canada Customs and Revenue Agency (CCRA).2010 CHRT 20 (CanLII)[36] On December 12, 2003, by federal Order-In-Council, the CCRA’s customs responsibilitieswere transferred to a new Crown agency called the Canada Border Services Agency. This agencyalso assumed the ports of entry component (Immigration Inland Enforcement) previouslyperformed by the Department of Citizenship and Immigration. Additionally, the CBSA also tookresponsibility for the regulation of the entry of food, plants and animals, inspections previouslyperformed by the Canadian Food Inspection Agency.[37] This date of December 12, 2003, when CBSA was created (and took over theresponsibilities relevant to this complaint) became significant as the evidence unfolded in termsof its relation to the exhibited comprehensive “Employment Equity Compliance Review ofCCRA” delivered by the CHRC on December 10, 2003. This is dealt with in more detail below.[38] Until the creation of the CCRA in 1999, the Complainant’s employer was the TreasuryBoard Secretariat (TBS). Under its constituent legislation, the CCRA, and now the CRA, is aseparate employer. Upon the transfer of customs functions from the CCRA to CBSA onDecember 12, 2003, TBS once again became the Complainant’s employer.

8[39] Passenger Operations is currently one of the three main operational districts within theGTA region of the CBSA. The other two are Commercial Operations and GTEC. GTEC does notemploy BSOs. In addition to these districts, the GTA region has a number of other divisionsincluding the Investigations Division, the Intelligence Division, the Compliance and VerificationDivision, the Planning and Program Integration Division, and the Corporate Services Division(Human Resources, IT, Finance and Administration).[40] Of these, only Passenger Operations and Commercial Operations employ individuals atthe group and level at which the Customs Inspectors (CIs) (PM-02s), later called BSOs (PM-03s)were classified in 2004 and thereafter. The International Mail Processing Centre (Gateway) isnow included within Commercial Operations.2010 CHRT 20 (CanLII)[41] Commercial Operations was responsible for processing cargo from commercial aircraftand sufferance warehouses [facilities established for the landing, storage, safekeeping, transfer,examination, delivery and forwarding of imported goods before they are released by the CBSA],outports, a marine component and a railhead with locations in Concord and Brampton. The bulkof the work of this district is done at the PIA on the other side of the airfield from the terminals.BSOs in Commercial Operations performed counter duties for the public and examination offreight at warehouses with a view to determining whether to seize, hold or release goods.[42] In 2004, Gateway was a separate district within the GTA region. In or around 2005/2006these operations were merged into the Commercial Operations district. The work of the BSOs atGateway is to sort and examine mail, documents and parcels coming to Canada through a primaryprocessing area belt and then through secondary examination. Documentation is prepared onlarger shipments that are held until duties are paid. Workers at Gateway work static shifts.[43] The BSO work performed at Gateway, Passenger Operations, and Commercial Operationsis set out in one universal job description and all are classified similarly.[44] In 2004, Passenger Operations at PIA was responsible for processing passengers in threeterminals (Terminals 1, 2 and 3). Passenger Operations also had responsibility at the East Hold, a

9building on the air field where small aircraft cross-border flights arrive. In 2004, passengers onthese flights were met and taken by bus into Terminal 2 for processing. Fixed base operators(private jets) arriving with passengers were also processed through Passenger Operations, afunction that moved to Commercial Operations in 2005.[45] In January 2007, Terminal 2 was closed down, and the CBSA operations within thatterminal were absorbed within Terminal 1. Currently, Air Canada’s U.S. and international flightsoperate through Terminal 1, and most other airlines operate through Terminal 3.[46] Mr. Norm Sheridan has been the District Director of Passenger Operations since 1999, andat all times relevant to this complaint. He first joined Revenue Canada–Customs & Excise in 1979where he had a variety of roles and responsibilities including, for a time, Human Resources.2010 CHRT 20 (CanLII)[47] In 2004, Mr. Sheridan had three Chiefs (one assigned to each Terminal) reporting to him.The three Chiefs included Rhonda Raby who testified at this inquiry, and held the position ofChief of Terminal 1.[48] Each Chief had between nine to thirteen Superintendants reporting to them who wereresponsible for the day to day management in their Terminals and supervising the BSOs on theircrews.[49] BSOs each were assigned to crews within which they worked at the Primary InspectionLine (Primary), or Secondary counter (Secondary) processing passengers for entry into Canada.In 2004, each crew had approximately 8 employees. Management tried to balance gender andexperience on the crews, as well as ensure language capability.[50] Also in 2004, each of the 3 Chiefs was assisted in their management and coordinationfunctions by one or two Operations Coordinators. These Operations Coordinators workedafternoons, weekends and statutory holidays.

10[51] Effective February 12, 2007 the management structure was changed. There are now10 Chiefs within Passenger Operations: 3 per each of the two Terminals; one Chief ofEnforcement; one Chief of Corporate Services; one Chief of the Redevelopment Program; andone Chief responsible for Immigration Policy.[52] The Superintendents in the Terminals continue in the same general job description. In thecorporate area, they prepare shift schedules, manage the performance appraisal system, andmonitor the program. There are currently two Superintendents who specifically manage anyaccommodation requests by employees asking to be relieved, for whatever reason, from theVSSA schedule.2010 CHRT 20 (CanLII)IV.CANADIAN HUMAN RIGHTS TRIBUNAL (CHRT)/CHRC HISTORY[53] There is a long history involving the CBSA (and its predecessors), and the CHRC, theCHRT and the Federal Court on the issue of the definition of family status discrimination as itrelates to employment, and on the implementation of decisions previously taken. As this historyarose repeatedly during the hearing, and many exhibits were tendered attesting to it, identifyingsome of this history at the outset is helpful as a framework to the present complaint.1984- 1993[54] February 17, 1993: The decision of Brown v. National Revenue (Customs & Excise),1993 CanLII 683 (CHRT) (Brown) dealt with the issue of discrimination based on sex(pregnancy) and family status contrary to the Act. The Respondent was the CBSA’s predecessor,the National Revenue Agency – Customs and Excise. As in this case, the Respondent took theposition that the Complainant had been accommodated to a sufficient degree to the point of unduehardship, and that she had not made adequate efforts to obtain day care, the onus for which washers alone. Although the decision was rendered in 1993, it was based on allegations that arose in1984 and 1985. The inquiry into the complaint, which was found to be substantiated, required

11consideration of the nature of ‘family status’ as a prohibited ground of discrimination within theAct.[55] At page 15 of the Brown decision (supra), the Tribunal set forth the requirements toestablish a prima facie case of discrimination based on the ground of family status as follows:(a) “… the evidence must demonstrate that family status includes the status of being a Parentand includes the duties and obligations as a member of society and further that theComplainant was a parent incurring those duties and obligations. As a consequence ofthose duties and obligations, combined with an employer rule, the Complainant wasunable to participate equally and fully in employment with her employer.”2010 CHRT 20 (CanLII)[56] At page 20 of the Brown decision, the Tribunal found that parents are under an obligationto seek accommodation from their employer so that they can best serve their obligations to theemployer and their duties and obligations within the family. The Tribunal went on to state:(a)“It is this Tribunal’s conclusion that the purposive interpretation to be affixed to s.2 ofthe CHRA is a clear recognition within the context of “family status” of a parent’srights and duty to strike a balance coupled with a clear duty on the part of anyemployer to facilitate and accommodate that balance within the criteria set out in theAlberta Dairy Pool case. To consider any lesser approach to the problems facing themodern family within the employment environment is to render meaningless theconcept of “family status” as a ground of discrimination.[57] Ms. Brown was also a BSO (then called a Customs Inspector) who asked to work a dayshift and if necessary to accomplish this a transfer, after her child was born to accommodatechildcare needs as both she and her husband worked shifts. The Respondent employer did notaccede to her request, as it did not recognize childcare needs for an employee working shifts as anaccommodation obligation under the Act. Having found the Respondent’s failure to accommodateMs. Brown’s request for day shift work discriminatory, the Tribunal directed the Respondent towrite a letter of apology to Ms. Brown and ordered the Respondent to prevent similar events fromrecurring through recognition and policies that would acknowledge family status to be interpretedas involving “a parent’s rights and duty to strike a balance [between work obligations and child

12rearing] coupled with a clear duty on the part of any employer to facilitate and accommodate thatbalance” as noted in paragraph 54 above.[58] Following this decision, a 1993 letter of apology to Ms. Brown was written byM. E. Hynna, Assistant Deputy Minister, Customs Operations Branch, two undated drafts ofwhich were exhibited in this hearing with cover letters dated in July and August, 1993. The letterincluded the following:a) “Based on the findings of the Tribunal that there was discrimination by regionalmanagement against you on both grounds outlined in your complaint datedJuly 17, 1985 and, in accordance with the Tribunal’s ruling, I would like toapologize on behalf of the Department for failing to accommodate you during andafter your pregnancy.2010 CHRT 20 (CanLII)b) It is regrettable that the circumstances arising from your situation were notfacilitated by management at the outset. However, in order to avoid any futuremisunderstanding, I would like to reassure you that a departmental policy is beingdeveloped in order to ensure that similar practices do not occur in the future.c) A copy of this letter is being forwarded to management in The Toronto RegionalOffice as well as to your immediate supervisors for the purposes of remind them oftheir obligations under the Act.”[59] Presumably these last two paragraphs were a reference, at least in part, to the wording inBrown used at enumerated remedy 4 at page 15: “In order to ensure similar discriminatorypractices do not occur in the future, we direct pursuant to s. 53 (2) (a) that the Respondent submitproof sufficient for the CHRC that there exists an appropriate policy of accommodation foremployee transfer”.[60] Of note, Mr. Norm Sheridan, currently Director of Passenger Operations for CBSA atPIA, is mentioned in Brown at page 9 as having re-written an evaluation of Ms. Brown who had

13been described by her then superintendent in 1987 as “abnormal” without further explanation.Mr. Sheridan testified that in or about this time, he was Director of Programs for 3 years in theGreater Toronto Regional Office, and from 1989 forward he held the positions of Chief ofOperations at PIA for Terminal 2 and then Chief of Operations at PIA for Terminal 2 for one year,followed by various positions in the Regional office again such as Manager of OperationalServices, Chief of Operational Services, Director of Human Resources, and Chief in Drawbacks,Refunds and Remissions. It is apparent from these senior positions in operations and humanresources that Mr. Sheridan was personally familiar with the Brown decision.1993 - 19952010 CHRT 20 (CanLII)[61] 1993: A further exhibited letter dated July 19, 1993 and referencing the Brown decisionwas written by Dianne Dioguardi, Staff Relations Officer, Operations Section, Staff relations andCompensation Division, Human Resources Branch, Revenue Canada Customs & Excise“Revenue Canada”. It was written to Mr. Robert J. Venier, Counsel for the Respondent, CivilLitigation, Toronto Regional Office, also with Revenue Canada It stated:(a) “…[with] the impending integration of the two divisions of Revenue Canada – Taxationand Customs and Excise, all policies will have to be amalgamated and tabled atseparate Executive Committee meetings. Consequently, it could be quite some timebefore this particular policy is approved.”[62] Counsel for the CHRC, Rosemary G. Morgan, indicated that she intended to file thedecision with the Federal Court and proceed with enforcement. A letter from John Viassi Nagy,Civil Litigation counsel, dated March 18, 1994 was also exhibited, addressed toWilliam F. Pentney of CHRC enclosing a draft policy to address the Brown decision. A judicialreview of the Brown decision was initiated by the Respondent, and later mutually adjourned in1995 in order to allow for a settlement of outstanding issues.1998 – 1999

14[63] The Federal Court initiated a Status Review of the implementation of the Brown decisionin November 1998, which ultimately led to the dismissal of the judicial review application. Anexhibited Treasury Board Secretariat letter dated October 5, 1999 to CHRC speaks to working inconsultation with the CHRC to implement Brown, and giving the history of the matter. The letternoted that other implementation matters had been settled, but not the part of the Order calling forthe Respondent to develop a policy of accommodation reflecting the decision.2000[64] The CCRA Labour Relations Division organized and hosted an Employment EquityStrategic Session on December 8, 2000. As part of the agenda, the participants considered anexhibited document drafted by this Division’s personnel entitled “Draft – Introduction to theStrategic Direction of Employment Equity for the CCRA” that bore a date mark of 2000-11-02.Revealing that there was at that time an internal recognition of the disproportionate burden onwomen workers for childcare and related family responsibilities, at pages 5 and 6 of thisdocument the following was stated:2010 CHRT 20 (CanLII)a) “Women balancing work and family life is an issue that affects many womenworking in the federal public service and within the CCRA. Generally womenstill continue to play a greater role in bearing the responsibility for childcare,eldercare and home maintenance. This issue can be compounded by acorporate culture that does not recognize this, [Tribunal’s emphasis], which inturn can have adverse affects on the distribution of women within the organization.In a study produced by the Conference Board of Canada, when asked what theimpact of work-life conflicts was, 32% of respondents (54% female 46% male)indicated they have turned down or chosen not to apply for a promotion. Fourteenpercent have left a job because of the work-life conflict while 24% have turneddown or chose not to apply for a transfer because of it.b) Women have been traditionally marginalized in the labour market…This trend isalso seen in the CCRA where women dominate the Clerical Group withrepresentation rates above 80% a full 10% above the Labour Market Availability.Under-representation for women in CCRA occurs in the Professional Group andthe ‘Program Administration and Senior Clerical Group’… Surprisingly, womenare graduating from university programs at a rate of 58% in comparison to men.This ratio is consistent in the social science area and in the arts and science areaswomen are graduating at a rate of 67% in comparison to men.

15c) The bulk of employees in the CCRA are with the ‘Program Administration andSenior Clerical Group’. This group is where the majority of our custom inspectorsand revenue officers in the program administration (PM) group are coded.”2001- 2003[65] November 8, 2001: On this date the CCRA was formally notified of an upcoming audit bythe CHRC, pursuant to the Employment Equity Act. The process commenced in January 2002.There was a workforce analysis done in 2002 and a goals feedback exercise in 2002. On-sitevisits were conducted over several months in 2003 in BC, Ontario and Quebec. At the time,58.4% of CCRA’s workers were women.2010 CHRT 20 (CanLII)[66] A comprehensive Equity Compliance Review was completed and tendered by the CHRCto the CBSA’s immediate predecessor on December 10, 2003.[67] At pages 15 and 16 of the Equity Compliance Review there was a section titled Women’sProgram wherein the following was stated:(a)“Nevertheless, the Agency has proposed some strategies and goals to improve thework situation for women as follows:-increase representation of women in Administration & Senior Clerical using suchinitiatives as advertising on notices of job opportunities that employment equity maybe used as a placement criterion;-accommodate women in balancing their work and personal life through supportivepolicies and management.”[68] On December 12, 2003, as noted previously, the CBSA was created and took over theoperations relevant to this complaint. In that the Compliance Review was tabled two daysprevious, the whole of the evidence is clear that its recommendations were not followed up on orimplemented.

16[69] Witnesses for both parties testified that to their knowledge, as senior managers andemployees, there has never been full implementation of the orders in Brown that speak to creatingpolicies of accommodation which demonstrate an acceptance of the family status obligations ofan employer as defined by Brown.2004- 2007[70] 2004: After Ms. Johnstone filed her complaint on April 23, 2004, the CHRC Investigatorappointed found that CBSA differentiated between classes of employees, permitting employeeswho sought relief from the rotating shift schedule for medical reasons to remain full-time, whilerequiring those who sought the same relief for reasons of childcare to work part-time. Part-timeallocations of work, for childcare reasons are defined by the CBSA as meaning up to 34 hours perweek. The Investigator also found that the Respondent’s evidence of operational concerns was an“impressionistic assumption” and that the Respondent had failed to provide a justification for thepolicy in question. The CHRC Investigator recommended at that time that the complaint bereferred to the CHRT.2010 CHRT 20 (CanLII)[71] December 2005: An exhibited internet website page, published by CBSA HumanResources, contained excerpts from a “GTAR Newsletter”. GTAR is an acronym that stands forGroupe de travail des associations de retraités des secteurs, public et parapublic. This newsletterexcerpt touts a proposed CBSA mandatory Employment Equity Program, and the formation oflocal committees within CBSA to implement short and long-term plans based on an EmploymentEquity Plan filed in April 2005. The following statements appear in reference to both theCanadian Human Rights Act (referred to below as a “Human rights Code”), the EmploymentEquity Act, and employment equity generally:a) “We will, through planning, implementing positive measures, monitoring andreporting, be able to chart our progress in this area, and demonstrate compliancewith a key piece of Canadian legislation.”…Many of us are balancing busy familylives with our work life; many of us have specific needs and wants from theorganization. While organizational requirements always come first, we know thatthe Human Rights Code prohibits unreasonable discrimination on a number ofgrounds. For a complete list of prohibited grounds see the link below….”

17b) “In addition to programming under the Employment Equity Act, CBSA adheres toprinciples related to diversity. In CBSA Human Resources Division website aworkplace that embraces diversity, each individual is recognized for his or heruniqueness….”[72] January 2007: Notwithstanding the Investigator’s recommendation that the complaint bereferred to the CHRT (see paragraph 70 above), the CHRC dismissed the complaint.Ms. Johnstone therefore initiated judicial review proceedings in the Federal Court seeking to setaside the CHRC decision. The application was allowed by Justice Barnes (See: Johnstone v.Canada (A.G.), 2007 FC 36). An appeal by the Respondent to the Federal Court of Appeal wasdismissed (See: 2008 FCA 101), and the case remitted back to the CHRC for reconsideration.The CHRC thereafter referred the complaint to the CHRT for inquiry and deliberation.2010 CHRT 20 (CanLII)[73] June 2007: The Respondent’s position herein is that ‘family status’ discrimination has notbeen established on a prima facie basis, and that if it has been, the discrimination is justifiable asa Bona Fide Occupational Requirement (BFOR) due to undue hardship. In the context of thisposition taken, it is worth noting that a draft “CBSA Policy on Duty to Accommodate” datedJune 2007 was exhibited.[74] The Respondent objected to the inclusion of the Draft Policy to Accommodate arguing thedocument was highly prejudicial, it had never been implemented, and therefore should not formpart of the record. On its face, the Draft Policy to Accommodate was prepared by theEmployment Equity & Diversity Division, Human Resources Branch of the CBSA. Whether itsprovisions had been implemented or not, and the evidence clearly established that they had not, itwas a document that the Complainant’s witness, Mr. Star, testified to. Mr. Star testified that hehad been given the document by the Head of the employee’s Union who was in turn given it at ameeting with Respondent representatives. Mr. Star had taken the document to a meeting withmanagement for the Respondent when he was a Union steward, and had referred to it in thatmeeting. Although Rhonda Raby denied any prior knowledge of it in that meeting and at thehearing, another management employee of the Respondent present at the meeting admitted toMr. Star that he was familiar with the document. Mr. Star’s evidence was uncontroverted.

18[75] The Draft Policy to Accommodate includes acknowledgement of the aims and objectivesof federal Human Rights legislation and developed case law, as well as the responsibilities of theemployee to inform the employer, request accommodation, and work with his/her manager todevelop the most appropriate accommodation for the circumstances.[76] The Draft Policy to Accommodate also outlines the responsibilities of the Union, theHuman Resources Advisors, and the Manager’s/Supervisors, as including but not limited to:“ensuring all employees know their rights in regard to accommodation”,2010 CHRT 20 (CanLII)consulting on a confidential basis with the employees “to determine the nature of theaccommodation required”,“meeting the employee’s needs” short of causing undue hardship,“taking an active role in exploring alternative approaches and solutions to accommodatethe employee”,“granting accommodation requests in a timely, reasonable manner”,“following up proactively on requests for temporary or permanent accommodation…”,“creating and maintaining an inclusive environment that is accessible and enablesemployees to be open and honest”, and“ensuring that all employees who choose to participate in all work-related events are ableto do so and that they can take advantage of the opportunities offered (ex: team meetings,training etc.)”[77] The Draft Policy to Accommodate also speaks to the National Employment Equity/Diversity Section’s Role, calls for the creation of a CBSA National Job Accommodation Fund toassist in accommodation costs, and details processes for seeking accommodation, responding toaccommodation requests, and appealing accommodation decisions if necessary.

19V. COMPLAINANT’S CASEA. Evidence of Fiona Johnstone[78] Until Ms. Johnstone had children, she worked regular full-time rotating shifts under theVSSA as outlined above. However, when she became a mother and the primary parentresponsible for childcare, she could no longer work the VSSA schedule and meet her legal andmoral obligations to her children due to a lack of available childcare.[79] Ms. Johnstone testified that she was willing to engage third party childcare for herchildren. She quickly discovered, however, that the ordinary daycare hours of any registeredfacility were 7 am to 6 pm Monday through Friday.2010 CHRT 20 (CanLII)[80] Ms. Johnstone also discovered that even unlicensed daycares or private daycare providerswill not provide childcare on an unpredictable and fluctuating basis, usually not at all onweekends, and certainly not overnight.[81] Ms. Johnstone then turned to her family members, and was able to get childcare coveragefor unpredictable hours, including overnight, on three days per week. The Respondent disputedthe Complainant’s diligence in trying to arrange for third party childcare assistance, however, thisTribunal accepts Ms. Johnstone’s evidence that this was the ultimate and best childcarearrangement she could make.[82] The evidence showed that Jason’s shift requirements also as a BSO at PIA, albeit as aSupervisor, were in many ways more onerous than those of Ms. Johnstone. Their schedulestypically overlapped 60% of the time, but were not coordinated in any manner. Jason could notprovide the childcare Ms. Johnstone needed on a reliable basis either.[83] Ms. Johnstone testified that the alternative of a live-in nanny or childcare provider was notan option for her, due to the expense and the necessity that she and her family would have had to

20move into a home that could accommodate another adult person. As the expert evidence unfoldedat the hearing, it is not a viable option for most Canadian families for the same reasons.[84] Although it was obvious that this Human Rights complaint process has been an emotionalordeal for Ms. Johnstone, it was clear from her evidence which was given in a forthright mannerthat she enjoys her work as a BSO and is proud of her accomplishments in the workplace.[85] Ms. Johnstone testified that she has made a long term commitment to her role as a BSO,and intended to make this her lifelong career. This is the reason that her initial most significantissue was her concern that she would lose pension and other benefits, with long termconsequences detrimental to her future retirement and promotional opportunities.2010 CHRT 20 (CanLII)[86] Ms. Johnstone emphasized that she wanted to return to work putting in full-time hours, butneeded to serve those hours over 3 days. She did not specify the starting times for those 3 days,nor did she insist on returning to the duties she had performed before. What was uppermost in hermind was working at least 37.5 hours per week, and maintaining her pension and benefits andopportunities for training and advancement.[87] Ms. Johnstone however ran up against an arbitrary unwritten policy of the CBSA appliedto workers seeking accommodation on the basis of childcare responsibilities. Ms. Johnstonelearned, from speaking with co-workers who had returned from maternity leaves, that if sherequested static shifts outside the VSSA, the CBSA would only allow her to work part-time hours.She testified that she contacted a Terminal 2 Superintendent, Ms. Gerstl, in late 2003 asking towork full-time hours over 3 days. She stated that Ms. Gerstl e-mailed her back that this wasagainst CBSA policy. Although CBSA questioned whether this exchange ever happened andMs. Johnstone could not produce a copy of the e-mail, CBSA did not call Ms. Gerstl as a witness,advising she was on medical leave at the time of the hearing. This Tribunal acceptsMs. Johnstone’s evidence that this e-mail exchange took place.[88] The position of CBSA is that workers seeking accommodation for childcare obligationsare doing so due to choices they have made in life, for which the employer bears no responsibility.

21Hence, while the Respondent is prepared to make some adjustments to such a worker’s schedule,it refers to these adjustments as “arrangements” as opposed to “accommodations”. This positionwas articulated on behalf of the Respondent by Mr. Norm Sheridan.[89] Ms. Johnstone was aware, from her own observations during her time of employment withCBSA that historically the Respondent has treated only those seeking medical accommodationsas obligations to be met pursuant to human rights legislation. Such workers are assessed on anindividual basis. Accommodations are made in their work schedules, in accordance withsupporting medical information/recommendations, and if it is compatible with their specificmedical requirements they are given static shifts with full-time hours.2010 CHRT 20 (CanLII)[90] Ms. Johnstone learned later from speaking with Murray Star, then a Union executivemember, that he had been accommodated for religious reasons but only after he had pursued acomplaint so that he could observe the Sabbath and other sacred days of his Jewish faith. Mr. Startestified to this experience in his evidence at the hearing.[91] When her attempts to find childcare that would allow her to work the VSSA full-timefailed, Ms. Johnstone pursued full-time hours despite her knowledge that in most cases it isdenied. She did this in part because she also knew that there had been exceptions made to thisunwritten policy, and that some workers who had returned from maternity leave had been givenstatic shift daytime hour duties, and shifts of greater length than the regular 8 hours per day.[92] Ms Johnstone testified that she knew of at least two other co-workers, whom she named,that worked 9 hour shifts over 4 days per week for a total of 36 hours per week. She stated thatboth of them had told her this, and in any event their schedules are posted publicly. This was notchallenged by CBSA. In other words, these workers were not limited by policy to 34 hours perweek, nor to the regular 8 hour per day shift.[93] Ms. Johnstone also named another co-worker whom she knew to be working 11 hourshifts due to her childcare responsibilities at home. This was not challenged by CBSA.

22[94] Ms. Johnstone further named two other co-workers who had initially been assigned tofull-time program support in day shifts due to their family responsibilities, and then had stayed onin those positions after the need for their accommodation had passed. This was not challenged byCBSA. These co-workers, therefore, were not limited by policy to only work part-time up to 34hours per week.[95] Ms. Johnstone was encouraged to ask and pursue her desire to work full-time upon returnby her then Union representative, Murray Star. However, once Superintendent Gerstl had told herit was not possible, through her husband she approached Rhonda Raby, then Chief of Terminal 1,to work 12 hour shifts over 3 days. This approach was made shortly before Ms. Johnstone was toreturn to work after her first maternity leave. Raby denied this request citing health and safetyconcerns.2010 CHRT 20 (CanLII)[96] Ms. Raby also made it clear that the maximum number of hours Ms. Johnstone could workper week in order to get static shifts would be 34.[97] As a result, Ms. Raby offered that Ms. Johnstone could work a maximum of 10 hour perday over 3 days per week, and a further 4 hour shift on a fourth day. Starting times might vary, butthese shifts could be on the same days of the week, each week. Ms. Raby made no inquiries ofMs. Johnstone as to her efforts to find childcare, or the reasons behind her childcare provisiondifficulties, but simply applied the CBSA unwritten policy.[98] With respect to working the fourth day offered, this was not viable for Ms. Johnstone. Asshe could not work full-time in any event, she did not want to incur the cost of childcare for ashortened 4 th day. She did not know if she could arrange a fourth day’s coverage, but even if shecould, the cost of getting to and from a daycare and to and from work added to the daycare coststhemselves, negated the real benefit to her earning an extra 4 hours of wages.[99] After her first child was born, Ms. Johnstone was able to arrange childcare coverage onFridays, Sundays and Mondays. As stated, she was prepared to work 13 hour shifts and overtimeon those days. Because the Respondent would not consider this suggestion as relayed by

23Ms. Gerstl, and would not allow her to work 36 hours per week, she ultimately accepted the10 hours only on each of the three days she had childcare through family members.[100] Ms. Johnstone testified that shortly after her return to work after her first maternity leave,she asked her employer if she could remain on full-time status and characterize those hours notworked as leave without pay. She was aware at the time that leave without pay was pensionable.The Respondent would not allow her to do this. She also inquired about “topping- up” thedifference to enable her to keep the equivalent of full-time pension benefits, but the Respondentdid not allow this either. The CBSA did not dispute this application of its unwritten policies.2010 CHRT 20 (CanLII)[101] Ms Johnstone further testified, and this Tribunal accepts, that if she had been allowed towork full-time hours over the three days she requested, that she would have found a way to handleher childcare responsibilities to be able to work those days, both after the birth of her first childand her second child. She did ask her employer, before her return from her second maternityleave, to allow her to work full-time hours over 3 days, but was again refused.[102] Ms. Johnstone testified that she therefore worked even less than 30 hours per week afterthe birth of her second child, because she had been forced to give up on the possibility of full-timestatic shifts, and had greater family responsibilities. Again, management for the Respondent madeno inquiries of Ms. Johnstone as to her particular circumstances.[103] In addition to having her pension and benefits pro-rated, Ms. Johnstone testified that as apart-time employee she missed out on training opportunities, was not permitted to become anacting Superintendent, nor work on Special Teams. Overtime is also paid on a lesser basis topart-time employees when compared with those working full-time.[104] Ms. Johnstone knew and named workers who had returned from maternity leave and beengiven full-time static shifts at PIA. She also knew and named BSOs in other operations that work13 hours shifts such as in Niagara Falls, ON and Estevan, SK. She did not know at the time thatthe Respondent could have transferred her to another part of their operations, such as Gateway,

24where static shifts were the norm. This information became known to her through the complaintprocess.[105] Ms. Johnstone was asked as to her knowledge of other BSO couples, i.e. where eachpartner works as a BSO at PIA. She testified that she knew of 20 such couples out of anapproximate workforce of 275 workers. Of those 20 couples, most but not all have children. Ofthose who have children a small percentage have children under school age, and approximately8 of the 20 have partners with rotating shift schedules as well. Her testimony in this regard wasnot challenged by CBSA.2010 CHRT 20 (CanLII)[106] At the time of the hearing, Ms. Johnstone was on unpaid Care & Nurturing Leave coveredby the VSSA. Previously, she had been on a one year Relocation of Spouse Leave without paybecause her husband was transferred to Ottawa as a trainer. There are relatively new provisions inplace that all BSOs carry firearms, and Jason had the qualifications to provide this expandedtraining. She testified that she would have preferred to be working during both these periods, butas she could not work full-time hours in any event, she took these Leaves.[107] As both her children will be of school age in September 2010, Ms. Johnstone testified thatshe intends to return to full-time work at that time. There are provisions in the VSSA that coversituations where a spouse has to leave one city (Toronto) to live in another city (Ottawa) to bewith her husband. This situation mandates that she be accommodated with a position in her newplace of residence, being Ottawa.[108] With respect to the workplace generally, in response to questions put by CHRC counsel,Ms. Johnstone testified that neither the Respondent nor the Union had given her any information,written or orally, about the Respondent’s accommodation policies or her human rights. Sheidentified co-workers also working part-time who had been refused full-time status requested forreason of childcare responsibilities. She also identified co-workers who were working part-timeby choice.

25[109] Under cross-examination, Ms. Johnstone was questioned extensively on the nature of herduties as a BSO in terms of the need for focus, sustained attention, maintaining vigilance,assessing risk, handling public aggression, etc. Presumably this was an attempt by Respondent’scounsel to adduce evidence through this witness of health and safety concerns with longer shifts.Ms. Johnstone never indicated that she felt she could not handle the longer shifts she hadrequested.B. Evidence of Murray Star[110] Mr. Star has been employed with CBSA since 1990 as a BSO. From 1996 to 2000 he heldthe position of acting Supervisor for various interim periods, and he has been engaged in trainingof other BSOs over time.2010 CHRT 20 (CanLII)[111] In or about 1999 Mr. Star was a Union Steward, and from 2003 to 2008 was an ExecutiveSteward representing Union members. At the time of the hearing he was no longer a UnionExecutive member.[112] Mr. Star testified that he had his own issues involving the Act (in approximately 2001)when his employment terms did not reflect his religious observances regarding the Sabbath andreligious holidays. Being of the Jewish faith, he did not want to work from sundown on Fridaysthrough Saturdays, or on the Jewish High Holidays for religious observance.[113] Initially, his Terminal Chief agreed that he should be accommodated and was willing toallow him to exchange shifts for one year. However, Mr. Norm Sheridan took the position that theentitlement to the observance of a “Holy Day” only related to one event per year, not a weeklyongoing observance. Mr. Star filed a complaint under the Act. Mr. Sheridan gave authority toeach Terminal Chief to decide the issue based on “operational requirements”. The CHRCInvestigator found in Mr. Star’s favour and an agreement giving Mr. Star the accommodation hesought was reached between the parties with mediation.

26[114] Mr. Star has worked alongside Ms. Johnstone and described her work performance as“excellent”. He also assisted her with putting forward first her request for accommodation, andlater her CHRA complaint when she was not given what she was asking for.[115] Mr. Star knew upon Ms. Johnstone’s return from her first maternity leave that she wantedto work static full-time shifts. Shortly after her return in early January 2004, Ms. Johnstoneconfided to Mr. Star that she wanted to work full-time static shifts. He was aware that sheapproached management with her request but she was “rebuffed”. He recalled discussingMs. Johnstone’s request with Norm Sheridan on more than one occasion during the relevant 2004to 2006 period. He testified that Mr. Sheridan stated to him that Ms. Johnstone would not be giventhe accommodation she was seeking because if CBSA gave this to her ‘everybody would want it’.2010 CHRT 20 (CanLII)[116] Mr. Star testified that he also specifically asked Mr. Sheridan for the operational reasonsfor his position verbally and in writing, but he never received a response.[117] Given his long term familiarity with Passenger Operations and the VSSA, and hisexperience on the Union executive and as an employee representative, Mr. Star stated thatgranting Ms. Johnstone’s request would not have had any adverse effect on the CBSA financiallyor otherwise. He was also unaware of any negative operational effects resulting from the existingmedical accommodations.[118] Mr. Star confirmed that the Union was open to, and supportive of, special requests forhuman rights reasons. Mr. Star stated that the Union executive was very supportive of anyindividual requests as they would never ‘infringe on anyone’s human rights”.[119] Mr. Star confirmed that, unlike the VSSA in place in 2004, there are 12 hour shiftscontemplated in the latest VSSA that came into effect in Fall 2008. It is a 5 days on, 4 days offschedule with multiple shifts starting at different times during the day over a 63 day period. Thereare approximately 12 shifts scheduled in the Customs and Immigration divisions of the workplacethat operate from 5 am through to a midnight shift. He further testified that he could identify atleast 5 or 6 workers that work 5 day static shifts.

27[120] Mr. Star also testified to personal knowledge of approximately 12 workers who have shiftschedules that are specific to that individual for a variety of reasons. He named one co-workerwho requested static midnight shifts (10 pm to 8 am) that management agreed to. He confirmedbased on exhibits put to him, that there are a number of BSOs who are working static midnightshifts or the same 3, 4, or 5 days each week. For instance, Dedicated Coverage Teams (primarily“new-hires”) might work different hours but are primarily afternoons, and they are fixed for thedays they work, typically the busiest periods of Thursday through Sunday. The most popular shiftis the evening shift from Noon to 11 pm, or from 3 pm to 3 am, as the younger workers do notseem to prefer an early start.2010 CHRT 20 (CanLII)[121] Mr. Star was unaware throughout his time with CBSA of any co-worker complaints ofpreferential treatment when accommodation requests were met by management. Mr. Star had notobserved any prejudicial impact on CBSA’s PIA operations from medical accommodations, norreligious accommodations.[122] Mr. Star had personal knowledge that management had not stopped BSOs fromtransferring “body for body”, i.e. in equal numbers to maintain the same personnel complement,(for various reasons other than childcare responsibilities) from one part of the CBSA operations toanother, e.g. from Passenger Operations to Gateway or vice versa. Mr. Star testified that the natureof the work at Gateway is less demanding and less varied than at Passenger Operations and thereis no necessity for any re-training if a BSO goes from Passenger or Commercial Operations toGateway. Mr. Star was aware of several BSOs who have transferred from Passenger Operationsto Gateway.[123] Knowing that all pension and contractual benefits are pro-rated for those that“self-reduce” to part-time status, Mr. Star was aware of a BSO in Passenger Operations, whom henamed, who reduced her hours after she returned from maternity leave but was allowed to put inher unworked hours as leave without pay, and thereby maintain her benefits by paying the fullamount into her pension. This was denied to Ms. Johnstone.

28[124] Mr. Star was unaware of any official accommodation given by CBSA for family statusreasons, and confirmed that there are no written policies requiring a worker who wants staticshifts because of childcare obligations to move to part-time hours. It is local management’sdecisions that carry with respect to scheduling requests. In this case, “local management” meansPIA management.[125] Mr. Star testified as to the exhibited Draft Policy to Accommodate dated June 2007. This13 page document was given to him in 2007 by John King, a former Union Representative andlater the Union President. Mr. King had advised him at the time that he picked it up at an“Occupational Hearing”, which is a meeting of senior Union officials and management held fromtime to time to discuss operational issues.2010 CHRT 20 (CanLII)[126] Mr. Star testified that he used the Draft Policy to Accommodate as part of his negotiationswith management on behalf of an employee who was seeking medical accommodation. In the2007 meeting when he produced it, Mr. Star testified that Ms. Raby claimed to have noknowledge of it whatsoever and that she questioned its authenticity.[127] After some time, Supervisor Darren Millet who was also present at the meeting,acknowledged that he had seen the Draft Policy to Accommodate before and that it had beencirculated to management for management’s opinion. Mr. Star was given the distinct impressionby Mr. Millet that management was not keen on the Draft Policy to Accommodate. Mr. Star askedMr. Millet if they (the employees) could be looking forward to its introduction, to whichMr. Millet did not respond. Mr. Star confirmed that there has been no implementation of theprovisions of the Draft Policy to Accommodate.[128] Mr. Star testified that he felt the Draft Policy to Accommodate answers all the employeesrequests and that something like that document would be “perfect”. He offered through CBSAmanagement in the past to work with management to develop a policy on family statusaccommodation but was ignored.

29[129] Mr. Star confirmed that at Gateway, located adjacent to the Airport, there are multipleshifts there. There are 3 day, 12.5 hour shifts, many Monday to Friday day shifts, and Monday toFriday static afternoon shifts, etc. It is Mr. Star’s observation that management at Gateway ismore willing to accommodate worker requests for specific shifts and times. Gateway onlyoperates from Sunday night through to Friday.[130] Mr. Star also confirmed that there was a management proposal for “shift bidding” on arotational non-seniority based system that doesn’t impact the needs of the CBSA operation. It hasnot been implemented however, because management and Union have not been able to ascertain aworkable process that does not conflict with the VSSA. It was unclear whether this proposed shiftbidding would have alleviated the Complainant’s situation, and it was not relied on by either sideas an answer to the issues before this hearing.2010 CHRT 20 (CanLII)[131] The Tribunal dealt with the Union’s position in 2009 CHRT 14 as the Respondent appliedto have the Union added as a party to this hearing on the basis that the Union may shareresponsibility for any discriminatory conduct that might be found because the VSSA prohibits theRespondent from acceding to the Complainant’s hours accommodation requests. The Union tooka position in support of the remedies sought by the Ms. Johnstone arguing that those remedies donot require changes to the collective agreement or the VSSA, but only for the Respondent toestablish a policy of accommodation based on family status. The Tribunal dismissed theRespondent’s application, finding that Ms. Johnstone had not made allegations against the Unionnor was there any indication on the record that the collective agreement or the VSSA played a rolein management’s policies concerning the issues raised by her complaint.[132] Asked about BSOs working part-time Mr. Star said there were workers who workpart-time for family reasons, due to medical restrictions, or by personal choice such as being closeto retirement. Generally, when a request based on these reasons is put forward, the BSO sits downwith management and a shift that accommodates the particular request is worked out. Generally,part-time workers work afternoon shifts (10 am to 8 pm; 12 pm to 10 pm). Afternoons are thebusiest time at PIA so this fits neatly with management’s operational goals.

30[133] As to his own accommodation for religious reasons, Mr. Star testified that every new shiftperiod (now every 63 days) he sits down with his supervisor and they work out his unique shift.The process typically takes about 5 minutes: 3 to discuss and 2 to make the changes by computeron the shift schedule. He does not work late on Fridays or on Saturdays at all. Sundays areusually his longest day, i.e. 5:00 am to 3:15 pm. He works at different start times over static days.[134] Mr. Star stated that the granting of his accommodation request has not opened the“floodgate” on similar requests for religious accommodation. A couple of other BSOs cameforward and were quickly dealt with, but that is the extent of it. As to family status requests, undercross-examination Mr. Star described himself as the “maven’ of the issue when he was on theUnion executive, and that the majority of employees seeking accommodation for familyresponsibilities would come to him. He stated that not all seeking family status accommodationwere seeking static shifts, but a number of them were. When challenged as to whether he and theUnion believe that all such requests should be accommodated, he responded that he feltmanagement should accommodate for this reason until it can show undue hardship such as moralebeing destroyed, the cost being prohibitive, or the occurrence of unacceptable layoffs that wouldoccur.2010 CHRT 20 (CanLII)[135] Mr. Star testified that for BSOs, every hour worked is a pensionable hour, therefore if youwork fewer hours you earn less pension benefits. Employee pension contributions are matched bythe employer. Other benefits are also based on full-time hours worked of 37.5 hours in a week setas 100%, and therefore fewer hours worked normally lead to a pro-rating of those benefits.[136] Mr. Star confirmed that part-time staff are paid less for overtime hours put in. He alsospoke to an exhibited Part-Time Agreement that management asked workers working part-time tosign, the content of which basically indicates that the signing worker agrees with being assignedpart-time hours. This was in place at the time of the complaint, and continues to be used. WhenMr. Star was part of the Union Executive, he recommended that staff not sign the Agreement as itslanguage suggests that it operates to take away the worker’s ability to return to full-time hours asof right. There was a concern that in the case of an employee who is forced to “self-reduce” suchas Ms. Johnstone, the signing of such an Agreement could leave her unable to return to full-time

31shifts as of right when her circumstances changed. There was no evidence led that anyone whohad not signed it suffered any repercussions, but that the proffering of it by management left theworker feeling that he or she should sign it as a condition of employment.[137] Mr. Star also confirmed that there is nothing in the VSSA that specifies the maximumnumber of hours that may be worked by a part-time employee, or limits part-time to 34 hours perweek.C. Evidence of Expert, Dr. Linda Duxbury2010 CHRT 20 (CanLII)[138] Dr. Linda Duxbury was qualified as an expert in strategic Human Resources managementincluding labour force demographics, managing change, and the impact of work-life balanceissues on workers. The Respondent consented to Dr. Duxbury being qualified as an expert in theseareas.[139] Dr. Duxbury filed a written report to address the accommodation needs of workers withchild care responsibilities, and the nature and impact of any employer’s response toaccommodating those needs. In the preparation of her Report, she read the Statements ofParticulars of both parties.[140] Dr. Duxbury is a fully tenured professor at Carleton University’s Sprott School ofBusiness where she teaches and supervises Masters and PhD courses on topics includingorganizational behavior, work-life balance issues, and managing change for employees. She alsowrites on attribution theory (the basic need to understand and explain the causes of other people'sbehavior) and managing organizational structure to maximize worker performance.[141] In addition, Dr. Duxbury engages in research, consulting and writing in her field. Herprinciple areas of research involve the managing of the “people part” of change, i.e. the impactand effects of workplace change on workers, and work-life balance demographics from a strategicpoint of view. This has been a 20 year field of study and consideration for Dr. Duxbury, and shehas consulted with both the private and public sector.

32[142] Dr. Duxbury’s work and database findings are globally recognized and cited. She spoke ofGoogle Scholar which is a website where only academic referenced, peer-reviewed publicationsare posted. Her and her colleague’s research is cited under “key citations” on that website. Theauthoritativeness of Google Scholar was not challenged by the Respondent.[143] A focus of Dr. Duxbury’s report and testimony was on “Role Overload” where workinterferes with family obligations and/or family obligations interfere with one’s work, to the pointwhere the individual feels the stress of never having enough time, and tasks at hand are nevercomplete.2010 CHRT 20 (CanLII)[144] “Work interferes with Family” is the descriptor for when a worker psychologically prefershis or her time spent at work to time spent attending to family obligations.[145] “Family interferes with Work” is the descriptor for when a worker will sacrifice work forfamily obligations, such as turning down a promotion, or taking part-time hours, etc.[146] Dr. Duxbury testified that workplace culture dominates as the predictor of whether aworker feels he/she is in control of the family and workplace interface or not. Childcareavailability that can be matched to your work duties makes a difference because there is less stressif the two can be matched.[147] Workplace culture, i.e. the reality of the workplace, is determined not by one’s manager interms of organizational charts, but the temperament and attitude of one’s immediate manager, theperson the worker reports to. According to Dr. Duxbury, workplace culture and demands are the“big two” factors impacting “Work interferes with Family” in Role Overload.[148] A good manager breeds loyalty in his or her team, but a bad manager who is overlydemanding and unsympathetic breeds stress and resentment because a worker feels he/she is notheard and not appreciated.

33[149] There has been a phenomenal increase in Canada in women in the workforce, andpresently 2/3 of Canadian families are headed by dual income earners. This is now the “modal”or norm in Canada. There are also more single working parents in the workforce than malesworking with a stay-at-home wife. Normally, the latter males earn more than the modal family.[150] 15% of the workforce, mostly dual income families, have young children. Youngerchildren, defined as age 5 and under, mean increased demand on the parent(s) and reducedparental control over being able to choose variable shifts for work.[151] Dr. Duxbury emphasized that there is a disconnect often between policy and practice inthe workplace. Practice is workplace culture, the worker’s actual experience. Speaking generally,she stated that many organizations feel that they have done “their bit” by implementing stellarpolicies, but do not follow-up on implementation.2010 CHRT 20 (CanLII)[152] An example given by Dr. Duxbury was “telework”. She testified that there is an excellentfederal government policy on telework, but in reality few engage in it other than on their own timebecause it is not encouraged by federal government employers.[153] As to 24/7 operations, work schedules and accommodations have to be individualized tosuit that workplace, but Dr. Duxbury felt there were very few operations where flexibility cannotbe found if management looks to implement it.[154] Dr. Duxbury also commented that shift work is a major predictor of a dramatic increasefor workers in “work interferes with family” and has the potential to be very problematic.[155] A lot of these competing tensions have been felt and borne more by women, but with ayounger generation of male workers who want to participate more in family life, men are beingincreasingly impacted as well. The more society denies this reality, the harder it becomes toaddress it in a healthy way.

34[156] According to Dr. Duxbury the data is clear that the predictability of a fixed scheduleallows a worker to set up her/his support network effectively. As Canada moves into a seller’smarket (more jobs available than workers to fill those jobs), Dr. Duxbury poses the question as tohow employers can afford not to accommodate workers with young children given thedemographic changes in our nation.[157] Canada’s fertility rate is critically low at 1.5. The fertility rate needs to be 2.1 to sustainitself and grow. During the ‘baby boom’ after World War II, Canada’s fertility rate was 4. Thisdecrease will result in a significant shortage in personnel over the next 25 years.2010 CHRT 20 (CanLII)[158] The average Canadian enters the permanent workforce at 25. The average Canadianprofessional woman has her first child at age 31. This older age is a factor in the numbers ofchildren being born because of fertility issues and time available.[159] Dr. Duxbury generally observed in her further testimony that recruitment, retention andsuccession planning have become crucial concerns in Canadian government and businessenterprises. In a seller’s market for labour, lack of accommodation creates a real challenge torecruit, retain and plan. In Dr. Duxbury’s view, doing nothing in this regard has a real andincreasing cost attached to it.[160] According to Dr. Duxbury, the costs associated with ignoring these demographic truths,changing attitudes toward work-life balance, and the impact on workers who are in the midst oftrying to manage competing demands result in a workforce were:- people are overloaded, burned out, stressed, depressed, and have more mentalhealth issues;- absenteeism increases due to health concerns and exhaustion;- workers are less committed, less loyal, and less satisfied;- prescription drug use increases;

35- workers are less engaged with lower job satisfaction;- there are higher turnover rates;- the public experiences poorer customer services as employees “retire on thejob”;- more workers are planning to leave their employment because of familydemands and a sense of not being valued.[161] The real benefit to an employer who is accommodating is the reversing of the above-listedtrends. If an employee is in good mental and physical health with sufficient sleep and a feeling ofbeing appreciated at work, Dr. Duxbury testified that it is a pretty safe assumption that such anemployee will be more productive and perform better.2010 CHRT 20 (CanLII)[162] Dr. Duxbury testified that being valued is very important in the workplace. We easilyhave a concept of managing dollar capital but not human capital. A worker who wants tocontribute needs to feel valued, i.e. recognized and appreciated. Otherwise, that worker will notgive the employer the benefit of his/her skills.[163] Where an employer is responsive to the concerns of its workforce, it is important toeducate the rest of the workers so that they gain an awareness that any added benefit or perceivedaccommodation that another worker has now may be given to them when they are in need. Inorder to educate, the employer has to have policies that are unambiguous, transparent and whichcontain built-in accountability for mis-use. Such educative steps lead to attitudinal change.[164] Dr. Duxbury underscored her testimony by stating that the data is unequivocal that peoplewill use health care facilities and health professionals less if these work-life balance issues aredealt with favourably. She stated that the “number one coping method” in Canada is cutting downon sleep. This is followed by drinking, smoking, eating poorly, and not exercising enough – all ofwhich have negative health consequences.

36[165] Dr. Duxbury was asked by CHRC counsel whether an organization’s impressionistic fearover great numbers seeking the same accommodation is well-founded. She responded in thenegative because there are a range of people in or at a range of life cycle places with differingneeds at any given time. Dr. Duxbury stated that her experience shows that people will generallyuse the accommodations they need and not misuse them. Her comment was that generally we“don’t give people enough credit”.[166] As women make up 47% of Canada’s workforce presently, Dr. Duxbury stated that unlessaccommodations are made for working women when their children are young, there will be fewerwomen available in the workforce or society will suffer from their choice to have fewer or nochildren.2010 CHRT 20 (CanLII)[167] Under cross-examination, Dr. Duxbury was challenged on the applicability of herdatabase statistics to the present case. This Tribunal found that it was clear that Dr. Duxbury’sdata came from a broad range of workers from all sectors in many different job and careerpositions, who were asked a broad range of questions that addressed the workplace itself andattitudes toward the workplace.[168] Further, Dr. Duxbury made it clear that she was not suggesting that poor employees berewarded, rather, that good management and employers who do not silo employee groups offfrom one another, benefit. She stated that treating each employee the same does not necessarilyequate with fairness, as people and their needs are not the same. Some flexibility and individualassessment is appropriate and manageable.[169] In summary, Dr. Duxbury is stating that as a general framework for the workplace, goodmanagement and a supportive workplace culture is a win/win combination for both employersand employees.[170] In the context of a workplace with rotational shifts, Dr. Duxbury acknowledges that shiftwork of this type is more problematic for employees, however some of the unpredictability can bealleviated by sufficient notice and the ability to trade shifts with colleagues. This adds to a

37worker’s sense of control and her/his ability to create support networks. She also noted that theshift a worker prefers today may not be the shift that worker prefers in two years, as a person’sneeds and demands change over time. The whole of Dr. Duxbury’s evidence was presented asgenerally applicable to the CBSA workplace, but she had not personally observed nor drawnconclusions about the CBSA workplace specifically.[171] Dr. Duxbury opined that it is naïve to suggest (as the Respondent does) that childcareissues are solely as a result of the employee’s choice, when that employee is faced with housingand feeding a family. Dr. Duxbury posed the rhetorical question that although theoretically aperson has choice, how real is that choice if there is only one legally and morally acceptableoption? Dr. Duxbury’s premise is that a person should not have to choose between raising a familyand meaningful work that she/he is trained for and has demonstrated his/her ability to perform.She stated that in her opinion the worst employers are those that say they value work-life balance,but don’t in fact.2010 CHRT 20 (CanLII)[172] Dr. Duxbury suggests that if an employer puts workable and understandable, fair policiesin place, it is then up to the employee to make use of them. Workplace culture is based onobservations of the actual environment, and that culture, one’s immediate manager, and the abilityto inject some flexibility and predictability into one’s work life are the best indicators of success.[173] The best environment is to have policies in place, and then allow managers the authority todeal with people individually so that support is tangible and fits the need. Dr. Duxbury added tothis by stating that once a request is satisfied, it is important for the manager to communicate toothers the reasons why it was a good management decision. “In the absence of transparency,people assume favouritism.”D. Evidence of Expert, Martha Friendly[174] The Complainant tendered Martha Friendly for qualification as an expert on childcarepolicy in Canada, including childcare availability for people who work rotating and fluctuatingshifts on an irregular basis. The Respondent objected to this characterization on the basis that

38Ms. Friendly had not personally engaged in empirical studies, but had only studied available dataof which there is not an abundance and of which there is not recent data. The Respondentsuggested that Ms. Friendly be accepted only as an expert on childcare policy in Canada. Inaccepting Ms. Friendly’s qualifications as an expert on the basis put forward by the Complainant,this Tribunal found in the description of Ms. Friendly’s long writing and teaching career, that shehas an overall awareness of the general availability of childcare, both traditional andnon-traditional, in Canada for all Canadian workers, and knowledge of factors that affect womenin the workforce including the impact of childcare availability on Canadian working women.This Tribunal felt that any concerns that Respondent’s counsel had with respect to the reliance ondata that was insufficient or dated could be addressed in cross-examination.2010 CHRT 20 (CanLII)[175] Ms. Friendly is the Executive Director of the Childcare Resource and Research Unit“CRRU” in Toronto, Ontario. CRRU is a policy research facility concerned with early childhoodeducation and childcare and family policy. She filed a written report to address the extent towhich child care is accessible to employed parents who are working non-standard, rotating,unpredictable hours. The Respondent took the position that Ms. Johnstone had more childcareoptions that she presented herself as having, and Ms. Friendly’s report was tendered by theComplainant to address that position. In the preparation of her Report, Ms. Friendly alsoreviewed the Statements of Particulars of both parties.[176] For over 30 years CRRU was part of the University of Toronto, but in 2007 became aseparate non-profit organization in receipt of provincial and federal funding. Ms. Friendly is aspecialist in policy concerning early childhood education and childcare. She is also part of aninternational childcare policy community that researches, analyzes data and writes on topics thatarise by virtue of her specialization. She is a published author in her field and teaches in theMasters Program at Ryerson University.[177] Although her evidence revealed that Ms. Friendly is an advocate for increased publicfunding for childcare options, her evidence of interest to this hearing was her knowledge ofavailability of childcare in Canada, and there was no suggestion by the Respondent that herevidence on this relevant point was influenced by her policy positions.

39[178] Complainant’s counsel characterized Ms. Friendly’s evidence as meant to inform theTribunal as to the bona fide difficulties a parent such as the Complainant faces in finding thirdparty childcare, a difficulty shared by anyone in the position of the Complainant having youngchildren and a workplace that requires rotational, fluctuating, and unpredictable shifts. ThisTribunal found that Ms. Friendly’s evidence on these points was reliable.[179] In her testimony, Ms. Friendly emphasized that the single most difficult factor inaccommodating child care is unpredictability. Many factors go into child care decisions butunpredictability of a worker’s schedule makes finding paid third-party provider daycare,regulated or unregulated, in a centre or in a private home, almost impossible.2010 CHRT 20 (CanLII)[180] Next most difficult is the need for extended hours, i.e. outside the standard operating hoursof approximately 7 am to 6 pm on weekdays. Need on weekends and especially overnights makesavailability virtually impossible as well.[181] Further, Ms. Friendly noted that available childcare spaces fluctuate. A provider who iscaring for children in her own home, for example, may not operate such a service once her ownchildren are of school age. However, others may open up that were not previously available.[182] As Ms. Friendly says there is largely no data on unregulated childcare in Canada, herevidence focused more on available regulated childcare which includes childcare centres and careprovided in the care provider’s home under provincial regulation. She testified that regulatedchild care facilities in Canada are very limited, and as a result unregulated care is commonly used.In other words, the need far outweighs the supply.[183] Reliable data on the availability of extended hours childcare in unregulated settings islikewise not readily available, but this Tribunal can accept anecdotal evidence on this issuesupported by Ms. Johnstone’s direct evidence.[184] Ms. Friendly provided some evidence on two major studies done in the 1990s on theavailability of extended hour daycare. The results of these studies, not surprisingly, was that there

40are (or have been) a few programs that offer extended hours or weekend childcare, but there waslittle use made of weekend or overnight childcare and therefore it was not cost-effective enough tocontinue to be offered.[185] This supports Ms. Johnstone’s position that the type of childcare she needed was not easilyavailable if at all, and that there are relatively few workers who require third party assistance onthis basis, i.e. there are few in number who work rotating fluctuating shifts with frequentovertime, who are also married to someone who works similar shifts.[186] Taking that reality a step further, coupled with Ms. Johnstone’s direct evidence on pointthere are few BSOs who would need accommodation to work outside the VSSA on static shiftsfor any period of time. Most workers look first to their spouse, family and friends for childcareassistance, and only if this is not workable or sufficient do they then turn to third party caregivers.Ms. Friendly found it understandable, as does this Tribunal, that most parents would not becomfortable with third party overnight care of their young children.2010 CHRT 20 (CanLII)[187] It is doubtful that Ms. Johnstone or anyone in her similar situation as outlined would findany third party other than family willing to provide reliable childcare for young children based onan unpredictable schedule, even if that schedule is confined to 3 days per week. The provider hasset hours and a separate life to live, and even family has to be locally accessible to the worker,therefore unpredictability is devastating for this purpose.[188] By using family members over a 3 day period, albeit that she and her husband had totransport her children to 3 different locations on these days, she was able to propose to heremployer the most flexible schedule availability possible for her at the time: the same 3 days perweek, but not restricted as to start times, location, or length of shifts, and able to accommodateovertime and full BSO responsibilities.[189] Ms Friendly testified to funding and cost barriers that exist for typical Canadian families.Government-backed maternity leave periods have lengthened over the past 30+ years, moving toa full year in 2003. Over the same time period, government tax credits and child benefit programs

41have also increased for families. This has helped, and is not offered in every country such as theUnited States. As a result, U.S. data on this topic is largely unreliable when discussing Canada.[190] Also, there are subsidies available to lower income families (but only if regulatedchildcare is used), but not to middle income families. The majority of Canadian families includingMs. Johnstone’s, fall into the middle income category by definition and these are the ones whohave difficulty affording third party care, but have too much income to qualify for subsidies.[191] Ms. Friendly quoted one of the main American experts in her field, Harriet Presser (ademographer at Harvard University), who wrote a 2003 book on the subject. Ms. Presser statedthat it is “rare that you have two people working unpredictable shifts who are a couple”, and thatthe main arrangement for most couples is spouses and family. Ms. Presser has written extensivelyin this area and coined the term “split shift families” referring to dual income couples who workdifferent shift schedules in order to accommodate childcare.2010 CHRT 20 (CanLII)[192] CBSA’s counsel asked Ms. Friendly numerous questions under cross-examination aboutthe many factors that go into a parent’s decision to access third party childcare. Ms. Friendlyacknowledged that many factors go into such choices including cost, type of care, location,availability, quality, and comfort with the provider. The type of shift and hours worked is not theonly determining factor.[193] Although it seems evident that any number of factors may go into individual choices, thiscomplaint deals with a situation where there was no available third party childcare in any event tocover Ms. Johnstone’s work schedule, and neither her spouse nor other family members could fillthe void entirely.[194] In such a situation as this, the parent either must seek accommodation through her/hisemployer or no longer work for that employer (an alternative covered in Dr. Duxbury’stestimony). Ms. Johnstone wanted to make a career with CBSA. She had invested time, takentraining specifically for the position, and enjoyed the work. By her performance reviews and herown assessment she was good at her job. It does not seem unreasonable to this Tribunal that

42Ms. Johnstone would want to remain employed with CBSA, and would ask for accommodationon her shift schedule until the children were of school age, i.e. up to age 5/6.[195] Ultimately, Ms. Friendly confirmed that the ability of a parent to find suitable third partychildcare falls on a continuum of difficulty depending on that particular parent’s needs. Shestated that she felt that Ms. Johnstone’s situation was “one of the most difficult childcaresituations that she could imagine” based on: different shifts at different times and different daysincluding weekends; overtime; shifts at all hours of the day or night; and her spouse worked asimilar type of job schedule.2010 CHRT 20 (CanLII)E. Prima Facie Case[196] The test to establish a prima facie case is set out in Martin v. Saulteaux Band Government(2002) CanLII 23560 (C.H.R.T.) at paragraph 24 (Martin), and Ontario Human RightsCommission v. Simpson Sears Limited, (O’Malley), [1985] 2 S.C.R. 536, at paragraph 28(O’Malley).[197] Essentially, a prima facie case is established if the allegations by the Complainant arecovered, and if believed, the evidence is complete and sufficient to justify a verdict inMs. Johnstone’s favour, in the absence of an answer from the Respondent. If the Tribunal answersin the affirmative to this, then the onus shifts to the Respondent to show that despite thediscrimination found it had a Bona Fide Occupational Requirement (BFOR) to engage in it, andthat accommodation of those affected would amount to undue hardship for the employer.[198] At this stage, the two questions before this Tribunal are:- Did CBSA engage in a discriminatory practice, directly or indirectly,(b) in the course of employment, to differentiate adversely in relation to Ms. Johnstone, onthe prohibited ground of family status?- Did CBSA engage in a discriminatory practice by establishing or pursuing a policyor practice, or did the CBSA enter into an agreement affecting recruitment,

43referral, hiring, promotion, training, apprenticeship, transfer or any other matterrelating to employment, that deprived or tended to deprive Ms. Johnstone of anyemployment opportunities on the prohibited ground of family status?[199] In the ordinary course, to establish a prima facie case the Complainant need onlydemonstrate that a policy has had some differential impact on her due to a personal characteristicwhich is recognized as a prohibited ground of discrimination. Morris v. Canada (CanadianArmed Forces), [2005] F.C.J. No. 731, at paras. 27-28 (Morris)[200] In this inquiry, the ground of discrimination alleged is family status. There is a differencein position between the parties as to the definition of family status within the meaning of Sections3, 7 and 10 of the Act, and therefore this Tribunal must address the meaning of family statusbefore it can determine whether a prima facie case has been made out.2010 CHRT 20 (CanLII)[201] Additionally, it is the position of CBSA, that the ground of family status carries with it ahigher burden of proof to establish a prima facie case, than other grounds enumerated under theAct. In this proposition, CBSA, relies on the case of Health Sciences Association of BritishColumbia v. Campbell River and North Island Transition Society, [2004] C.H.R.D. No. 33(Campbell River), and subsequent decisions of provincial human rights tribunals and federalarbitrators that have followed Campbell River’s approach on this issue.Family Status[202] Turning first to what it is meant by “family status” in the Act, Ms. Johnstone cites theprevious CHRT rulings in Brown initially discussed in Section IV above, and Wolden v. Lynn,[2002] C.H.R.D. No. 18 (Wolden).[203] The facts in Brown are very similar to this complaint and the Respondent in Brown is thepredecessor of the CBSA. The CHRT found that the complaint was substantiated in Brown, and indoing so considered the nature of ‘family status’.[204] At page 15 of Brown, the Tribunal defined the ground of family status as follows:

44(a) “… the evidence must demonstrate that at an family status includes the status of beinga Parent and includes the duties and obligations as a member of society and furtherthat the Complainant was a parent incurring those duties and obligations.”[205] At page 20 of the Brown decision, the Tribunal stated that the ground of family statuscontemplated:(a) “… duties and obligations within the family”, and “that the purposive interpretation tobe affixed to s.2 of the CHRA is a clear recognition within the context of “familystatus’ of a parent’s rights and duty to strike a balance coupled with a clear duty onthe part of any employer to facilitate and accommodate that balance within thecriteria set out in the Alberta Dairy Pool case. To consider any lesser approach tothe problems facing the modern family within the employment environment is torender meaningless the concept of “family status’ as a ground of discrimination.”2010 CHRT 20 (CanLII)[206] Ms. Johnstone argues that it is well established that the purpose of human rightslegislation is to protect and enshrine the rights and dignity of Canadian. As a result, human rightscodes must be interpreted in a broad and liberal manner.[207] Ms. Johnstone also relies on B. v. Ontario (Human Rights Commission),[2002] S.C.J. No. 67 “B. v. Ontario” at paras. 44 – 45, wherein the art confirmed that to establishdiscrimination, family status claimants need only demonstrate that they were “arbitrarilydisadvantaged on the basis of ‘family status’. In other words, the Supreme Court adopted a broadand liberal interpretation to the Act.[208] Ms. Johnstone agrees that the family obligation at issue must be substantial, however oncethat determination is made, then the Complainant states that interference with that obligation issufficient to make out a prima facie case.[209] Ms. Johnstone also raised the cases of Hoyt v. Canadian National Railway, [2006]C.H.R.D. No.33 (Hoyt). In Hoyt, the Complainant was a railway worker who soughtaccommodation from her employer to work a certain shift that would allow her to make childcarearrangements for her child. Again, the CHRT accepted that the scope of family status asencompassing childcare obligations of the nature faced by Ms. Johnstone.

45[210] The interpretation that ‘family status’ within the meaning of the Act includes family andparental obligations that include childcare has been adopted in numerous decisions:Wight v. Ontario (Office of the Legislative Assembly), [1998] O.H.R.B.I.D. No. 13 (Wight)Canada Post Corp. v. Canadian Union of Post Workers (Somerville Grievance, CUPW790-03-00008, Arb. Lanyon), [2006] C.L.A.D. No. 371 at para. 66Rennie v. Peaches and Cream Skin Care Ltd., (December 4, 2006) Human Rights Panel ofAlberta (unreported) at paras. 51, 53-54Canadian Staff Union v. Canadian Union of Public Employees (Reynolds Grievance),[2006] N.S.L.A.A. No. 152010 CHRT 20 (CanLII)Ontario Public Service Employees Union v. Ontario Public Service Staff Union (DeFreitasGrievance), [2005] O.L.A.A. No. 396 at paras. 19 -21[211] This Tribunal notes that even the Campbell River decision and decisions that havefollowed that ruling and adopted the same approach, still accepted that childcare obligations arewithin the scope of the definition of ‘family status’ within the Act. The debate between this line ofcases and those cited by Ms. Johnstone is with the threshold required in such cases to establish aprima facie case, not with the meaning of ‘family status’.[212] The B.C. Court of Appeal in Campbell River reversed the arbitrator’s decision on thispoint and acknowledged that childcare responsibilities (in this case by a mother to provide for ason with behavioural problems) are within the scope of ‘family status’.[213] The same can be said of the Federal Court’s judicial review of the initial CHRC dismissalof Ms. Johnstone’s claim, referred to in paragraph 68 above. Mr. Justice Barnes, in overturningthe CHRC dismissal of Ms. Johnstone’s complaint, took no exception to her complaint fallingwithin the definition of ‘family status’ within the Act. This decision focused on a criticism of theapproach taken in the Campbell River line of cases as to whether interference is sufficient, or onehas to find a “serious interference” with the Complainant’s protected interests. Johnstone v.Canada (Attorney General), [2007] F.C.J. No.43 (Johnstone)

46[214] CBSA argues for a more restrictive interpretation claiming that the law on this point isunsettled.[215] CBSA proposes that protection is not provided with respect to family obligations at all, asonly distinctions based on one’s actual or ‘absolute status of being in a family relationship ismeant with the inclusion of ‘family status’ in the Act. CBSA denies that protection extends to theactivities or responsibilities relating to one’s status as a parent.[216] In B. v. Ontario the Supreme Court of Canada spoke to the term “status” as implyingmembership in a class or group encompassing both the absolute definition and the relativedefinition requiring the existence or absence of a relationship with another person. The decision,as stated, also spoke to an arbitrary disadvantage suffered, but did not set out a comprehensivedefinition of “family status” within the meaning of the Ontario Human Rights Code, which isprovincial legislation akin to the federal Act. At paragraph 57 of the decision, the Court did speakof a person experiencing differential treatment on the basis of “an irrelevant personalcharacteristic” that is enumerated.2010 CHRT 20 (CanLII)[217] CBSA urges this Tribunal not to follow earlier CHRT decisions in Brown, Wolden andHoyt. CBSA suggests that this Tribunal adopt a purposive interpretation that does not “overshootthe actual purpose of the right or freedom” as stated in R. v. Big M Drug Mart,[1985] 1 S.C.R. 295, para. 117.[218] CBSA warns against the perils of an approach that presumes any conflict between workand family obligations amounts to discrimination on the ground of ‘family status’. In this regard,CBSA cites the case of McGill University Health Centre (Montreal General Hospital) v. Syndicatdes employes de Hopital General de Montreal, [2007] S.C.J. No. 4, at para. 49, perAbella J. (McGill), to assert that ‘family status’ should not be interpreted as favouring andpromoting particular familial arrangements as not every situation cannot be afforded theprotection, but only those that are truly discriminatory.

47[219] This Tribunal does not find Madam Justice Abella’s statement in conflict with thecomplaint put before us by Ms. Johnstone.[220] This Tribunal agrees that not every tension that arises in the context of work-life balancecan or should be addressed by human rights jurisprudence, but this is not the argument putforward in the present case. Ms. Johnstone’s argument is that such protection should be givenwhere appropriate and reasonable given the circumstances as presented.[221] As discussed above, we are addressing here a real parent to young children obligation anda substantial impact on that parent’s ability to meet that obligation. It is not before this Tribunal toaddress any and all family obligations and any and all conflict between an employee’s work andthose obligations.2010 CHRT 20 (CanLII)[222] CBSA set out in its written submissions information on the history of the ground ‘familystatus’ being included in the Act and provincial human rights codes, including a reference fromHansard quoting the then federal Minister of Justice’s address on December 20, 1982. TheMinister of Justice, 27 years ago, stated that the inclusion of family status “means you cannothave guilt by association or failure to employ somebody by association because someone else inhis family has a weakness of some kind…You cannot use this as reason to deny this personemployment. Each person is to be judged on his or her own merits and abilities, not on his familystatus.”[223] In Canada (House of Commons) v. Vaid, 2005 SCC 30, the Supreme Court of Canadaapplied Elmer Driedger’s modern approach to statutory interpretation to the Act, referencing his2 nd edition book Construction of Statutes. This approach specifies that: “the words of an Act areto be read in their entire context and in their grammatical and ordinary sense harmoniously withthe scheme of the Act, the object of the Act, and the intention of Parliament”. In other words, thesupposed “intention of Parliament”, to the extent that this can be divined from the words of aMinister, is not the only determinative factor. This is especially so when the context and thescheme of the Act suggest otherwise.

48[224] When the Minister made the statement in 1982 relied upon by the Respondent, the duty toaccommodate in employment did not appear in the CHRA. More particularly, the phrase “havetheir needs accommodated” was not in the “purpose clause” of the Act (s. 2). The inclusion of thisconcept in the purpose clause, as separate and distinct from its inclusion in s. 15, has led to abroadening of interpretation of the Act, in that equal opportunity has come to mean more than justnot being hindered by stereotypes or prejudice (“guilt by association”). It involves taking intoaccount people’s needs. Accordingly, family status in this Tribunal’s view should not be limitedto identifying one as a parent or a familial relation of another person. It should include the needsand obligations that naturally flow from that relationship.2010 CHRT 20 (CanLII)[225] While the historical context put forward by the Respondent is a factor, this Tribunal doesnot find it persuasive as an exhaustive understanding of the present meaning of ‘family status’within the Act, given the legislative changes and jurisprudence that has evolved and developedover the more recent past.[226] CBSA also cites the Whyte grievance and the Simcoe Country District School Board andOntario Public Service Employees Union, Local 330, (2002), 103 L.A.C. (4 th ) 309 (Griffith)grievance.[227] In Whyte the onus was put entirely on the employee to bear any burden associated withworking for a twenty-four hour, seven day a week enterprise such as a railway. The decision findsthat “in exchange for meeting those onerous obligations railway employees have gained thebenefit of relatively generous wage and benefit protections.” This suggests that an employer candiscriminate as long as it pays well, and without a definition as to what ‘relatively generous’means or what comparative is being used.[228] In Griffith, a parent who sought to use sick leave credits to leave work early twice a weekto meet her child’s needs was denied. The arbitrator found the employer’s refusal did not amountto discrimination on the basis of family status.[229] This Tribunal does not find the Whyte or Griffith grievance decisions persuasive.

49[230] Both parties rely on their own interpretation of Section 2 of the Act as it relates to theirarguments, but this Tribunal finds nothing in Section 2 that creates a restrictive and narrowinterpretation of ‘family status’.[231] To the contrary, the underlying purpose of the Act as stated is to provide all individuals amechanism “to make for themselves the lives that they are able and wish to have and to have theirneeds accommodated, consistent with their duties and obligations as members of society…” It isreasonable that protections so afforded include those naturally arising from one of the mostfundamental societal relationships that exists, that of parent to child. The fact that the language ofSection 2 mentions “lives that they are able and wish to have” carries with it theacknowledgement that individuals do make separate choices, including to have children, and thatthe Act affords protection against discrimination with respect to those choices.2010 CHRT 20 (CanLII)[232] CBSA relies on Schaap v. Canada (Canadian Armed Forces), [1988] F.C.J. (Schaap), acase dealing with marital status discrimination in the assigning of military housing, and quotedJustice Marceau from page 3 of that decision in its final submissions. Taking some of the samequotations used by CBSA, this Tribunal interprets them for purposes of this complaint differently.His Lordship stated that “decisions are to be made on the basis of individual worth or qualitiesand not of group stereotypes. He went on to posit as follows: “…is not this in perfect keeping withthe purpose of all human rights enactments….to prevent the victimization of individuals on thegrounds of irrelevant characteristics over which they have no control, or with respect to whichtheir freedom of choice is so vital that it should in no way be constrained by the fear of eventualdiscriminatory consequences…”[233] This Tribunal finds that the freedom to choose to become a parent is so vital that it shouldnot be constrained by the fear of discriminatory consequences. As a society, Canada shouldrecognize this fundamental freedom and support that choice wherever possible. For the employer,this means assessing situations such as Ms. Johnstone’s on an individual basis and workingtogether with her to create a workable solution that balances her parental obligations with herwork opportunities, short of undue hardship.

50[234] Having found that the enumerated ground of ‘family status’ does include childcareresponsibilities of the type and duration experienced by Ms. Johnstone, one has to then turn to thetwo questions set out in paragraph 199 above, to determine whether Ms. Johnstone has made out aprima facie case on this ground absent CBSA’s response in keeping with Martin and O’Malley.[235] Again, the parties differ on what is required for Ms. Johnstone to make out a prima faciecase. Ms. Johnstone adopts the low threshold set out in Morris. Following B. v. Ontario wouldalso allow that Ms. Johnstone need only show that she was arbitrarily disadvantaged based on herfamily status. This Tribunal finds that CBSA adopted an unwritten policy and practice ofarbitrarily forcing any person who sought accommodation for reasons of family obligations suchas childcare for young children, to work 34 hours per week or less in exchange for a scheduleoutside the regular VSSA schedule. Although CBSA made individual assessments and changesfor those seeking accommodation on medical and religious grounds, and broke their own arbitrarypolicy fairly often, CBSA was unyielding in Ms. Johnstone’s case.2010 CHRT 20 (CanLII)[236] CBSA adopts the reasoning in Campbell River that there is a different and higherthreshold for family status discrimination cases. In Campbell River, the Court found that theCHRT’s rulings in both Brown and Wolden were “overly broad”. The B.C. Court of Appeal didnot follow the Supreme Court of Canada’s direction in O’Malley and British Columbia (PublicService Employee Relations Commission) v. The Government of the Province of British Columbiaas represented by the Public Service Employee Relations Commission,[1999] 3 S.C.R. 3 (Meiorin).[237] Instead, Campbell River adopts a new and greater test where a determination of bad faithon the part of the employer is undertaken, and the analysis calls for a change in a term orcondition of employment which results in a serious interference with a substantial parental duty orobligation of the employee. Hoyt rejected this restrictive analysis as does this Tribunal.[238] This Tribunal agrees with Ms. Johnstone’s position that an individual should not have totolerate some amount of discrimination to a certain unknown level before being afforded theprotection of the Act. Justice Barnes agreed with this position in Johnstone. Either there is or is

51not discrimination found in any given complaint process. If so, there cannot be a hierarchy ofgrounds. The Act does not suggest this.[239] In the recent decision of Rajotte v. The President of the Canadian Border Services Agencyet al, 2009, PSST 0025 dated August 7, 2009 (Rajotte), the Public Service Staffing Tribunalconsidered a complaint by a female employee against the same Respondent as in this complaint.The Complainant was a mother who alleged that she had not been considered for a certainposition or positions due to an abuse of authority by the CBSA and her family status.[240] The Tribunal in Rajotte followed the reasoning and decisions in Brown, Wolden, Hoyt, andJohnstone with respect to the definition of family status, as well as the test for a prima facie caseset out in O’Malley and Meiorin. Rajotee expressly rejects the approach in Campbell River.2010 CHRT 20 (CanLII)[241] CBSA sought leave to address the Rajotte case before this Tribunal as Rajotte wasreleased just two weeks after submissions were completed in this hearing. However, this Tribunaldecided that further submissions were unnecessary. Rajotte is self-explanatory and this Tribunalfinds it relevant to this complaint, although not binding.[242] This Tribunal finds that Ms. Johnstone has made out a prima facie case of discriminationcontrary to Sections 7 and 10 of the Act, in that CBSA engaged in a discriminatory and arbitrarypractice in the course of employment that adversely differentiated Ms. Johnstone on theprohibited ground of family status. CBSA engaged in a discriminatory practice by establishingand pursuing an unwritten policy communicated to and followed by management that affectedMs. Johnstone’s employment opportunities including, but not limited to promotion, training,transfer, and benefits on the prohibited ground of family status.[243] The policy and practice that CBSA established and pursued is based in a view that familystatus within the meaning of the Act does not include family obligations of the nature ofMs. Johnstone’s. CBSA forced Ms. Johnstone to self-reduce to part-time status thereby adverselyaffecting her with respect to employment.

52[244] CBSA accommodates those seeking accommodation for medical and religious reasons bycreating schedules for them outside the VSSA, some on a permanent basis. Additionally, CBSAhas not uniformly followed this arbitrary discriminatory unwritten policy resulting in someemployees in the same category as Ms. Johnstone being accommodated with full-time hours andstatic shifts, or full-time benefits although on part-time hours and static shifts[245] It is pertinent to note that the CBSA and its predecessors have been under CHRT andCHRC direction since 1993 to develop accommodation policies for those seeking accommodationon the ground of ‘family status’ and has been aware that those bodies have interpreted ‘familystatus’ as equating to family responsibilities of the type and nature that Ms. Johnstone faced.Ms. Johnstone’s testimony was unequivocal that she was not asked about her personal situation orthe difficulties she was facing, but dealt with according to the above-described arbitrary unwrittenpolicy of either working under the VSSA or self-reducing to up to 34 hours if seeking static shifts.There was no attempt to individualize Ms. Johnstone’s situation by CBSA, because they have nottreated such requests as falling within the ambit of federal human rights legislation.2010 CHRT 20 (CanLII)[246] This Tribunal asked Mr. Star if there is anyone at CBSA working now or in the past twoyears with the title Employment Equity Advisor or Disability and Accommodation CaseCoordinator, as recommended in the Draft policy, and there is none.[247] Mr. Star testified that there are two named Supervisors that specifically coordinate (andmonitor) the medical accommodation issues. They do not have decision-making authority. Thereis a committee made up of Mr. Norm Sheridan, Ms. Rhonda Raby, Mr. Darren Millet and perhapsothers that look at case by case medical accommodation requests.[248] When this Tribunal asked who dealt with accommodation requests for reasons other thanmedical, Mr. Star testified that the same two Supervisors amass the information, and put therequests forward to the same committee to make the decision.[249] Further this Tribunal asked Mr. Star if a CBSA National Job Accommodation Fund existsas recommended in the Draft policy, and there is none.

53VI.RESPONDENT’S CASEA. Evidence of Norm Sheridan[250] Mr. Sheridan is the District Director of Passenger Operations for CBSA at PIA, onedistrict within the CBSA’s Greater Toronto region operation. He has held that senior positionsince April 1, 1999 under CBSA’s predecessors as well.[251] The position of CBSA, as articulated by Mr. Sheridan and Respondent’s counsel, is thatworkers seeking accommodation for childcare obligations are doing so due to choices they havemade in life, for which the employer bears no responsibility. Hence, while the Respondent isprepared to make some adjustments to such a worker’s schedule, it refers to these adjustments as“arrangements” as opposed to “accommodations”.2010 CHRT 20 (CanLII)[252] Prior, as stated above in paragraph 58, Mr. Sheridan held senior management, operationsand human resources portfolios within PIA and the Greater Toronto Regional Office. Overall,Mr. Sheridan has worked for CBSA or its predecessors since 1979 starting as a CustomsInspector.[253] Because of his extensive background with the Respondent employer and his seniorresponsibilities, Mr. Sheridan was very knowledgeable about CBSA structure as it relates to thefunctions at PIA, and as it relates to this hearing. He had an excellent recall of dates of transitionfrom one predecessor of CBSA to another. He confirmed that CBSA was created as ofDecember 12, 2003.[254] Upon the creation of CBSA, the customs parts were taken out of the Canada Customs andRevenue Agency (CCRA), the immigration inland enforcement piece out of Citizenship andImmigration, and the food, plant and animal inspection piece out of the Canadian Food InspectionAgency. As of October 8, 2004, the port of entry component of Citizenship and Immigrationjoined CBSA to create the full agency as it is known today.

54[255] Mr. Sheridan described the mandate of CBSA as at January 2004 at PIA as the facilitationof movement of low risk persons and goods into Canada, while at the same time detecting andinterdicting high risk persons and goods including agricultural products such as plants, andanimals. This was all done as part of providing for the safety and security of Canadians.[256] At that time, the immigration component of the port of entry piece had not yet come overto PIA, however, the long-standing customs mandate gave CBSA at PIA authority to perform“primary immigrations functions” or “front end screening”.[257] In 2004, there were 3 operating Terminals including the East Hold mentioned previously.BSO responsibilities at Passenger Operations included and still include:2010 CHRT 20 (CanLII)- The primary inspection line “PIL”: where the public sees inspectors in booths;- Immigration: where travelers are referred by the PIL such as first-time immigrants,refugee claimants, those holding visas, and persons who should not be allowed entrydue to criminality; and- Customs secondary “Secondary”: where travelers pay duties, and taxes and baggage isinspected.[258] PIL determines whether to refer a traveler to Secondary where BSOs look at travelers’documents, the reason for the referral, and determine what other steps have to be taken includingdetention or seizure. The referral is primarily done through a coding system written on a traveler’scustoms declaration.[259] There are still a few BSOs who have not been trained in the full range of current duties inFood, Immigration and Customs. Since July 2005, the regular training of BSOs atRigault, Quebec now includes training in all duties including familiarization with all relevantlegislation. This includes Control and Defensive Tactics Training (CDP Training), and all theprocesses a BSO would have to do in the ordinary course of one’s work. BSO training takes

55approximately 14 weeks. There is further training available as well, and some training given lateris location specific.[260] BSOs are responsible for the control of firearms, controlled substances, agricultural goodsincluding plants, animals, seeds and dairy products. The inspection of goods can also includeexplosives, telecommunication products, precious metals, drugs, weapons, child pornography,and controlled goods such as cultural properties, historic artifacts, precious gems like diamonds,etc.[261] At Gateway, Mr. Sheridan described the BSO work as the examination of mail cominginto Canada including parcels and documents handled at both a primary and secondary inspectionline. The BSO work at Commercial Operations involved limited interaction with people wherethe focus is primarily on good imported into Canada for commercial purposes.2010 CHRT 20 (CanLII)[262] Mr. Sheridan confirmed that BSO work performed in 2004 and currently at PassengerOperations, Commercial Operations and Gateway is set forth in one universal job description andclassification.[263] Mr. Sheridan described the Director’s Role, i.e. Mr. Sheridan’s role as ensuring theefficient and effective operation at PIA for the processing of travelers and their goods. This isdone through 10 subordinate Chiefs of Operations. Each of those Operational Chiefs, with theexception of one working on a particular project have Superintendents who report to them. TheSuperintendents are each assigned a crew of BSOs for whom they are responsible, and it is theBSOs on the front lines “who get the job done”.[264] Mr. Sheridan stated that he is given a budget allocation every year by his boss, theRegional Director General for the Greater Toronto Region. There is an expectation that heconstantly look at his program and identify ways to improve on the program within theparameters and guidelines set out by the Region, and within the applicable legislative framework.

56[265] Mr. Sheridan was taken through extensive detail on the PIA operations and structure,produced organizational charts, and various example work schedules to show the intricacies of theVSSA as a BSO works through any given period on rotating, fluctuating shifts.[266] Although extensive testimony was given on PIA operations, the most pertinent testimonyfrom Mr. Sheridan with regard to the complaint before this Tribunal, centered around CBSArationale regarding accommodation requests, CBSA’s view of such requests based on familyresponsibilities, the methodology used to deal with medical and religious accommodations, andthe manner in which CBSA and its predecessors have dealt with the various pronouncements setout in Part IV above regarding the treatment of family status requests within CBSA and at PIAspecifically.2010 CHRT 20 (CanLII)[267] There is no doubt that PIA is a busy international operation with an important mandatethat by necessity operates round the clock to fulfill that mandate. Ultimately, however, thisTribunal found that the level of detail on operations did not really assist in the fundamentalquestions before it.[268] CBSA does not view employees who require accommodation for childcareresponsibilities as a group that falls within the protection of the Act. CBSA’s position is that suchemployees who cannot work the VSSA shift schedule, have the options of working part-time,taking Care and Nurturing Leave from 3 weeks to 5 years (leave without pay), or quitting.Mr. Sheridan’s summed up the position as “People make their own choices.”[269] Under cross-examination Mr. Sheridan testified that all non-medical accommodationrequests are referred to separately as “arrangements” including requests based on family reasons,lifestyle choices, educational requirements, and religious observance. He stated that previouslyall of these requests had been referred to by management as “accommodations” but there was anactive decision taken to “get control over the real situation” by separating the language out tobetter describe the difference.

57[270] When asked under cross-examination if there were many requests from employeesreturning from maternity leave or those with children to be accommodated outside of the VSSA,Mr. Sheridan replied in the negative.[271] Mr. Sheridan pointed out that under the Collective Agreement there are a number ofdifferently titled Leave Without Pay provisions for parents, as well as other assistance such as theEmployee Assistance Program that provides free services for a range of issues like referrals formedical concerns, referrals for elder and childcare, and counseling for addictions and mentalillness.2010 CHRT 20 (CanLII)[272] Mr. Sheridan stated that he was personally unaware of CCRA’s or CBSA’s strategies andgoals to support work-life balance, and that he had seen nothing on the issue from Headquarters.Even though he had been Director of Human Resources in the Greater Toronto Area region ofCBSA in 1993 when Brown was decided, he has no knowledge of any policies arising from thatdecision being adopted by the CBSA or its predecessors.[273] With reference to the operational reason for the VSSA, Mr. Sheridan testified that rotatingall BSOs through a 24 hour shift schedule allows employees to equally share in both popular andunpopular shift times. It also exposes BSOs to different types of travelers and different degrees oftraffic.[274] Midnight shifts are the least popular, however some employees prefer to work only themidnight shift. As a result, in the latest VSSA at PIA static midnight shifts have beenincorporated.[275] Mr. Sheridan also testified that the new VSSA allows some employees to work static daysof the week, i.e. Thursday through Sundays or Fridays through Monday. This is offered primarilyto new employees known as Port of Entry Recruits. These BSOs are assigned to the DedicatedCoverage Team. This, of course, is what Ms. Johnstone had asked for – static days with noparticular shift within those days sought.

58[276] Mr. Sheridan confirmed that he had no hand in the decision to create and maintain anAccommodations Log at PIA which he had seen being used since about 2000-2001. He recalledthat management needed to manage accommodation requests. At one time anyone who waspart-time was placed on the Accommodations Log regardless of the reason that the employeeshad moved to part-time. There was about 32 – 35 people listed on the Log.[277] Mr. Sheridan testified that his boss, the Regional Director, wanted to separate out medicalaccommodations from other umbrella reasons for better tracking. Some employees had a dualreason for wanting to work outside the VSSA, so they stayed listed on the Accommodations Log.Otherwise, if an employee was being accommodated for medical reasons, their names were nolonger entered on the Log. Medical accommodations were seen and treated as Human Resourcesissues, but other requests as purely operational.2010 CHRT 20 (CanLII)[278] Mr. Sheridan testified that over the past several years it had become necessary from amanagement perspective to better manage employees working part-time to improve consistency.It was felt, for example, that there were certain employees working a 36 hour week in order to getthe flexibility and perhaps static shifts that can be afforded with part-time status outside theVSSA. For this reason, an unwritten policy was adopted that anyone working part-time should beallowed to work only to a weekly maximum of 34 hours. It was felt that this would discourageemployees from seeking part-time status so close to full-time hours, just to get around the VSSA.[279] Because of the decision to treat employees seeking accommodation for childcareobligations as reflecting just personal choice (the same as someone who went back to school orchose part-time for lifestyle reasons) this brought such employees within the ambit of the 34 hourmaximum policy for part-time.[280] Another unwritten CBSA policy is that part-time employees should not work greater than10 hours per day. Mr. Sheridan expressed concern that an employees work performance mightsuffer in terms of energy and focus, if permitted to work a longer day. This is why Ms. Johnstonewas told that she could not work a 13 hour shift 3 days per week, but only 10 hours 3 days perweek, with another 4 on a separate fourth day.

59[281] However, Mr. Sheridan acknowledged that there are part-time employees working morethan 10 hours per day, and that this has been permitted if it also meets “operational needs”. Inaddition, Mr. Sheridan conceded that both today and in 2004 many part-time BSOs were workingshifts longer than 10 hours and some more than 34 hours per week.[282] Gateway and land border sites, for example, have many employees working greater than10 hour shifts as well. Certainly, at the land border sites Mr. Sheridan agreed that BSOs must beever-vigilant and prepared to meet and deal with the unexpected.[283] CBSA offered no evidence to substantiate this impressionistic view that a BSO shift ofmore than 10 hours would have a negative operational and performance impact.2010 CHRT 20 (CanLII)[284] Mr. Sheridan agreed with the other witnesses that the time of greatest operational demandat PIA is the afternoon period from approximately 14:00 to 22:00 hours. As it turns out, themajority of part-time employees who have the option of working a preferred static shift, choosethis time period. Mr. Sheridan acknowledged that this alignment would make accommodation ona full-time basis fairly easy, and Ms. Johnstone was willing to work over this time period on the3 days she requested. However, its arbitrary policy was in place and there was no individualassessment of Ms. Johnstone’s request as outlined.[285] With medical accommodation requests separated out from other “arrangements”, and therecognized requirement by CBSA that such accommodations are required under human rightslegislation, a system has evolved to deal with medical request on an individualized basis. Twomanagers are tasked with coordinating and monitoring such requests, i.e. gathering in medicaldocumentation and other factual background information to ‘package’ the request.[286] The request is then sent on to a regional committee is called the AccommodationsSubcommittee. This committee, upon which Mr. Sheridan sits, is composed of CBSAmanagement representatives. It meets regularly, and is given a schedule of requests to considerwith the relevant background information. Decisions are taken at this level to grant the request,ask for further information or clarification, or deny it with reasons given. To assist in these

60decisions, the committee members follow a CBSA policy called Interim Guidelines for MedicalAccommodations.[287] Minutes of these meetings were not produced until mid-way through the hearing afterMr. Sheridan had testified to the existence and practices of the committee. Those minutesrevealed that the committee does have before it accommodation requests other than for medicalwhich Mr. Sheridan testified should not have been brought before the committee. The minutesalso revealed that at times accommodations requests had been granted for employees who hadchildren with medical needs.2010 CHRT 20 (CanLII)[288] In other words, CBSA at PIA has found an efficient and individualized way to deal withmedical accommodation requests. It also has accommodated an employee with a child withmedical needs, but it will not recognize nor individually assess an employee who seeksaccommodation to care for a healthy child or children.[289] Mr. Sheridan was asked under cross-examination if his operating budget constrainedCBSA’s ability to respond to accommodation requests, and whether CBSA was under any budgetconstraints that prevented it from accommodating Ms. Johnstone’s request specifically.Mr. Sheridan’s response was, “no”.[290] In a follow-up question, Mr. Sheridan was asked if CBSA/he had taken any steps to assessthe costs of not addressing work-life balance issues. His response was, “no”.[291] Mr. Sheridan confirmed that the Treasury Board is the legal employer of BSOs and that hewould have to be given directives on work-life balance issues from Treasury Board.[292] An exhibit was put to Mr. Sheridan aimed at 24/7 operations and authored by HumanResources and Skills Development Canada with the heading, “Work/Life Balance and NewWorkplace Challenges – Frequently Asked Questions for Organizations” “Work/Life BalanceFAQs”. He was asked what he has done to respond to these directives.

61[293] Mr. Sheridan responded that “we negotiated a VSSA to allow greater flexibility to allowemployees to get that predictability.” This new VSSA allows regular employees more time off onweekends. Mr. Sheridan also felt that the imposed 34 hour or less part-time schedule for thoseseeking family status accommodation was, in itself, consistent with supporting work-life balance.[294] Among the information in the Work/Life Balance FAQs was the following:a) “How can our organization do this when we are expected to operate in a 24-7environment?There isn’t any work environment, any job, any position, that can’t be in some waydesigned to allow the individual to achieve a sense of work-life balance. The realquestion is, how can we, in a 24-7 environment, a shift work environment….createa workplace that recognizes work-life and well being as critically important forindividual and organizational resiliency, for short-term and long-term success.Organizations need to take a look at … workload, to work structure, to worksystems, to work-life, to wellness, to safety, to health.”2010 CHRT 20 (CanLII)b) If our organization begins to support work-life balance, how can we be surethat no everyone will want a flexible arrangement?What we know is that most people prefer their work life to be fairly predictable,fairly routine, and fairly consistent from one week to the next. It doesn’t matter ifyou’re a night shift worker or a day shift worker or a Monday to Friday 9 to 5-er.Most employees are looking for predictability and consistency. The myth aboutflex is people come and go whenever they want. They take time off and they getpaid for it and other people get stuck doing the work. In fact, a flexible workingarrangement requires clear communication, negotiation and documentation of theway of working in a consistent way.c) What can organizations do with employees that say, “It’s not fair. I don’t havekids. This just benefits some people”?You can also prevent backlash by making sure that processes are in place that allowall people to apply easily for flexible work arrangements or have access to thebenefits. It is crucial that the process is consistently an fairly applied, clearly andwell documented…

62d) How are demographic changes in Canada going to affect how organizationsneed to handle work-life?The aging workforce is going to force organizations to be more creative in phasingtowards retirement. The nexus generation is coming into the workforce with veryclear expectations of what they want from employers and clear expectations thatthey will be able to have meaningful work for meaningful wage without sacrificingwork-life balance….there is a serious labour shortage in this country….employersare going to have to accommodate employees’ demands in order to attract and retainvaluable employees.”[295] This Tribunal found the content of this Work/Life Balance FAQs dated 2005-02-03,particularly consistent with the earlier testimony and report of Dr. Linda Duxbury.2010 CHRT 20 (CanLII)[296] Although Mr. Sheridan held the same post in 2003 under the CBSA’s predecessor as hedoes now, he stated that he was completely unaware of the December 10, 2003 EquityCompliance Review directives and completely unaware of the Draft Accommodation Policydated June 2007.[297] Mr. Sheridan was asked how it could be that he would be unaware of these documents.Mr. Sheridan noted that the Compliance Review is dated two days prior to the creation of CBSA,and stated that although some policies came over from CCRA to CBSA, he is unaware if anypolicies relating to the Equity Compliance Review that came over. There was no one called as partof the CBSA’s case to explain who was in charge of receiving this Equity Compliance Review orhow it was dealt with in the transition from CCRA to CBSA.[298] As to the Draft Accommodation Policy, he testified that he was not consulted about it andnormally the drafters would consult with managers. As there are 190 Directors in CBSA, such aDraft would only go to some. This Tribunal notes that Mr. Darren Millet, by Mr. Star’s testimony,was aware of it, but not Mr. Sheridan who is his superior. Also, Mr. John King, then President ofthe Union took a copy of it from a meeting he attended, and yet Mr. Sheridan was neitherconsulted nor had he seen it previously.

63[299] There was no one called as part of the CBSA’s case to explain what happened to this DraftPolicy after it was circulated, why it was written in the first place, why the Director of Operationfor PIA would not have been made privy to it, or why is was not adopted after its creation. Therewas no evidence of any decisions taken not to adopt the Draft Policy for reasons of unduehardship, for example.[300] When asked about Dr. Moore-Ede’s expert report tendered on behalf of CBSA,Mr. Sheridan stated that he wholly adopted its conclusion.[301] Mr. Sheridan testified that if Ms. Johnstone was accommodated for childcareresponsibilities that he believes management would be inundated with such requests, the costswould be prohibitive, and it would be destructive to PIA operations that require that mostemployees work the VSSA schedule.2010 CHRT 20 (CanLII)[302] Although Mr. Sheridan testified that there were not that many accommodation requestsmade on the basis of childcare responsibilities, he has formed this opinion of the negative impactaccommodation would have based on impressionistic reasons only. CBSA produced no studies orinquiries of any kind on the issue of undue hardship in terms of cost, morale, or operationalfailure. Impressionistic reasons are not sufficient to prove a BFOR.[303] The only evidence produced at this hearing to bolster CBSA’s position that undue hardshipwould result is the expert report and testimony of Dr. Moore-Ede that was only produced forpurposes of this hearing within the few months previous. In fact, when asked why Dr. Moore-Edehad not surveyed actual employees of PIA he replied that there had not been enough time. This is5 years post-complaint.[304] Mr. Sheridan testified that the turnover rate of PIA employees is significant and a matterof concern for management, however, there seemed to be no acknowledgement that greateraccommodation and shift flexibility might alleviate some of this problem.

64B. Evidence of Rhonda Raby[305] Having been told that she would not be granted full-time hours, in December 2003Ms. Johnstone wrote an e-mail trying to establish her new schedule to Rhonda Raby who thenheld the position of acting Chief of Terminal 1 at PIA Passenger Operations.[306] This Tribunal accepts Ms. Johnstone’s evidence that her husband had approachedMs. Raby on Ms. Johnstone’s behalf in the Fall of that year. Ms. Raby told him that she would notapprove shifts for Ms. Johnstone of greater than 10 hours.2010 CHRT 20 (CanLII)[307] Accordingly, Ms. Johnstone asked to work Fridays, Sundays and Mondays from 11:00 amto 9:30 pm each day. Ms. Raby accepted this proposal.[308] Ms. Raby testified that there was no communication with her from Ms. Gerstl as toMs. Johnstone’s initial request, and Ms. Raby confirmed that she and Ms. Johnstone neverdiscussed it directly either. Hence, Ms. Raby was unaware of Ms. Johnstone’s initial request toMs. Gerstl, but this Tribunal does not find that anything turns on this. Ms. Raby followed theunwritten policy of CBSA in dealing with Ms. Johnstone, and her approach would not have beenany different if she had known of Ms. Johnstone’s earlier request.[309] During her testimony, Ms. Raby seemed to have little knowledge of human rightslegislative requirements despite her management position.[310] This Tribunal also found it notable that Ms. Raby stated that even though she was aChief of Terminal 1 operations from 2002 to 2008, and saw her staff levels double and trafficdouble after the closure Terminal 2 in 2006, she could not recall anyone else asking for full-timework on return from maternity leave. She testified that often people want to work part-time onreturn from maternity leave.[311] Also, during those years, average accommodations per terminal (encompassing allrequests for medical, educational, religious and family responsibilities) over three terminals was

6515 people at any given time, or 45 for the whole operation (average to low estimate). ThisTribunal finds this to be a very manageable level.[312] During Ms. Raby’s evidence, she kept alluding to “SOP” or “Standard OperatingProcedures”, unwritten, which speak to the part-time mandatory hours being developed becauseotherwise management would have been “inundated with requests”. To avoid this, she testifiedthat management deliberately capped the hours at 34 hours to make part-time less desirable,i.e. workers wanting to be accommodated are discouraged from those requests.[313] Ms. Raby did not seem to see the irony in her remarks. Management has capped part-timeat 34 hours to make it less desirable, and yet management forces the 34 hour cap on employeeslike Ms. Johnstone who want to work full-time but need accommodation to do it.2010 CHRT 20 (CanLII)[314] Ms. Raby testified that at the time of at least Fiona Johnstone’s initial request there was aChief of Operations for Terminals 1,2, and 3. There was also Director overseeing Gateway(Mr. Sheridan). The Chiefs consulted on accommodation requests (all of them, for whateverreason) among themselves, but they did not consult at the time with the Gateway Director.[315] There were a lot of questions asked during the hearing as to why Ms. Johnstone couldn’thave been accommodated by giving her 12.5 hours shifts at Gateway where such shifts exist, andone of CBSA’s excuses of the high-stress work environment does not exist. Ms. Raby testifiedthat because they weren’t talking to each other, this was an option that was never considered norsuggested to Ms. Johnstone. Ms. Raby stated that none of the separate districts within PIAcommunicated on accommodation requests.[316] Ms. Raby confirmed that CBSA management treats medical accommodations differentlybecause CBSA acts in accordance with the medical evidence, i.e. doctor validation, thataccommodation is necessary for reasons of health, safety concerns and liability.

66[317] Ms. Raby confirmed that not accommodated employees are part-time, but often in theCBSA witnesses’ testimonies there was confusion between those being accommodated and theterm ”part-time”.[318] Mr. Star was an example of an accommodated employee who was not part-time. He hasbeen accommodated on an on-going permanent basis for religious observance.[319] Most people seeking religious accommodation do not need it on a continuing basis foreach shift period, e.g. Christians who do not want to work on Christmas Eve or Easter Sunday, orMuslims who may want to take a several day pilgrimage to Mecca, or need short periods off forprayer. Therefore, these people are accommodated for a short time, from time to time, but are stillfull-time employees.2010 CHRT 20 (CanLII)[320] Medical accommodation, of course, depends on the medical issue and can require veryshort-term to longer term accommodation, depending on what the doctor feels the worker can do.This can affect how many days or what hours or what duties a person needs to be relieved from.Not all of these accommodations are part-time either.[321] Ms. Raby confirmed Mr. Sheridan’s testimony that the term “accommodation” was used atCBSA to mean all adjustments off VSSA. It can be confusing, so Management starteddifferentiating by using the terms “accommodation” for medical reasons, and “arrangement” forother requests. Such arrangements include educational requests where people want changes toreturn to school, etc.[322] It was apparent that Ms. Raby had never received anything other than the most cursoryhuman rights training in terms of understanding there was a duty to accommodate those withmedical reasons. She was aware that there were other enumerated grounds in the Act.[323] Ms. Raby’s testimony revealed that CBSA efforts, if any, have been totally inadequate interms of training even management on human rights issues, obligations, duties, or processes.

67[324] CBSA’s approach upon receipt of accommodation requests has been to only do sufficientinquiry or background questioning to establish the bona fides of the request, its legitimacy. Noeffort is put into actually trying to meet the accommodation request, or to determine what theactual impact or cost be would be. This is all driven by a pervasive belief at the management levelthat too many people would want to be accommodated “off VSSA’ which would be operationallyfar too difficult. According to Ms. Raby, this is the issue and not cost.[325] Asked if she had any complaints from other employees about people getting shift changesdue to medical accommodation, Ms. Raby said, “yes”. Asked further, she remembers receivingone e-mail, and bases her belief that there is a “morale issue” around medical accommodation on“what she hears around the workplace”.2010 CHRT 20 (CanLII)[326] Although she was a Chief of Operations and had the mandate during the relevant years todeal with and decide upon accommodation requests, Ms. Raby testified that she kept no ongoinglog to identify people being accommodated, and kept requests for full-time static shift work onlyin an e-mail file.[327] Ms. Raby further testified that if an opening came along in an area that an employee hadexpressed a desire to work in, she would not cross-reference particularly or ever. In other words,although she had denied Ms. Johnstone’s request, if an opportunity had come up to meet herrequest in an area in which she had expressed an interest, Ms. Raby would make no attempt to putthat opportunity together and communicate it to Ms. Johnstone.[328] When new job opportunities arise, a Call Letter goes out, which you do not receive if youare off the job site on maternity leave. Depending on who responds, then management looks backat preferential listings on a worker’s annual performance review assessments. They do notcatalogue or look through the preferences listed, and do not keep that data anywhere. There arealso internet and intranet postings, but employees on maternity leave would not receive intranetpostings, and would be unaware of those.

68[329] Given Ms. Raby’s testimony on these various issues, it seemed evident to this Tribunalthat CBSA management does not see its role as working cooperatively with its BSO employees,and yet when it comes to human rights accommodation requests that is exactly what thejurisprudence calls upon an employer and employee to do.C. Evidence of Expert, Dr. Moore-Ede[330] Dr. Moore-Ede was qualified as an expert in the study of shift work and extended workinghours including staffing level analyses, shift scheduling optimization, shift work lifestyle training,and cost-benefit analyses with respect to employer policies pertaining to the management of shiftworkers, including all relevant factors that relate to the development of shift schedules.2010 CHRT 20 (CanLII)[331] Dr. Moore-Ede founded Circadian in 1983, an international research and consulting firmspecializing in how to manage the challenge of employing workers in a 24/7 environment.[332] His database indicated that approximately 52% of all shift workers have childcare needsand 60% of these, or 31% of all shift workers use childcare other than their spouse or partner.However, he also referred to studies which have found that shift workers are more likely toarrange or rely on care by spouses, relatives and friends, as opposed to third party caregivers.[333] This Tribunal finds that there were several serious flaws in this report. The whole basis ofthe data that leads Dr. Moore-Ede to the conclusion that between 31% to 52% of CBSA workerswill seek the same accommodation as Ms. Johnstone, comes from answers by 32,000 shiftworkers to question #13 of his Circadian questionnaire found at Addendum C of his exhibitedwritten report.[334] The sampling respondents are made up of workers from the US and Canada, but theCanadian percentage is very small. There was no questionnaire or surveying done of CBSAworkers as Dr. Moore-Ede said that CBSA had not given him enough lead time nor paid himsufficiently to undertake that sort of exercise.

69[335] The one question relied upon, question # 13, reads:a) “What primary childcare arrangements do you currently have?A. Child care providerB. RelativesC. Spouse or partnerD. OtherE. does not apply (no children at home)”2010 CHRT 20 (CanLII)[336] This question does not address subsets such as children of pre-school age as opposed tochildren and teenagers still at home.[337] Also, when Dr. Moore-Ede used the numbers to extrapolate, he didn’t just extrapolatefrom those who said they used third party childcare providers, but from all respondents who hadchildren at home regardless of whether they had indicated care was provided by spouse, family,third parties or “other”. There is no indication that all parents would seek accommodationregardless of the age of their children and regardless of the childcare arrangements they havearranged.[338] Additionally, Dr. Moore-Ede had no overlay of data related to workers who work rotatingshifts, with their partners/spouses also working rotating shifts. Other provided evidence indicatesthis situation would only apply to 1.2% of the shift worker population.[339] Dr. Moore-Ede’s conclusions were premised on the belief that there would be a rippleeffect from accommodating Ms. Johnstone’s request driven by the dissatisfaction ofnon-accommodated workers being necessarily shoved into less desirable shifts and times.

70[340] Dr. Moore-Ede testified that the above scenario would lead to dishonesty and people“playing games” where they would create childcare accommodation scenarios to meet therequirements in order to get preferable shift days and times.[341] Obviously, a 24/7 rotating shift scheduled operation could not afford to have one-half ofits workforce working off the VSSA. However, this speculation by Dr. Moore-Ed is not borne outby the actual experiences to date of even the CBSA’s own witnesses in management. The numbersthat Dr. Moore-Ede put forward are not realistic, and founded in either inadequate details in thequestion relied upon for the numbers to be valid, or unproven assumptions that are a discredit tothe ethics and motivations of the subject workforce.2010 CHRT 20 (CanLII)[342] Dr. Moore-Ede did not address the effect of employee education as a key component.There is no substantive evidence before this Tribunal that this particular workforce cannot beeducated as to the human rights law basis for certain accommodation requests being acceded to.[343] It is notable that this was a temporary accommodation being sought duringMs. Johnstone’s children’s pre-school years. She intends to return to full-time work in 2010. Thisis not a permanent accommodation request as one would see in a religious accommodation, nor along-term disability situation.[344] Dr. Moore-Ede took no exception to Ms. Johnstone’s experts’ reports regarding lack ofavailability of third-party child care, and generally agreed with those conclusions.[345] Dr. Moore-Ede conceded that he had not taken into account the offset saving of costs thatoccur with accommodation in terms of reduced absenteeism, sick days, leave requests, etc. whenaccommodated workers are more satisfied with a workplace that meets, or endeavors to meet,their temporary needs.[346] Dr. Moore-Ede also conceded that he had not taken into account the difference betweenCanada and the U.S. in terms of the Canadian government offering a wider safety net to youngparents with the availability of one year maternity and parental leave – something not offered in

71the U.S. So, whereas in the U.S. parents may be faced with finding daycare when a child is just2 months old, in Canada this usually does not arise until the child is 1 year old. This reduces theoverall need for alternative care to ages 1 -5, as opposed to newborn to 5.[347] Further, Dr. Moore-Ede assumes that employees with childcare responsibilities wouldrequest day shifts, i.e. childcare friendly hours. He assumes from there that this would have anegative impact in terms of health and safety on non-accommodated employees. This is contraryto other evidence before this Tribunal. Ms. Johnstone in her own request did not request dayshifts. She suggested afternoon shifts.2010 CHRT 20 (CanLII)VII.CONCLUSION/ANALYSIS[348] In Meiorin the Supreme Court of Canada affirmed that the duty of employers toaccommodate is a fundamental legal obligation. An employer must demonstrate that thediscrimination is necessary to achieve legitimate work-related objectives and tender affirmativeevidence that the point of undue hardship has been reach in its efforts to accommodate theemployee.[349] Also in Meiorin, the Supreme Court of Canada stated that “[u]nless no furtheraccommodation is possible without imposing undue hardship, the standard is not a BFOR in itsexisting form and the prima facie case of discrimination stands”.[350] In Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] S.C.J. No. 15(Via Rail) the Supreme Court of Canada stated that “undue hardship is reached when reasonablemeasures of accommodation are exhausted and only unreasonable or impracticable options foraccommodation remain”.[351] These cases very apparently set out a duty on the part of CBSA to make a real effort toaccommodate, an effort that is tangible and measurable, and tests out the employer’s ability tomeet the accommodation request. CBSA must not base its assessment of whether an employee

72needs accommodation, or of whether it can implement accommodation measures, based on"impressionistic assumptions."[352] It is a clear directive to employers to make all reasonable efforts and afford employees allreasonable opportunities, not to fall back on impressionistic views standing behind unwrittenpolicies brought into practice for unrelated reasons.[353] In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council ofHuman Rights), [1999] 3 S.C.R. 868 (Grismer) the Supreme Court of Canada stated that,“…impressionistic evidence of increased expense will not generally suffice.”2010 CHRT 20 (CanLII)[354] Generally, undue hardship means “disproportionate, improper, inordinate, excessive oroppressive…” (Via Rail)[355] In that her performance appraisals were universally sound, and she had testified to oftenworking long shifts extended due to overtime requirements, this Tribunal accepts that there are noviable health and safety concerns about Ms. Johnstone performing 13 hour shifts.[356] It is telling that despite Dr. Moore-Ede’s numerical extrapolation that would see half of theCBSA employees at PIA seeking family status accommodation, Ms. Raby could not recallanother request between 2002 and the hearing, and Mr. Sheridan could think of only one instance.This testimony as to management’s actual experience with this specific workforce weighs heavilyagainst Dr. Moore-Ede’s theory.[357] Other than Dr. Moore-Ede’s report of 2009, no analysis has been done, no scientific studyundertaken, no consultants brought in to look at accommodation issues, no policies put in placesince either the Brown decision of 1993, or the CHRC direction 10 years later that policies shouldbe developed.[358] This Tribunal finds that CBSA has not established a BFOR defence, nor developed asufficient undue hardship argument to discharge the onus upon it. CBSA did not assess whether it

73could accommodate Ms. Johnstone’s family responsibilities. The Tribunal therefore finds thatCBSA failed to establish that it could not accommodate Ms. Johnstone to the point of unduehardship.[359] This Tribunal confirmed with witnesses called by both the Complainant and theRespondent, as well as Respondent’s counsel, that none of the Draft Policy to Accommodate’sproposals, including the creation of a National Job Accommodation Fund, were ever put intoaction. The Respondent’s position throughout the hearing was that childcare responsibilities underany circumstances do not trigger a duty to accommodate under the family status discriminationgrounds of the Act. The Respondent therefore has no written policies on accommodation underthis provision of the Act, and its unwritten policies are as set out above: CBSA allows anemployee requesting static shifts for childcare responsibility reasons, to have static shifts off theVSSA, but mandates that such employee only work up to 34 hours per week on part-time status.2010 CHRT 20 (CanLII)[360] The importance of setting out the history in Part III of this decision is to allow anunderstanding that over an approximate 25 year period, the CHRT, the CHRC, and mechanismswithin the federal government public service (some internal to the Respondent itself), haverecognized a need to address work-life balance issues that naturally arise for some employeeswho are parents and have childcare obligations that are not compatible with the regularlyscheduled shifts set up by the VSSA or like regimes. Such childcare obligations have beenrecognized elsewhere, as set out, under the family status ground enumerated in the Act.[361] On the whole of the evidence, and by the admission of the Respondent’s witnesses insenior management, there have been no attempts to raise awareness of human rights legislationpertaining to family status among either management or employees, nor manage any perceived oractual resistance among those in the workforce who may not directly benefit fromaccommodation measures at any given time. The evidence of the Respondent’s managementwitnesses showed a very cursory, nominal understanding of human rights legislation and notraining or awareness of the details of the decision in Brown, or the CHRC audit referred toearlier, in their identification of childcare and child rearing as an identifier that warrantsaccommodation under the Act.

74[362] The Respondent has not undertaken any detailed look at bona fide operationalrequirements and options short of undue hardship. The evidence as a whole strongly indicatesthat the Respondent has not taken these steps because it has not recognized the necessity of doingso. In other words, if the Respondent’s position is correct that child-rearing obligations for youngchildren does not fall within the meaning of “family status’ in the Act, there is no reason to doanything. The expert evidence of Dr. Moore-Ede presented through this hearing was the firststudy of any kind undertaken on behalf of the Respondent to justify or explain its position.[363] During the time period spanned by the evidence presented in this hearing, the Respondentcould have easily created written, transparent and fair policies that are uniformly applied anddemonstrate a real commitment to and understanding of human rights legislation under theenumerated ground of “family status”. At the same time, the Respondent could have dealt openlywith unique cases as they arise which the Respondent admits it has not done, within alreadyexisting mechanisms. It is admitted by the Respondent’s management witnesses, that thesemechanisms instead are reserved for those seeking medical and religious accommodations only,with random exceptions.2010 CHRT 20 (CanLII)[364] Having found that Ms. Johnstone’s complaint is substantiated and that she has beendiscriminated against on the grounds of “family status”, it is important that she benefit from anindividualized assessment of her accommodation needs.VIII.DECISION[365] For the reasons that follow, this Tribunal finds that Ms. Johnstone’s complaint issubstantiated:a) Ms. Johnstone has made out a prima facie case of adverse differentiation againstCBSA within the meaning of section 7 of the Act, on the basis of family status;

75b) Ms. Johnstone has demonstrated, on a prima facie basis, that the CBSA establishedand pursued policies and practices that deprived or tended to deprive theComplainant and any similar class of individuals of employment opportunities, onthe ground of family status, within the meaning of Section 10 of the Act;c) CBSA has failed to establish a bona fide occupational requirement, present areasonable explanation for, or otherwise justify the case of prima faciediscrimination against it.2010 CHRT 20 (CanLII)IX.REMEDYA. Systemic Remedy[366] This Tribunal orders the Respondent to cease its discriminatory practices againstemployees who seek accommodation based on family status for purposes of childcareresponsibilities, and to consult with the Canadian Human Rights Commission, in accordance withthe provisions of Section 53 (2) (a) of the Act, to develop a plan to prevent further incidents ofdiscrimination based on family status in the future.[367] In order that Ms. Johnstone and other employees in her like situation not be deprived offuture employment opportunities, wages and benefits, this Tribunal further orders that CBSAestablish written policies satisfactory to Ms. Johnstone and the CHRC to address family statusaccommodation requests within 6 months, and that these policies include a process forindividualized assessments of those making such requests.[368] Ms. Johnstone seeks reimbursement for all lost wages and benefits, including overtimethat she would have received and pension contributions that would have been made on a full-timebasis but for the fact that she was a part-time employee. She also seeks an Order directing that shebe entitled to effect pension contributions as a full-time employee subsequent to August 2007.

76[369] Ms. Johnstone commenced part-time employment on January 4, 2004. Thereafter, otherthan her time on her second maternity leave from December 24, 2004 through toDecember 26, 2005, she worked part-time hours. During the time she worked part-time hours, theevidence is that her wages and benefits were all pro-rated. Her wages and benefits were alsopro-rated at the part-time rate while she was on maternity leave.[370] Between August 14, 2007 through to August 2008, Ms. Johnstone was on Leave WithoutPay for Spousal Relocation due to her husband being transferred to Ottawa. This ended inAugust 2008. During this Leave, Ms. Johnstone has been entitled to make pension contributionsat a pro-rated rate of 20 hours per week.2010 CHRT 20 (CanLII)[371] Since August 2008, Ms. Johnstone she has been on Care and Nurturing Leave (unpaid) asallowed under the Collective Agreement.[372] Ms. Johnstone was clear in her evidence that she made choices regarding the number ofhours she would work because of CBSA’s refusal to allow her to work full-time hours withconsequent loss of full-time wages, benefits and opportunities. Her statement that she “wouldhave made it work” had she been granted full-time shifts after the birth of her second child, wasuncontroverted.[373] Ms. Johnstone further testified (see para. 106 above) that she would have continued towork full-time despite her husband’s relocation.[374] At the hearing counsel for the parties seemed confident that they could reach agreementon the quantum to which Ms. Johnstone would be entitled should this Tribunal order that shereceive compensation under this heading.[375] Accordingly, this Tribunal orders that Ms. Johnstone be compensated for her lost wagesand benefits, including overtime that she would have received and pension contributions thatwould have been made had she been able to work on a full-time basis from January 4, 2004 to thepresent. This Order includes a direction that Ms. Johnstone be entitled to effect pension

77contributions as a full-time employee during this relevant period. Ms. Johnstone is not entitled tolost wages due to attendance at this hearing.B. General Damages for Pain and Suffering[376] It was evident in Ms. Johnstone’s testimony that she suffered injury to her person, herpersonal and professional confidence, and her professional reputation resulting from thediscrimination that gave rise to this complaint.[377] Ms. Johnstone testified that she was embarrassed by reference to her as the “human rights”case, and that she was upset by the arbitrary way in which she was dealt with despite her bestefforts to try to find a way to create a workable balance between a job that she stated she trulyenjoyed and her young children.2010 CHRT 20 (CanLII)[378] I award Ms Johnstone $15,000.00 under this heading pursuant to Section 53 (2) (e) of theAct.C. Special Compensation[379] Section 53 (3) of the Act provides for awards of "Special Compensation" for willful andreckless conduct, to a maximum of $20,000.00. Although heard before the 1998 Act amendmentswhen the quantum allowed for damages under the headings of pain and suffering and specialcompensation were lower, this Tribunal is still guided by the reasonableness of Martin thatfollowed the reasoning in Premakumar v. Air Canada, T.D. 03/02 and Canada (Attorney General)v. Morgan, [1991] 2 F.C. 401 (F.C.A.), that the maximum award should be reserved for the veryworst cases.[380] This Tribunal finds that CBSA, by ignoring so many efforts both externally and internallyto bring about change with respect to its family status policies of accommodation has deliberatelydenied protection to those in need of it.

78[381] CBSA, and its organizational predecessor’s lack of effort and lack of concern takes manyforms over many years including: disregard for the Brown decision after writing a letter ofapology; developing a model policy and then burying it (some management knew of it, some didnot); pursuing arbitrary policies that are unwritten and not universally followed; lack of humanrights awareness training even at the senior management level; the proffering of a floodgatesargument 5 years after the complaint with the Respondent giving insufficient time and data to itsown expert to enable him to provide a helpful expert opinion; and no attempt to inquire ofMs. Johnstone as to her particular circumstances or inform her of options to meet her needs.[382] Given all the circumstances of this case, this Tribunal awards Ms. Johnstone $20,000.00under this heading. CBSA’s conduct has been willful and reckless, showing a disregard forMs. Johnstone’s situation and denying that a duty to accommodate exists on grounds of familystatus arising for childcare responsibilities such as hers.2010 CHRT 20 (CanLII)D. Interest[383] Pursuant to Section 53(4) of the Act, this Tribunal orders that compound interest at theCanada Savings Bond rate be paid on any and all amounts awarded pursuant to this decisionunder the headings of General Damages for Pain and Suffering pursuant to Section 53(2)(e) of theAct, and Special Compensation pursuant to Section 53(3) of the Act.E. Solicitor Client Costs[384] Ms. Johnstone was represented by senior legal counsel, experienced in matters of humanrights law and the organizational structures of the federal public service. Ms. Johnstone’scounsel’s expertise allowed her to present a thorough Complainant’s case before the Tribunal andwas an integral part of her ultimate success. Due to the conflicting nature of past court decisionsand adjudications on the enumerated ground of family status in the Act, and the unique andcomplex nature of CBSA operations, it would have been difficult for an unrepresented person topresent this case.

79[385] However, by a decision rendered October 26, 2009, the Federal Court of Appeal has foundthat the CHRT cannot compensate victims of discrimination for legal costs under Section 53(2)(c) of the Act. [Canada (A.G.) v. Mowat 2009 FCA 309]. The Federal Court of Appeal foundthat Section 53 does not convey express statutory jurisdiction to award compensation under thisheading.[386] At paragraphs 101 and 102 of the decision, Justice Layden-Stevenson, with theconcurrence of Justices Letourneau and Sexton found as follows:a) “[101] These are issues that require the consideration of Parliament, for example,the desirability of empowering the Tribunal to award costs and, if desirable, themanner and the limits in which it should be accomplished. The role of Commissioncounsel may be a factor for contemplation as its role in the adjudicative processhas changed significantly over the years. For many years, Commission counselappeared at most Tribunal hearings, but that practice appears to have changed. Theformer procedure may have impacted Parliament’s decision regarding thepropriety of costs awards in human rights proceedings. Counsel advised that in2003 the Commission revisited its interpretation of its role under section 51 of theAct. Finally, if authority to award costs is to be granted to the Tribunal, the natureof the costs regime must be determined. There are a number of potentialpermutations.2010 CHRT 20 (CanLII)b) [102] The ultimate decision and the policy choices inherent in making it are forParliament, not the Tribunal or the court.”[387] Accordingly, there is no award to the Complainant under this heading.

80F. Retention of Jurisdiction[388] This Tribunal will retain jurisdiction for six months after the filing of this Decision, in theevent that the parties are unable to reach agreement on quantum under this heading or cannotagree with respect to the implementation of any of the remedies awarded. Should an extension ofthis time be required, submissions may be made as to the necessity for an extension.“Signed by”Kerry-Lynne D. Findlay, Q.C.2010 CHRT 20 (CanLII)OTTAWA (Ontario)August 6, 2010

CANADIAN HUMAN RIGHTS TRIBUNALPARTIES OF RECORDTRIBUNAL FILE: T1233/4507STYLE OF CAUSE:DATE AND PLACE OF HEARING: May 25 to 28, 2010June 22 to 26, 2010June 29 and 30, 2010July 2 and 3, 2010Fiona Ann Johnstone v. Canada Border Services2010 CHRT 20 (CanLII)Ottawa, OntarioJuly 22 and 23, 2010 (Videoconference)Ottawa-VancouverDECISION OF THE TRIBUNAL DATED: August 6, 2010APPEARANCES:Andew Raven / Lisa AddarioFor the ComplainantIkram Warsame / Sulini SarugaserFor the Canadian Human Rights CommissionChristine MohrJoseph K. ChengSusan KeenanFor the Respondent

Indexed as: Jones v. C.H.E. Pharmacy Inc. et al., 2001 BCHRT 1IN THE MATTER OF THE HUMAN RIGHTS CODER.S.B.C. 1996, c. 210 (as amended)AND IN THE MATTER of a complaint beforethe British Columbia Human Rights TribunalB E T W E E N:A N D:Raymond F. JonesCOMPLAINANTCornelius Harold Eisler, Don Evan Hardy and C.H.E. Pharmacy Inc.doing business as Shoppers Drug MartRESPONDENTSREASONS FOR DECISIONTribunal Member:Counsel for the Complainant:Counsel for the Respondents:Place and Date of Hearing:Tom W. PatchMarlene K. TyshynskiTrudi L. Brown, Q.C.Victoria, British ColumbiaSeptember 11-13, 2000

INTRODUCTION[1] Raymond Jones is one of Jehovah’s Witnesses and, in accordance with his faith, does notparticipate in the celebration of Christmas. In November 1998 he was employed at a ShoppersDrug Mart store in Victoria. His supervisor, Don Hardy, requested that he put out somepoinsettias. Mr. Jones refused to do so. Mr. Jones and Mr. Hardy subsequently met with HaroldEisler, the store’s owner, to discuss the matter. As a result of that meeting, Mr. Jones ceased tobe employed at Shoppers Drug Mart.[2] Mr. Jones filed a complaint with the B.C. Human Rights Commission in which he allegesthat Harold Eisler, Don Hardy and C.H.E. Pharmacy Inc. (“C.H.E.”) doing business as ShoppersDrug Mart discriminated against him regarding a term or condition of employment and refusedto continue to employ him because of his religion, contrary to s. 13 of the Human Rights Code,R.S.B.C. 1996, c. 210 (as amended) [the “Code”]. The Respondents deny that theydiscriminated against him because of his religion or that they refused to continue to employ him.They say that the issue is one of an employee demonstrating disrespect for his superiors in anemployment setting. They further submit that Mr. Jones was not dismissed, but that he quit.FACTS[3] Mr. Jones commenced employment as a merchandiser at the downtown VictoriaShoppers Drug Mart location in 1982. As a merchandiser, his principle responsibility was to putincoming stock onto shelves in his assigned sections of the store. He also had a number of otherresponsibilities including receiving merchandise at the receiving door, assisting customers tolocate a product, cleaning up aisles, recycling pop bottles, and assisting cashiers by running forchange and doing price checks. Mr. Jones testified that the job of merchandising is to displayitems with the goal of encouraging people to buy them.[4] C.H.E. purchased the downtown Victoria Shoppers Drug Mart franchise in February1988. Mr. Eisler and his wife own C.H.E. Mr. Eisler is president. In 1994 or 1995, Mr. Hardywas hired as merchandising manager.1

[5] Mr. Jones was raised as a Jehovah’s Witness. He was baptised as one of Jehovah’sWitnesses in 1963. He described his faith as the most important thing in his life. He serves as anelder in his congregation and attends three meetings per week. His wife is a Jehovah’s Witness.He associates primarily with Jehovah’s Witnesses and they are his closest friends.[6] Stephen Mills was until recently the Presiding Overseer of the Jehovah’s Witnesscongregation of which Mr. Jones is a member. The Presiding Overseer is like the chairman ofthe elders. He has known Mr. Jones for over thirteen years. He confirmed that Mr. Jones isactive as an elder in the congregation.[7] The Jehovah’s Witnesses do not celebrate Christmas or a number of other eventsincluding Easter, Halloween, New Year’s Eve, national days and birthdays. Mr. Mills testifiedthat they celebrate only the memorial of Christ’s death. They do not celebrate Christmas becausethere is no biblical basis for it: it is pagan or non-Christian in origin; Jesus did not command aChristmas celebration; and the exact date of Christ’s birth is unknown – it was probably in earlyfall. Jehovah’s Witnesses do not decorate their homes at Christmas or participate in otheractivities related to the celebration of Christmas. However, they do not object to otherscelebrating Christmas, nor do they try to hinder them.[8] If one of Jehovah’s Witnesses celebrated Christmas, the congregation would beconcerned because it might indicate that the individual no longer wanted to share the beliefs ofthe Jehovah’s Witnesses. The elders would discuss the matter with the individual. If the eldersconcluded that the individual no longer shared the beliefs of the organization, it would be aserious concern, which could lead to “disfellowship” or excommunication.[9] Mr. Jones testified that in 1982, and for many years after that, the store would bedecorated for Christmas after hours in a decorating party. Mr. Jones did not participate in thedecorating, nor did he attend the staff Christmas party or participate in the staff gift exchange.[10] When he first met Mr. Jones after taking over the store in 1988, Mr. Eisler was not awareof Mr. Jones’ religion. He testified that he first learned of it in approximately August orSeptember 1988 when Mr. Jones told him about it. After he learned Mr. Jones was one ofJehovah’s Witnesses, he did not give it much thought. However, he accommodated Mr. Jones’2

eligious requirements by scheduling Mr. Jones’ shifts so that he could attend meetings andspend time with his family. He also accommodated Mr. Jones’ request for time off each year toattend a convention of Jehovah’s Witnesses.[11] Mr. Eisler testified that he first learned that Mr. Jones had concerns about Christmasmerchandise in about 1992 or 1993 when Keith Olsen, then the merchandising manager, told himthat Mr. Jones was not going to handle Christmas merchandise. When Mr. Eisler spoke to Mr.Jones, Mr. Jones informed him about his religious views on Christmas and his discomfort inhandling Christmas merchandise. After some discussion, Mr. Jones agreed that he would handleseasonal merchandise. Mr. Jones testified that the conversation took place in about 1994. Hetestified that he told Mr. Eisler that he would prefer not to stock Christmas merchandise,nevertheless he would not object to doing so when asked. He viewed stocking as part of hismerchandising duties. However, he drew the line at decorating because it was contrary to hisChristian conscience.[12] Mr. Eisler testified that, to get the maximum impact of seasonal marketing, it wasimportant to get the store ready for the season overnight. He called this a “merchandising blitz”.For Christmas it generally occurred around the November 11 statutory holiday. He asked forvolunteers. Mr. Jones and Wilf Hall, who was also a Jehovah’s Witness, were not required toattend. It was done after hours with food and refreshments brought in. Mr. Eisler testified thatMr. Jones attended the event at least twice. Mr. Hardy testified that Mr. Jones was present at theevent in 1997. The staff worked all night merchandising Christmas sundries, Christmaschocolates and all Christmas products to have them ready for the next day. Mr. Jones asked forother merchandise because the Christmas merchandise violated his Christian conscience. Mr.Hardy testified that he did not know specifically what Mr. Jones objected to or was prepared todo; however, he did not ask for clarification. Mr. Hardy testified that Mr. Jones had never beenasked to decorate prior to 1998.[13] On one occasion, the decorating party or merchandising blitz followed a staff meeting.Mr. Jones and Mr. Hall wrote a letter saying that they would leave after the staff meetingbecause they could not participate in the decorating.3

[14] Mr. Mills testified that it would be unusual for a Jehovah’s Witness to decorate aworkplace. He noted that there is a distinction between decorating the workplace and stockingmerchandise. Decorating is a part of the festivities and could be considered an aspect of thecelebration. He testified that the Jehovah’s Witnesses do not have any regulations abouthandling Christmas merchandise; rather, it is a matter of personal conscience. One person’sconscience may differ from another’s. In making a decision about handling such merchandise, itis important for Jehovah’s Witnesses to live by their conscience, to consider the effect of theiraction on other Jehovah’s Witnesses who might observe it, and to be mindful of their relationshipto God. If a merchandiser were to feel guilt because the stocking of Christmas merchandise iscontrary to their “Bible-trained conscience”, then it would be wrong to stock such merchandise.[15] In 1996, the store changed the way it did business. Rather than purchasing its stock froma variety of distributors, it began to purchase it from a single distribution centre. This changenecessitated changes in the shift structure for merchandisers. The staff were not happy about thechange. Mr. Eisler agreed that he would let the merchandisers come up with a different scheduleif they all agreed. Mr. Jones proposed a different shift schedule (Exhibit 4), which Mr. Eisleragreed to implement.[16] In September 1998, Mr. Eisler proposed changes to Mr. Jones’ position. A person fromShoppers Drug Mart corporate headquarters had advised Mr. Eisler that he should have a frontendcustomer service group. Mr. Jones was very good at customer relations. Mr. Eislertherefore proposed that he become a cashier supervisor instead of a merchandiser. Mr. Jonesobjected. He wrote a letter to Mr. Eisler and Mr. Hardy explaining why he should continue as amerchandiser (Exhibit 5). Mr. Eisler discussed the letter with Mr. Jones. At some point duringthe discussion or in a subsequent letter, Mr. Jones indicated that if he were required to accept thecashier position he would take legal action.[17] Eventually Mr. Jones and Mr. Eisler agreed that Mr. Jones would be a customer servicerepresentative. He would greet and assist customers. He began those duties on October 1, 1998.Mr. Jones wanted to keep his hand in merchandising. Although Mr. Eisler did not want Mr.Jones to merchandise, Mr. Hardy permitted him to do so when there were few customers.4

[18] In the last couple of years, the decorations and Christmas merchandise were put outduring the day. According to Mr. Eisler, it ceased to be voluntary – everybody was expected to“pitch in”. On November 9 or 10, 1998, Mr. Hardy asked Mr. Jones to hang a garland. Mr.Jones asked another merchandiser to do it, but he was too busy. Mr. Jones therefore hung thegarland. He testified that he subsequently felt sick that he had decorated because he feltpressured, fearful of losing his job. He testified that he could not believe he had done it becausehe had been a Jehovah’s Witness for so long.[19] On November 12, 1998, Mr. Hardy asked Mr. Jones to hang a cardboard Santa Clausdecoration. Mr. Jones refused. He explained that it was contrary to his religion. Mr. Hardy didit himself.[20] On November 17, Mr. Hardy asked Mr. Jones to put out a half dozen artificialpoinsettias. Mr. Jones refused to do so and said, “Don, don’t go there.” Mr. Hardy put thepoinsettias out himself. Subsequently Mr. Jones told Mr. Hardy that he could not display thepoinsettias because of his Christian conscience. Mr. Hardy told Mr. Eisler that Mr. Jones hadrefused to put out the poinsettias. Later that afternoon, Mr. Eisler asked Mr. Hardy to bring Mr.Jones into his office.[21] There is some dispute about what occurred during the meeting. There is no dispute thatMr. Jones and Mr. Eisler discussed Mr. Jones’ refusal to put out the poinsettias. Mr. Jonesexplained that he could not put them out because of his religious belief about Christmasdecorations. Mr. Eisler insisted that Mr. Jones comply with Mr. Hardy’s directions. The partiesdo not agree on whether Mr. Jones quit or was fired. I will address that issue later in thesereasons. There is no dispute that Mr. Jones left and cleaned out his locker. Mr. Hardy saw himat the locker and said, “What the hell are you doing? This isn’t a good decision. You have afamily to support.” That was his last day of work at C.H.E.[22] Mr. Jones telephoned Mr. Eisler on November 19. He taped the conversation (Exhibit 3).Mr. Jones informed Mr. Eisler that he had contravened the Code and referred to the duty toaccommodate. The conversation reflects the disagreement over whether Mr. Jones quit or wasfired. However, it is clear that, at the conclusion of the call, Mr. Eisler was not prepared giveMr. Jones “preferential treatment” because of his religion, nor was he willing to reinstate Mr.5

Jones. Later that day Mr. Jones telephoned Mr. Hardy to request that he speak to Mr. Eisler onhis behalf (Exhibit 7). Mr. Hardy refused to do so. He told Mr. Jones that he agreed with Mr.Eisler’s statement that religious beliefs should not be in the workplace.ISSUES[23] The issues I must determine are:1. Did the Respondents discriminate against Mr. Jones with respect to a term orcondition of employment because of his religion?2. Did the Respondents refuse to continue to employ Mr. Jones because of his religion?3. If the answer to either of these questions is yes, what remedy is appropriate?ANALYSISDid the Respondents discriminate against Mr. Jones with respect to a term or condition ofemployment because of his religion?[24] The Complainant must establish on a balance of probabilities that the Respondentsdiscriminated against him because of his religion. The discrimination may be direct or indirect,and it need not be the only reason for the conduct in question. If the Complainant is able toestablish a prima facie case, the evidentiary burden shifts to the Respondents to lead credibleevidence that its conduct was not discriminatory or to establish a defence to the claim.[25] There is no dispute that the Complainant was an active member of the Jehovah’sWitnesses. Nor is there any dispute that a tenet of that faith is that Jehovah’s Witnesses do notcelebrate Christmas. Mr. Jones testified that he informed Mr. Eisler that he would not object tostocking Christmas merchandise; however, he drew the line at decorating the store because itwas against his Bible-trained conscience. Mr. Hardy confirmed that, prior to 1998, Mr. Joneshad not decorated the store.[26] The requirements of the faith as they relate to handling Christmas merchandise in theworkplace appear to be a grey area. Mr. Mills stated that there are no regulations; rather it is amatter of individual conscience. Engaging in conduct that is contrary to a Jehovah’s Witness’6

Bible-trained conscience would be inconsistent with the faith. I accept that Mr. Jones believedas a matter of personal conscience that decorating the store was contrary to his religious beliefsand that, as one of Jehovah’s Witnesses, it was wrong for him engage in conduct that wasinconsistent with his Bible-trained conscience.[27] There is no dispute that Mr. Hardy asked Mr. Jones to display some artificial poinsettiasor that, when he refused, Mr. Eisler informed Mr. Jones that he was required to follow Mr.Hardy’s direction. The Respondents submit, however, that this is not a case of an employerrequiring an employee to engage in conduct that was inconsistent with his religious belief; ratherit is a case of insubordination. The Respondents submit that Mr. Jones had made it clear that hewould merchandise and stock seasonal merchandise. They say that the poinsettias were for saleand were, therefore, such merchandise.[28] There was evidence that the poinsettias were for sale. They were assigned a “price lookup code” which enabled cashiers to enter a price for them at the cash register. Debbie Carvalho,who had worked as head cashier when Mr. Jones was at C.H.E., stated that many poinsettiaswere sold each year. She said that they were stock that was put out with the other seasonal stockeach year. I accept that the poinsettias were stock and were for sale. That does not mean,however, that they were the same as other seasonal merchandise or that they were not decoration.[29] Mr. Jones, Mr. Hall and Kelly Bennett, another merchandiser at C.H.E., understood thatthe poinsettias were decoration and were unaware that they were for sale. Ms. Carvalho testifiedthat, when they started “decorating”, they just put up some paper; then they put up lights, thensnowflakes, poinsettias and Santa Claus. The store had displayed poinsettias for a number ofyears. Mr. Eisler testified that he started using poinsettias after he spoke to the person who rananother store in Victoria, who suggested poinsettias because they create ambience and incentiveto buy. Mr. Hardy testified that, although Christmas merchandise was advertised in a flyer,poinsettias were not included. Moreover, in his conversation with Mr. Jones on November 19,1998, he referred to the poinsettias as “those decorations” (Exhibit 7).[30] I find that, although the poinsettias were for sale, their primary purpose was to serve asdecoration and the staff viewed them as such. The store stocked a variety of seasonalmerchandise, which Mr. Jones handled as part of his job. That merchandise, such as chocolates,7

may have been in Christmas packaging; however, it was displayed to be sold, not to bedecorative. Mr. Jones had previously agreed to handle seasonal merchandise, but for religiousreasons drew the line at decorating. He had made it clear to both Mr. Eisler and Mr. Hardy thathe would not decorate the store for Christmas and, prior to 1998, he had not done so. There is noevidence that he had put out poinsettias in previous years. In my opinion, Mr. Hardy and Mr.Eisler were aware that, in asking Mr. Jones to put out Christmas decorations, they were askinghim to do something that he believed was contrary to his faith. While not specifically prohibited,decorating for Christmas was contrary to Mr. Jones’ Bible-trained conscience, and, as such,contrary to his faith.[31] The Respondents submitted that the purpose of decorating a store is not to celebrateChristmas, it is to enhance marketing. I accept that Mr. Eisler’s purpose in decorating the storewas to market Christmas, not to celebrate it. However, Mr. Eisler’s intention is not relevant to adetermination of whether Mr. Jones was discriminated against. Mr. Jones considered decoratingthe store to be contrary to his faith (as did Mr. Hall), and his refusal to participate in decoratingwas consistent with the tenets of his religion.[32] In my opinion, Mr. Jones has established a prima facie case that C.H.E. and Mr. Eislerdiscriminated against him on the basis of his religion. It was not inappropriate for Mr. Hardy toask Mr. Jones to put out poinsettias; Mr. Hardy may not have known that Mr. Jones consideredthem to be decorative. However, when Mr. Jones refused for bona fide religious reasons, Mr.Eisler insisted that he comply with Mr. Hardy’s directions. There is no evidence that Mr. Eislercould not have accommodated Mr. Jones’ religious belief without undue hardship. Mr. Hardytestified that it took him about 10 seconds to put out the poinsettias. I find that the RespondentsC.H.E. and Mr. Eisler discriminated against Mr. Jones with respect to a term or condition ofemployment because of his religion. Mr. Hardy’s role in the discrimination was limited toasking Mr. Jones to put out the poinsettias. When Mr. Jones refused, Mr. Hardy put them outhimself and informed Mr. Eisler of the decision. It was Mr. Eisler who required Mr. Jones tocomply with Mr. Hardy’s directions. In these circumstances, I find that Mr. Hardy did notdiscriminate against Mr. Jones on the basis of his religion.8

Did the Respondents refuse to continue to employ Mr. Jones because of his religion?[33] Mr. Jones submitted that, in the meeting with Mr. Eisler on November 17, Mr. Eisler toldhim that he had the option of putting out the poinsettias or facing dismissal. He submitted therewas, therefore, no possibility of continuing his employment with C.H.E. The Respondents saythat Mr. Eisler and Mr. Hardy expected further discussion and were shocked when Mr. Joneswalked out. They submit that he quit.[34] Mr. Jones testified that, when he spoke to Mr. Hardy on November 17, he explained thathe could not decorate. Mr. Hardy asked him to view the poinsettias as merchandise. Mr. Jonestold him that he could not do so because they were being used as decoration. He discussed theconcept of reasonable accommodation. Later, in the meeting in Mr. Eisler’s office, he explainedit again. Mr. Eisler said that they were not asking him to do anything illegal. Mr. Jones said,“The decision is yours.” He told Mr. Eisler that he was not quitting. He testified that Mr. Eislerthen gave him an ultimatum: do what Mr. Hardy wanted or face dismissal. Mr. Eisler then toldhim to clean out his locker and turn in his uniform. Mr. Jones cleaned out his locker and left. Hetestified that he did not quit. He was faced with an ultimatum and no reasonable alternative.[35] Mr. Eisler testified that when Mr. Jones came to his office he told Mr. Jones that hedidn’t understand where he was coming from. He had done the same job for 16 years and theonly thing that had changed was his definition of merchandising. Mr. Jones said, “I draw the lineat decorating”. Mr. Eisler said that they were not asking him to do anything that he hadn’t donebefore. He said that he pleaded with Mr. Jones to consider the impact on him, his family and hisjob. Mr. Eisler said that the issue was insubordination and disrespect to Mr. Hardy. He askedMr. Jones to consider and reconsider. Mr. Jones kept saying, “It’s your decision” and Mr. Eislerkept responding, “No, it’s yours”. He told Mr. Jones that he could keep his job but he had toobey the lawful and direct rules of his supervisor and perform his job as he had in the past. Hetestified that they arrived at a stalemate. He was not going to fire Mr. Jones. However, Mr.Jones got up, mumbled something, went to the staff room, cleaned out his locker and left. Hetestified that, if he had had an opportunity to discuss the situation rationally with Mr. Jones, theymight have worked it out; however, Mr. Jones didn’t give him a chance. In cross-examination,Mr. Eisler said that he thought Mr. Jones had said he would not violate his Bible-trained9

conscience. Nevertheless, he expected Mr. Jones to do what Mr. Hardy asked, and he felt thatMr. Jones had done it before. He agreed that, in order for Mr. Jones to keep his job, he had toobey Mr. Hardy and put out the poinsettias. At the time of the meeting, Mr. Eisler did not knowthat Mr. Hardy had already put the poinsettias out.[36] Mr. Hardy testified that, when Mr. Jones met with Mr. Eisler, Mr. Eisler asked Mr. Jonesto do anything that wouldn’t cause undue hardship and to follow Mr. Hardy’s direction. Mr.Jones said that his Christian conscience wouldn’t allow him to put out decorations. Mr. Hardytestified that Mr. Jones was not fired; he got up and left. He said that Mr. Eisler did not tell Mr.Jones to clean out his locker and leave.[37] The Respondents submitted that Mr. Jones’ history with C.H.E. demonstrates escalatingjob dissatisfaction and an increasing pattern of insubordination, leading to his refusal to put outthe poinsettias and, ultimately, his resignation. In my opinion, the evidence does not support thatcontention. There is no evidence of any job dissatisfaction prior to April 1997, at which timeMr. Jones and other merchandisers accepted Mr. Eisler’s offer to come up with a schedule theycould agree on. Mr. Jones’ letter of April 9, 1997, closes with, “Thanks for considering theseviews and suggestions, as you have done in the past.” Mr. Eisler implemented their suggestions.There is no evidence of any further issues until September 1998, when Mr. Eisler proposedchanging Mr. Jones’ position. Clearly, Mr. Jones was very unhappy with the proposed change.He threatened to sue for wrongful dismissal. After some discussion, he agreed to accept adifferent position than the one proposed. He started it on October 1. There is no evidence thatMr. Jones was dissatisfied with his job between then and the events in November. In hisconversation with Mr. Jones on November 19, Mr. Hardy said he thought “the customer serviceposition was going just fine.” The only evidence of insubordination, other than in November,was Mr. Hardy’s evidence that Mr. Jones sometimes asked him to assign work to youngeremployees. Mr. Jones was not asked about this evidence, and I give it little weight.[38] I accept that Mr. Eisler did not tell Mr. Jones that he was fired. However, on Mr. Eisler’sown evidence, in order to keep his job, Mr. Jones would have to obey Mr. Hardy and put outdecorations. Mr. Eisler gave Mr. Jones an ultimatum, the effect of which was to require him tochoose between his job and his faith. Although Mr. Eisler testified that he was ready to discuss it10

further, there is nothing to suggest that he was open to changing his mind. When Mr. Jonescalled him two days later, Mr. Eisler was unwilling to give Mr. Jones his job back. Mr. Eislertold Mr. Jones that he “should be able to ask any employee to do anything whatsoever withoutconsideration for their religious point of view” and that he had a “religion-neutral policy”.[39] The Supreme Court of Canada has held that, if a neutral job requirement has an adverseeffect on an employee because of his or her religion, the employer must take reasonable steps toaccommodate the employee. The employer is not required to accommodate the employee if todo so would cause undue hardship: see, for example, Central Okanagan School District No. 23 v.Renaud, [1992] 2 S.C.R. 970. The Respondents knew that Mr. Jones’ religious beliefs preventedhim from decorating the store. Rather than attempting to accommodate those beliefs, Mr. Eislergave him an ultimatum. There is no evidence that accommodating Mr. Jones’ religious beliefswould have been an undue hardship. On the contrary, his beliefs had been accommodatedthroughout his employment at C.H.E. – prior to 1998, he was not required to decorate.[40] The Respondents submit that Mr. Jones had a duty to give the Respondents anopportunity to accommodate him. They submit that his call to Mr. Eisler two days later wasinsufficient because it “was water under the bridge”.[41] In Renaud, the Court stated that the search for accommodation is a shared responsibility.The complainant has a duty to facilitate the search for an accommodation. The complainant isresponsible for bringing the facts relating to discrimination to the employer’s attention. Thecomplainant is not responsible for initiating a solution. If an employer initiates a proposedaccommodation that is reasonable, and which would, if implemented, fulfil the duty toaccommodate, and the complainant causes the proposal to founder by failing to take reasonablesteps, then the complaint will be dismissed.[42] Mr. Jones informed Mr. Eisler that putting out Christmas decorations was contrary to hisreligion. In this case the only proposal advanced by Mr. Eisler was described by Mr. Eisler inhis telephone call to Mr. Jones on November 19. He said, “I gave you the choice ofmerchandising anything and everything that I had asked anybody and everybody else to do andyou exercised your option.” In these circumstances, Mr. Jones did not fail to meet his duty to11

share in the search for a reasonable solution. It was clear that Mr. Eisler had no interest inpursuing a reasonable accommodation of his religious beliefs.[43] This is an unfortunate case. Mr. Jones had worked for the store for many years. He andMr. Eisler had always managed to work out any problems. Mr. Jones was a valued employee.On this occasion, both dug in their heels and a stalemate developed. The poinsettias were put outby Mr. Hardy and there is no indication that there were other decorations waiting to be displayed.It may be that, had Mr. Jones continued to work, cooler heads might have prevailed and areasonable solution found. There is no indication of that, however, in their conversation twodays later.[44] Mr. Eisler’s ultimatum left Mr. Jones with no way out. He could not continue to workwithout abandoning his religious principles. In my opinion, the ultimatum constituted aconstructive dismissal. I find that Mr. Eisler and C.H.E. refused to continue to employ Mr. Jonesbecause of his religion. Although Mr. Hardy may have precipitated the meeting that led to thetermination of Mr. Jones’ employment, there is no evidence that he was in any way responsiblefor the ultimatum that led to Mr. Jones’ constructive dismissal. I conclude that he did not refuseto continue Mr. Jones’ employment because of his religion.[45] In conclusion, I find that Mr. Jones’ complaint against Mr. Eisler and C.H.E. is justifiedin that they discriminated against him with respect to a term or condition of employment andrefused to continue to employ him because of his religion, contrary to s. 13 of the Code. I findthat Mr. Jones’ complaint against Mr. Hardy is not justified; it is therefore dismissed under s.37(1) of the Code.REMEDYLoss of Income[46] The Complainant seeks damages in the amount of $22,539.56 with interest for lost wagesfrom the date of his termination to the date of the hearing, and compensation in the amount of$26,313.60 for future loss of income until his expected retirement in 2007. In addition, he seekscompensation for loss of vacation pay, with interest.12

[47] Section 37(2)(d)(ii) of the Code provides that a Tribunal member may award all or a partof the income lost as a result of the contravention. In general, under human rights legislation aninjured party is entitled to be put in the position he or she would have been in had thediscrimination not occurred, subject to the injured party’s obligation to take reasonable steps tomitigate the loss: Vanton v. British Columbia (Council of Human Rights) (1994), 21 C.H.R.R.D/492 (B.C.S.C.) at D/500.[48] Mr. Jones’ last day of employment with C.H.E. was November 18, 1998. According tohis job search record he made over 75 contacts with potential employers between that date andApril 29, 1999 (Exhibit 2, tab 9). He had a number of interviews but was unsuccessful in findingpermanent employment during that time. However, he was able to earn some income from parttimework. In June 1999, he commenced full-time employment at Menzies Metal Products(“Menzies”) earning $10/hr., which was less than the $14.72/hr. he had been earning at C.H.E.Mr. Jones’ total employment income from November 18, 1998 to December 31, 1999 was$18,340.24. His estimated income with C.H.E. for that period, based on his income for 1998, is$37,809. Therefore his loss of employment income for that period was $19,468.76.[49] The Respondents submit that employment insurance income ($5,202) received by Mr.Jones in 1998 should be included as income. They did not provide any authority to support thatposition. The Tribunal has held that unemployment insurance benefits should not be deductedfrom an award for damages for lost wages: see, for example, Hill v. Dan Barclay EnterprisesLtd. (27 October 1999) (B.C.H.R.T.) at para. 95; Lengert v. Samuel et al. (26 August 1999)(B.C.H.R.T.) at para. 99. Mr. Jones’ lost income was caused by the Respondents. The effect ofincluding the employment insurance paid to Mr. Jones as income would be to reduce the amountof compensation required of the Respondents. In effect, the employment insurance fund wouldbe paying for a wrong caused by the Respondents. Mr. Jones should not receive doublerecovery; however, the appropriate remedy is for the Respondents to compensate Mr. Jones forhis lost income and for Mr. Jones to repay his insurance benefits.[50] Calculation of Mr. Jones’ lost income from January 1, 2000 to the date of the hearing ismore complicated as he did not provide a statement of earnings for the period. According to hispay stubs, his salary was increased to $12/hr. during the last pay period of 1999 or the first of13

2000. Mr. Jones therefore calculates the difference in his basic pay for this period as $3,916.80,to which he adds the C.H.E. RRSP contributions of $450. However, at Menzies most weeks heis able to work about 4 hours of overtime at $18/hr. (or $2,592 over 36 weeks), which must besubtracted from his lost income. Therefore his estimated lost income from January 1, 2000 to thedate of the hearing was $1,774.80.[51] Mr. Jones’ total loss of earnings from November 18, 1998 to the commencement of thehearing was $21,243.56. I am satisfied that he took reasonable steps to mitigate that loss. Heengaged in an extensive job search and part-time employment until he accepted a position atMenzies that paid less than his previous job. His decision to take a lower-paid position wasreasonable in the circumstances: he is in his mid-fifties with a grade 12 education with littleexperience other than merchandising. In my opinion, he is entitled to compensation for the fullamount of that loss with interest.[52] Mr. Jones’ claim for projected loss of earnings is based on the difference between hiscurrent pay at Menzies and his pay at C.H.E., projected over approximately six years.Calculation of future loss of earnings is inherently speculative. In this case, Mr. Jones’calculations assume that the differential between his wages at Menzies and C.H.E. would remainconstant. However, he was a long-term employee at C.H.E. He had shown no interest inchanging to another position; indeed he was very resistant to the idea. In my opinion, hisopportunity for additional income at C.H.E. was very limited. On the other hand, he is arelatively new employee at Menzies. He received a $2/hr. increase in the first year. He testifiedthat he hopes for a further increase and that he has no reason to believe that he will not bepromoted. It is possible that he will eventually earn more at Menzies than at C.H.E., particularlywhen overtime pay is considered. Moreover, there is nothing to prevent Mr. Jones fromcontinuing to search for a position that pays more than his current one. There is no evidence thathe has made any efforts to find more lucrative employment since accepting the position atMenzies. In my opinion, in this case an award for the projected loss of earnings is notappropriate.[53] The Complainant’s claim for vacation pay is based on the shorter paid vacation hereceives at Menzies than at C.H.E.. At C.H.E. he received five weeks of paid vacation. In his14

first year at Menzies he received no vacation. In his second year he received two weeks. In histhird year he will receive two weeks and will receive three weeks in subsequent years. Althoughhe has lost no money out of pocket as a result of the loss of vacation, he has lost a benefit. Thatbenefit has value. In order to put Mr. Jones in the position he would have been in if thediscrimination had not occurred, he should receive compensation for the loss of that benefit.Had he continued to be employed at C.H.E., he would have received an additional eight weeks ofvacation prior to the date of the hearing. Based on his hourly wage at C.H.E., the value of thatbenefit was $4,710.40. In my opinion, an award for future loss of vacation is not appropriate inthis case.Expenses Incurred[54] Mr. Jones also seeks compensation for expenses incurred as a result of the contravention.These include $520 for job hunting expenses, and $692 for expenses related to his EmploymentStandards and Human Rights complaints (including $552 for lost wages to attend this hearing).With the exception of the expenses related to the Employment Standards complaint, theRespondents do not dispute these expenses. The claim does not distinguish those expensesrelated to Employment Standards from those related to Human Rights. In my opinion, it isreasonable to assume that these expenses ($140) – which were for photocopies, paper andcouriers – were equally divided between the two complaints. Mr. Jones is therefore entitled tocompensation under s. 37(2)(d)(ii) for expenses incurred in the amount of $1,142.Injury to Dignity, Feelings and Self Respect[55] The Complainant seeks damages in the range of $4,000-5,000 for injury to his dignity,feelings and self respect under s. 37(2)(d)(iii) of the Code. The Respondents submit that anaward in the range of $1,500-1,800 would be more appropriate. Mr. Jones testified that, after hisconversation with Mr. Eisler on November 17, he felt really upset and totally shocked. He hadbeen at the store for 16 years. He had had good relationships with the people there and felt cutoff from those acquaintances. In my opinion, an award of $3,500 is appropriate in thecircumstances of this case.15

Other Remedies[56] The Complainant also seeks an order that Mr. Hardy and Mr. Eisler attend a seminar onreligious discrimination. The Complainant was unable to identify a specific seminar currentlybeing offered. In the absence of evidence that there is such a seminar, I am not prepared to makesuch an order.[57] The Complainant requested a declaration that discrimination occurred. Having found thecomplaint to be justified, I can see no useful purpose for such a declaration. However, asrequired by section 37(2)(a) of the Code, I order that the Respondents cease their contraventionof the Code, namely discriminating on the basis of religion, and refrain from committing thesame or a similar contravention.[58] Mr. Eisler and C.H.E. are jointly and severally liable for all damages.Summary[59] In summary, having found the complaint to be justified, I make the following orders:• That the Respondents Cornelius Harold Eisler and C.H.E. Pharmacy Inc. payRaymond Jones $21,243.56 as compensation for loss of income and $4,710.40 forloss of vacation pay, with interest at the banker’s prime rate, calculated at six monthintervals commencing November 18, 1998 and continuing until the date of thisdecision;• That the Respondents Cornelius Harold Eisler and C.H.E. Pharmacy Inc. payRaymond Jones $1,142, with interest calculated as above, for expenses incurred bythe contravention;• That the Respondents Cornelius Harold Eisler and C.H.E. Pharmacy Inc. payRaymond Jones $3,500 to compensate him for injury to his dignity, feelings and selfrespect; and16

• That the Respondents Cornelius Harold Eisler and C.H.E. Pharmacy Inc. cease theircontravention of the Code, namely discriminating on the basis of religion, and refrainfrom committing the same or a similar contravention.Vancouver, British ColumbiaJanuary 11, 2001___________________________Tom W. Patch, Tribunal Member17

Indexed as: Pannu v. Skeena Cellulose, 2000 BCHRT 56IN THE MATTER OF THE HUMAN RIGHTS CODER.S.B.C. 1996, c. 210 (as amended)AND IN THE MATTER of a complaint beforethe British Columbia Human Rights TribunalB E T W E E N:A N D:Darshan Singh PannuCOMPLAINANTSkeena Cellulose Inc. and Workers’ Compensation Board of BritishColumbiaRESPONDENTSREASONS FOR DECISIONTribunal Member:Counsel for the Complainant:Counsel for the Respondent SkeenaCellulose:Counsel for the Respondent Workers’Compensation Board of BC:Place and Date of Hearing:Nitya IyerUlf KristiansenRandy J. KaardalScott NielsenPrince Rupert, BCMarch 27, 28, 29, 30 & 31, 2000

INTRODUCTION[1] Darshan Pannu works as a Recaust Operator in a pulp mill operated by Skeena Cellulose(“Skeena”). The recaust area is noisy, smelly, and hot. It can also be dangerous. This is wherethe poisonous gases from elsewhere in the mill are piped to be burned off in the 2,000-degreerecaust kilns. Mr. Pannu is in charge of this area. His job carries a risk that he will have to shutdown the recaust area equipment in the event of a poisonous gas leak, remaining behind whileothers evacuate the area.[2] The Workers’ Compensation Board (“WCB”) has regulations that require that anyonewho may be exposed to poisonous gases to be able to wear a self-contained breathing apparatus(“SCBA”) to protect against gas exposure. The regulations also require anyone who might haveto wear an SCBA to be clean-shaven. This is because facial hair prevents the SCBA’s face-maskfrom sealing with the person’s face and ensuring that the gas is kept out. Skeena requires itsRecaust Operators to shut down the recaust equipment in the event of a major gas leak.However, Mr. Pannu cannot do this because he cannot wear an SCBA. He is a Sikh and wears abeard as a tenet of his faith.[3] After the WCB discovered that Mr. Pannu was responsible for performing an emergencyshut down in the event of a gas leak, and that he wore a beard, it ordered Skeena to comply withits regulations. Skeena removed Mr. Pannu from his Recaust Operator position. Mr. Pannu saysthat, by these actions, Skeena and the WCB have discriminated against him because of hisreligion. He filed a complaint under ss. 3 and 8 of the former Human Rights Act, now ss. 8 and13 of the Human Rights Code, R.S.B.C. 1996, c. 210, as amended (the “Code”). I was designatedto hear and determine his complaint.ISSUES[4] The central issue in this case is whether each of Skeena and the WCB can justify theirrespective requirements in the face of their adverse consequences for Mr. Pannu because of hisreligion. The parties agree that Mr. Pannu lost his Recaust Operator job because of the combinedeffect of Skeena’s requirement that Recaust Operators perform emergency shut downs and the1

WCB’s requirement that persons who may be in gas-contaminated environments be clean-shavenin order to be able to wear SCBAs. The primary questions I must decide are whether theserequirements are bona fide and justifiable and whether the WCB and/or Skeena could haveaccommodated Mr. Pannu’s wearing of a beard without incurring undue hardship.FACTS AND EVIDENCEIntroduction[5] At the hearing, Mr. Pannu testified on his own behalf; Richard Hynes, an OccupationalSafety Officer with the WCB, testified for the WCB; Roy Vatcher, the recaust area supervisor,and Kathy Gomez, Skeena’s human resources supervisor at the relevant time, testified forSkeena.[6] The documents produced by Skeena and by the WCB at the outset of the hearing, as wellas an agreed statement of facts were admitted into evidence on consent.[7] There are few factual issues in this complaint. Both sides made significant concessions.The Complainant agrees that it is necessary to shut down the recaust equipment in the event of amajor gas leak. Although counsel for the Complainant appeared to resile from this concession atcertain points in his submissions, he also re-asserted this concession. Whether the parties agreeor not, I am satisfied that it is necessary to shut down the recaust equipment in the event of amajor emergency gas leak. Skeena’s evidence on this point was persuasive and uncontradicted:it would be dangerous to evacuate the area for an indeterminate amount of time, leavingpoisonous gases to burn in extremely hot kilns unsupervised.[8] The Complainant also agrees that Skeena had to comply with the WCB’s order that itinstitute safe emergency shut down procedures and he does not contest the validity of the WCBorder. He agrees that the persons performing an emergency shut down must be able to wearSCBAs and that a “buddy system,” whereby two people remain together in the contaminatedenvironment, is necessary in such circumstances. Finally, the Complainant concedes that thereare no respirators that would safely allow a bearded person to perform an emergency shut downof equipment in a gas-contaminated area.2

[9] For their part, Skeena and the WCB accept that Mr. Pannu wore a beard because of hisfaith. They concede that he has established a prima facie case of discrimination because ofreligion against each of them, and that each of the WCB and Skeena bears the burden ofjustifying its actions.Chronology of events[10] In 1973, Mr. Pannu began working for the company that became Skeena. He moved tothe recaust department in 1976. He worked his way up the line of progression in thatdepartment: he started as a Utilityman, moved up to Assistant Recaust Operator (“ARO”), and,in 1980, became Recaust Operator, the senior person in the line of progression.[11] The recaust department operates 24 hours a day, broken into 12-hour day and night shifts.Four crews, consisting of a Recaust Operator, ARO and Utilityman, fill each shift. There is alsoa pool of an additional 4-5 Utilitymen who can be assigned to a crew as needed. Each crewgenerally works a “tour” of 2 day or night shifts, then rotates to two night or day shifts.[12] The Utilityman position is an entry-level position. Turnover is high. Utilitymen have littleknowledge of the non-condensable gas (“NCG”) system or of the control room. A Utilitymanmay elect to be trained for an ARO position either by bidding successfully for a vacant AROposition (success depends on seniority) or because the shift supervisor considers that a “relief”’ARO is needed. “Relief” persons are trained to fill positions higher than those they occupy inthe event that the more senior person is absent from their regular shift. The more seniorUtilitymen are the people who would most likely be trained as “relief” AROs or who wouldsuccessfully bid for any ARO opening. Similarly, the more senior AROs would be trained asrelief Recaust Operators and/or would be able to obtain those positions if they became vacant.[13] Training is done on the job; however, someone else fills the trainee’s position while he orshe is in training. That is, the trainee is considered to be absent from his or her shift while intraining. Generally, it takes 3 tours (or 144 hours) to train a Utilityman as an ARO. It takes 4tours (192 hours) to train an ARO to be a Recaust Operator.[14] In 1983, Mr. Pannu grew a beard as an expression of his Sikh faith and in preparation forhis baptism as a Sikh, which occurred in 1985. At that time, the recaust department contained3

two lime kilns, heated to over 2,000 degrees. The NCG system piped various poisonous gases tothe recaust area from elsewhere in the mill to be burned off in the kilns.[15] Perhaps the most dangerous gas leak that could occur in recaust is a hydrogen sulfideleak. Hydrogen sulfide is colourless and odourless except at very low concentrations. It can belethal: exposure can knock a person out in seconds and a single breath of pure hydrogen sulfidecan kill instantly. The exposure limit for hydrogen sulfide set by the industrial health and safetyregulations is 10 parts per million (“ppm”).[16] Workers at Skeena always carry bite block respirators to allow them to escape in theevent of an emergency gas leak. Both bearded and clean-shaven persons can safely wear biteblock respirators. However, they do not allow the wearer to remain in a gas-contaminatedenvironment for any length of time. A person who must remain in such an environment, forexample to shut down equipment, conduct tests, or rescue someone, must wear an SCBA toprotect them from an unacceptable level of gas exposure.[17] Mr. Pannu testified that, after he appeared at work with his beard in 1983, he was sent fora “fit test” to see if he could safely wear an SCBA. He could not wear the SCBA properlybecause of his beard. When he was told his beard was unsafe, Mr. Pannu explained that he worea beard for religious reasons. Mr. Pannu testified that his supervisor at the time, Mel Hubbard,gave him a copy of Skeena’s 1981 beard policy (Ex. 12). This policy designated a number ofpositions within the mill for which being clean-shaven was a requirement. No recaustdepartment positions were so designated. Mr. Hubbard told Mr. Pannu that this meant he wouldnot have to shave.[18] Mr. Pannu continued to wear a beard and to work as a Recaust Operator until September1991, when he was sent for another fit test. Again, Mr. Pannu failed the test. Again, he wasasked to shave and refused. And again, nothing changed.[19] In the spring of 1993, workers monitoring gas levels in the recaust control room recordedconsistently elevated levels of hydrogen sulfide, sometimes as high as 50-80 ppm. Everyone inthe area, including Mr. Pannu, was worried because the source of the gas leak could not befound. On April 29, 1993, a “near miss” incident was reported in the recaust department, as4

elevated hydrogen sulfide concentrations were found in the mezzanine and control room areas.Pipefitters working in the mezzanine area and wearing SCBAs noted levels of 410 ppm. Thesewer line was identified as the source of the problem (Ex. 6, Tab 12).[20] Richard Hynes, a WCB occupational health and safety officer inspected the recaust areain May 1993 and made a series of orders (Ex. 7). He ordered that Skeena “take immediate steps”to reduce gas concentrations to permissible levels (Order 3) and implement a continuousmonitoring system for hydrogen sulfide and mercaptan gas levels in the recaust control room(Order 4). He also wrote that Skeena’s emergency evacuation procedures for the recaust controlroom were inadequate and he ordered Skeena to create such procedures for hydrogen sulfide andother air contaminant emergencies (Order 5). Mr. Hynes testified that, at the time of his May1993 inspection, he did not meet Mr. Pannu and did not know about his beard.[21] In response to the WCB orders, in early July 1993, Mr. Vatcher drafted an emergencyevacuation procedure. The procedure required that all personnel evacuate the recaust area in theevent of gas in the control room. The procedure expressly required the Recaust Operator andARO to then put on SCBAs and return to the area to shut down the flames in both kilns, shutdown the feed to the kilns, shut down both slakers, and put the pressure filter on stop mode.They were to test for gases in the control room before the area was cleared.[22] There was conflicting evidence on how long it would take to perform these procedures:Mr. Pannu initially testified that it would take him only 2-3 minutes; he later stated that it wouldtake 5 minutes. When asked, on cross-examination by counsel for the WCB, about thepossibility that a Recaust Operator might have to remain in the gas-contaminated environmentfor 20-30 minutes, Mr. Pannu replied that he didn’t know whether or not that was true. Mr.Hynes’ evidence was that Skeena’s emergency procedure would take at least 15-20 minutes. Iprefer the evidence of Mr. Hynes to that of Mr. Pannu on this point. Mr. Pannu was less certainin his estimate than Mr. Hynes. Based on the evidence I heard about what is actually involved inperforming the required actions, and allowing for the fact that in an emergency people andequipment may work less than perfectly, I find it more likely that the procedure would take wellover 5 minutes. No one suggested that a bite block respirator or any protective equipment otherthan an SCBA would allow a worker to complete these procedures safely.5

[23] Mr. Vatcher testified that, later in 1993, he discussed with Mr. Pannu the implications ofthe new procedures for his beard and that Mr. Pannu expressed concern about what the procedurewould mean for him. Mr. Pannu denied this conversation. However, his recollection of theevents was not always clear or consistent, whereas Mr. Vatcher’s recollections were. I preferMr. Vatcher’s evidence on this point; I accept that Mr. Vatcher spoke to Mr. Pannu about thematter.[24] Mr. Vatcher also discussed the new emergency evacuation procedure and Mr. Pannu’sbeard within Skeena management and with the Pulp, Paper and Woodworkers of Canada, Local4 (the “Union”). In its November and December 1993 meetings with the Union (Ex. 6, Tab 13,14), Skeena raised the question of revising its 1981 beard policy (Ex. 12) and designatingadditional positions as “no beard” positions or making “no beards” a mill-wide requirement.There is no record that any agreement was reached, nor is there any evidence of what, if any,progress was made on the issue between December 1993 and March 1994, when the WCBintervened.[25] Thus, although Skeena finalized its emergency procedure in 1993 and required theRecaust Operator and ARO to wear SCBAs in the event of a gas emergency, it did nothing toenforce that policy with respect to Mr. Pannu. Mr. Vatcher agreed that Skeena did not considerwriting an emergency procedure that would designate someone other than the Recaust Operatorto do the shut down. Nor did it attempt to remove Mr. Pannu from his Recaust Operator positionand place him elsewhere in the mill.[26] Skeena allowed Mr. Pannu to continue to work as a Recaust Operator even though hecould not have complied with its emergency procedures. Skeena likely acted as it did because itcould see no easy solution to the conflict between its emergency procedure and Mr. Pannu’sreligious practice. It tried to avoid the issue instead. However, as Mr. Vatcher testified, everyonewho worked in the recaust department knew that Mr. Pannu could not safely do an emergencyshut down and understood that, on his shift, the ARO and Utilityman would likely have to do itinstead. The recaust employees were unhappy with the situation. However, it continued forseveral months until the WCB stepped in again on March 9, 1994.6

[27] As a result of complaints by a number of recaust employees, and as a follow-up to hisMay 1993 inspection, Mr. Hynes re-visited the recaust department with Mr. Vatcher on March 9,1994. He saw Mr. Pannu working as a Recaust Operator. Mr. Hynes asked Mr. Pannu to put onan SCBA. Mr. Pannu did not put on the SCBA correctly, quite apart from his beard, although hetried for several minutes. Mr. Hynes testified that, with practice, a person could don an SCBA inunder a minute. In any event, Mr. Pannu’s beard meant that the SCBA could not seal with hisface.[28] As a result of his inspection, Mr. Hynes wrote a number of orders against Skeena (Ex. 3,Tab 1D). As Skeena required its Recaust Operators to be able to use SCBAs, Mr. Hynes orderedthat all Recaust Operators comply with WCB regulation 14.23(4) and be clean-shaven where therespirator seals with his face. Mr. Hynes also ordered all Skeena Recaust Operators to becompetent in donning and using an SCBA (WCB Reg 14.23(3)). Mr. Vatcher testified that theWCB imposed a fine of $4,000 on Skeena for its infractions of WCB regulations.[29] Mr. Pannu testified that, before his next shift, his supervisor, Dan Danroth, called him athome and told him that he could not work as a Recaust Operator unless he shaved. Mr. Pannuwas not willing to shave. The agreed statement of facts states that Skeena removed Mr. Pannufrom the Recaust Operator position on March 11, 1994.[30] On March 14, 1994, Mr. Pannu’s father died and Mr. Pannu took a two-day bereavementleave. While he was away, a pre-existing back problem flared up and Mr. Pannu was confined tohis bed. As it turned out, his back problem was serious and he could not return to work for manymonths. At that time, however, no one realized the severity of Mr. Pannu’s back problem.Everyone assumed that he would be able to return to work shortly and Skeena began looking foran alternative position for Mr. Pannu.[31] George Hines, Skeena’s loss prevention supervisor, met initially with Karl Sandhu, aUnion representative, on March 22 to discuss Mr. Pannu’s situation. They discussed theavailable jobs and Mr. Pannu’s position that he ought to be maintained at his Recaust Operatorrate of pay. Mr. Hines and Mr. Sandhu met again on March 28. At that time, Mr. Hines gaveMr. Sandhu a list of available positions to discuss with Mr. Pannu and agreed to provide himwith a list of all mill jobs for which respirators were not required. On March 29, Mr. Sandhu7

informed Mr. Hines that Mr. Pannu had declined all positions, and that Skeena should simplyplace him where it needed him.[32] On March 30, Mr. Hines spoke to Mr. Pannu directly. He explained the types ofpositions available. Mr. Pannu made it clear that any position he took was under protest, as hebelieved he should remain in the Recaust Operator position. Mr. Hines asked Mr. Pannu if hisback “would be a problem” and Mr. Pannu confirmed that it would. Mr. Hines then suggestedthat a Stores Counterman position would be better for Mr. Pannu than a Utilityman position.They agreed to speak the next day.[33] On March 31, Mr. Hines spoke to Mr. Pannu by telephone and visited him at his home.Mr. Pannu was still on bed-rest. Mr. Hines outlined the Stores Counterman and Knife Grinderpositions for Mr. Pannu. Mr. Pannu said he would accept the Knife Grinder position, “underprotest.”[34] As indicated by notes of the April 14, 1994 meeting between Skeena and the Union (Ex.6, Tab 20), the Union objected to Mr. Pannu taking the Knife Grinder position because he hadnot signed the bid. The issue is noted again in the minutes of the April 28 meeting between theUnion and Skeena. The minutes record the Union’s continued opposition to placing Mr. Pannuin the Knife Grinder position as well the fact that the process “was stalled” because of Mr.Pannu’s ongoing back problems. At that point it was expected that Mr. Pannu would return towork in 6-8 weeks.[35] Ms. Gomez testified that she became involved in the search for an alternate position forMr. Pannu in late spring 1994. In June 1994, while Mr. Pannu was still on medical leave, Ms.Gomez arranged for videos to be made of the Knife Grinder and Stores Counterman positions sothat Dr. Mackle, Mr. Pannu’s physician, could tell Skeena which would be more suitable for Mr.Pannu. Dr. Mackle responded that neither was suitable to Mr. Pannu’s medical condition.[36] Ms. Gomez then discussed a position as Second Cook with Mr. Pannu and made a videoof the job for Dr. Mackle to review. In his letter of August 27, 1994, Dr. Mackle recommendedsome modifications to the position, but suggested that Mr. Pannu could try it.8

[37] However, his back condition did not allow Mr. Pannu to return to work until January1995. At that time, Dr. Mackle recommended a gradual return to work schedule. Skeenacomplied with this request and started Mr. Pannu in the Second Cook position. Later that month,as Mr. Pannu was having difficulty with the Second Cook job and with Dr. Mackle’s agreement,Skeena retained Karen Skarpness, a physiotherapist, to evaluate Mr. Pannu’s abilities. Sheconcluded that the position could not be modified to suit Mr. Pannu’s physical limitations.Accordingly, Mr. Pannu stopped working as a Second Cook in mid-February.[38] In April 1995, Mr. Pannu successfully applied for long-term disability (“LTD”) benefits.Skeena stated that Mr. Pannu’s position was Recaust Operator on the LTD application form, as ithad not yet placed him in another position. Thus, Mr. Pannu’s claim succeeded on the basis thathe was disabled from that occupation. He was paid disability benefits based on a RecaustOperator’s rate of pay.[39] From February 1995 onwards and during the time that Mr. Pannu received LTD benefits,Skeena continued to search for a position that was consistent with Mr. Pannu’s inability to wearan SCBA and his back condition. Through the LTD insurer, Skeena arranged for Mr. Pannu totake a work-conditioning program with Coast Rehabilitation Services (“Coast”) and to try jobsin various areas of the mill.[40] In August 1995, after having worked with Mr. Pannu for several months, Coast reportedto Skeena that Mr. Pannu’s maximum attainable job level would be positions with a “light”rating. He could also perform work rated “sedentary.” “Light” rated positions may requirelifting up to 20 lbs. occasionally and frequent or constant lifting of up to 10 lbs.; they may alsoentail significant amounts of walking or standing. Sedentary positions only require occasionallifting of up to 10 lbs. Mr. Pannu was reported to have no tolerance for kneeling, stooping orcrouching; he was able to lift up to 15 lbs. occasionally and up to 8 lbs. frequently, with notolerance for medium or heavy lifting. He had no tolerance for carrying or climbing, but couldperform occasional walking including stairs and occasionally push or pull up to 40 lbs. with atrolley (Ex. 6, Tab 42).[41] When Mr. Pannu’s LTD benefits ran out in late 1996, after further medical evaluation ofsuitable positions, Skeena placed Mr. Pannu in a truck driver position.9

LAW[42] Mr. Pannu alleges that the WCB has discriminated against him because of his religioncontrary to s. 8 of the Code. That section provides, in part:8(1) A person must not, without bona fide and reasonable justification,…(b) discriminate against a person or class of persons regarding anyaccommodation, service or facility customarily available to the public;because of the … religion … of that person or class of persons.[43] Mr. Pannu alleges that the WCB’s regulation 14.23 contravenes this section because itrequires workers who may be exposed to gas-contaminated environments to wear respirators,and workers required to use respirators to be clean-shaven where the respirator seals with theface, without making any allowance for persons whose beards are part of their religious practice.[44] Mr. Pannu alleges that Skeena has discriminated against him because of his religioncontrary to s. 13 of the Code. That section provides, in part:13(1) A person must not…(b) discriminate against a person regarding employment or any term orcondition of employmentbecause of the … religion … of that person.…(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation,specification or preference based on a bona fide occupational requirement.10

[45] Mr. Pannu alleges that Skeena contravened this section by designating the RecaustOperator as one of the positions responsible for performing an emergency shut down in the eventof a major gas leak, without making any allowance for Mr. Pannu’s inability to wear an SCBAbecause of his beard. The consequence was that Mr. Pannu was removed from his position asRecaust Operator.[46] Whether the discrimination alleged is in the employment context or whether it arises inthe context of providing services to the public, if the treatment in issue can be characterized as abona fide occupational requirement (“BFOR”), it will not contravene the Code. Thus, I mustdetermine whether the WCB’s regulation 14.23 and/or Skeena’s requirement that its RecaustOperators perform emergency shut downs constitute BFORs.[47] The Supreme Court of Canada has interpreted what is a BFOR in the context of claims ofdiscrimination: British Columbia (Public Service Employee Relations Commission) v. BCGSEU,[1999] 3 S.C.R. 3 (“Meiorin”); British Columbia (Superintendent of Motor Vehicles) v. BritishColumbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”). The Court hasestablished a three-stage analysis for determining whether a standard or rule is a BFOR(Grismer, para. 20):Once the plaintiff establishes that the standard is prima facie discriminatory, theonus shifts to the defendant to prove on a balance of probabilities that thediscriminatory standard is a BFOR or has a bona fide and reasonable justification.In order to establish this justification, the defendant must prove that:1. it adopted the standard for a purpose or goal that is rationallyconnected to the function being performed;2. it adopted the standard in good faith, in the belief that it isnecessary for the fulfillment of the purpose or goal; and3. the standard is reasonably necessary to accomplish its purpose orgoal, in the sense that the defendant cannot accommodate personswith the characteristics of the complainant without incurring unduehardship.[48] The Complainant concedes that both the WCB and Skeena imposed their respectivestandards in good faith and for purposes rationally connected to the function being performed.Thus, I must determine whether each Respondent has established, on a balance of probabilities,11

that its standard was reasonably necessary in that Mr. Pannu’s beard could not have beenaccommodated without undue hardship.[49] It is useful to consider the complaints against the WCB and Skeena separately.ANALYSISThe Complaint against the WCB[50] The WCB standard in issue in this case is contained in Reg. 14.23 and, in particular, therequirement that all workers who may have to wear SCBAs be clean-shaven where the respiratorseals with the face. The WCB has conceded that its standard prima facie discriminates againstMr. Pannu because of his religion. Mr. Pannu has conceded that the standard is rationallyconnected to the WCB’s function of protecting workers’ health and safety and that it wasimposed in good faith. At issue is whether the standard is reasonably necessary in the sense thatit cannot admit of exceptions or modifications without creating undue hardship.[51] Mr. Pannu submits that Reg. 14.23 could have been drafted to explicitly accommodatepersons who wear beards for religious reasons. He also argued that the WCB could have“treated Mr. Pannu more humanely” in March 1994, by allowing Skeena and Mr. Pannu time towork out a mutually agreeable solution before imposing a fine. After setting out Reg. 14.23, Iwill address each of these arguments in turn.Regulation 14.23 provides as follows:14.23. (1)(a) When workers are or may be exposed to an oxygen deficientatmosphere or to harmful concentrations of air contaminants, mechanical meansor engineering design shall be utilized to prevent or to eliminate such hazardousconditions of exposure.(b) Where the prevention or elimination of such hazardous conditions is notreasonably practicable, or where the exposure results from temporary oremergency conditions only, every worker exposed shall wear protectiverespiratory equipment.12

(2) Protective respiratory equipment shall provide adequate protection againstcontaminants in the work place and shall be maintained in good working order inaccordance with the manufacturer’s instructions. The protective respiratoryequipment shall meet the requirements of standards acceptable to the Board.Equipment meeting NIOSH and MSHA standards are acceptable. The schedule inAppendix “C” may be used as a guide in the selection of equipment.(3) Every worker who is required to use respiratory protective equipment shallbe given pre-job instruction by the employer to understand its use, its limitations,and its maintenance requirements, as far as those relate to its correct use by theworker.(4) Workers required to use a respirator shall be clean-shaven where therespirator seals with the face.[52] With respect to 14.23(2), it is accepted that a bite block respirator is only adequate toallow a worker to escape from a gas-contaminated environment. An SCBA is the only kind ofrespirator that would allow a worker to remain in a gas-contaminated environment for any lengthof time, for example, to shut down equipment or to rescue someone.[53] Turning to the first argument, it is important to distinguish the complaint against theWCB from the complaint against Skeena. Reg. 14.23 does not designate which workers may beexposed to gas-contaminated environments. It does not say who ought to be responsible forshutting down equipment during gas emergencies. It merely sets standards for donning andusing appropriate respiratory equipment for all workers whose positions may expose them to gascontamination. It is Skeena, not the WCB, who determined that Mr. Pannu’s job descriptionincluded responsibility for shutting down recaust equipment in a gas emergency.[54] The Complainant did not suggest how Reg. 14.23 might be drafted to betteraccommodate people who wear beards for religious reasons. Given the nature of the standard atissue, I can see only three logically possible accommodations. First, the standard could specifydifferent respiratory equipment that would allow bearded workers such as Mr. Pannu to remainin gas-contaminated environments. The parties agree that no such respirator exists. Therefore,this accommodation is not possible.[55] Second, the regulation could require individual testing to see if particular beardedworkers could safely wear an SCBA. Such a requirement would only be reasonable if somebeards might be consistent with the safe use of SCBAs. All of the expert evidence tendered on13

this point by the WCB shows unequivocally that no beard growth is compatible with the safe useof an SCBA. That evidence includes a report prepared by K. Paul Steinmeyer, a health physicist,who exhaustively reviewed the relevant literature and conducted his own tests on beardedindividuals (Ex. 4, Tab 2). He concluded that the longer the beard growth, the greater theleakage, and “tight-fitting facepieces leak when used by bearded individuals.” Thus, this is not acase where individual testing, of the kind found to be appropriate in Meiorin or Grismer, is apossible accommodation.[56] The only remaining possibility is an exemption. That is, the standard could exemptworkers who wear beards for religious reasons from the 14.23(4) requirement that they be cleanshavenwhere the respirator seals with the face. The effect would be to allow employers torequire such workers to enter gas-contaminated environments at enormously increased personalrisk (due to leakage from the respirator). Would such an exemption constitute undue hardship?[57] The Supreme Court’s reasoning in Grismer is instructive. There, the service-providerwas the Superintendent of Motor Vehicles who cancelled Mr. Grismer’s driver’s licence becausehe did not meet its vision standard. That standard required all persons with Mr. Grismer’s visualcondition to be denied licences, without exception and without any opportunity for individualassessment. Before addressing the three-part test in Meiorin, MacLachlin J. (as she then was)stated that it was necessary to precisely define the purpose of the standard in issue. She foundthe Superintendent’s standard was “reasonable” rather than “absolute” road safety, since thecurrent driving licence regime necessarily contemplates that some level of risk from driving isacceptable.[58] I find that the purpose of Reg. 14.23 is a reasonably high level of protection fromexposure to gas contamination. Clearly, workers are sometimes exposed to gas-contaminatedenvironments, and must sometimes work in such environments (for example, in emergencies).However, Reg. 14.23 seeks to minimize the risk of gas exposure and maximize worker safety,subject to the unavoidable need to occasionally work in a gas-contaminated environment.[59] In Grismer, MacLachlin J. stated that there were two ways that the Superintendent couldjustify its position that its visual acuity standard could admit of no exception. The first of thesewould be to show that accommodation was impossible because no one with Mr. Grismer’s visual14

condition can drive safely. That is, allowing such persons to drive would be “totallyincompatible” with the standard of reasonable highway safety (paras. 32-34). MacLachlin J.found that the Superintendent could not defend its failure to accommodate Mr. Grismer on thisbasis because there was evidence that some jurisdictions permit people with Mr. Grismer’s visualcondition to drive under certain conditions. Further, there was evidence that Mr. Grismer coulduse visual aids to improve his vision. Thus, it could not be said that people with Mr. Grismer’scondition could never drive safely.[60] In the present complaint, by contrast, I find that the WCB has shown that exemptingworkers who wear beards for religious reasons would be “totally incompatible” with the goal ofprotecting workers from exposure to gas contamination. Mr. Steinmeyer’s expert opinion wasthat he found no jurisdiction where beard-wearers are permitted to remain in gas-contaminatedenvironments. The evidence also establishes that there is no known respiratory equipment thatwould allow bearded workers to work in gas-contaminated environments without anunacceptable level of gas exposure (Ex. 3, Tab 4). The Complainant did not take issue with anyof the WCB’s evidence on these points.[61] An exemption might be justified if the increased risk from not being able to wear arespirator was borne by the exempted individual. For example in Dhillon v. B.C. (Min. ofTransportation and Highways, Motor Vehicle Branch) (1999), 35 C.H.R.R. D/293 (B.C.H.R.T.),the complainant was willing to assume the increased risk of driving a motorcycle wearing aturban and not a helmet. The Tribunal found that the mandatory helmet law discriminated againstMr. Dhillon, in part, because the increased safety risk was entirely to himself. However, theincreased safety risk posed by an exemption from Reg 14.23 is not likely to be confined to theexempted individual. Given the range of circumstances in which workers are exposed to gascontaminatedenvironments where SCBAs are necessary, is more likely than not that exemptingbearded persons would also increase the risk to others. In the present case, for example, if Mr.Pannu passed out from gas exposure, others would have to rescue him. If he becameincapacitated before completing the shut down, the hazard posed by the equipment would not beminimized.15

[62] I conclude that it is not possible to exempt beard-wearers from Reg. 14.23 because anysuch exemption would be totally incompatible with the degree of safety set by the standard.[63] With respect to the Complainant’s argument, that the WCB ought to have delayedenforcing its orders in March 1994, I find that any further delay would have constituted unduehardship. As I have found that the rule could not admit of exceptions, it was the WCB’sresponsibility to enforce it. Moreover, Mr. Pannu had continued to work as a Recaust Operatordespite the fact that he could not safely comply with the emergency procedures written by Mr.Vatcher in 1993. While there is some evidence that Skeena tried to address the problem withMr. Pannu and with the union in late 1993, nothing had happened by March 1994 and workerswere complaining directly to the WCB. In these circumstances, it would have been irresponsiblefor the WCB not to enforce its regulation. In fact, it was the March 9, 1994 WCB order and finethat stimulated Skeena to finally act. Whether Skeena’s action was justifiable relates to thecomplaint against Skeena; it is not an argument that the WCB should not have acted when and asit did.[64] In conclusion, I find that Reg 14.23 is a BFOR and that the WCB acted appropriately inenforcing it in March 1994. The complaint against the WCB is dismissed.The Complaint against Skeena[65] The central issue in Mr. Pannu’s complaint against Skeena is the justifiability of theemergency procedure that Mr. Vatcher wrote in response to the WCB’s 1993 order. Asdescribed above, the procedure requires everyone to evacuate the area initially, an action that canbe performed with bite block respirators and for which Mr. Pannu’s beard does not pose anyadditional risk. The procedure then requires the Recaust Operator and ARO to put on SCBAsand return to the gas-contaminated area to shut down various equipment and test for gases in thecontrol room. These steps would take several minutes at a minimum and, depending on thenature and consequences of the emergency, might take considerably longer.[66] Counsel for Mr. Pannu conceded that gas emergency procedures are necessary in thatsomeone must shut down the equipment as described. He agreed that an SCBA is required ifthere is gas in the area and that a buddy system is also necessary. The only aspect of the16

emergency procedure that the Complainant attacks is Skeena’s designation of the RecaustOperator and ARO as the two people who must perform the procedure. Mr. Pannu argues thatSkeena ought to have accommodated his inability to safely wear an SCBA by designatingsomeone other than him to perform the shut down with the ARO, should an emergency occur onhis shifts. Skeena argues that such an accommodation would constitute undue hardship.[67] As the Recaust Operator, ARO and Utilityman are the only positions in the recaustdepartment, the consequence of exempting Mr. Pannu from the emergency procedure is that theARO and Utilityman would have to perform the shut down should a gas emergency occur on oneof Mr. Pannu’s shifts. To avoid a finding of discrimination, Skeena must prove, on a balance ofprobabilities, that substituting the Utilityman for the ARO and the ARO for Mr. Pannu, as I havedescribed, would constitute undue hardship.[68] Following the analysis in Grismer that I described in discussion the WCB complaint, Imust first state the purpose of the requirement in issue. I find that the purpose of the emergencyprocedure is to ensure that the kilns, slakers and pressure filter are made safe so as to eliminateor minimize any further hazards in a gas emergency.[69] In Grismer, the respondent initially tried to justify its refusal to consider individualtesting by arguing that accommodating Mr. Grismer was totally incompatible with the purpose ofits standard. When it failed to succeed on this basis, it argued that individualized testing wouldconstitute undue hardship because such tests would be too expensive and too dangerous.[70] In the present case, I must determine whether Skeena has shown that exempting Mr.Pannu from its requirement that Recaust Operators perform shut downs would be completelyincompatible with the purpose of eliminating or minimizing dangers from the equipment duringa gas emergency. If so, the requested accommodation would be impossible. If not, I mustconsider whether exempting Mr. Pannu would constitute undue hardship to Skeena.[71] Before addressing these questions, I must consider an interesting submission on howcarefully I ought to scrutinize Skeena’s requirement that Recaust Operators and AROs performthe shut down. Counsel for Skeena submitted that courts scrutinize qualifying standards for jobsor services much more rigorously than they do requirements that comprise part of the job or17

service itself. He argued I ought not to review the Skeena standard as rigorously as the standardsin Grismer and Meiorin, because those cases concerned qualifying requirements, not standardsthat are part of the job or service itself.[72] Meiorin concerned an aerobic fitness standard that was a condition of a forestfirefighter’s job. Grismer concerned a visual standard that was required to obtain a driver’slicence. In these cases, the issue was whether the qualifying requirement that excluded thecomplainant was a necessary pre-condition to the job of being a competent forest firefighter or tothe activity of driving with the degree of safety expected of all B.C. drivers. The Court foundthat such pre-conditions ought to be scrutinized carefully to ensure that they do not inadvertentlybar people like the complainants from gainful employment or important activities.[73] However, counsel for Skeena submitted that more deference ought to be shown whenreviewing a requirement that comprises part of the job or activity itself. That is, if Ms. Meiorinhad argued she ought to keep her job even though she was less competent than male forestfirefighters, or if Mr. Grismer had argued he ought to get a driver’s licence even though he droveless safely than other drivers, the Court would have reviewed the standard of competent forestfire-fighting or reasonable road safety less rigorously than it did the qualifying requirements.[74] It is true that in both Grismer and Meiorin the Court emphasized that the standards inissue were qualifying standards and that neither complainant was suggesting that the standards ofcompetent forest firefighting or safe driving ought to be lowered to accommodate them.However, in neither of these cases, nor in any other case of which I am aware, do I find supportfor the proposition that tribunals and/or courts should defer more to employers when reviewing astandard that is part of the job itself rather than a qualifying requirement. In Meiorin,MacLachlin J. implied that there is no such distinction (at para. 64):Courts and tribunals should be sensitive to the various ways in which individualcapabilities may be accommodated. Apart from individual testing to determinewhether the person has the aptitude or qualification to perform the work, thepossibility that there may be different ways to perform the job while stillaccomplishing the employer’s legitimate work-related purpose should beconsidered in appropriate cases.18

[75] I can see no justification for scrutinizing qualifying and job standards differently. Theconcern about barring people from employment or services on the basis of unfoundedassumptions or stereotypes about their personal characteristics applies to the jobs or servicesthemselves as much as it does to the pre-conditions for them. Put another way, if a jobrequirement is not really necessary, why should it be allowed to have the effect of discriminatingagainst a group any more than an equally unjustifiable qualifying requirement?[76] I think a more persuasive reading of the case law and a more principled basis fordistinguishing between the two kinds of requirements is that the nature of the requirement is animportant part of the context in which the respondent’s justification for it must be assessed. Forexample, where the requirement is part of the job itself, an accommodation may have differentand more serious implications for co-workers than altering a qualifying requirement. Aqualifying requirement is necessarily more distant from the objective of the requirement than isthe job requirement itself. In this sense, it may be that there are generally more possiblealternative qualifying requirements that would still ensure that the purpose behind the rule is metthan there are requirements intrinsic to the activity or job itself. But the nature of therequirement or standard is not the only relevant consideration.[77] The context in which the Court reviewed the respondent’s actions in Grismer wasinformed both by the fact that a qualifying standard was in issue and by the fact that the nature ofthe accommodation requested was that Mr. Grismer be given an opportunity to prove he met theexisting standard. Had Mr. Grismer requested that he be exempted from the existing visualacuity standard, different considerations would have come into play.[78] Returning to the main question, has Skeena shown that exempting Mr. Pannu from itsrequirement that Recaust Operators perform shut downs would be completely incompatible withits purpose of eliminating or minimizing dangers from the equipment during a gas emergency?Alternatively, if not completely incompatible with its purpose, would such an exemption imposeundue hardship on Skeena?[79] Relevant contextual factors in this determination include the nature of the standard inissue and the nature of the accommodation requested. Here, the standard is part of the job itself:it concerns an emergency procedure that is not ordinarily performed, but for which the Recaust19

Operator has ongoing responsibility: if the need arises, the Recaust Operator must do it despitepersonal risk. The nature of the accommodation requested is an exemption: Mr. Pannu asks thata co-worker be designated to perform the shut down in his stead.[80] Counsel for the Complainant argued that exempting Mr. Pannu from the job requirementthat he perform the emergency shut down would not constitute undue hardship to Skeena for thefollowing reasons:• Skeena had tacitly approved such an arrangement by allowing Mr. Pannu to remain onthe job after Mr. Vatcher wrote the 1993 procedure and by its lack of any written policyrequiring Recaust Operators to be clean-shaven before 1993.• The risk of a major gas leak is remote; there has never been a situation in which acomplete emergency shut down has been required.• Skeena could train the Utilitymen and AROS on Mr. Pannu’s shifts to improve theircompetency to perform the emergency shut down.[81] Skeena responded to each of these arguments as follows:• It did not approve of Mr. Pannu remaining on the job after May 1993, but was activelyseeking a solution to the problem. As confirmed by the WCB’s orders, Skeena was wrongin failing to have an emergency procedure and in not formally requiring the RecaustOperator to be clean-shaven.• While there has never been a major gas leak necessitating an emergency shut down, therehave been several “close calls” so the possibility that a Recaust Operator would have todon an SCBA is not remote.• Training Utilitymen to replace Mr. Pannu would be totally incompatible with the purposeof the emergency procedure. Alternatively, the cost of training others would beunacceptably high; it would disrupt the collective agreement and would adversely affectother employees.[82] In approaching the issue, I must bear in mind that it is Skeena, not the Complainant, whobears the burden of proof.[83] I am persuaded by Skeena’s arguments on the first two points. Mr. Vatcher candidlyacknowledged that Skeena erred in its handling of the issue; he said that allowing Mr. Pannu towork as a Recaust Operator for as long as he did was a mistake and that there was nojustification for Skeena’s failure to have a written emergency procedure. Whether or not Skeena20

tacitly approved a less than acceptable level of safety by allowing Mr. Pannu to work as aRecaust Operator is not a reason that this state of affairs ought to continue after the WCBdetermined it was unacceptable.[84] With respect to the second point, the evidence establishes that the danger of a major gasleak is real. While the need to perform the emergency procedure may never arise, it issufficiently likely that the WCB ordered Skeena to create a formal emergency procedure, a pointthe Complainant does not contest. Since an emergency procedure is required, an important partof that procedure is necessarily the designation of who is responsible for doing it. It is clearlyundesirable that there be any doubt in an emergency about who should be doing what.[85] Skeena’s defence really turns on the third point in issue: would exempting Mr. Pannu betotally incompatible with the purpose of the emergency procedure or, if not, would exemptingMr. Pannu cause undue hardship to Skeena?[86] As I have said, the purpose of Skeena’s standard is to minimize or eliminate additionaldanger during a gas emergency. Designating the Recaust Operator and the ARO to perform theemergency procedure is reasonably necessary to achieve that purpose, as these are the two mostexperienced and knowledgeable people in the department. They are most likely to be able to“trouble-shoot” during an emergency, for example, if there is difficulty with the shut downbecause equipment is not working properly.[87] The parties agree that, if Mr. Pannu was exempted from the emergency procedure, theARO and Utilityman on his shift would have to do it. Skeena argues that designating these twopersons to perform the emergency shut down would be totally incompatible with the purpose ofminimizing dangers, because they (and especially the Utilityman) do not have the experience andknowledge of the equipment that would enable them to trouble-shoot in an emergency. There issome evidence to support this position in the testimony of Mr. Hynes of the WCB. He testifiedthat the WCB would have been concerned if Skeena’s emergency procedure had designated theUtilityman rather than the Recaust Operator because a safe shut down in an emergency calls forthe extensive job experience and training that a Recaust Operator has.21

[88] Replacing the Recaust Operator and ARO with the ARO and Utilityman would be asignificant change. Although the likelihood of an emergency shut down is low, should anemergency occur, this would be precisely the sort of situation where the significant additionaltraining and experience a Recaust Operator has could make an enormous difference to the safetyof the equipment and of all workers in the area. I am satisfied that substituting the Utilityman onhis shift for Mr. Pannu as a person who would perform the shut down in an emergency would betotally incompatible with the purpose of the emergency procedure.[89] However, the evidence also established that, when a Recaust Operator is absent, an AROwho is trained as a Recaust Operator can work as a relief Recaust Operator at that rate of pay.Similarly when an ARO is absent, a Utilityman trained as an ARO can work as a relief ARO.Skeena implicitly considers acceptable the increase in risk represented by the relief workers’relative lack of experience on shifts where the regular Recaust Operator and/or ARO is absent.Thus, training the Utilitymen and AROs on Mr. Pannu’s shifts as relief AROs and RecaustOperators would not be totally incompatible with the purpose of the emergency procedure.Would it constitute undue hardship?[90] The Supreme Court of Canada has enumerated a number of factors relevant to thedetermination of what amount of hardship is undue. These include financial cost, disruption ofthe collective agreement, problems relating to the morale of other employees and, where safety isan issue, the magnitude of the risk and who bears it: Central Alberta Dairy Pool v. Alberta(Human Rights Comm.), [1990] 2 S.C.R. 489; Central Okanagan School District, No. 23 v.Renaud, [1992] 2 S.C.R. 970.[91] Skeena presented evidence and made submissions on these factors. However, the factthat the Union was not a party to the complaint against Skeena and that no Union witness wascalled means that the evidence of the effects on the collective agreement and on other employeesis not complete. This is the sort of case where the Union’s perspective, along with theComplainant’s and the employer’s views would have enabled the Tribunal to get a much betterpicture of the impact of the proposed accommodation.[92] Training sufficient Utilitymen and AROs as relief AROs and Recaust Operators to ensurethat the Utilityman and ARO on Mr. Pannu’s shift were competent to perform the shut down22

would impose some cost on Skeena. It would have to pay additional people to work while theseindividuals each went through 144-192 hours of training. There would be some ongoing costbecause of the high turnover of Utilitymen. Mr. Vatcher estimated some 20 individuals wouldhave to be trained and this number was not disputed. While the collective agreement (Ex. 17)sets out the rate of pay for Utilitymen and AROs so it would be possible to estimate the cost ofthe additional training, there is no evidence to put this amount in proportion to Skeena’sexpenses or revenues. Thus it is not possible to determine whether the additional training costwould constitute undue financial hardship to Skeena.[93] With respect to disruption of the collective agreement, Mr. Vatcher testified that ensuringthat the ARO and Utilitymen on Mr. Pannu’s shift formally assume the Recaust Operator andARO duties in the event of an emergency shut down would be “extremely onerous.” It wouldnecessitate a change in job descriptions and would therefore disrupt the collective agreement.Without more evidence on this point, I am not persuaded that changes to job descriptions and tothe collective agreement would really be necessary. If the existing job descriptions andcollective agreement permit Utilitymen to be trained and to work as relief AROs and AROs to betrained and work as relief Recaust Operators, simply training more people would not disrupt thecollective agreement.[94] However, the training described above only occurs on a voluntary basis. If not enoughUtilitymen and AROs volunteered for the training, it would not be possible to staff Mr. Pannu’sshift without requiring some Utilitymen and/or AROs to take additional training. This wouldrequire amendments to the job descriptions, a complicated process involving a 65-stepassessment under an industry-wide job evaluation plan. Similarly, if the Union took the positionthat Utilitymen required to incur ongoing responsibility for emergency shut downs on Mr.Pannu’s shifts ought to receive additional compensation, the job evaluation process would haveto be initiated. Skeena did not present evidence of whether it had asked its Utilitymen and AROswhether they would be willing to receive training and assume responsibility for emergencyprocedures on Mr. Pannu’s shifts. Nor did it show what the Union’s position would have been.Therefore, it has not established undue hardship on this basis. It has only established that it ispossible that accommodating Mr. Pannu would have caused a “substantial departure from the23

normal operation of the conditions and terms of employment in the collective agreement”(Renaud, at para. 26).[95] With respect to the impact on employee morale of exempting Mr. Pannu from theemergency procedure, there was evidence that employee concerns prompted the WCB inspectionthat led to Mr. Pannu’s removal as Recaust Operator. However, as I understand that evidence, itshows that the recaust employees were very worried because it was not certain who would do theemergency shut down on Mr. Pannu’s shifts. Since there is now a written emergency procedurein place, it could easily expressly designate the persons who are to perform the shut down on Mr.Pannu’s shifts, so there would not be any more uncertainty on Mr. Pannu’s shift than on anyother shift. The more significant impact on other employees, in my view, is the change in whomust put on an SCBA and perform the emergency shut down on Mr. Pannu’s shifts. This is bestaddressed in considering the factor of risk, to which I now turn.[96] If a relief Recaust Operator and a relief ARO are designated to perform an emergencyshut down instead of Mr. Pannu on his shifts, there will be some increase in the magnitude ofrisk, as they will not have his years of experience. While such substitutions are accepted bySkeena when workers are absent, implementing this accommodation will mean that on one ofevery four shifts, or 25% of the time, less experienced persons will be responsible for anemergency shut down, should the need arise. Further, under the current scheme, only the mostsenior (and therefore most experienced) Utilitymen and AROs are trained as relief workers.Presumably, working in a relief capacity during worker absences allows them to graduallyincrease their job experience in the relief positions. Thus, the relief AROs and RecaustOperators who substitute during absences acquire, over time, the job experience that is importantin trouble-shooting during an emergency. However, if this existing pool of relief workers is notsufficient to fully staff Mr. Pannu’s shifts (and it is implicit in Mr. Vatcher’s evidence that it isnot), then training additional relief AROs and Recaust Operators will mean training lessexperienced Utilitymen and AROs. Further, those individuals will be less likely to increase theirjob experience in the relief positions, as they will generally not be called upon to assume themexcept in an emergency. Thus, there will be some real increase in the magnitude of the risk bothbecause less experienced people will be responsible for performing the shut down more of the24

time and because those people are likely to be less experienced in their relief positions than thecurrent pool of relief workers.[97] A more significant change is who bears the risk. Shutting down the equipment during amajor emergency gas leak rather than being able to evacuate the area is obviously very risky tothe person who must enter the gas-contaminated environment to do it. The proposedaccommodation would remove this risk from Mr. Pannu entirely and place it on the Utilitymanon his shift.[98] Thus, this case differs from Dhillon, where the increased risk of injury from not wearinga motorcycle helmet was borne entirely by the complainant. Similarly, in Bhinder v. C.N.R.,[1985] 2 S.C.R. 561, the increase in risk of not wearing a hard hat was also assumed by thecomplainant. Here, the proposed accommodation significantly reduces the risk to which Mr.Pannu will have to expose himself in a gas emergency compared to other Recaust Operators andplaces it entirely on the individual Utilityman on his shift. Those persons might be compensatedfor assuming that risk, either by being paid as a relief ARO for performing those duties duringthe shut down, and/or by increasing their pay generally. However, compensation does notaddress the fact that, if there are not enough volunteers, accommodating Mr. Pannu will meanthis risk is imposed on a Utilityman, changing his or her job duties as compared to other recaustUtilitymen.[99] In Renaud (at para. 20), Sopinka J. stated that, in assessing the effects of a proposedaccommodation on other employees,…more than minor inconvenience must be shown before the complainant’s rightto accommodation can be defeated. The employer must establish that actualinterference with the rights of other employees, which is not trivial butsubstantial, will result from the adoption of the accommodating measures. Minorinterference or inconvenience is the price to be paid for religious freedom in amulticultural society.In that case, the complainant required an accommodation of her religion that would permit her towork a special shift. The Court found that this accommodation might have required, “theadjustment of the schedule of some other employee but this might have been done with theconsent of the employee or employees affected.” The Court noted that the respondent employer25

had not canvassed this possibility. It concluded that the respondent had not established unduehardship.[100] In the present case, the impact on the Utilityman who is assigned to Mr. Pannu’s shiftwill be substantial. Although the likelihood of a major gas leak is not high, I have found that it isa real rather than a remote risk. Further, the magnitude of the risk, should an emergency occur,is very high. The gases that could leak in the recaust area are extremely dangerous. Equipmentmay malfunction so that it takes longer to shut down the equipment than under optimalconditions. Moreover, remaining in the gas-contaminated environment in an emergency, evenwith a buddy and an SCBA, is far more risky than evacuating the area. The Utilityman whoreplaces Mr. Pannu will experience significantly increased risk to his or her safety as comparedwith Utilitymen on other shifts who can evacuate the area in an emergency.[101] In Renaud evidence that other employees would not voluntarily alter their shifts mighthave established that accommodating the complainant was undue hardship. What follows forthis case, where the burden on the Utilityman of accommodating Mr. Pannu is not merely a shiftschedule change, but the assumption of a significantly greater risk to personal safety?[102] Grismer and Meiorin place a high evidentiary burden on respondents to prove unduehardship and justify their requirements as BFORs. However, as MacLachlin J. stated in Grismer,the respondent need only establish its justification “according to the relaxed standard of proof ona balance of probabilities.” Further, “common sense and intuitive reasoning” have a role to playin the process. However, “there must be some evidence to link the outright refusal of even thepossibility of accommodation with an undue safety risk” (at para. 43).[103] Bearing this standard of proof in mind, I must consider whether the evidence before meestablishes that Skeena fulfilled its duty to accommodate. That it could have presented betterevidence does not mean it has not fulfilled the duty to accommodate as long as the evidence ithas presented is sufficient to meet the test for undue hardship on a balance of probabilities. Imust assess the factors of cost, impact on the collective agreement, and risk and determinewhether they collectively establish undue hardship on a balance of probabilities.26

[104] The evidence before me establishes that the only way of accommodating Mr. Pannu inthe Recaust Operator position is to exempt him from having to perform the emergency shutdown and to designate someone else to do it instead. Because of the way the recaust departmentis staffed, this means that a Utilityman whose job does not ordinarily include this responsibilitywill have to assume it. In order to achieve its reasonable purpose of minimizing or eliminatingadditional hazards in an emergency and accommodate Mr. Pannu, Skeena will have to train someUtilitymen and AROs as relief AROs and Recaust Operators. It will necessarily incur someinitial and ongoing costs, as there is a high turnover of Utilitymen. The evidence does not showwhat impact this cost would have on Skeena’s general operating costs.[105] If not enough Utilitymen and AROs volunteer for additional training to cover off Mr.Pannu’s shifts and/or the Union takes the position that additional compensation is required forthe Utilitymen on his shift who will now have increased responsibility for emergency dutieswhether or not an emergency occurs, the job descriptions will have to be amended. In that event,I would agree with Mr. Vatcher that accommodating Mr. Pannu would be very onerous,necessitating a “substantial departure” from the existing terms and conditions of employment inthe collective agreement. The evidence before me only establishes that this is a possibleconsequence of accommodating Mr. Pannu. Without evidence as to the Union’s position or theUtilitymen’s willingness to volunteer for additional training, I am not prepared to find unduehardship on the basis of this factor alone.[106] With respect to risk, there is no change in the likelihood of risk. I have found that, evenwith additional training, there is some real increase in the magnitude of risk. This is becausepersons with less job experience than Mr. Pannu will be assuming responsibility 25% of the timefor the emergency shut down, including the trouble-shooting function that is potentially soimportant in an emergency. The most significant change that follows accommodating Mr. Pannuis that the person that bears the risk shifts entirely from Mr. Pannu onto someone else.[107] I have reviewed the authorities and have found no case in which accommodating acomplainant necessitates shifting a risk to personal safety entirely from the complainant tosomeone else. Somewhat analogous are the line of disability discrimination cases in whichemployers seek to justify rules which exclude persons with certain disabilities on the basis that to27

allow such persons on the job would increase the risk to themselves, other employees and thepublic. A useful review of the development of the law in this area is found in Cotterall v.Vancouver Police Board (1994), 26 C.H.R.R. D/510 (B.C.C.H.R.). That case concerned aperson who was refused employment as a police officer because he did not meet the PoliceBoard’s requirement that his uncorrected vision meet a certain standard. Although Mr. Cotterallwore contact lenses and his corrected vision was satisfactory, the Police Board justified itsrequirement by pointing to the risk that his contact lenses could become dislodged while on thejob and increase the risk to himself, other police officers and the public. The Council found thatthere was a real risk that Mr. Cotterall’s lenses could become dislodged while carrying out hispolicing duties, even though he testified he had never had a lens become dislodged. Noting thatpolicing involves high-risk activities on occasion, such as making arrests and using firearms, theCouncil found the increase in the magnitude of the risk to Mr. Cotterall, other officers and thepublic was unacceptable. It held that the Police Board’s uncorrected vision standard was aBFOR.[108] From my review of the cases, I conclude that most adjudicators have found jobrequirements justified as BFORs if allowing the complainant to perform the job would representa real and significant increase in the magnitude of risk to the complainant and others. Meiorinand Grismer established risk is not an independent justification for a BFOR but merely onefactor in the analysis of undue hardship. In this case, the change to risk entailed byaccommodating Mr. Pannu includes some increase in the magnitude of risk and, moresignificantly, a complete shift of that risk from Mr. Pannu to the Utilityman. I am satisfied onthe evidence that there is no way to spread this risk or reduce it further. If Mr. Pannu is to workas a Recaust Operator, the Utilityman on his shift must be designated to do the emergency shutdown along with the ARO. Weighing the low but real likelihood of a major gas leak and thevery high magnitude of the risk, should an emergency occur, I find that the shift in risk from Mr.Pannu to the Utilityman on his shift is both real and significant.[109] Considering the possible substantial impact on the collective agreement, the fact thatthere is some increase in the magnitude of the risk, and the significant shift in who bears the risk,I find that Skeena has established undue hardship on a balance of probabilities.28

[110] Since Skeena has established that it is more likely than not that accommodating Mr.Pannu would constitute undue hardship, it has justified its failure to accommodate him bykeeping him in the Recaust Operator position. The complaint against Skeena is dismissed.Vancouver, B.C.November 20, 2000Nitya Iyer, Tribunal Member29

Canadian HumanRights TribunalTribunal canadiendes droits de la personneBETWEEN:CINDY RICHARDSComplainant2010 CHRT 24 (CanLII)- and -CANADIAN HUMAN RIGHTS COMMISSIONCommission- and -CANADIAN NATIONAL RAILWAYRespondentDECISIONMEMBER: Michel Doucet 2010 CHRT 242010/09/29

TABLE OF CONTENTSPageI. INTRODUCTION ....................................................................................................................... 1A. THE FACTS ....................................................................................................................... 2(i) The Canadian National Railway.................................................................................... 2a) General information.......................................................................................... 2b) Running trades employees ................................................................................ 4c) The changes made in 1992 and the creation of the furlough boards ................ 6(ii) The Complainant ........................................................................................................... 9(iii) The Vancouver shortage................................................................................................ 11(iv) The Conductors recalled to cover the Vancouver shortage........................................... 14(v) The Complainant’s recall to work ................................................................................. 22B. ISSUES ............................................................................................................................... 33C. THE LAW AND THEORY OF THE CASE...................................................................... 33(i) The relevant provisions of the CHRA........................................................................... 33(ii) The Law......................................................................................................................... 36a) The prima facie case ......................................................................................... 36b) What approach is to be applied to determine whether there has beendiscrimination on the ground of family status? ................................................ 36c) Has a prima facie case of discrimination on the basis of family status beenmade out?.......................................................................................................... 48d) Did CN provide accommodation to the Complainant?..................................... 50e) Conclusion ........................................................................................................ 64D. REMEDIES ........................................................................................................................ 65(i) An Order that CN Review its Accommodation Policy ................................................. 65(ii) Reinstatement ................................................................................................................ 66(iii) Compensation for lost wages......................................................................................... 68(iv) Pain and suffering.......................................................................................................... 69(v) Willful or Reckless Conduct ......................................................................................... 69(vi) Compensation for expenses........................................................................................... 70(vii) Interest ........................................................................................................................... 712010 CHRT 24 (CanLII)

I. INTRODUCTION[1] This is an employment discrimination case on the basis of sections 7 and 10 of theCanadian Human Rights Act (the “CHRA”). Cindy Richards (the “Complainant”) filed acomplaint alleging that the Respondent, the Canadian National Railway (“CN”) has discriminatedagainst her on the basis of her family status by failing to accommodate her and by terminating heremployment.[2] CN denies the complainant’s allegations.2010 CHRT 24 (CanLII)[3] All the parties, including the Canadian Human Rights Commission (“CHRC”), werepresent at the hearing and were represented by counsel.[4] There are two other similar complaints filed against CN. By agreement of the parties, thematter in Denise Seeley v. CN was treated in a different hearing which was heard prior to this one.Although heard together, it was agreed during a case management conference that the complaintsof Cindy Richards and Kasha A. Whyte would be rendered in two different decisions.[5] Although the facts in the Seeley case and in the Richards and Whyte cases are very similarand that the witnesses for CN were the same, except for Cathy Smolynek who only testified in thetwo latter cases, the evidence submitted in the Seeley case and in the Richards and Whyte cases is,in many regards, different. The witnesses of CN, who had testified previously in the Seeleymatter, did not, without necessarily contradicting themselves, repeat exactly the same evidence inthe Richards and Whyte cases. Also, documents which had not been presented at the Seeleyhearing were filed as evidence in the Richards and Whyte cases. These differences will explainany discrepancies that may exist in the facts of the Richards and Whyte matter when they arecompared to the Seeley decision.

2A. The Facts(i)The Canadian National Railwaya) General information[6] CN is a federally regulated corporation which derives its revenues from the transportationof goods by train. It is a transcontinental railway company which operates in Canada and in theUnited States. Its freight trains transport goods 24 hours a day, 7 days a week, 365 days a year.[7] CN has more than 15,000 employees in Canada. These employees are organised in twodistinct groups described as “operating” and “non-operating”. The “non-operating” group iscomprised of employees working in clerical, mechanical and engineering positions. The“operating” group employees, also known as “running trades employees”, consist of Conductorsand locomotive engineers.2010 CHRT 24 (CanLII)[8] CN has over 4,000 “running trades” employees throughout Canada of which 2,400 areConductors. According to Ms. Stephanie Ziemer, a Human Resources Officer for CN inVancouver, the figure for Conductors in 2005 would have been slightly higher at 2,500.[9] In answer to a question from CN’s counsel, Ms. Ziemer indicated that CN does not trackthe number of its employees who are parents. She added that this information is only solicitedwhen the employees enroll for CN’s group insurance benefits. She further added that “based onthat information roughly 69 percent of our employees are parents.” According to her evidence thisinformation would be up to date to May 2009. She added that she “would estimate [the number]as being higher because, not everybody participates in our group insurance benefits, particularly ifthey have a spouse that has coverage outside of CN in terms of their employment.”[10] Challenged by Counsel for the Complainant about the accuracy of those numbers,Ms. Ziemer explained that they had been gathered by CN’s manager of benefits administration inMontreal. CN’s counsel then showed counsels for the Complainant and the CHRC what was

3described by the Complainant’s counsel as “a thick bundle of names listed by what appears to bepersonnel number order.” Although this list did identify Conductors and their dependants,counsel for the Complainant added that there was “nothing about the 69 percent figure”. Shetherefore concluded that “someone must have then taken that document and done somecalculations.” She then asked that the documents where these calculations were done beproduced.[11] Mr. Paquette, counsel for CN, explained that the calculation had been done by “someone”at CN’s legal department. He then added that he had “very likely” communicated these numbersto the witness. Asked by the Chair if, when Ms. Ziemer had indicated that the numbers had beencommunicated to her by someone in Montreal, she meant the legal department, counsel answered“very likely”, but he added that the information itself comes from CN's human resourcesdepartment. He added that it was simply a question of “sitting down and doing the adding one byone.”2010 CHRT 24 (CanLII)[12] On cross-examination, Ms. Ziemer indicated that she had not done the calculation herself.She added that the figure of 69% for both group was given to her during a conference call, but shecould not remember who the person who gave her the information was. Regarding the “thickbundle of names”, Ms. Ziemer indicated that she was seeing this document for the first time at thehearing. Considering the evidence of Ms. Ziemer, the Tribunal will not give much weight to thispart of her testimony.[13] For operation purposes, CN is divided in two main regions, the Eastern region and theWestern region. The Western Region includes all of CN’s rail terminals from Vancouver, BritishColumbia, to Thunder Bay, Ontario.[14] The Crew Management Centre (“CMC”) in Edmonton is a very important part of CNoperations. It is responsible for all crew callings and deployment for the Western region. Itmanages the workforce deployment for “running trade” employees and a payroll of 204 milliondollars. The CMC has fifty-four (54) employees who report to Elaine Storms, the Director of

4CMC. Ms. Storms occupied that position in 2005 and she was a key witness for CN at thehearing.[15] CN also has a “Peoples Department” which includes Human Resources and LabourRelations. Although both fall under the same department, they have very distinct functions.Human Resources deals, amongst other, with human rights complaints, while labour relation willdeal with matters arising out of the collective agreement. In 2005, Mary-Jane Morrison was theHuman Resources person in charge of the portfolio for running trades employees in Jasper.b) Running trades employees2010 CHRT 24 (CanLII)[16] As stated earlier, locomotive engineers and Conductors form part of what is identified asthe “running trades employees”. Locomotive engineers operate the engine and Conductors arebasically in charge of all the other aspects pertaining to the movement of a train.[17] Running trades employees either work “road” or “yard”. “Road work” consists ofemployees who will get on a train at a particular terminal and take the train to another terminal. Ayard employee would typically work in the yard, switching box cars and making up trains. Theyard employee does not leave the terminal.[18] In terms of hiring, CN tends to hire its running trades employees in large group.According to Ms. Ziemer, CN did a lot of hiring in the seventies and a “little bit” of hiring in the'80s and in the early '90s. She further added that CN has done “significant hiring” from 2005straight through to the end of 2009.[19] In 1996 the percentage of women in the “running trades” was about 3 %. This figure was3.7% in 2006 and is now around 3.1%.[20] The cost of training a Conductor is around 50,000 to 80,000 dollars. This amount includesthe wages of the employee and of the instructor and also, if necessary, their accommodation. The

5training takes from four (4) to six (6) months. The cost of training a locomotive engineer isbetween 28,000$ to 30,000$, in addition to what it cost to train him or her as a Conductor.[21] In order to be qualified to work as a Conductor, an employee must have his rules andmedical cards up to date. These cards have to be renewed every three years. If the employee is onthe working board, he or she will generally get a notice telling him or her that his or her cards areabout to expire and then he or she just needs to make the proper arrangements to bring them up todate. If the employee is on lay off, he will need to take care of this on his own, although for therules card, he or she will need the approval of his supervisor.2010 CHRT 24 (CanLII)[22] When an employee is working or available to work, he is said to be on the “workingboard”. The “working board” includes all employees who are not on lay off. Employees on the“working board” are either on “assignments” or in a “pool”.[23] An employee can also be “set up”, meaning that he will be on the “working board” at histerminal. The decision to “set up” an employee is made by the manager of the terminal. Thedecision is based on the number of employees needed at the terminal to perform the work that isexpected.[24] There is also another board, which forms part of the “working board” and which isdesignated as the “spare board” or “emergency board”. Employees on this board are only calledto work to fill in when other employees are either on vacation or unavailable to work for any otherreasons.[25] Due to the nature of CN’s operations, running trades employees must be able to workwhere and when required, subject to restrictions imposed by law and by the collective agreement.In light of these considerations, CN feels that mobility and flexibility constitutes basic jobrequirements for these employees. It considers these requirements as necessary because of thevolume of goods CN transports and because of the fluctuation in traffic which can occur over ashort period of time due, for example, to changes in the economy or to seasonal factors such as thegrain harvesting season.

6[26] The work schedule of a Conductor is very unpredictable. Depending on which board theConductor is set on, he or she may know more or less about the kind of work he or she may becalled upon to execute. Therefore, all working assignments on road service have totallyunpredictable schedules. A Conductor is expected to be available to report to work within twohours of receiving a call from CMC. Once a Conductor reports for duty, he or she will have noidea of when exactly they will return home. They may be gone for a few hours up to almost twodays.[27] Running trades employees work on a mileage basis. The working board is adjusted on aweekly basis so that each employee can do approximately 4,300 miles a month. When doing theadjustment of the working board, CN will look at the previous week to see how many miles weremade by the employees. They will divide this number by 4,300 and the result will indicate thenumber of employees that would potentially be needed at a certain terminal for the followingweek.2010 CHRT 24 (CanLII)[28] At all relevant times to this matter, Conductors in the Western Region of Canada wererepresented by the United Transportation Union (“Union”). The applicable collective agreementfor Conductors in the Western Region is Agreement 4.3 (the “Collective Agreement”).c) The changes made in 1992 and the creation of the furlough boards[29] In 1992, technological changes allowed CN to do away with the car at the tail end of thetrain, which is commonly known as the “caboose”. This decision prompted the elimination of theposition of brakeman. After this decision, Conductors, who used to work in the “caboose”, weremoved up to the front of the train with the locomotive engineer. Eliminating the position ofbrakeman meant that CN needed less running trades’ employees to run its trains. The reduction inthe number of employees was done through the negotiation process with the Union.The negotiation resulted in the creation of the “furlough boards”.[30] A “furlough board” comes into existence when there is a surplus of employees at aterminal, but not enough work for everyone. The employee on the “furlough board” has to remain

7available for work, but if he or she isn’t called to go to work, he or she still gets paid his or hersalary. Only a certain category of employees are allowed to “bid” on the “furlough boards”.These are called “protected” employees, while the “non-protected” employees are not entitled tothe “furlough board”.[31] The changes made to the working conditions in 1992, also created the notion of “forcing”,which produces different results for different categories of employees in the running trades.According to section 148.11 of the Collective Agreement, employees hired subsequent toJune 29 th , 1990, can be forced to cover work at another terminal in the Western region and areobligated to report at that terminal within at most thirty (30) days, unless they present a“satisfactory reason” justifying their failure to do so. These employees are commonly referred toas “category D” employees. They are also referred to as “non-protected” employees, insofar asthey are obligated to respond to a recall outside of their terminal.2010 CHRT 24 (CanLII)[32] Other categories of employees include those who were hired prior to June 29 th , 1990.These are referred to as “protected” employees. In this group of “protected employees”, we havethose who were hired prior to 1982 and who are referred to as “Category A” and “Category B”employees, respectively. These employees cannot be assigned for work outside of their localterminals. Employees hired after 1982, but prior to June 29 th , 1990, are referred to as“Category C” employees and may only be assigned to protect work at adjacent terminals. Forexample, “Category C” employees at the Jasper terminal could only be assigned to the adjacentterminals of Edson and Kamloops.[33] The status of “protected” employees represents an exception to the general rule. Thenumber of these employees will diminish over time through simple attrition and the status willeventually disappear altogether.[34] With the creation of the “furlough boards”, which in essence allowed some employees tobe protected at their home terminal, CN needed to find a way to fill positions in cases of shortagesat other locations. This is where section 148.11 of the Collective Agreement came into being.

8It is this provision that allows CN to “force” unprotected employees to other terminals in theWestern region to cover shortages.[35] Prior to the enactment of section 148.11, CN would get employees to cover shortages byissuing what is referred to as a “shortage bulletins” and allowing employees to bid on theseshortages, if they so desired. These “bulletins” were put out at each “change of card” whichwould happen about four times a year. Since it is difficult for CN to predict where a shortage willoccur, these bulletins would cover various locations, whether or not there was actually a shortagethere. Employees who wished to work at a shortage at a certain location would post a bid for thatlocation and if that location ever became short, the employee who had posted a bid could be calledto cover the work there.2010 CHRT 24 (CanLII)[36] CN still puts out shortage bulletins and employees are still allowed to bid on these, butgiven that protected employees can now stay at their home terminal on the furlough board andstill be paid, there is little incentive for them to bid on these potential shortages.[37] CN also uses a system which is referred to as “whitemanning” which allows it to send asurplus of employees at one terminal to an adjacent terminal. For example, in such a scenarioemployees in Kamloops, B.C., would be running trains that the Vancouver crews would normallytake to Kamloops. According to Ms. Storms, “whitemanning” is the first thing CN turns to incase of a shortage, because it is a lot “cheaper” financially than forcing employees to cover ashortage.[38] It is also possible that managers will be called upon during a shortage situation. Almostall of the transportation managers are qualified to operate trains. As a general rule, CN will callupon its managers as a last resort after it has exhausted its supply of running trades employees,including laid off employees.[39] Employees who are assigned to another terminal pursuant to section 148.11 of theCollective Agreement are afforded with certain amenities at their assigned terminal. Theseinclude, when available, rooms equipped with kitchenettes and also the possibility of travelling

9back to their home residence at regular intervals or, alternatively, having CN cover the costassociated with bringing a family member to the shortage location.[40] According to subsection 148.11(f) of the Collective Agreement, the first employee calledupon to protect work will be the junior qualified employee on lay off in the seniority territory witha seniority date subsequent to June 29, 1990. The collective agreement does not provide for amaximum duration for covering work. If the shortage turns out to be permanent, then CN willproceed to hire people for that location.[41] Section 115 of the Collective Agreement provides that an employee who is laid off will begiven preference for re-employment when staff is increased in his seniority district and will bereturned to service in order of seniority. The provision also provides that if the employee isemployed elsewhere at the time of recall, he may be allowed thirty (30) days to report. If he orshe fails to report for duty or fails to give “satisfactory reason” for not doing so, he or she willforfeit all his or her seniority rights.2010 CHRT 24 (CanLII)[42] An employee, who would wish to raise a “satisfactory reason” to justify his or her failureto report for work would first have to make a request to Crew Management Centre (“CMC”). Heor she would then be instructed to write a letter to his or her immediate supervisor at his hometerminal. If the reason raised could have an impact on the Collective Agreement somediscussions with the union might be necessary.(ii)The Complainant[43] The Complainant lives in Jasper, Alberta with her two children. She was originally hiredby CN in the province of Quebec, in 1989. In 1992, she was called to fill a shortage in Vancouverand while there was told by somebody at CN that her work opportunities would be better in theWestern Region. Therefore, on April 9 th , 1992, she applied for a transfer to Vancouver. By doingso, she crossed the seniority district between the Eastern and Western regions and lost theseniority she had accumulated in the Eastern region since 1989. Her new date of seniority wasnow 1992.

10[44] Because she was hired after 1982, but prior to June 29 th , 1990, the Complainant, if she hadstayed in the Eastern Region, would have been a “Category C” employee which would havemeant that she could only be assigned to protect work at an adjacent terminal. The Complainanttestified that she did not know this when she decided to transfer to the Western Region.According to her evidence, at that time CN and the Union were in the negotiation process and noclasses of employees had yet been created.[45] Just after she moved to Vancouver, the Complainant was laid off and forced to protectwork in McClennan, Alberta. In the spring of 1993, when she was five (5) months pregnant, shewas forced to protect work in Edmonton. Her first child was born on September 8 th , 1993 and her2010 CHRT 24 (CanLII)second on November 30 th , 1994.[46] In 1995, the Complainant and her husband, a locomotive engineer with CN, desiring morestability for their young family, elected to transfer to Jasper, as this terminal had a shortage ofemployees at that time.[47] In 1997, the Complainant and her husband separated. Their divorce was finalized in 2001.According to the divorce order, they share custody of their two children. The children’s primaryresidence is with the Complainant.[48] In September 1998, the Complainant was laid off from her position as Conductor withCN. At that time, the local Union representatives in Jasper had a local agreement with CN. Thatagreement allowed for laid off Conductors who booked on the “emergency board” to be called towork ahead of those employees on the active furlough board. From that time until 2001, theComplainant worked on the Jasper emergency board, responding to calls when needed. The localagreement was changed in 2001, when CN decided that it wanted to be able to call the activefurlough board employees before any laid off employees. CN felt that since it was paying aguarantee to the furlough board employees, but not to the laid off employees, it was financiallyadvantageous for the company to use the furlough board employees first before it had to call thelaid off employees to perform emergency work. After this change, given the number of

11employees on the furlough board in Jasper, there was no opportunity for a laid off employee whobooked “OK” on the emergency board being called.[49] The Complainant’s rules and medical cards expired around 2003. She testified that shehad asked to have her rules recertified, but that her request had been denied by the supervisor inJasper.[50] In 2004, the Complainant obtained a new rules card and pre-employment medicalclearance. Commencing in June 2005, she again worked the Jasper emergency board. In fact,prior to her termination in July, 2005, she had worked 9 tours of duty.2010 CHRT 24 (CanLII)[51] At the beginning of 2005, the Complainant’s eldest child was 11 years old and in grade 6.Her younger child was 10 years old and in grade 5. They were both attending school in Jasper.(iii)The Vancouver shortage[52] In February 2005, CN was experiencing a severe shortage of running trades employees inits Vancouver terminal. This situation was mainly due to a growing economy and an increase inCN’s business volume which had outpaced its capacity to provide enough running tradeemployees locally to cover the work it had. According to Ms. Storms, seventy-two (72)Conductors were needed in Vancouver to cover the shortage and Vancouver had only fifty-three(53) Conductors working, so they were nineteen (19) short. She added that “it was definitivelyone of the most serious shortages that I had seen in my career.”[53] To accentuate the seriousness of this shortage, Ms. Storms testified that for the periodbetween February 4 th , 2005, to January 15 th , 2006, the Vancouver yard had 726 overtime shiftsfor a total amount of $229,350.30. On cross-examination, she added that these numbers includedthe overtime done not only by Conductors, but also by locomotive engineers and, she added,possibly by yardmasters.

12[54] Ms. Storms also testified that at about the same period the Jasper terminal was in a surplussituation. She explained that when, as it was the case in Jasper, a terminal has a furlough board, issupporting other terminals with “whitemen” and has employees on lay off, it is considered to be ina surplus situation. But she did acknowledge that in 2005, managers were used in Jasper becauseof train delays. She also added that for “part of 2005” it became busier in Jasper and that afterAugust 6 th , 2005, there was no longer any employees on the furlough board there.[55] Due to its location, the Vancouver terminal is a very active one. It includes extensive yardand intermodal operations where goods are transferred from and onto ships. The Vancouverterminal therefore constitutes a focal point for CN’s Canadian market as vast amounts ofmaterials and consumer goods shipped to and from Asia and North America transits through itand are afterwards transported throughout Canada on CN’s rail network.2010 CHRT 24 (CanLII)[56] A shortage of running trades employees in Vancouver carries significant implications, asit can affect CN’s ability to operate adequately throughout its network.[57] In order to maintain its level of operation, CN decided in February 2005 to recall laid offConductors from the Western region to protect the shortage affecting the Vancouver terminal.These employees were “non-protected” employees with a seniority date subsequent toJune 29 th , 1990. As such, they were subject to Article 148.11(c) of the Collective Agreement.[58] According to Ms. Storms’ evidence, shortages are managed by the Board AdjustmentGroup at CMC. This Group was at that time under the direction of Joe Lyon who reported directlyto Ms. Storms. The Board Adjustment Group dealt with the Vancouver shortage of 2005, butbecause it was short on staff, crew dispatchers were also involved in contacting the employeeswho were recalled to cover the shortage.[59] Ms. Storms testified that during that period she went to Vancouver to help with thedeployment of officers. She added that officers had been called in from all over Canada to helpwith the shortage. She also testified that 2,144 “tours” had been handled by officers during the

13Vancouver shortage. She further added that this “would be the most usage of officers that I’veseen in the west in my career.”[60] In terms of how long this “shortage” might last, Ms. Storms testified that if theComplainant had reported to Vancouver, she would have probably stayed there for approximatelya year, since the shortage situation in Vancouver was not resolved before 2006.[61] According to the evidence of Ms. Ziemer the shortage was eventually resolved “over aperiod of a couple of years” by CN “hiring the right amount of employees in order to keep aheadof the amount of attrition and the significant growth in the business.” She further explained thatVancouver is a very competitive job market: “Unfortunately the construction industry wasbooming. We also lost a lot of potential candidates to the boom in the oil and gas industry inNorthern Alberta. […], it was very difficult for us to recruit over those two years [2005 and 2006],and it became cyclical. We didn't have enough successful employees through the recruitmentselection process, so we had to readvertise, hold numerous career fairs. We had to advertise overand over again until we had the right amount of employees. And this was cyclical from 2005through to probably mid-2007.”2010 CHRT 24 (CanLII)[62] Employees reporting to cover the shortage at the Vancouver terminal, would be asked toshow up at the Thornton Yard, in Surrey, and from there, since Vancouver has a number of yards,they would be taxied to wherever they were needed. Employees would only be informed whenthey got to Vancouver where they were going to work and what shift they would be working on.[63] Ms. Ziemer also testified as to the housing arrangements for employees reporting to theVancouver shortage. She explained that there were two hotels available in Surrey, B.C. One ofthese hotels was situated several blocks from CN’s yards. This hotel, according to Ms. Ziemer’srecollection, “had large suites with fridges inside and then there was a communal kitchen set upfor CN employees.” The other hotel was closer to the yard and had suites. Ms. Ziemer added“My understanding is that they had kitchen facilities in the suites as well.”

14[64] She also testified that CN could approve the rental of a house, an apartment or a condo.She referred to a situation which occurred in Vancouver – although she did not say when – whereCN had approved the rental of a property because the price of the rental made more senseeconomically than paying “$90 a night or $100 a night or a hotel for the 20 or 30 days that anemployee would be required to be at the location to protect work(iv) The Conductors recalled to cover the Vancouver shortage[65] Forty-seven (47) laid off Conductors in the Western region were recalled to cover theVancouver shortage in February 2005. Ms. Storms explained that employees are recalled on aseniority basis, starting with the senior person in the district. She added that CN would not allow asenior employee to bypass an opportunity to work, because that would mean that they were notprotecting their seniority according to the Collective Agreement. At the time of the recall, theComplainant was first on the seniority list of laid off employees at the Jasper terminal.2010 CHRT 24 (CanLII)[66] Of the forty-seven (47) laid-off employees recalled, ten (10) reported to Vancouver andthirty (30) did not report and either resigned or were dismissed. The remaining seven (7) wereeither excused from reporting or were required at their home terminal.[67] The forty-seven (47) employees were initially contacted by phone. According toMs. Storms, when these employees were called they were told that they had fifteen (15) days toreport to cover the shortage. She further added that she had instructed her group not to ventureany information about the possible duration of the shortage since they did not have thatinformation.[68] At the hearing, CN produced Excel Spreadsheets containing information relevant to fiveemployees who, according to its Amended Statement of Particulars, had reported to Vancouver.Counsel for the CHRC requested that CN produce the same information it had provided for thesefive employees for all of the other forty two employees recalled to Vancouver. These documentswere disclosed in the form of Excel spreadsheets and contained numerous pages of informationconcerning their status during the particular period relevant to these proceedings.

15[69] According to the “Respondent List of Exhibits” in this hearing, CN put into evidence theCATS records for five employees. (See Exhibit R-1, Tab 27 through Tab 31 inclusively.) It alsoput into evidence two other CATS records (See Exhibits R-10 and R-11). Ms. Storms wasquestioned and cross-examined thoroughly on them by counsels. For its part the Commission putinto evidence the CATS records for fifteen other employees. (See Exhibits HR-1, Tab 5 throughand including Tab 10 and HR-2, Tab 23 through and including Tab 30).[70] The remainders of the CATS records disclosed by CN were put into evidence by thecomplainants’ counsel (See Exhibit C-33). These documents were not put into evidence in theformat provided by CN. The complainant’s counsel, during her cross-examination of Ms. Storms,explained that she had created what she described as “a document in a new format by re-sortingthe information contained in the original Excel spreadsheet provided by CN”. This newdocument was re-sorted in such way that it showed which employees recalled to Vancouver were“available” on any given date in the year 2005.2010 CHRT 24 (CanLII)[71] On the last day of the hearing, CN’s counsel raised an issue concerning the accuracy ofsome of the information on the spreadsheets. On January 18 th , 2010, more than two months afterthe hearing, CN filed a motion asking permission to reopen its case to file further new evidence.This motion was dealt with in a ruling which can be found at 2010 CHRT 6.[72] CN produced the documents and, as noted earlier, decided to put it in through the evidenceof Ms. Storms. We can infer from this that CN felt that she had sufficient knowledge of theinformation contained on these documents to be able to testify to them. We will go over some ofthe information contained in these documents in some detail, as it was apparent that they wereimportant for all the parties. In order to protect the privacy of the employees concerned, they willbe identified by letters which do not correspond to their actual names.[73] The documents indicate that employee AB, although recalled did not report to theVancouver shortage. On March 22 th , 2005, he was “set up” at the Sioux Lookout terminal. Hecontinued to work there to the end of the year. Having been “set up” at his home terminal, he did

16not have to cover the shortage in Vancouver. Although this employee was “set up” onMarch 22 nd , the documents indicate that he only worked on March 24 th and then did not workagain until April 1 st . After this date, he works on April 10 th and 11 th , but doesn’t work after thatuntil April 18 th . On July 22 nd , he takes a personal leave and doesn’t return to work untilAugust 12 th . He works from that date to August 20 th , but does not work after that date untilSeptember 22 nd . He works again on September 30 th and then does not work until October 28 th .During the time when he was not working, this employee did not report to the Vancouvershortage.2010 CHRT 24 (CanLII)[74] Employee HI was working on a shortage at Hornepayne at the time of the recall.He worked on that shortage up until May 18 th , 2005. After that he went home for a week and thenwent to Vancouver to cover the shortage on May 30 th . He was later recalled to his home terminalon September 19 th, 2005. He took a transfer to Fort Francis on October 29 th and worked thereuntil the end of the year.[75] According to the documents produced by CN, while he was in Vancouver, this employeestarted off by doing four (4) shifts of training. After he had completed his training on June 3 rd , heonly starts working on June 9 th . Ms. Storms specified that it could well be that during that time hewas still in training, although she did not know for sure. After June 9 th , he is shown as“available” from June 17 th to June 26 th and then he is off work for “miles”. That means that hehad been at the shortage location for a specified amount of time and he could go home for a fewdays. He did not work in Vancouver from June 16 th to July 6 th and from July 23 rd to August 8 th .He has another break on September 1 st . His next working date is September 25 th .On October 29 th , as I’ve stated earlier, he is “set up” in Fort-Francis, but does not actually workthere before December 22 nd , 2005. When asked by the Complainant’s counsel why an employeewould be set up for almost two months and not work, Ms. Storms replied: “I can’t answer that.”

17[76] Employee P was laid off at North Battleford on February 25 th . On March 19 th , he took aweek vacation and then he was “set up” at his home terminal on March 26 th . As alreadymentioned, when an employee is set up at his home terminal, he or she is no longer under anobligation to cover a shortage. Ms. Storms did emphasize though that being “set up” does notmean that the employee is working every day. In the case of Employee P, for example, fromMarch 26 th to the end of April, he only worked 7 days at his home terminal, but Ms. Storms addedthat we must be careful when looking at this information as those tours can last two (2) orthree (3) days each, although no evidence confirming that this was the case for this employee wassubmitted. The employee was again laid off on April 24 th , 2005. From that date to the rest of theyear, this employee moved around within the Saskatchewan zone “taking a clearance” at otherterminals.2010 CHRT 24 (CanLII)[77] The expression “taking a clearance” refers to the situation where a laid off employee withseniority in the Western region elects to go to another terminal where a position he can hold isavailable. When a position becomes available at his home terminal, the employee will returnthere. If an employee is exercising his seniority and “takes a clearance”, he or she is said to beworking and will not have to report to cover a shortage.[78] Employee Y was also called to protect the shortage in Vancouver on February 25 th , 2005.On that day he was on a “leave of absence”, but according to Ms. Storms, CMC would havecontacted him within the next few days. Ms. Storms added that she had checked into thisemployee’s work record and that it indicated that he was “Absent without Leave” onMarch 4 th , 2005. This employee was eventually “set up” at his home terminal onMarch 15 th , 2005. On April 9 th , he was laid off again and then on April 30 th , he was given a leaveof absence by his trainmaster. That leave of absence lasted until May 13 th when he was again laidoff. On June 5 th , he was again given a leave of absence until June 19 th . On June 20 th , he was “setup” in Saskatoon and worked there until July 1 st and was laid off again on July 2 nd . On July 9 th ,he was “set up” again in Saskatoon. On November 4 th , he took a leave of absence and then on

18November 13 th , he started training as a yardmaster. He trained as a yardmaster until Christmasand then he stayed on the working board until the end of the year.[79] Ms. Storms testified that this employee was “dodgy” and “making himself unavailable”.She added that when he was “set up” at this home terminal, he didn’t have to report to cover theshortage, but when he was laid off in early April he should have reported, but did not. Whenasked by CN counsel why he had not been discharged for failing to report, she answered: “I can’tspeak to that. His manager … could have done something. I don’t know exactly why, like I said, Ithink it just fell through the cracks. Because he was working, we didn’t obviously keep very goodtabs on him.” Finally, on December 25 th , 2005, this employee was “set up” in Saskatoon. Oncross-examination, Ms. Storms added that his supervisor thought that he might need thisemployee, so “he was not releasing him”.2010 CHRT 24 (CanLII)[80] Employee U was called to cover the shortage in Vancouver at the same time as everyoneelse. Ms. Storms testified that she had personally talked to this employee and had been informedby him that his father was terminally ill. She added that she had then taken it upon herself toextend his time to report. This employee stayed on the laid off board until June 26 th 2005, atwhich time he was given a leave of absence by the trainmaster at his terminal. On July 24 th , hewas “set up” at his home terminal. His father passed away in October and he booked off onbereavement leave. After that, he stayed at his home terminal for the remainder of the year.[81] Employee E was on laid off status when the recalled procedure started. Initially, whenthey started contacting employees for the shortage, the staff at CMC would just write notes intheir work records as they were making the calls. But, because the shortage was so large, thingswere getting a little awkward and Ms. Storms instructed her staff to put charts together so thatthey could see where things were and how many people would cover the shortage.The information we find on these charts were gathered and recorded by different employees atCMC. The first chart was produced on March 7 th , 2005. The last entry was for May 19 th , 2005.After that, the list was discontinued. By that time Ms. Storms explained that “most of the47 recalled employees had responded or been dealt with.”

19[82] The entry on these charts for March 16 th , 2005, indicates that employee E had “15 days toreport, 30 requested. G. Spanos pls advise or arrange travel.” On April 20 th , 2005, the entryshows “Per Manitoba Zone [E] has been given a compassionate LOA until further notice – perRon Smith – due to personal issue.” [The emphasis is mine.] Ms. Storms explained thatRon Smith was the manager of the running trade employees for the Manitoba zone. Ms. Stormsindicated that she knew a bit more about this employee’s situation, because she had talked withhis supervisor after the Seeley hearing. In response to questions put to her by CN’s counsel, sheexplained that Employee E’s situation was very similar to employee U. He also had a terminallyill parent and that would explain the entry of May 19 th , 2005, which indicates “Per Manitoba zonethis individual has been given a compassionate [leave of absence] until further notice perA. Nashman and K. Carroll”. Mr. Carroll was the general manager of the Vancouver, southdivision, at that time and Mr. Nashman was the general manager of the Western Operation Centre.2010 CHRT 24 (CanLII)Employee E was on a leave of absence until July 30 th , 2005 and afterwards absent without leavefrom July 31 st to September 8 th . On September 10 th , he is transferred to another terminal(Brandon, Manitoba) and, finally, he resigns on October 19 th .[83] When asked on cross-examination why this employee had never reported to Vancouver,Ms. Storms testified that his supervisor had indicated that the employee had not reported toVancouver because “he was training him to be a supervisor, but that ultimately he resigned.”This answer is not consistent with the answer she had given previously to CN’s counsel, when shehad stated that the situation of this employee was similar to that of Employee U.[84] Employee FG was shown on CN’s Amended Statement of Particulars as having resigned,but at the hearing, Ms. Storms testified that this was a mistake. This employee had been recalledto the Vancouver shortage and he reported there on March 22 nd , 2005. But from that date untilSeptember 21 st , 2005, the employee was on “sick leave”. He was granted what is described as“a leave of Absence under the Family Leave Act”. When asked to explain what the “FamilyLeave Act” was, Ms. Storms answered that she did not know. A quick research, did not allow the

20Tribunal to identify any legislation bearing the name “Family Leave Act”. This employeeresigned his position with CN on May 6 th , 2006.[85] Employee O is showed in CN’s Amended Statement of Particulars as having reported toVancouver and to be still employed by CN. But, the documents produced at the hearing indicatethat this employee did not report to Vancouver. He stayed in his home province, which accordingto Ms. Storms “was using all of the employees that were there.”[86] Employee QR was covering a shortage at Hornepayne when the recalled procedurestarted, so he did not have to report to Vancouver right away. After he finished covering the2010 CHRT 24 (CanLII)Hornepayne shortage, he did report to Vancouver but during the period of November 8 th , 2005 toDecember 20 th , 2005, he only worked three days. Before November 8 th , he seemed to have beenworking pretty steadily. Ms. Storms testified that she could not speak for the period starting onNovember 8 th , but she did add that there was still a shortage in Vancouver at that time.[87] Another employee, Employee M, reported to Vancouver on March 25 th , 2005, butbetween that date and the end of 2005, the documents indicate that he only worked thirty four (34)shifts. More specifically, between September 17 th and December 31 st , he only workedten (10) shifts. The documents show that this employee was absent a significant amount of time.The documents also indicate that between November 30 th and December 31 st , 2005, thisemployee was absent without leave. Ms. Storms testified that she had no idea of the reason forthis absence. She added that only his supervisor could give a reason. This employee was notdismissed.[88] Employee A went to Vancouver for approximately two (2) months. On May 14 th , 2005,he was transferred to Kenora. Ms. Storms testified that the supervisor who made the decision toset him up in Kenora “expected or projected” that there would be work for this employee at theterminal. But again, the documents indicate that from May 17 th , 2005 to August 4 th , 2005, thisemployee worked three (3) shifts in Kenora and that from November 1 st to the end of December,

21he worked only seven (7) shifts. Ms. Storms testified that she could not speak for the reason whythe supervisor at Kenora had decided to set this employee up, but she agreed that this “person wasnot working very much.”[89] Employee C reported to Vancouver on March 15 th , 2005. He did work in Vancouver butwas also marked as “available” on many occasions. On May 16 th , 2005, he is set up in Kenora.From May 17 th to July 9 th , 2005, he worked three (3) days at that terminal and from October 20 thto December 12 th , 2005, the documents indicate that he did not work at all. Ms. Stormsconfirmed this information in her testimony.2010 CHRT 24 (CanLII)[90] Employee DE was also recalled to Vancouver on March 15 th , 2005. He had a fairlyregular pattern of work while in Vancouver. On June 18 th 2005, he is transferred and set up inTerrace, but while there he does not work until September 23 rd , date at which he is againtransferred to Vancouver.[91] Another employee IJ was called to cover the shortage at Vancouver but did not have toreport because he was then covering a shortage at another location. From March 17 th to May 16 th ,while covering that shortage, the documents indicate that he only worked one (1) day(April 26 th , 2005). From May 20 th to May 27 th , he was set up at his home terminal in ThunderBay. From June 3 rd to June 24 th , he reported to Vancouver, but again the documents show that heis not working for several days. From July 16 th to September 1 st , he has a fairly steady pattern ofwork. On September 7 th , he leaves Vancouver for Sioux Lookout, where he only worksfour (4) days up until October 27 th , 2005. After that he is set up first at Brandon and then atFort Francis.[92] Employee O did not report to Vancouver for various unexplained reasons. He is set up athis home terminal but the document show that during the period up to December his pattern ofwork at the terminal is very unsteady. Ms. Storms testified that this information “sounded

22accurate” and she added that “it would be up to the terminal to release this employee and lay himoff. If the terminal set him up and he is not working, there is not much CMC can do about it.”[93] Employee W reported to Vancouver on April 14 th , 2005. From that date until July 29 th ,he worked eighteen (18) days. July 29 th , 2005, was his last day in Vancouver. On July 30 th , thisemployee is transferred to his home terminal. He gets set up there but does not work fromAugust 13 th to September 19 th . He works on September 20 th , but then does not work againbefore November 12 th , when he is transferred to another terminal for seven (7) days. He returnsto his home terminal on November 19 th , where he does not work until the end of the year.Ms. Storms testified that she does not know why this employee was not working.2010 CHRT 24 (CanLII)[94] In CN’s Amended Statement of Particulars, employee BC is indicated as having resigned.But according to the documents submitted at the hearing it is indicated that this employee “will beon Great West Life – long term insurance benefits.” According to Ms. Storms, the dispatcher atCMC probably talked to this employee’s supervisor. The employee was excused from reportingto Vancouver.[95] What the Tribunal concludes from this evidence is that many of the employees recalled tocover the shortage in Vancouver either did not report and were not terminated or if they did reportthey were shown as being “available” for work on various days, but did not work.(v)The Complainant’s recall to work[96] Before addressing the facts regarding the Complainant’s recall to cover the shortage inVancouver, the Tribunal notes that in her cross-examination Ms. Storms indicated that she did notpersonally keep a file specific to the Complainant’s situation. She added that Joe Lyon, CN’sManager Operations, Crew Management Centre, Western Operations, and also the manager of theBoard Adjustment Group, who reported directly to her, would most likely have kept thecorrespondence in a “Vancouver shortage file” and that the Complainant’s letters would have

23been filed in her Personal Record files at CN. Mr. Lyon was not called as a witness, so it wasimpossible for the Tribunal to verify this information.[97] The Complainant testified that on March 17 th , 2005, she received a letter from CN datedFebruary 28, 2005. This letter was informing her that she was being recalled to the working boardand required to protect a shortage of yard employees in Vancouver. The letter further instructedher that if she was unable to report to Vancouver within fifteen (15) days after being recalled, shewas to contact the trainmaster in Vancouver. Upon receiving the letter, the Complainantcontacted Mr. Spanos, the Trainmaster in Vancouver, and tried to explain to him her situation andhow devastated her family was by the news, but she added that he did not seem interested; all hewanted to know was when she would show up in Vancouver.2010 CHRT 24 (CanLII)[98] On March 18 th , 2005, the Complainant wrote to CN advising it that she had received theletter of February 28 th , on March 17 th , 2005. She asked for the thirty (30) days notice allowedpursuant to Article 115 of the Collective Agreement. She also explained that she was a singlemother of two school-aged children and that the news of being forced to Vancouver had “caused agreat deal of anxiety for everyone involved.” Her letter was addressed to “CN” and copied to theUTU Local in Jasper and to Joe Lyon, Colin Pizziol, Trainmaster Jasper, and George Spanos.[99] Ms. Storms testified that she didn’t recall having seen this letter. She added that she knewby then that the Complainant had issues with child care and that it is why she had talked toJoe Torchia, CN’s Director of Labour Relation, about the people who could not report and theComplainant was part of this group. She further added that it would have been normal to tell theComplainant to take this matter up with her supervisor, but she could not recall if that had beendone or not.[100] For his part, Mr. Torchia testified that he was familiar with this letter. He believes heeither received a copy of the letter or was informed of its content by CMC. His interpretation ofthis letter was that the Complainant was asking for more time to report and that was it. He thentold Ms. Storms to grant the Complainant an extension of time to report.

24[101] There was no response from the Company to the Complainant’s letter and no evidence ofanybody from CN informing her that she had been granted an extension of time to report.[102] Mr. Torchia further testified that at about the same time, he received a call from BryanBoechler, the General Chairperson of the Union, in respect to the Complainant, Kasha Whyte andDenise Seeley. He said that Mr. Boechler had indicated that these employees were having “childcare issues” and he requested that they be granted more time to report to Vancouver. Mr. Torchiatestified that he believes that, at that point, an extension had already been granted.[103] The spreadsheets prepared by the CMC regarding the recall do not support Mr. Torchia’sevidence. On the sheet dated “March 18/05 as of 13:00” a notation in the row for theComplainant states: “Message at residence to get medical done – wants 15 days.” The notation2010 CHRT 24 (CanLII)marked in the row for K. Whyte reads “15 days to report. 30 requested – OK to March 29 th perA. Nashman” and in the row for D. Seeley, the notation states “16 days to report, 30 requested –OK to April 6 th per A. Nashman.”[104] In a letter dated April 25 th , 2005, the Complainant was instructed by Mr. Lyon to adviseCN, by May 6 th , 2005, whether or not she would be reporting for work in Vancouver. The letterfurther advised the Complainant that failure to do so would result in her forfeiting her seniorityand her services with the Company being “dispensed with.” Ms. Storms testified that she did notrecall being involved in the drafting of this “standard letter out of her office.” She added that shewas aware at that time that the Complainant “had child care issues” and that her “understandingwas that [she] was not going to report.”[105] On May 1 st , 2005, the Complainant wrote to Mr. Torchia requesting a compassionateleave of absence from protecting the shortage in Vancouver. In her correspondence, she states,inter alia, :I would ask that you would please consider the following, regarding the recentnotification to protect the shortage in Vancouver, as this is a plea forcompassion… I am a single mother of two school age children. My daughter is in

25grade 6 and will be reaching a major milestone in her life, she will graduate fromthe elementary school, where she has enjoyed her entire education, with her friendsshe has grown up with… My son is in grade 5 and is enjoying one of the bestacademic year of his education, where his improvement is substantial, he too ishighly involved…. It should be noted that this is not an issue of finding appropriatechild care. In accordance with the ruling of the Queen’s Bench Court of Alberta, Iprovide primary residence for the two aforementioned children, with joint custodywith their Father who lives in Jasper. This carries stipulations regarding taking mychildren away from their father, especially out of the province, including a ninetyday written notice so it has time to be ruled upon by a judge. Their father takes avery active role in their lives and will not stand by and let me take the children away,especially with a court order providing for his rights. According to legal counsel,it would be highly unlikely that a judge would rule to uproot the children due to theinstability of this situation…In your deliberation regarding this particular situation,I would ask for your compassion for my children as well as for two of your employees[herself and her husband]…based on the aforementioned reasons I would askthat CN grant me a compassionate leave of absence, from protecting the shortage inVancouver, due to my legal requirements to remain in Jasper.2010 CHRT 24 (CanLII)[106] Mr. Torchia testified that when he received this letter he contacted CMC and instructedthem to grant the Complainant an extension of time. He added that at this time, he was aware thatthree (3) employees at the Jasper terminal were looking for “accommodation” for “very similarreasons”. He added that he had received another letter prior to this one from Kasha Whyte andthat is how he had been made aware of the situation. He said that he came to the conclusion,although he had never spoken with them, that what they needed was more time to makearrangements.[107] Mr. Torchia’s evidence in regard to speaking to Ms. Storms is consistent with theinformation on the CMC spreadsheets. In his evidence, he said that he had given the Complainantand the two other women a 30 day extension. The notations on the spreadsheets for “May2/05 at17:00”, “May 19/05 at 10:30” and May 19/05 at 17:00”, indicate for all three women“Child care – temporarily on hold per Joe Torchia.”[108] According to Mr. Torchia, it is unusual for these types of questions to go directly to him.He added that employees making these kinds of request would normally address them to theirsupervisor. The supervisor would handle these demands directly and they would rarely rise to“his level”. But, on cross-examination, he testified that even if the Complainant had gone to her

26supervisor the result would have been the same, because the supervisor would have had to cometo either Mr. Morris or himself for approval.[109] Ms. Storms testified that she does not recall having read the letter of May 1 st , although acopy had been sent to Mr. Lyon. She added that she may have discussed it with Mr. Torchia, butshe can’t recall the specifics of this conversation. She also indicates that she was not aware thatthe Complainant had an issue with a custody order.[110] Since she had heard nothing further from Mr. Torchia and since CMC was calling her totake emergency trip, the Complainant assumed that her suggestion of staying in Jasper and doingemergency work had been accepted. As noted previously, the Complainant had booked “OK” foremergency trips in June 2005 and she had been called for nine (9) tours of duty during that period.2010 CHRT 24 (CanLII)[111] Mr. Torchia testified that in the last week of May or at the beginning of June 2005, he wasat a meeting with Albert Nashman, CN’s general manager of the Western Operation Centre, andBryan Boechler, General Chairperson for the UTU. Although the meeting was about differentissues, at one point Mr. Boehcler requested another extension for the Complainant and the othertwo employees. According to Mr. Torchia, he and Mr. Nashman granted a further extension untilJuly 2 nd , 2005. From Mr. Torchia’s understanding, it was clear that this was the last extensionthat would be granted. On cross-examination, he testified that he was not aware if this decisionhad been conveyed to the Complainant. He further added that CN had “accommodated” theComplainant by granting her more time to report. He said that the possibility of granting a“compassionate leave of absence” never crossed his mind. He explained that a “leave of absence”was normally granted for reasons which were “appropriate to the operational requirements ofCN”. He added however that he was not aware that some employees recalled to Vancouver hadbeen granted leave of absence by their supervisors.[112] Mr. Torchia also testified on cross-examination that it was “not fair” to conclude that hehad not applied CN’s accommodation policy in this matter. He added that the Complainant had“family status issues” and that he had “accommodated” these by extending her time to report to

27Vancouver. He further added that the Complainant had been given more time to makearrangements, but that she hadn’t and was therefore “terminated”.[113] On June 27 th , 2005, the Complainant was informed by a letter from L. Gallegos,Manager Operation at CMC, that she must report to Vancouver by July 2 nd , 2005. She wasfurther advised that if she failed to report her seniority rights would be forfeited and her positionwith CN terminated. This letter also made reference to a telephone conversation onJune 22 nd , 2005, between the Complainant and Elaine Storms. During that conversation,Ms. Storms also informed the Complainant that she had to report to Vancouver by July 2 nd , 2005or her employment would be terminated.2010 CHRT 24 (CanLII)[114] The Complainant recalled this telephone conversation. She said that she told Ms. Stormsthat there must be a mistake and she asked her to speak to Joe Torchia about her situation.The Complainant thought that her situation had been dealt with because CN was allowing her tocover the emergency board in Jasper. The Complainant testified that she thought that this was theanswer to her request for a compassionate leave of absence. Following the letter ofJune 27 th , 2005, the Complainant was not allowed to cover anymore work on the emergencyboard.[115] Ms. Storms testified that she was aware at this point that the Complainant had an issuerelating to her children. She indicated that she did not know the details of the situation.She added that she remembered parts of the telephone conversation of June 22 nd , 2005.She testified that the Complainant had told her that she could not report to Vancouver because of“child care issues”. She further testified that she did not recall specifically if the Complainant hadmade a request for more time, but if that had been the case she would have referred her to hersupervisor and to the Union. Ms. Storms also indicated that if the Complainant had indicated thatshe had an arrangement with Mr. Torchia, she would have called him and if he had indicated thathe had allowed more time, she would have granted more time. But she further added that in herconversation with Mr. Torchia, he had clearly mentioned that the provisions of the CollectiveAgreement had to be applied in this case.

28[116] On cross-examination, Ms. Storms added that CN had a number of employees with“issues with children at home”, but she could not recall how many besides the Complainant,Kasha Whyte and Denise Seeley. She further added that “it was kind of a general theme becauseso many people have children.” During his cross-examination, Mr. Torchia testified that no othercases based on family issues, other than these three, had been brought to his attention. No otherentries on the CMC spreadsheets, other than those for the Complainant, Denise Seeley andKasha Whyte, mentioned “family issues” or “child care issues” to explain the failure to report tothe shortage. Mr. Torchia also added that during his conversations with Ms. Storms he had notbeen informed that other employees had been exempted from reporting to Vancouver.2010 CHRT 24 (CanLII)[117] On June 22 nd or 23 rd , 2005, in an email in response to Ms. Storms’ email recapping hertelephone conversations with the Complainant, Mr. Torchia wrote: “As far as I am concerned they[the complainant, Kasha Whyte and Denise Seeley] have been given enough time to sort out theirpersonal affairs. If they wish to extend any further they will have to arrange with theirsupervisor.” Brian Kalin, who was Mr. Pizziol’s supervisor wrote on the same day: “There are nofurther extensions. I agree with Joe - they’ve had several months to get their affairs in order. It’sdecision time for them now.”. Brian Kalin was not called as a witness, so we have no details ofwhat he knew about the Complainant circumstances. There is also no evidence that anybody fromCN informed the Complainant that she should be dealing with her immediate supervisor, Mr.Pizziol, about her request to be excused from reporting to Vancouver.[118] Also of interest in the email chain that CN produced at the hearing is an email whichMr. Torchia testified as being from Albert Nashman. Mr. Torchia added that it had perhaps beenpasted on from another email but he wasn’t sure. He also could not make out the date of thisemail. This email stated: “I talked to Boechler last night. Told him that we are not going tocontinue to delay this process. They have an obligation per the collective agreement to protect.I told him what are we suppose to tell the next group that says they don’t want to go. If he wants tofile a grievance then so be it.” (The underlining is mine.)[119] The content of this email seems to be inconsistent with Mr. Torchia’s prior evidence to theeffect that he had made the decision that there would be no further extensions during the meeting

29at the end of May or in the first week of June with Mr. Nashman and Mr. Boechler. Yet this emailseems to suggest that it is Mr. Nashman who had made this decision. Mr. Nashman was notcalled as a witness.[120] On July 2 nd , 2005, the Complainant wrote to Peter Marshall, CN’s Senior Vice-Presidentfor Western Canada. She again requested that CN consider her situation and grant her acompassionate leave of absence. She included in this letter a copy of her correspondence toMr. Torchia. No response was received from Mr. Marshall or from his office.[121] On July 4 th , 2005, CN wrote to the Complainant advising her as follows:2010 CHRT 24 (CanLII)This letter will confirm as per Article 115 and 148 of Agreement 4.3 your seniorityrights are forfeited and your services with the Company have been dispensed with.Your employment file is now closed.[122] Ms. Storms testified that she does not remember if she had spoken with the Complainant’ssupervisor before terminating the Complainant’s employment, but she did add that as a generalrule, the employer does not proceed with such a decision without talking first to the supervisor.She added that if she had not personally done so, Mr. Lyon would probably have spoken to thesupervisor. Neither Mr. Pizziol, the Complainant’s supervisor, nor Mr. Lyon were called aswitnesses.[123] Ms. Storms added that she had followed Mr. Torchia’s and Mr. Albert Nashman’sdirections to terminate the employment of the Complainant.[124] After her termination, the Complainant kept hoping that CN would review its position.She testified that in early 2006, she noticed that the Jasper yard was progressively growing shortof employees. She therefore decided to write again to Mr. Marshall on February 6 th , 2006,indicating that she was “ready, willing and able and would gladly return to work in Jasper to helpalleviate this shortage.”

30[125] On February 16 th , 2006, Mr. Marshall answered :Upon receipt of your letter, I reviewed your file and it is my understanding that yourservices were terminated under the terms of the collective agreement as a directresult of your failure to comply with the terms and conditions of that collectiveagreement. I appreciate the fact that you are now ready, willing and able to workand reinstatement would be considered provided you agree to abide by the termsand conditions of the collective agreement. I cannot, however, guarantee that youwould work exclusively in Jasper. Your work location would be determined byyour seniority and our work force requirement. Further, I understand that youcurrently have an active grievance regarding your termination and reinstatementwould be conditional upon withdrawal of the grievance.2010 CHRT 24 (CanLII)[126] Following her termination, the Complainant requested that her Union process hergrievance to arbitration. On April 12 th , 2006, Arbitrator Picher rendered his award which wasreported in Canadian Railway Office of Arbitration & Dispute Resolution (“CROA”), Caseno. 3550. In his award the arbitrator states, inter alia:For the reasons more exhaustively explained and expressed in CROA & DR 3549,the Arbitrator cannot accede to the position advanced by the Union. There isnothing in the collective agreement to suggest that the Company must carefullyweigh the personal and family obligations of an employee and that those obligationsmight effectively trump the cornerstone rights and obligations relating to seniorityand the order of recall of employees in a bargaining unit as provided for under thecollective agreement. There is no responsible basis upon which a board ofarbitration can effectively conclude that an individual’s personal circumstances notonly explain their failure to report for work upon a recall, but excuse themindefinitely, perhaps for years, from the same work obligations as apply to otheremployees, including other single parents, or married parents with comparablefamily obligations. In effect, what the grievor requests would be tantamount to anamendment of the collective agreement by the Arbitrator and the creation of a formof super-seniority based on personal circumstances. For reasons touched upon inthe prior award, there is nothing in the collective agreement which wouldcontemplate the possibility of any such result. On the contrary, the Arbitrator isbound to apply the seniority and recall provisions of the collective agreement asfashioned by the parties themselves. In addition, it should be noted that the Uniondoes not seek, through this grievance, relief for any alleged violation of theCanadian Human Rights Act.(The underlining is mine.)

31[127] CROA No. 3549 refers to the arbitration award in the Kasha Whyte matter. In this award,the arbitrator stated, inter alia :In this grievance the Union does not plead any obligation of accommodation to thegrievor under the provisions of the Canadian Human Rights Act, nor any otherlegislation. It submits that, in effect, the Company unreasonably failed to providethe grievor with a leave of absence to allow her to avoid the recall to Vancouver byreason of her personal circumstances.[…]After a careful review of the facts, the Arbitrator has considerable difficulty withthe submission of the Union. Firstly, I must agree with the Company that in fact thegrievor did not request a leave of absence. What she sought was a form ofsuper-seniority which would allow her, unlike other employees, to remain laid offat Jasper, with no obligation to protect work elsewhere, while continuing to receiveperiodic calls to work from the emergency list at Jasper, as she had previously done.A leave of absence connotes a departure from the workplace, virtually for allpurposes, whether for an indefinite period or for a period that is fixed. Those arenot options which were being requested by Ms. Whyte… The grievor in the case athand was not asking for an adjustment or accommodation in her work schedule. Shewas asking, in effect, for relief against one of the most fundamental obligations ofthe collective agreement, namely the obligation to protect work on her seniorityterritory in the event of a shortage of employees at any location.2010 CHRT 24 (CanLII)[…]I would have some difficulty in concluding that the Company was unreasonable orarbitrary in refusing to effectively grant to the grievor an amendment of hercollective agreement obligations which might extend indefinitely, perhaps as longas ten years, while she would continue to have the special protected status as anemployee who could only be compelled to work in Jasper.[…]This grievance brings to the fore what must be recognized as a constant in anyemployment relationship, namely the tension between personal and familyobligations and obligations to one's employer. Myriad circumstances mightinfluence an employee's personal or family obligations: care for a child, care for anaged parent or another close relative or care for a spouse with a serious medicaldisability. Other personal circumstances might include parole or community serviceobligations after sentencing, close involvement with a church or social group,civic volunteering or competitive sports activities, to name but a few.

32A railway is, by its nature, a twenty-four hour, seven day a week enterprise. Personswho hire on to work, particularly in the running trades, know or reasonably shouldknow that their hours of work will be irregular and that they will, on occasion, becompelled to change location to protect work as needed. In exchange for meetingthose onerous obligations railway employees have gained the benefit of relativelygenerous wage and benefit protections.On what basis can a board of arbitration, charged with interpreting and applying theterms of the collective agreement, conclude that the conditions of single parenthoodcan effectively trump the obligations of employment negotiated by the partieswithin the terms of their collective agreement? In a world where single parenthoodis not uncommon that is not an inconsiderable question. As a general matter, boardsof arbitration, including this Office, have confirmed that with respect to issues suchas childcare the onus remains upon the employee, and not the employer, to ensurethat familial obligations do not interfere with the basic obligations of theemployment contract.2010 CHRT 24 (CanLII)It is, of course, open to the parties to negotiate language within their collectiveagreement to provide possible relief from obligations of employment which wouldotherwise be borne by single parents or, for that matter, married parents with specialneeds. Likewise, Parliament or provincial legislatures could promulgate clearlegislation to oblige employers to take such factors into account in theadministration of contracts of employment and collective agreements. But asmatters stand, the Arbitrator can find no discriminatory practice in the policy of theCompany. It essentially requires all parents, whether single or married, to respondto their core employment obligations regardless of their personal or familycircumstances. It obviously does occur, as in the case of the grievor, that extensionsof time and other accommodations may be considered where hard personalcircumstances are demonstrated. But in the end, all employees subject to theobligations of parenthood are treated the same, without discrimination based on thestatus of parenthood. In my view it would be highly inappropriate, when neither theparties nor Parliament have enacted such protection, for an arbitrator to extract froma provision such as article 115.4 and the phrase « satisfactory reason » for notresponding to a recall, an effective annulment of an employee’s most fundamentalcollective agreement obligation to be at work, in a manner tantamount to grantinga form of super-seniority. If neither the parties themselves nor Parliament hasploughed any such new furrow, it is plainly not for an arbitrator to do so, bound asany board of arbitration is to apply the collective agreement as it stands. Theconferring of what, in effect, would be indefinite and qualified partial parental leaveis for the parties to negotiate or for the appropriate legislators to promulgate, shouldthat be appropriate or desirable.(The underlining is mine.)

33[128] In reading arbitrator Picher, the Tribunal cannot but repeat what it said in Johnstonev. Canada Border Services, 2010 CHRT 20, regarding this award.[227] In Whyte the onus was put entirely on the employee to bear any burdenassociated with working for a twenty-four hour, seven day a week enterprise suchas a railway. The decision finds that “in exchange for meeting those onerousobligations railway employees have gained the benefit of relatively generous wageand benefit protections.” This suggests that an employer can discriminate as long asit pays well, and without a definition as to what ‘relatively generous’ means or whatcomparative is being used.[129] On April 1 st , 2006, the Complainant filed her grievance with the CHRC.2010 CHRT 24 (CanLII)B. ISSUES[130] The issue raised in this case is as follows: has CN discriminated against the Complainantin the context of her employment contrary to sections 7 and 10 of the CHRA by failing toaccommodate her and by terminating her employment on the ground of family status.C. THE LAW AND THEORY OF THE CASE(i)The relevant provisions of the CHRA[131] Section 3 of the CHRA states that “family status” is a prohibited ground of discrimination.3. (1) For all purposes of this Act, theprohibited grounds of discrimination arerace, national or ethnic origin, colour,religion, age, sex, sexual orientation, maritalstatus, family status, disability andconviction for which a pardon has beengranted.3. (1) Pour l’application de la présente loi, lesmotifs de distinction illicite sont ceux quisont fondés sur la race, l’origine nationale ouethnique, la couleur, la religion, l’âge, lesexe, l’orientation sexuelle, l’étatmatrimonial, la situation de famille, l’étatde personne graciée ou la déficience.(The emphasis is mine.)

34[132] Section 7 states :7. It is a discriminatory practice, directly orindirectly,a) to refuse to employ or continue to employany individual, orb) in the course of employment, todifferentiate adversely in relation to anemployee on a prohibited ground ofdiscrimination.[133] Section 10 of the Act provides:7. Constitue un acte discriminatoire, s’il estfondé sur un motif de distinction illicite, lefait, , par des moyens directs ou indirects;(a) de refuser d’employer ou de continuerd’employer un individu;(b) de le défavoriser en cours d’emploi.2010 CHRT 24 (CanLII)10. It is a discriminatory practice for anemployer, employee organization oremployer organizationa) to establish or pursue a policy or practice,orb) to enter into an agreement affectingrecruitment, referral, hiring, promotion,training, apprenticeship, transfer or any othermatter relating to employment or prospectiveemployment, that deprives or tends todeprive an individual or class of individualsof any employment opportunities on aprohibited ground of discrimination.10. Constitue un acte discriminatoire, s’il estfondé sur un motif de distinction illicite, ets’il est susceptible d’annihiler les chancesd’emploi ou d’avancement d’un individu oud’une catégorie d’individus, le fait, pourl’employeur, l’association patronale orl’organisation syndicale;(a) de fixer ou d’appliquer des lignes deconduite;(b) de conclure des ententes touchant lerecrutement, les mises en rapport,l’engagement, les promotions, la formation,l’apprentissage, les mutations ou tout autreaspect d’un emploi présent ou éventuel.

35[134] In considering sections 7 and 10, it is important to highlight the purpose of the CHRA asstated in section 2:2. The purpose of this Act is to extend thelaws in Canada to give effect, within thepurview of matters coming within thelegislative authority of Parliament, to theprinciple that all individuals should have anopportunity equal with other individuals tomake for themselves the lives that they areable and wish to have and to have their needsaccommodated, consistent with their dutiesand obligations as members of society,without being hindered in or prevented fromdoing so by discriminatory practices basedon race, national or ethnic origin, colour,religion, age, sex, sexual orientation, maritalstatus, family status, disability or convictionfor an offence for which a pardon has beengranted.2. La présente loi a pour objet de completerla législation canadienne en donnant effet,dans le champ de compétence du Parlementdu Canada, au principe suivant : le droit detous les individus, dans la mesure compatibleavec leurs devoirs et obligations au sein de lasociété, à l’égalité des chancesd’épanouissement et à la prise de mesuresvisant à la satisfaction de leurs besoins,indépendamment des considérations fondéessur la race, l’origine nationale ou ethnique, lacouleur, la religion, l’âge, le sexe,l’orientation sexuelle, l’état matrimonial, lasituation de famille, la déficience ou l’état depersonne graciée.2010 CHRT 24 (CanLII)[135] The Supreme Court of Canada and other Courts have consistently told us to interprethuman rights in a large and liberal manner. In CNR v. Canada (Human Rights Commission)(Action Travail des Femmes), [1987] 1 S.C.R. 1114, the Court stated, at paragraph 24 :24. Human rights legislation is intended to give rise, amongst other things, toindividual rights of vital importance, rights capable of enforcement, in the finalanalysis, in a court of law. I recognize that in the construction of such legislationthe words of the Act must be given their plain meaning, but it is equally importantthat the rights enunciated be given their full recognition and effect. We should notsearch for ways and means to minimize those rights and to enfeeble their properimpact. Although it may seem commonplace, it may be wise to remind ourselvesof the statutory guidance given by the federal Interpretation Act which asserts thatstatutes are deemed to be remedial and are thus to be given such fair, large andliberal interpretation as will best ensure that their objects are attained.

36(ii)The Lawa) The prima facie case[136] The initial onus is on the complainant to establish a prima facie case of discrimination onthe basis of family status. A prima facie case is “one which covers the allegations made andwhich, if they are believed, is complete and sufficient to justify a verdict in the complainant’sfavour in the absence of an answer from the respondent.” (See Ontario Human RightsCommission and O’Malley v. Simpsons – Sears, [1985] 2 S.C.R. 536, at p. 558.)[137] Once a complainant establishes a prima facie case of discrimination, he or she is entitledto relief in absence of a justification by the respondent. (Ontario Human Rights Commission v.Etobicoke, [1982] 1 S.C.R. 202, at p. 208.) In order to prove a prima facie case of discrimination,the Complainant must, in this case, establish that she was treated in an adverse differential mannerand was terminated because of her family status, contrary to section 7 of the CHRA.2010 CHRT 24 (CanLII)b) What approach is to be applied to determine whether there has been discriminationon the ground of family status?[138] The evaluation of whether there is discrimination on the ground of family status is carriedout according to the test set out in Public Service Labour Relations Commission v. BCGSEU,[1999] 3 S.C.R. 3 (“Meiorin”), just as it would be for any other prohibited ground ofdiscrimination. However, in recent years, the interpretation of the notion of “family status” hasled to the creation of two distinct schools of thought. Some cases have adopted a broad approachtowards the scope of “family status”, while other have taken a more narrow approach. In order tobetter understand what is included in the notion of “family status” we will review a certainnumber of these cases.[139] In Schaap v. Canada (Dept. of National Defence) [1988] C.H.R.D. No. 4, the Tribunal wasconsidering whether relationships formed in a common-law relationship as opposed to those in alegal marriage fell within the protected groups of “marital status” and “family status”. In itsdecision, the Tribunal found the need for a blood or legal relationship to exist and defined familystatus as including both blood relationships between parent and child and the inter-relationship

37that arises from bonds of marriage, consanguinity or legal adoption, including, of course, theancestral relationship, whether legitimate, illegitimate or by adoption, as well as the relationshipsbetween spouses, siblings, in-laws, uncles or aunts and nephews or nieces. In Lang v. Canada(Employment and Immigration Commission, [1990] C.H.R.D. No. 8, the Tribunal stated at page 3:“The Tribunal is of the view that the words “family status” include the relationship of parent andchild.”[140] In Brown v. Department of National Revenue (Customs and Excise), (1993) T.D. 7/93,the Tribunal held at pages 15 and 20:2010 CHRT 24 (CanLII)With respect to ground (b) [family status], the evidence must demonstrate that familystatus includes the status of being a parent and includes the duties and obligationsas a member of society and further that the Complainant was a parent incurringthose duties and obligations. As a consequence of those duties and obligations,combined with an employer rule, the Complainant was unable to participate equallyand fully in employment with her employer.[…]It is not suggested by counsel for the Complainant that the employer is responsiblefor the care and nurturing of a child. She was advocating however that there was abalance of interest and obligation as set out in s. 2 and 7(b) of the C.H.R.A. whichmust be recognized within the context of “family status”.A parent must therefore carefully weigh and evaluate how they are best able todischarge their obligations as well as their duties and obligations within the family.They are therefore under an obligation to seek accommodation from the employerso that they can best serve those interests.We can therefore understand the obvious dilemma facing the modern familywherein the present socio-economic trends find both parents in the workenvironment, often with different rules and requirements. More often than not, wefind the natural nurturing demands upon the female parent place her invariably inthe position wherein she is required to strike this fine balance between familyneeds and employment requirements.[141] The Tribunal finally concluded that the purposive interpretation to be affixed to the CHRAwas a clear recognition that within the context of “family status” it is a parent’s right and duty to

38strike that balance coupled with a clear duty on the part of the employer to facilitate andaccommodate that balance within the criteria set out by the jurisprudence. The Tribunal addedthat “to consider any lesser approach to the problems facing the modern family within theemployment environment is to render meaningless the concept of “family status” as a ground ofdiscrimination.”[142] The Tribunal also considered “family status” as a ground of discrimination in Hoytv. Canadian National Railway, [2006] C.H.R.D. No. 33. In this decision, the Tribunal referred toa judicial definition of the term “family status”, as well as to prior decisions of the Tribunal whichset forth requirements to establish a prima facie case of discrimination based on that ground.The Tribunal specifically stated :2010 CHRT 24 (CanLII)117 Discrimination on this ground has been judicially defined as '... practices orattitudes which have the effect of limiting the conditions of employment of, or theemployment opportunities available to, employees on the basis of a characteristicrelating to their ... family.' (Ontario (Human Rights Commission) v. Mr. A et al[2000] O.J. No. 4275 (C.A.); affirmed [2002] S.C.J. No. 67].118 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)[143] 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 status

39as 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.[144] 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:2010 CHRT 24 (CanLII)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, beinappropriate to select out one prohibited ground of discrimination for a morerestrictive definition.121 In my respectful opinion, the concerns identified by the Court of Appeal,being serious workplace disruption and great mischief, might be proper matters forconsideration in the Meiorin analysis and in particular the third branch of theanalysis, being reasonable necessity. When evaluating the magnitude of hardship,an accommodation might give rise to matters such as serious disruption in theworkplace, and serious impact on employee morale are appropriate considerations(see Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990]2 S.C.R. 489 at pp. 520 - 521). Undue hardship is to be proven by the employer ona case by case basis. A mere apprehension that undue hardship would result is nota proper reason, in my respectful opinion, to obviate the analysis. (The underliningis mine.)[145] In addition to the compelling logic of the Tribunal’s decision in Hoyt for not following theapproach in Campbell River, this Tribunal concludes that the approach suggested in that caseimposes an additional burden on the Complainant by suggesting that the protected ground offamily status includes proof of a “serious interference with a substantial parental or other family

40duty or obligation” and that this is inconsistent with the purpose of the CHRA. As the SupremeCourt of Canada made it clear in B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403,at para. 56, it is not appropriate, when interpreting human rights statutes, to impose additionalburdens.[146] The Tribunal’s approach in Hoyt was cited by the Federal Court of Canada in Johnstonev. Canada (Attorney General), [2007] F.C.J. No. 43, at paragraphs 29-30. This was an applicationfor judicial review by Ms. Johnstone of the decision of the CHRC to not refer her complaintalleging family status discrimination to the Tribunal.2010 CHRT 24 (CanLII)[147] In Johnstone, the Federal Court agreed with the approach of the Tribunal in Hoyt inregards to discrimination on the basis of family status, and stated that “...there is no obviousjustification for relegating this type of discrimination to a secondary or less compelling status.”(Johnstone, supra, at para. 29). The Court also stated that the suggestion of the British ColumbiaCourt of Appeal in the Campbell River case that prima facie discrimination will only arise wherethe employer changes the conditions of employment seems “to be unworkable and, with respect,wrong in law.” (Johnstone, supra, at para.29). The Court also found that the “serious interferencetest” which the Court viewed as the approach apparently adopted by the CHRC for not sendingthe matter to the Tribunal, “fail[ed] to conform with other binding authorities which have clearlyestablished the test for a finding of prima facie discrimination.” (Johnstone, supra, at para. 30.)[148] The Federal Court’s decision in Johnstone was upheld by the Federal Court of Appeal,although the Court of Appeal stated that it was not expressing an opinion on the proper version ofthe test in relation to prima facie discrimination on the ground of family status. Instead theFederal Court of Appeal based its reasoning on the finding that the failure of the CHRC to clearlyidentify the test it applied was “a valid basis for finding the decision of the Commission to beunreasonable. ([2008] F.C.J. No. 427, at para. 2).[149] The Tribunal has recently rendered its decision in the Johnstone matter (see Johnstonev. Canada Border Services, 2010 CHRT 20). In that decision the Tribunal[220]

41[220] This Tribunal agrees that not every tension that arises in the context ofwork-life balance can or should be addressed by human rights jurisprudence, butthis is not the argument put forward in the present case. Ms. Johnstone’s argumentis that such protection should be given where appropriate and reasonable given thecircumstances as presented.[221] As discussed above, we are addressing here a real parent to young childrenobligation and a substantial impact on that parent’s ability to meet that obligation.It is not before this Tribunal to address any and all family obligations and any andall conflict between an employee’s work and those obligations.[…]2010 CHRT 24 (CanLII)[230] […] this Tribunal finds nothing in Section 2 that creates a restrictive andnarrowinterpretation of ‘family status’.[231] To the contrary, the underlying purpose of the Act as stated is to provide allindividuals a mechanism “to make for themselves the lives that they are able andwish to have and to have their needs accommodated, consistent with their dutiesand obligations as members of society…” It is reasonable that protections soafforded include those naturally arising from one of the most fundamental societalrelationships that exists, that of parent to child. The fact that the language ofSection 2 mentions “lives that they are able and wish to have” carries with it theacknowledgement that individuals do make separate choices, including to havechildren, and that the Act affords protection against discrimination with respect tothose choices.[…][233] This Tribunal finds that the freedom to choose to become a parent is so vitalthat it should not be constrained by the fear of discriminatory consequences. As asociety, Canada should recognize this fundamental freedom and support thatchoice wherever possible. For the employer, this means assessing situations suchas Ms. Johnstone’s on an individual basis and working together with her to create aworkable solution that balances her parental obligations with her workopportunities, short of undue hardship.[150] Recently the Public Service Staffing Tribunal (the “PSST”) considered whether to followthe approach to family status set out in Hoyt or in Campbell River and determined that it would

42apply the Hoyt approach. In Chantal Rajotte v. The President of the Canada Border ServicesAgency et al, 2009 PSST 0025, the PSST stated that “the proper approach to be followed is theone set out in Hoyt which is also recognized by the Federal Court in Johnstone.” (para. 127.)The PSST further stated:Accordingly, the evidence must demonstrate that the complainant is a parent, thatshe has duties and obligations as a member of society, and further that she was aparent incurring those duties and obligations. As a consequence of those duties andobligations, combined with the respondent’s conduct, the complainant must proveshe was unable to participate equally and fully in employment. ( para 127.)[151] A review of some recent cases out of the British Columbia Human Rights Tribunal(the “BCHRT”) demonstrates that the decisions of that Tribunal are not consistently following theapproach in Campbell River. For example, it has not been found to be applicable in the case ofprovision of services (Stephenson v. Sooke Lake Modular Home Co-operative Association, 2007BCHRT 341). It has also been distinguished in two BCHRT decisions involving an employmentsituation (Haggerty v. Kamloops Society for Community Living, [2008] BCHRT 172, par. 17 andMahdi v. Hertz Canada Limited, [2008] BCHRT 245, paras. 60 and 61).2010 CHRT 24 (CanLII)[152] In Falardeau v. Ferguson Moving (1990) Ltd., dba Ferguson Moving and Storage et al.,2009 BCHRT 272, the BCHRT referred to the Campbell River, Hoyt and Johnstone decisions,and also to another of its decision in Miller v. BCTF (No. 2), 2009 BCHRT 34. The BCHRTpointed out that in Miller, it had stated that Campbell River applied only in the context fromwhich it arose. It cited the following statement from Miller: “The [Campbell River] formulationof what is necessary to establish discrimination on the basis of family status in the context ofcompeting employment and family obligations is not applied mechanically in all cases of allegeddiscrimination on the basis of family status.” (Falardeau, at para. 29.)[153] The issue in Falardeau concerned whether an employee, who had refused to do overtimebecause of child care responsibilities for his son, had been discriminated against on the ground offamily status. The Tribunal found that the complainant had not established a prima facie case.The Tribunal stated at paras 31 and 32:

43In the present case, Ferguson sought to maintain a well-established pattern ofovertime hours to meet the needs of its customers. To the extent Mr. Falardeaumade the respondents aware of his child-care needs and arrangements, theythought, correctly on the evidence before me, that he was readily able to obtaincoverage for his son's care if his work hours were extended. Indeed, he had done soon many occasions. The fact that neither the pattern of Mr. Falardeau's work, norhis childcare demands or arrangements had changed, suggests that he may havemade an issue of overtime because of his dislike of work on construction sites,rather than because of his family responsibilities.There was no evidence that his son had any special needs, or that Mr. Falardeauwas uniquely qualified to care for him. Although these factors are not required toestablish a "substantial" parental obligation, the evidence in this case establishedno other factors which would take Mr. Falardeau's case out of the ordinaryobligations of parents who must juggle the demands of their employment, and theprovision of appropriate care to their children. I am unable on these facts to find a"serious interference with a substantial parental or other family duty orobligation." (The underlining is mine.)2010 CHRT 24 (CanLII)[154] The BCHRT in Farlardeau was essentially following the reasoning formulated in theCampbell River case. But even if it had followed the Hoyt approach, its conclusion might nothave been different. The main difference between the situation in Falardeau and in the presentcase is that in Falardeau there had been no changes in Mr. Falardeau pattern of work or in hischildcare demands or arrangements. Furthermore, his employer had been made aware ofMr. Falardeau’s child-care needs and arrangements and it thought, rightly, that Falardeau wasreadily able to obtain coverage for his son's care if his work hours were extended. Therefore,Mr. Falardeau had not been able to make out a prima facie case on the ground of family status, ashe had not proven that he was unable to participate equally and fully in employment as aconsequence of his duties and obligations as a parent.[155] In the present case, the Complainant by being forced to cover a shortage in Vancouver wasfacing a serious interference with her parental duties and obligations. The matter might have beendifferent had the Complainant refused to be set up at her home terminal.[156] In his closing arguments CN’s counsel argued that the Complainant’s position was basedon an incorrect premise. He qualified the complaint as a request that the employer accommodate

44the Complainant’s “parental preferences and lifestyle choices.” He added that this position wasbased on an exceedingly broad interpretation of the CHRA and that the only characteristic raisedby the Complainant as triggering protection under the Act is the fact that she is a parent and assuch must see to the upbringing of her children. Counsel further submitted that requiring anemployee who is a parent to comply with his or her responsibility to report to work as required bythe collective agreement does not amount to discrimination prima facie. Rather, he argued thatthe refusal by an employee to comply with his or her responsibilities in this regard amounts to achoice which is exclusively personal in nature and which, absent exceptional circumstances, noemployer is obligated to accommodate. Accordingly, he concluded that upholding the complaintin this case would amount to adding “parental preferences” to the list of prohibited grounds ofdiscrimination set out in the CHRA under the guise of an expansion of the notion of“family status”.2010 CHRT 24 (CanLII)[157] In support of his arguments, Counsel referred to numerous cases and awards, including theBritish Columbia’s Court of Appeal decision in Campbell River which he suggested presented amore structured and pragmatic approach than the Tribunal’s decision in Hoyt. He also madereference to an arbitration award in Canadian Staff Union v. Canadian Union of PublicEmployees, (2006) 88 C.L.A.S. 212. In this case, the grievor had refused to relocate to Halifaxafter having applied for a job which indicated that the place of work would be Halifax.The grievor resided in St. John’s, Newfoundland, where he had shared custody of his childrenwith his former spouse. He also was responsible for the care of his aging mother. The unionargued that the notion of “family status” was not limited to the status of being a parent per se, butalso extended to the accommodation of the grievor’s family responsibilities.[158] According to the award, the grievance raised important issues of human rights law whichwere summarized as follows: “ whether an employer’s designation of a specific geographiclocation in a job posting, and insistence that an employee who wished to hold that job live wherehe or she can report regularly to work at that location prima facie constitutes discrimination on thebasis of marital status or family status, if the employee’s marital and family responsibilitieseffectively preclude him or her from living where he or she can report regularly to work at thespecified location.” (at para. 6.)

45[159] The arbitrator dismissed the grievance on the ground that “for the purposes of any statuterelevant here, and the Collective Agreement, it was the Grievor’s choice, not his marital andfamily responsibilities, that precluded him from moving to Halifax.” (at para. 9.) The arbitratoradded: “what the Employer did here did not constitute prima facie discrimination on the basis ofmarital status or family status and the Employer was not required by law to accommodate theGrievor to the point of undue hardship.”[160] In his analysis of the relevant cases, the arbitrator adopted the narrower approach ofCampbell River in regards to the interpretation of “family status”. Although interesting, theTribunal notes that the facts relevant to this award are in many regards different from those in thepresent case. In that case, the grievor had applied for a job, knowing full well that the jobdescription indicated that it was to be located in Halifax. The grievor had a choice, he coulddecline to go to Halifax and remain in his position in St. John’s, which is not the case for theComplainant whose choice was either to report to Vancouver for an undetermined amount of timeor see her employment relationship terminated. The facts also indicate that there was nosignificant increase in pay or benefits involved between the job in Halifax and the one in St.John’s and that the grievor had applied for the job posted because he wanted a change and newchallenges (para. 15). The Tribunal also notes that the grievor’s children were 19 years old,starting university, and 15, starting high school, and, as indicated by the arbitrator, although thegrievor’s sons undoubtedly benefited greatly from his regular presence in St. John’s, theyrequired no special care from him, and he could make arrangement for their maintenance in hisabsence. (Para. 141.)2010 CHRT 24 (CanLII)[161] CN counsel also made reference to the Ontario Human Rights Tribunal’s decision inWight v. Ontario (No 2), 33 C.H.R.R. D/191, which dealt with an employee who, at the expiry ofher maternity leave, refused to return to work claiming that she was unable to make appropriatedaycare arrangements. Her employment was thereafter terminated on the ground that she hadabandoned her position. In this case the Tribunal found that the Complainant had “steadfastly”refused to acknowledge her employer’s reasonable expectations that she would take whateversteps are necessary to return to work when her maternity leave would expire. In the Tribunalwords: “She had decided she was going to be on a maternity leave until October at the earliest or

46January at the latest.” (para. 321). The Tribunal added that this was not a case of someone who,despite her best efforts, could not find day care for her child and had to make a choice between herchild and her job. Again a factual situation which is very different from the present one.[162] Counsel also made reference to Smith v. Canadian National Railway, 2008 CHRT 15,a decision rendered in May 2008, by the then Tribunal Chairperson. The Tribunal fails to see howthis decision can be said to be “comparable” to the present situation. In the Smith case, althoughthe complainant did assert, amongst other ground, that he had been discriminated against on thebasis of family status, the Tribunal found that this ground of discrimination had not been raised inthe complaint and that no jurisprudence was presented as to whether the facts amounted to familystatus discrimination. (para. 289.)2010 CHRT 24 (CanLII)[163] CN’s counsel finally referred the Tribunal to a series of awards rendered by theCanadian Railway Office of Arbitration (“CROA”). Although interesting, all the CROAdecisions are founded on their particular facts and do not help us in the determination of theproper test to follow in this case.[164] The Tribunal also disagrees with CN’s argument that an open-ended concept of familystatus would open up the floodgates and that it would have the potential of causing disruption andgreat mischief in the workplace. As the Human Rights and Citizenship Commission of Albertanoted at para. 242 of its decision in Rawleigh v. Canada Safeway Ltd, decision rendered onSeptember 29, 20009, “every case must be weighed on its own merits and unique circumstances.To support the belief that the floodgate may be opened to opportunistic individuals is verydangerous and possibly discriminatory.”[165] The Supreme Court of Canada and other Courts have consistently held that that humanrights must be interpreted in a large and liberal manner. In CNR v. Canada (Human RightsCommission) (Action Travail des Femmes), [1987] 1 S.C.R. 1114, the Court stated, atparagraph 24:

4724. Human rights legislation is intended to give rise, amongst other things, toindividual rights of vital importance, rights capable of enforcement, in the finalanalysis, in a court of law. I recognize that in the construction of such legislationthe words of the Act must be given their plain meaning, but it is equally importantthat the rights enunciated be given their full recognition and effect. We should notsearch for ways and means to minimize those rights and to enfeeble their properimpact. Although it may seem commonplace, it may be wise to remind ourselvesof the statutory guidance given by the federal Interpretation Act which asserts thatstatutes are deemed to be remedial and are thus to be given such fair, large andliberal interpretation as will best ensure that their objects are attained.[166] From the above analysis, the Tribunal concludes that there are two different interpretationsin the case law with regard to a prima facie case of discrimination based on family status: the onein Campbell River and the one in Hoyt. The Tribunal is of the opinion that the effect of theapproach in Campbell River is to impose a hierarchy of grounds of discrimination, some grounds,as the ground of family status, being deemed less important than others. This approach is notsupported by the purpose of the CHRA. Furthermore, all the permutations of the approach appliedto the ground of family status in British Columbia subsequent to the Campbell River decision,support the Tribunal’s conclusion that family status should not be singled out for a different andmore onerous or more stringent prima facie standard. The only solution is to apply the same testas for the other grounds enumerated in section 3 of the CHRA. This approach was accepted inHoyt and approved by the Federal Court in Johnstone.2010 CHRT 24 (CanLII)[167] I will therefore follow the approach in Hoyt which is consistent with human rightsprinciples in treating all prohibited grounds of discrimination as equal.[168] Furthermore, taking into account the special nature and status of human rights legislationas a quasi-constitutional legislation, the Tribunal concludes that the interpretation and applicationof family status proposed in Hoyt is the proper one to adopt. As stated earlier, human rightslegislation must be given a liberal and purposive interpretation, in which protected rights receive abroad interpretation, while exceptions and defenses are narrowly construed.

48c) Has a prima facie case of discrimination on the basis of family status been made out?[169] After considering all the evidence, the Tribunal, applying the Hoyt approach, concludesthat the Complainant has made out a prima facie case of discrimination on the basis of familystatus. As a result of her family obligation she lost her employment while other employees didnot.[170] The evidence establishes that the Complainant is divorced and that she has the primarycustody of her two children who in July of 2005 were 10 and 11 years old. The Divorce Orderand custody agreement stated that the two parents would have joint and shared custody of thechildren, the Complainant providing the primary residence for them. It was further ordered thatneither party was to reside outside Jasper with the children, without giving the other party ninety(90) days written notice of the move.2010 CHRT 24 (CanLII)[171] In 2005, the Complainant was on lay-off status with CN. In February 2005, she was askedby CN how long it would take her to report to a shortage in Vancouver. As already noted, thecustody order obligated her to provide ninety (90) days notice should she want to relocate herchildren away from their father. Given the unknown length of time the shortage would last andthe difficulties involved in uprooting her children from their schools, their father, friends andcommunity, she testified that it was impossible for her to go to Vancouver to cover the shortage.[172] The Complainant wrote to CN explaining her family situation and the difficulties relatedto her family status. She told CN that she could not report to Vancouver and asked for a“compassionate leave of absence.” On March 18 th , 2005, she again wrote to CN explaining thatalthough the thirty (30) days would be adequate for a notice to her present employer, herdifficulties and unique circumstances as a single mother would not allow her to report toVancouver. In another letter dated May 1 st , 2005, she explained the circumstances of her familyand child care situation directly to Mr. Torchia and stated that to move her children to Vancouverwas not an option.

49[173] The evidence establishes that Conductors on the railway have an unpredictable workschedule and yet the Complainant had made the necessary arrangements to fulfill the full range ofher duties as a Conductor, including being on a 2 hour call 7 days a week, for work out of Jasper.The only issue for her was that she could not leave her family in Jasper at the time of theVancouver shortage.[174] The Complainant never received any answer to any of her letters. CN’s witnesses testifiedthat parental responsibilities such as child care were not a “satisfactory reason” to not protect ashortage. CN considered that the complainant’s situation did not qualify as requiringaccommodation on the basis of family status under the CHRA. It also considered theComplainant’s situation as a personal choice not to abide by her professional obligations in orderto prioritize other aspects of her life, a situation it referred to as “work-life” balance.”2010 CHRT 24 (CanLII)[175] On cross-examination, Mr. Torchia recognized that the Complainant concerns werelegitimate and that they did deserve accommodation. But, for him what the Complainant neededwas more time to sort out her affairs and that is what he had granted her. He also added that it was“unfair” to conclude that he had not applied CN’s Accommodation Policy: “They [theComplainant, Kasha Whyte and Denise Seeley] had family issues and I accommodated them byextending the time they had to report to Vancouver. They were accommodated to makearrangements. They didn’t and were terminated.” Interestingly, he also added: “In the case of thetwo Complainants [Cindy Richards and Kasha Whyte], I felt that they had “satisfactory reasons”and that is why I granted them an extension of time when I found out about them.” This was notthe position adopted by CN before the arbitrator.[176] The Tribunal concludes that the law simply does not support CN’s view of family status asnot including the Complainant’s situation. The Complainant situation as a single parent of twochildren and the ramifications, as she explained in her various letters, of ordering her toVancouver does bring her within the ground of family status. She specifically requestedaccommodation of CN and had directed her request to CN officials. CN’s witnesses testified thatsuch a request should have been made to the employee’s supervisor who in this case wasColin Pizziol, the trainmaster in Jasper. Unfortunately, Mr. Pizziol was not called as a witness and

50CN’s other witnesses could not testify to how he had dealt with this situation. The unchallengedevidence of the Complainant was that neither her supervisor, nor any other managers of CN, hadever responded to her letters, nor discussed her situation with her.[177] In regards to the evidence submitted at the hearing, the Tribunal concludes that theComplainant has established a prima facie case of discrimination based on the ground of familystatus. The evidence demonstrates that the Complainant was a parent and that this status includedthe duties and obligations generally incurred by parents. As a consequence of those duties andobligations, the Complainant, because of CN’s rules and practices, was unable to participateequally and fully in employment with CN. This being the case, the onus now shifts to CN todemonstrate that the prima facie discriminatory standard or action it adopted is a bona fideoccupational requirement.2010 CHRT 24 (CanLII)d) Did CN provide accommodation to the Complainant?[178] To evaluate whether there has been discrimination on a prohibited ground in anemployment context, and whether an employer has accommodated an employee up to the point ofundue hardship, the applicable test is the one set forth by the Supreme Court of Canada inMeiorin. In that decision, the Supreme Court of Canada standardized the test applicable todiscrimination and rejected the old distinction between direct and indirect discrimination.[179] Once the Complainant has established a prima facie case of discrimination, the onus shiftsto the employer to demonstrate that the prima facie discriminatory standard or action is abona fide occupational requirement (“BFOR”). In this regard, the Supreme Court of Canada hasstated at paragraphs 54 and 55 of the Meiorin :An employer may justify the impugned standard by establishing on the balance ofprobabilities:(1) that the employer adopted the standard for a purpose rationally connected tothe performance of the job;(2) that the employer adopted the particular standard in an honest and good faithbelief that it was necessary to the fulfilment of that legitimate work-relatedpurpose; and

51(3) that the standard is reasonably necessary to the accomplishment of thatlegitimate work-related purpose. To show that the standard is reasonablynecessary, it must be demonstrated that it is impossible to accommodate individualemployees sharing the characteristics of the claimant without imposing unduehardship upon the employer.This approach is premised on the need to develop standards that accommodate thepotential contributions of all employees in so far as this can be done without unduehardship to the employer. Standards may adversely affect members of a particulargroup, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at p.518, "[i]f a reasonable alternative exists to burdening members of a group with agiven rule, that rule will not be [a BFOR]". It follows that a rule or standard mustaccommodate individual differences to the point of undue hardship if it is to befound reasonably necessary. Unless no further accommodation is possible withoutimposing undue hardship, the standard is not a BFOR in its existing form and theprima facie case of discrimination stands.2010 CHRT 24 (CanLII)Was the standard adopted for a purpose rationally connected to the performance of the job?[180] The “neutral rule” in question here is the requirement to report for work in Vancouver tocover the shortage. In her closing argument, Complainant’s counsel stated that she did notchallenge that the ability of CN to require unprotected employees to be forced to cover shortagewas rationally connected to its stated purpose of being able to move workers quickly to thoselocations which were short to allow it to keep its trains moving. She added that the rule itselfincludes the ability of a Conductor to not go when forced if there is a “satisfactory reason”.Did the employer adopt the particular standard in an honest and good faith belief that it was necessaryto the fulfillment of that legitimate work-related purpose?[181] Again the Complainant does not challenge the honest and good faith belief that from anoperational point of view CN needed the ability to force unprotected employees to covershortages. The evidence from both the Union representatives and CN was that these provisionswere negotiated as part of the Collective Agreement. CN witnesses also testified that once theFurlough Boards were established, it did not expect to get many volunteers to cover shortages andthat is why it negotiated the ability to force unprotected employees on lay off to address thatproblem.

52Has CN established that it could not accommodate the Complainant without undue hardship?[182] CN’s third and final hurdle is to demonstrate that the impugned standard is reasonablynecessary for the employer to accomplish its purpose. At this stage, CN must establish that itcannot accommodate the Complainant and others adversely affected by the standard withoutexperiencing undue hardship. In other words, since the Complainant was adversely affected onthe ground of her family status by the standard of forcing employees to cover shortages, could CNaccommodate her without experiencing undue hardship?[183] The use of the term “undue” infers that some hardship is acceptable. It is only “unduehardship” that satisfies this test. (See Central Okanagan School District No. 23 v. Renaud, [1992]2 S.C.R. 970, at page 984.) It may be ideal for an employer to adopt a practice or standard that isuncompromisingly stringent, but if it is to be justified it must accommodate factors relating to theunique capabilities and inherent worth and dignity of every individual, up to the point of unduehardship. (Meiron, supra, at para. 62.) Furthermore, when an employer is assessing whether it canaccommodate an employee it must do an individualized assessment of the employee’s situation.In this regard, in McGill University Health Centre (Montréal General Hospital) v. Syndicat desemployés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, at para. 22, the Supreme Courtof Canada stated: “The importance of the individualized nature of the accommodation processcannot be minimized.”2010 CHRT 24 (CanLII)[184] In Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.489, at pages 520-21, Wilson J. addressed the factors that may be considered when assessing anemployer’s duty to accommodate an employee to the point of undue hardship. Amongst therelevant factors are the financial cost of the possible method of accommodation, the relativeinterchangeability of the workforce and facilities and the prospect of substantial interference withthe rights of other employees. It was also stated that a standard or practice that excludes membersof a particular group on impressionistic assumptions is generally suspect. (British Columbia(Superintendent of Motor Vehicles) v. British Columbia Council of Human Rights, [1999] 3 S.C.R.868 (Grismer), at para. 31). Employers must be innovative yet practical when consideringaccommodation options in particular circumstances.

53[185] In his closing arguments, CN’s counsel suggested that the Supreme Court of Canada hadrestated the principles applying to the notion of “undue hardship” in its decision in Hydro Québecv. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, sectionlocale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561. The Tribunal does not accept this interpretationof the decision in Hydro-Québec. On the contrary, the Tribunal finds this decision to beconsistent with previous decisions of the Supreme Court on the issue of accommodation.In Hydro Québec, the Court stated that although the employer does not have a duty to change theworking conditions in “a fundamental way”, it does have the duty, if it can do so without unduehardship, to arrange the employee’s workplace or duties to enable the employee to do his or herwork. (par. 16). The Court also stated that “[b]ecause of the individualized nature of the duty toaccommodate and the variety of circumstances that may arise, rigid rules must be avoided. If abusiness can, without, undue hardship, offer the employee a variable work schedule or lighten hisor her duties – or even authorize staff transfers – to ensure that the employee can do his or herwork, it must do so to accommodate the employee.” (par. 17.) (See also Jonhstone v. CanadaBorder Services, supra, at para. 218.)2010 CHRT 24 (CanLII)[186] CN argues that if accommodation was required under the CHRA, “reasonableaccommodation” was provided when they granted the Complainant more than four (4) months toreport to Vancouver, rather than the minimum fifteen (15) days set out in the CollectiveAgreement. CN further states that granting the relief sought by the Complainant would constituteundue hardship because it would effectively grant all employees who are parents an equivalent to“super seniority” under the Collective Agreement solely on the basis of their status as parents.[187] I will address first the claim that “reasonable accommodation” was provided.[188] CN argues that providing extra time to the Complainant to report to Vancouver was all thatit was required to do. However, the evidence clearly shows that this was not in any way ameaningful response to the Complainant’s request and to the factual underpinnings of hersituation which she had communicated to the employer through her various letters. The evidencealso shows that the decision was made without anybody from CN discussing it with theComplainant.

54[189] The evidence establishes that the Complainant wrote to Mr. Torchia and to other seniormanagers at CN setting out the details of her family situation and her assessment of why herfamily duties and responsibilities prevented her from reporting to the shortage in Vancouver. Shealso specifically requested a compassionate leave of absence. The Complainant had furtherclearly indicated that she was ready and willing to cover all aspects of her job as a Conductor inJasper where she had the necessary child care and family supports.[190] The evidence clearly establishes that CN was not sensitive to the Complainant’s situation.It did not answer her many requests for some form of accommodation and did not even meet orcontact her to discuss her situation, even though its own accommodation policy directs that theemployee be met as a first step in the process. It is also clear from the evidence of Mr. Storms andof Mr. Torchia that they did not feel that they had any responsibility regarding any issuepertaining to the CHRA. They both testified that the supervisor of the employee and HumanResources were the ones with whom this issue should have been raised. Unfortunately, as statedearlier, Mr. Pizziol, the Complainant supervisor, was not called as a witness and neither wasMs. Mary-Jane Morrison, the person responsible for Human Resources in Edmonton in 2005.According to CN counsel, Mr. Pizziol does not work for CN anymore and Ms. Morrison wasunavailable for personal reasons.2010 CHRT 24 (CanLII)[191] It is clear that CN witnesses did not consider “family status” - at least, family statusmatters that involve parental obligations and responsibilities - as a ground of discrimination thatnecessitated any form of accommodation. In their conception of the various grounds ofdiscrimination set out in the CHRA, they seem to have chosen some grounds as opening a right toaccommodation and others that did not. For example, they testified that CN had not hesitated to“accommodate” some employees who were recalled to cover the shortage in Vancouver becauseof a sick parent. They also acknowledge that CN had in the past accommodated employees formedical reason. But without inquiring into the nature of her request, they decided that theComplainant’s situation did not qualify as one requiring accommodation under the CHRA.[192] The evidence of Mr. Torchia is that he was aware of the Complainant’s situation and thathe had come to the conclusion that what she needed was more time to sort out her affairs.

55He never had any discussion with the Complainant, nor did he delegate the matter to anothermanager so that he could discuss the Complainant’s request with her. He felt that he knew whatshe needed and that he had given her what she needed.[193] For her part, Ms. Storms, who was monitoring the CMC spreadsheets, knew that theComplainant’s situation had been labeled “child care issue”. In her evidence she suggested thatmany of the employees recalled had also raised child care issues and that it was becoming ageneral theme. However, no other employees, other than the Complainant, Denise Seeley andKasha Whyte, had child care noted on the spreadsheets and Mr. Torchia testified that he knew ofno other cases but these where “child care issues” had been raised.2010 CHRT 24 (CanLII)[194] Since it was her department who was supervising the information concerning the recalledemployees, Ms. Storms had the opportunity to initiate CN’s Accommodation Policy in the case ofthe Complainant, but she did not. Interestingly, Ms. Storms testified that she had initiated anaccommodation in the case of another employee who had also been recalled to cover the shortagein Vancouver. That employee had a terminally ill parent and she gave him a leave of absence.She was also aware from a review of the CMC spreadsheets that other employees had beenexcused from reporting to Vancouver due to disability and for various other unexplained personalreasons.[195] In an email dated June 23 rd , 2005, Ms. Storms summarized her telephone discussions withthe Complainant and with Ms. Whyte. She mentioned that the Complainant had child care issuesand that Ms. Whyte had a son who was ill and that she had custody issues. She also mentions inthe email that both had written to Mr. Torchia. However, she also wrote that if the Complainantand the two other women decided not to protect the shortage in Vancouver, their employmentfiles would be closed and their seniority forfeited. This email was sent to Ms. Gallegos, andcopied to Mr. Nashman, Mr. Torchia, Kenneth Sherman and Brian Kalin (Mr. Pizziol’ssupervisor). None of these managers thought that it might be appropriate, in the face of theComplainant’s situation, to initiate the Accommodation Policy.

56[196] The evidence also indicates that CN did not apply its own accommodations guidelines andpolicies in the Complainant’s case. CN has a very comprehensive accommodation policy.This policy recognizes all the prohibited grounds enumerated in the CHRA, including “familystatus”, and the policy clearly indicates that, wherever possible, employment policies andpractices are to be adjusted so that “no individual is denied employment opportunities...” It alsospecifies that accommodation “means making every possible effort to meet the reasonable needsof employees.”[197] CN “Accommodation Guidelines” explains that the objective of the policy is “to ensurethat working conditions are not a barrier to employment.” It also makes clear that CN has toshow flexibility in eliminating any barriers and that it should make “every effort to ensure that noone is put at a disadvantage because of a special need or requirement.”2010 CHRT 24 (CanLII)[198] The policy also defines the process to be followed in case of a request for accommodationwhere one of the enumerated grounds and it provides a checklist to be followed by managers andsupervisors in case of such a request. The Policy explains:• The first thing to do when an employee reports a problem or special need is tomeet with the individual. Allow the employee to present the problem or need, askquestions to fully understand the request, and together discuss possible solutions.• If no solutions can be identified in this manner, do not reject the request outright.Ask for advice, seek other solutions to the problem, and evaluate the impact of anypotential accommodation with the appropriate functions, including the Peopledepartment, among other. The employee has the responsibility to participateactively in the process, and to facilitate reasonable accommodation. Unions alsohave a recognized and important role and responsibility in the accommodation ofthe needs of employees.• It is extremely important to keep records of the meeting held, the various solutionsproposed, and the arguments used to accept or reject each option.This information is indispensable in the event of a complaint.

57• Promptly inform the person in question of the decision taken, explaining thereasons for the decision. In the event that a request for accommodation is denied,employees may have a right to grieve under the appropriate grievance procedureor make a complaint under the CHRA.[199] Ms. Ziemer testified that the Policy is aimed at doing an individualized assessment of theemployee's situation, since every situation is different. In the case of the Complainant it is clearthat no individualized assessment was done.[200] The person responsible for the accommodation policy at CN’s Edmonton office is, asindicated earlier, Mary-Jane Morrison, a Human Resources Officer. It is with her that people whohave questions about the policy or its procedure consult. Ms. Morrison was not a witness at thehearing. Instead, CN called as a witness Stephanie Ziemer, the Human Resources Officer inVancouver. Ms. Ziemer testified as to her understanding of what “family status” covered as aground of discrimination. She explained that from her perspective as a human resources manager,“family status” means that an employer cannot discriminate against somebody who has a family,either a parent who has children or any individual that is a member of a family. She further added“certainly family status, from my understanding […] would not incorporate any kind of orindividualized parental obligations. These are very individualized and personal preferences thatpeople have, and certainly I never saw it as coming under our policy to being involved in thesetypes of individualized parental preferences.”2010 CHRT 24 (CanLII)[201] On cross-examination, Ms. Ziemer was asked to explain what she meant by“individualized parental preferences.” She stated: “Whether or not you want to be at home to put,you know, your child to bed. Whether or not you want to attend every sporting event with yourchild. I mean, those are all things that we'd like to do as parents, but they would not be sufficientto initiate the accommodation process.” She did add though that taking care of an ill child, havingissues regarding a custody order or being a single parent would be a different thing and that itmight open the door to discussions. She agreed that it was CN's expectation that single parents, ifthey want to be railroaders, have to manage their affairs so that they can perform their workingobligations. But, she also added that if something unusual came along, for example, being askedto go cover a shortage, that might also open the door to discussions.

58[202] Once the door is opened, the process provides that there should be a meeting between theemployee and is supervisor, so that the latter can get a feeling of what is the problem. Ms. Ziemeracknowledged that the simple exchange of letters at this stage would not be as efficient. At thatmeeting the supervisor should ask for more information about the reasons for the request anddiscuss possible solutions.[203] Ms. Ziemer testified that she had no hands on implication or any personal knowledge ofthe Complainant’s situation. She also added that Human Resources is not always involved inthese cases. Whenever possible, they are resolved at the local level. She further stated that CNhad trained its managers well enough that they have the abilities to make a good managementdecisions, protecting the operation and making, where necessary, small adaptations or smalladjustments to the working conditions of the employee.2010 CHRT 24 (CanLII)[204] Ms. Ziemer gave various examples of situations where CN had accommodated employeeson the basis of “family status”, starting with her own situation. She explained that her husbandhad been severely injured in a skiing accident. For a period of ten weeks, he could not move hisarm or upper body. During this period, she explained that she was allowed not to travel and wasgiven a flexible working schedule. She also testified to the accommodations given to anindividual in Vancouver so he could be available for his son who was involved in illegalactivities, including gang-related activities and to a Conductor whose daughter had a significantpsychological breakdown. This employee was allowed to work closer to home for a ratherlengthy period of time. She added that CN had also accommodated a market manager upon herreturn from parental leave because her child had a severe eating disorder. This employee wasgiven additional time off upon completion of her parental leave.[205] On cross-examination by Counsel for the CHRC, Ms. Ziemer was reminded of two otherexamples that she had referred to in the Seeley hearing. One of these was an accommodation foran employee which allowed him to be absent from the working board every second weekendbecause he only had visitation rights for 48 hours every two weeks. The other was anaccommodation granted to an employee who was involved in a lengthy custody battle in Court.This person was given additional time off for this reason.

59[206] She further testified that most of these cases had been dealt with at the local level.She further added that supervisors are trained to pick up on that type of request. But, she stated“unfortunately we can't supervise what they're doing out there in the field in terms of putting theactual teachings to use. We would like to think that they are well conversant in our policies, welltrained. But whether or not that Supervisor A at Location B would be able to pick up on the issuecoming forward, I can't say definitively that that would happen.”[207] According to Ms. Ziemer, although there are no mechanism to evaluate the application ofthe policy, CN’s expectations is that the front line supervisors are doing the right thing in terms ofthe policy, are living up to the policy and are abiding by the intricacies of the policy. She addedthat when the policy is not followed, Human Resources usually hears about it through variouscorrespondences, or from their counterparts on the labour relations side. As a general rule, CN isoperating on the notion that its supervisors are following the policy in terms of what they havebeen taught and what CN’s expectations are.2010 CHRT 24 (CanLII)[208] Ms. Ziemer also testified on cross-examination that the process described in theaccommodation policy would start as soon as an employee came forward and reported a problemor special need, although she added that that would not necessarily always lead to a decision thataccommodation is necessary. When asked by Complainant’s counsel why this process had notbeen initiated in the Complainant’s case, she answered that she did not know, because she had notbeen involved in this case. She also added that usually the employee goes to his or her immediatesupervisor as the first step.[209] Mr. Torchia testified that he had not met with the Complainant, because this wouldordinarily be done by the Complainant’s supervisor. He added that he did not know for “a fact”whether her supervisor had met with her, but he would “assume he did” because he had atelephone conversation with him and he was aware of the situation.[210] On cross-examination, he testified that he had received training with regard to the duty toaccommodate “many years ago, in the early nineties”. For her part, Ms. Storms testified that shedid not recall receiving any training on CN’s accommodation policy. She added that she knew

60about the policy and that if she had some concerns about it she would talk to somebody inHuman Resources. Ms. Storms further added that she never really used the accommodationpolicy, because CMC does not get many requests for accommodation. She did acknowledgethough that there were times where CMC had accommodated employees because of seriousillnesses in the employee’s family or because somebody needed time off for personal reasons.[211] She further testified that although she remembered having read the policy, she was notvery familiar with it and did not have a detailed knowledge of it. She did not know if anybodyelse at CMC had had training on the policy. On cross-examination from counsel for the CHRCshe answered that to her knowledge none of the dispatchers and/or members of the BoardAdjustment Group, who were primarily responsible for contacting the employees recalled tocover the shortage in Vancouver, had any training regarding CN’s accommodation policy. Askedto explain how they would recognize an issue of accommodation if one came up, Ms. Stormsanswered that they knew that CN accommodates people and that sometimes they are aware of anemployee’s situation. The general rule would be for them to refer an employee with specialrequest to his supervisor.2010 CHRT 24 (CanLII)[212] According to the Complainant’s evidence, CN’s accommodation policy was not followedin her case. She added that she never met with her supervisor, the trainmaster in Jasper, nor didshe get any response to the letters she had sent to supervisors or managers of CN explaining hersituation. There was also no evidence that she had met with anybody at Human Resources or thatshe had been referred to them. It is clear from the evidence that CN did not follow the procedureset out in its own policy and that it had decided that “family status”, at least in terms of parentalobligations and responsibilities, was not a ground of discrimination for which accommodationwas required. It is also clear that CN never did an individualized assessment of the Complainant’ssituation as it was required to do.[213] In her letter to Mr. Torchia, the Complainant suggested as a possible accommodation thatshe be granted a compassionate leave of absence for the duration of the Vancouver shortage.The evidence indicates, based on the return to Jasper of another employee who had been forced toVancouver, that this would have been around March 2006. If the leave of absence had been

61granted, the Complainant would not have provided services to CN and she would not have earnedany wages. CN did not submit any evidence to establish how the granting of a leave of absencewould have caused it an undue hardship.[214] Even if I was to accept the evidence that CN had provided some form of“accommodation” by granting the plaintiff more time to report to Vancouver, CN’s failure tomeet the procedural obligations of the duty to accommodate would in itself still give rise to aviolation of the Complainant’s human rights. The Supreme Court of Canada has acknowledgedthat both the decision-making process and the final decision have to be taken into consideration inanalyzing a BFOR. In Meiorin, the Court states at para. 66: “It may often be useful as a practicalmatter to consider separately, first, the procedure, if any, which was adopted to assess the issue ofaccommodation and, second, the substantive content of either a more accommodating standardwhich was offered or alternatively the employer’s reasons for not offering any such standard.”(See also Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2), 2004BCHRT 225, at paras. 84-86).2010 CHRT 24 (CanLII)[215] In Lane v. ADGA Group Consultant Inc., 2007 HRTO 34, at para. 150, (decision upheld bythe Ontario Superior Court of Justice, Divisional Court, at [2008] O.J. No. 3076, 91 O.R.(3d) 649)the Ontario Human Rights Tribunal held that:…[T]he failure to meet the procedural dimensions of the duty to accommodate is aform of discrimination. It denies the affected person the benefit of what the lawrequires: a recognition of the obligation not to discriminate and to act in such away as to ensure that discrimination does not take place.[216] In Meiorin, the Supreme Court identified the following question as being relevant inanalyzing the procedural part of the accommodation process followed by the employer:i. Has the employer investigated alternative approaches that do nothave a discriminatory effect, such as individual testing against amore individually sensitive standard?ii. If alternative standards were investigated and found to be capable offulfilling the employer's purpose, why were they not implemented?

62iii. Is it necessary to have all employees meet the single standard for theemployer to accomplish its legitimate purpose or could standardsreflective of group or individual differences and capabilities beestablished?iv. Is there a way to do the job that is less discriminatory while stillaccomplishing the employer's legitimate purpose?v. Is the standard properly designed to ensure that the desiredqualification is met without placing an undue burden on those towhom the standard applies?vi. Have other parties who are obliged to assist in the search forpossible accommodation fulfilled their roles?2010 CHRT 24 (CanLII)[217] To meet the procedural component of the duty to accommodate, CN had a duty to showthat it had considered and reasonably rejected any accommodation that would haveaccommodated the needs of the Complainant.[218] The only evidence that this assessment of other form of accommodation might haveoccurred is the evidence that the Union had suggested canvassing the employees in Jasper to see ifanybody would volunteer to cover the shortage instead of the Complainant, Kasha Whyte andDenise Seeley. But, since nobody came forward, the canvassing stopped. There is no evidencethat CN did an individualized assessment of the Complainant’s situation or investigated anyalternative form of accommodation[219] I will now deal with CN’s position to the effect that it would be undue hardship to grantthe relief sought by the Complainant because she would then be granted “super seniority” basedon the simple fact of her status as a parent.[220] According to Stephanie Ziemer, CN does not capture the information regarding how manyof its employees are parents. She added that the only way to have this information would be toreview each employee’s file to see who they designate as dependants. Ms. Ziemer further addedthat from CN’s employees “group insurance” benefit plan “we can assume that approximately69% of [CN’s] workforce are parents.” The methodology used by CN to produce this evidence

63was severally put to test at the hearing by the Complainant’s counsel. But beside themethodological problems, the Tribunal concludes that this very partial evidence falls well short ofthe evidence that CN would need to produce to justify discrimination on a balance of probabilitiesusing the tripartite Meiorin BFOR test.[221] If the Tribunal was to accept CN’s argument that because a vast majority of its employeesare parents, accommodating the Complainant would cause it undue hardship, that would meanthat any workplace with a large number of persons falling into a group with one or the other of thepersonal characteristics set forth in section 3 of the CHRA would automatically be precluded fromthe application of the law. For example, it would mean that women working in a workplacewhere the vast majority of employees are women would be precluded from making a complaint ofdiscrimination based upon gender. Accepting CN’s argument would have the effect of making itimpossible for an individual to make a complaint on the ground of family status – at least, familystatus matters that involve parental obligations and responsibilities – because most of theemployees in the workforce are parents and could also potentially follow the same route.2010 CHRT 24 (CanLII)[222] CN did not produce any evidence that it was overwhelmed with requests foraccommodation from people in the Complainant’s situation. In Grismer, supra, at para. 41, theSupreme Court of Canada stated quite clearly that in the context of accommodation“impressionistic evidence of increased expense will not generally suffice.” In Lane, supra, atparagraph 117, the Ontario Divisional Court added:Undue hardship cannot be established by relying on impressionistic or anecdotalevidence, or after-the-fact justifications. Anticipated hardships caused by proposedaccommodations should not be sustained if based only on speculative orunsubstantiated concern that certain adverse consequences “might” or “could”result if the claimant is accommodated.[223] Regardless of the particular basis for CN’s claim that it will suffer undue hardship, it iswell established that the undue hardship analysis must be applied in the context of the individualaccommodation being requested. As the Supreme Court stated in Grismer, supra,at paragraph 19, accommodation must be incorporated into the standard itself to ensure that each

64person is assessed according to her or his own personal abilities, instead of being judged againstpresumed group characteristics which are frequently based on bias and historical prejudice.Accordingly, an employee’s individual assessment is an essential step in the accommodationprocess unless it is in itself an undue hardship for the respondent (See Grismer, at paragraphs 22,30, 32 and 38; Meiorin, at paragraph 65; Audet v. National Railway, 2006 CHRT 25,at paragraph 61 and Knight v. Société des transports de l’Outaouais, 2007 CHRT 15,at paragraph 72). Again, this individual assessment was not done in the case of the Complainant.[224] In the instant case, CN has failed to provide evidence that accommodating theComplainant would cause undue hardship in terms of costs. The only evidence regarding costwas with respect to the training of Conductors and there was no attempt to relate that evidence tothe situation in the present case. We must remember that in order to be found to be “undue”, thecost of accommodation must be substantial. In Quesnel v. London Educational Health Centre(1995), 28 C.H.R.R. D/474 (Ont. Bs. Inq.), the Ontario Human Rights Tribunal stated, atparagraph 59,: ““cost” would amount to undue hardship only if it would alter the essential natureor substantially affect the viability of the enterprise responsible for the accommodation.” This isrecognized in CN own Accommodation policy which states: “The costs incurred must beextremely high before the refusal to accommodate can be justified. The burden of justifying therefusal rests with the employer. The cost incurred must be quantifiable and related to theaccommodation. Renovations or special equipment can be expensive but financial aid maysometimes be obtained from various organizations.” No evidence of this nature was submitted atthe hearing.2010 CHRT 24 (CanLII)e) Conclusion[225] For all of the above reasons, the Tribunal concludes that the evidence has established thatCN has breached sections 7 and 10 of the CHRA. CN’s practice of requiring the Complainant toprotect the shortage in Vancouver has had an adverse effect on her because of her family status.The evidence demonstrates that CN acted contrary to sections 7 and 10 of the CHRA by pursuinga policy and practice that deprived the Complainant of employment opportunities based upon herfamily status.

65[226] The evidence also establishes that the Complainant was put at a disadvantage because ofher special needs and requirements. CN’s managers never met with her. They never allowed herthe opportunity to present and explain her needs, nor did they ask any questions to fullyunderstand her request. They never sought any advice from their own Human ResourcesDepartment. If they had, they would certainly have been told to initiate the policy consideringMs. Ziemer’s evidence that the policy is initiated as soon as a employee comes forward andreports a problem or a special need and her evidence that taking care of an ill child, having issuesregarding a custody order or being a single parent would at least open the door to discussions.D. REMEDIES2010 CHRT 24 (CanLII)[227] The remedies sought by the Complainant are compensation for lost wages and benefits,compensation for pain and suffering, special compensation, legal cost and interest and an orderthat she be reinstated in her employment with CN with full seniority, benefits and all otheropportunities or privileges that were denied to her. The CHRC also seeks an order ensuring thatCN cease all discriminatory practices and behaviour and that it review its accommodation policy.(i)An Order that CN Review its Accommodation Policy[228] The CHRC requests an order, pursuant to section 53(2)(a) of the CHRA, that CN takemeasures, in consultation with the CHRC, to redress its failure to properly accommodate itsemployees on the basis of family status, including issues of parental obligations andresponsibilities. It further requests an order that appropriate human rights training forCN’s managerial, human resources and crew management personal be put in place and thatregular information sessions on accommodation policies be offered in an effort to eliminatediscriminatory attitudes and assumptions related to family status as a ground of discrimination.[229] Although the Tribunal acknowledges that CN has a good policy on accommodation, it isclear that it has not been applied or implemented properly in the case of family status as a groundof discrimination. Some evidence has also indicated that the policy has not been revised since theTribunal’s decision in Audet v. Canadian National Railway, [2006] CHRT 25 and Hoyt, supra.

66At the most, according to Cathy Smolynek, CN’s Senior Director of Occupational HealthServices, some process changes were made in the disability area of the Policy.[230] I have referred in my decision to the Accommodation Guidelines and have determined thatthe managers and supervisors have failed to follow this policy in the Complainant’s case. Havingreviewed the evidence, I conclude that CHRC’s request is justified.[231] I therefore order CN to work with the Commission to ensure that the discriminatorypractice and behaviour does not continue and to make sure:2010 CHRT 24 (CanLII)a) that the appropriate policies, practices and procedures are in place, andb) that CN, in consultation with the CHRC, retain appropriate persons to conductworkplace training for manager, human resource staff, CMC employees and anyother employees deemed necessary on issues of discrimination and human rightsand particularly on accommodation on the ground of family status.(ii)Reinstatement[232] The Complainant seeks an order, pursuant to s. 53(2)(b) of the CHRA, directing CN toreturn her to her employment as a Conductor with CN. Section 53(2)(b) of the CHRA states thatwhere the Tribunal finds the complaint is substantiated, it may order a respondent to makeavailable to the victim of the discriminatory practice, on the first reasonable occasion, the rights,opportunities or privileges that were denied the victim as a result of the practice.[233] In order to provide this remedy in the present case, the Complainant must therefore bereturned to her job without lost of seniority. The Tribunal therefore orders CN to set up theComplainant as a Conductor at the Jasper terminal, after she has, if necessary, updated her rulesand medical certificates.

67[234] There are three possible starting dates that the Tribunal could reasonably fix for theComplainant reinstatement. The first date suggested is July 2 nd , 2005, which could be seen as theeffective date for implementation of the Complainant’s request to be accommodated by being “setup” in a full time position in Jasper. The Tribunal does not accept this as an appropriate date asthere was no evidence that the Complainant could have been set up in a full time position inJasper at that time or if this would have been the appropriate accommodation. There was also noevidence of any employees being set up in Jasper at that time.[235] The second date is March 1 st , 2006. According to the evidence, this is the date thatanother laid off employee from Jasper, who had been recall and had reported to Vancouver, wasset up in Jasper. Since only four employees from Jasper, the Complainant, Denise Seeley,Kasha Whyte and this other employee, had been recalled and told to report to Vancouver it mightbe reasonable to expect that the they would also have been set up in Jasper around March 2006.Ms. Storms testified that “because the Complainant seniority is very close to [that of the employeewho was set up] it is safe to say that they would have been recalled to Jasper at that time as well.”2010 CHRT 24 (CanLII)[236] Finally, evidence was produced that in March 2007, CN hired new Conductors in Jasperand that many of these new Conductors have since been set up. It is reasonable to concludetherefore that the Complainant had, at that time, seniority over these new Conductors and that shewould have been set up in Jasper ahead of them.[237] With the admission of Ms. Storms, it is safe to conclude that the Complainant would mostlikely have been set up in March 2006, had she not been terminated and this date is therefore theone retained for her reinstatement.[238] In regards to her seniority, since seniority continues to accumulate even when anemployee is on lay off, it will in this case continue to accumulate as if there had never been abreach in her relationship with CN on July 2 nd , 2005.

68(iii)Compensation for lost wages[239] The complainant seek compensation for all wages and benefits lost pursuant to s. 53(2)(c)of the CHRA. Considering my conclusion as to the date of reinstatement, I order that theComplainant be compensated for all lost of wages and benefits from March 1 st , 2006 to today.The parties are ordered to calculate the amount of wages owing using the formula provided for inthe Collective Agreement. In regards to extra payments that a road Conductor could receive,since it would be difficult for the Tribunal to set an amount, it is ordered that the parties establishthis amount by looking at the extras that were paid for the period to a Conductor with similarseniority working in the terminal, assuming that that Conductor had no unusual absences.The parties could, for example, take into consideration the extra payments that were paid to theemployee who was set up in Jasper in March 2006.2010 CHRT 24 (CanLII)[240] In 2006, the Complainant’s income was $18,233.96. During that period the Complainantwas holding two jobs, that of waitress and the one at the building centre. In 2007, she got apromotion to Assistant Manager at the building centre and her earnings were then of $33,172.58.In 2008, she held the same position with earnings of $37,365.44. In July 2009, she got anotherpromotion to the position of Manager. Since July, she is making $17.00 an hour and working fortyhours a week. For the first months of 2009, she was earning $15.50. She receives no otherbenefits at this job.[241] For mitigation purposes, these amounts should therefore be deducted from the amount ofher lost wages.[242] As to the claim for lost wages from July 2 nd , 2005 to March 1 st , 2006, there was noevidence that the Complainant would have been working during that period. Even if she wouldhave been allowed to remain on the emergency board, there was no evidence submitted thatwould allow the Tribunal to set this amount so the Tribunal makes no order for that period.

69(iv)Pain and suffering[243] Section 53(2) of the CHRA provides for compensation for pain and suffering that thevictim experienced as a result of the discriminatory practice, up to a maximum of $20,000.[244] The Complainant testified that between the time when she was informed that she wasbeing forced and the date she was fired, the situation wasn’t very difficult for her because shesincerely believe that everything would be resolved. But after she was fired, things were difficultfor her and her children because she did not know what was going to happen. She added that thedecision to fire her was very difficult for her. She felt that she was very close to being set up andthat now that opportunity had vanished. She described the decision to fire her as “a mind blowingsituation” and “huge blow financially and family wise.” She added that she was basically “indenial” and that she “did not think that it was possible”. She “felt rejected like in when you’relosing a spouse, a partner”.2010 CHRT 24 (CanLII)[245] Although no medical evidence was produced to, the Tribunal concludes that CN’s conductand nonchalant attitude towards her situations was disturbing for the Complainant. Taking thisinto consideration, the Tribunal orders CN to pay to the Complainant $15,000 in compensationfor her pain and suffering.(v)Willful or Reckless Conduct[246] Section 53(3) of the CHRA provides for additional compensation where the Respondenthas engaged in the discriminatory practice willfully or recklessly up to a maximum of $20,000.[247] CN had an accommodation policy, which set out the procedures to be followed withrespect to any employees who reported any problem or a special need. This policy clearlyidentified “family status” as one of the ground for discrimination. Yet, CN and the seniormanagers involved in this case decided that they needed be concerned with family status andignored their responsibilities under the policy. They didn’t make any efforts to try to understandthe Complainant’s situations. They ignored her letters and decided to treat her case as just a

70“child care issue”. They felt that they knew, without ever speaking to the Complainant, what wasbetter for her and what she needed. This course of action was, in my view, reckless.[248] In the circumstances, I order CN to pay to the Complainant the sum of $20,000,in additional compensation under section 53(3) of the Act.(vi) Compensation for expenses[249] In her closing arguments, counsel for the Complainant sought an award for legal cost.The question whether the Tribunal had the authority to award costs and whether that authoritycould be found in paragraph 53(2)(c) of the Act, which authorizes the Tribunal to compensate acomplainant for any expenses incurred as a result of the discriminatory practice, was dealt with bythe Federal Court of Appeal in Canada (Attorney General) v. Mowat, 2009 FCA 309, a decisionrendered in the closing days of the hearing.2010 CHRT 24 (CanLII)[250] After an analysis of Human Rights Code in various provinces that allowed an award forcost and after analyzing the purported intent of Parliament, the Federal Court of Appealconcluded at paragraph 95:The quest is to determine whether Parliament intended to endow the Tribunal withthe authority to award costs to a successful complainant. For the reasons given, Iconclude that Parliament did not intend to grant, and did not grant, to the Tribunalthe power to award costs. To conclude that the Tribunal may award legal costsunder the guise of “expenses incurred by the victim as a result of thediscriminatory practice” would be to introduce indirectly into the Act a powerwhich Parliament did not intend it to have.[251] Taking into consideration the decision of the Federal Court of Appeal, the Tribunal cannotaccede to the Complainant’s request that CN be ordered to pay her legal cost.[252] The Complainant and Kasha Whyte have submitted out of pocket expenses which amountto $336.68, each being accountable for half this amount. Under the provision ofparagraph 53(2)(c) of the Act, CN is ordered to reimburse half this amount to the Complainant.

71(vii)Interest[253] In regards to interest, interest is payable in respect of all the awards in this decision(s. 53(4) of the CHRA). The interest shall be simple interest calculated on a yearly basis, at a rateequivalent to the Bank Rate (Monthly series) set by the Bank of Canada. With respect to thecompensation for pain and suffering (s. 53 (2)(e) of the CHRA) and the special compensation(s. 53(3)), the interest shall run from the date of the complaint and for the lost of earning if willrun from the date of reinstatement.“Signed by”Michel Doucet2010 CHRT 24 (CanLII)OTTAWA, OntarioSeptember 29, 2010

CANADIAN HUMAN RIGHTS TRIBUNALPARTIES OF RECORDTRIBUNAL FILE: T1356/8608STYLE OF CAUSE:Cindy Richards v. Canadian National RailwayDATE AND PLACE OF HEARING: September 22 to 24, 2009October 8 and 9, 2009Jasper, Alberta2010 CHRT 24 (CanLII)October 22, 2009Ottawa, OntarioOctober 26 to 30, 2009November 12 and 13, 2009Jasper, AlbertaDECISION OF THE TRIBUNAL DATED: September 29, 2010APPEARANCES:Leanne ChahleyFor the ComplainantSheila Osborne-BrownSamar MusallamFor the Canadian Human Rights CommissionSimon-Pierre PaquetteJohanne CavéFor the Respondent

Canadian HumanRights TribunalTribunal canadiendes droits de la personneBETWEEN:DENISE SEELEYComplainant2010 CHRT 23 (CanLII)- and -CANADIAN HUMAN RIGHTS COMMISSIONCommission- and -CANADIAN NATIONAL RAILWAYRespondentDECISIONMEMBER: Michel Doucet 2010 CHRT 232010/09/29

TABLE OF CONTENTSPageI. INTRODUCTION ....................................................................................................................... 1A. THE FACTS ....................................................................................................................... 2(i) The Canadian National Railway.................................................................................... 2a) General information.......................................................................................... 2b) Running trades employees ................................................................................ 2c) The changes made in 1992 and the creation of the furlough boards ................ 4(ii) The Complainant’s work history................................................................................... 7(iii) The Vancouver shortage................................................................................................ 8(iv) The Conductors recalled to cover the Vancouver shortage........................................... 10(v) The Complainant’s recall to work ................................................................................. 14B. ISSUES ............................................................................................................................... 20C. THE LAW AND THEORY OF THE CASE...................................................................... 21(i) The relevant provisions of the CHRA........................................................................... 21(ii) The Law......................................................................................................................... 23a) The prima facie case ......................................................................................... 23b) What approach is to be applied to determine whether there has beendiscrimination on the ground of family status? ................................................ 23c) Has a prima facie case of discrimination on the basis of family status been madeout?.................................................................................................................... 35d) Did CN provide accommodation to the Complainant?..................................... 36e) Conclusion ........................................................................................................ 51D. REMEDIES ........................................................................................................................ 51(i) An Order that CN Review its Accommodation Policy ................................................. 52(ii) Reinstatement ................................................................................................................ 53(iii) Compensation for lost earnings..................................................................................... 54(iv) Pain and suffering.......................................................................................................... 55(v) Wilful or Reckless Conduct........................................................................................... 55(vi) Costs and Interest. ......................................................................................................... 562010 CHRT 23 (CanLII)

I. INTRODUCTION[1] This is an employment discrimination case on the basis of sections 7 and 10 of theCanadian Human Rights Act (the “CHRA”). Denise Seeley (the “Complainant”) filed a complaintalleging that the Respondent, the Canadian National Railway (“CN”) has discriminated againsther on the basis of her family status by failing to accommodate her and by terminating heremployment.[2] CN denies the complainant’s allegations.2010 CHRT 23 (CanLII)[3] All the parties, including the Canadian Human Rights Commission (“CHRC”), werepresent at the hearing and were represented by counsel.[4] There are two other related complaints against CN. By agreement of the parties, these twoother matters were treated in a separate hearing and will be decided separately. Although the factsin the present case and in those two other cases are very similar and that the witnesses for CNwere the same, except for one who did not testify in this case, the evidence is, in many regards,different. The witnesses of CN, who testified in this case, did not, without necessarilycontradicting themselves, repeat exactly the same evidence in the two other cases. Also,documents which were disclosed in this hearing were not filed as evidence in those two othercases. These differences will explain any discrepancies that may exist in the facts when they arecompared.

2A. The Facts(i)The Canadian National Railwaya) General information[5] CN is a federally regulated corporation which derives its revenues from the transportationof goods by train. It is a transcontinental railway company which operates in Canada and in theUnited States. Its freight trains transport goods 24 hours a day, 7 days a week, 365 days a year.2010 CHRT 23 (CanLII)[6] CN employs more than 15,000 employees in Canada. Employees are organised in twogroups described as “operating” and “non-operating”. The “non-operating” group is comprised ofemployees working in clerical, mechanical and engineering positions. The “operating” groupemployees are also known as “running trades employees” and consist of Conductors andlocomotive engineers. CN has over 4,000 “running trades” employees throughout Canada ofwhich 2,400 are Conductors.[7] The Crew Management Centre (“CMC”) in Edmonton is a very important part of CNoperations. CMC is responsible for all the crew calling and deployment for the Western region.They manage the workforce for “running trades” and also manage a payroll of 204 milliondollars. Elaine Storms is the Director of CMC. She occupied this position in 2005.b) Running trades employees[8] As stated earlier, locomotive engineers and Conductors form part of what is identified asthe “running trades’ employees”. Locomotive engineers operate the engine and Conductors arebasically in charge of all the other aspects pertaining to the movement of a train.[9] Running trades employees either work “road” or “yard”. “Road work” consists ofemployees who will get on a train at a particular terminal and take the train to another terminal.They will then layover at the away terminal and come back to their home terminal later. A yard

3employee would typically work in the yard, switching box cars and making up trains. The yardemployee does not leave the terminal.[10] In terms of hiring, CN tends to hire its running trades employees in large group. CN didsignificant hiring in the seventies, a spattering in the eighties; then again it did significant hiring inthe nineties and also during the last couple of years.[11] Ms. Ziemer, a Human Resources Officer from Vancouver, testified that in 1996 thepercentage of women in the “running trades” was about 3%. This figure was 3.7% in 2006 and isnow around 3.1%. She added that men predominantly showed more interest for running tradesjobs.2010 CHRT 23 (CanLII)[12] She also explained that the cost of hiring and training a Conductor would be in the vicinityof 18,000 to 20,000$, per Conductor. The training takes from three (3) to six (6) months. Thecost of training a locomotive engineer is between 28,000$ to 30,000$, in addition to what it cost totrain him or her as a Conductor.[13] In order to be qualified to work as a Conductor, an employee must have his rules andmedical cards up to date. These cards have to be updated every three years. If the employee is onthe working board, he or she will generally get a notice that tells him or her that his cards areabout to expire and then he just needs to make the proper arrangements to bring them up to date.If the employee is on lay off, he will need to take care of this by himself.[14] Due to the nature of CN’s operation, running trades employees must be able to workwhere and when required, subject to restrictions imposed by law and the collective agreement. Inlight of these considerations, CN feels that mobility and flexibility constitutes basic jobrequirements for running trades employees. It considers these requirements as necessary becauseof the volume of goods it transports and because of the fluctuation in traffic which can occur overa short time period of time due, for example, to changes in the economy or to seasonal factorssuch as the grain harvest season.

4[15] When an employee is working or available to work, he is said to be on the “workingboard”. The “working board” includes all employees who are not on lay off. Employees on the“working board” are either on “assignments” or in a“pool”.[16] An employee who is on the “working board” can also be said to have been “set up”. Thedecision to “set up” an employee is made following discussions between managers at the terminalwhere the employees are supposed to be set up and the union. The decision is based on thenumbers of employees needed to perform the work that is expected.[17] There is also another board, which forms part of the “working board”, but which isdesignated as the “spare board” or “emergency board”. Employees on this board will only becalled to work to fill in when other employees are either on vacation or unavailable to work forany other reasons.2010 CHRT 23 (CanLII)[18] Running trades employees work on a mileage basis. The working board is adjusted onweekly basis so that each employee can do approximately 4,300 miles a month. When doing theadjustment of the working board, CN will look at the previous week to see how many miles weremade by the employees. They will divide this number by 4,300 and the result will indicate thenumber of employees that would potentially be needed for the following week.[19] At all relevant times to this matter, Conductors in the Western Region of Canada wererepresented by the United Transportation Union (“UTU”). The Western Region includes all ofCN’s rail terminals from Vancouver, British Columbia, to Thunder Bay, Ontario. The applicablecollective agreement for Conductors in the Western Region is Agreement 4.3 (the “CollectiveAgreement”).c) The changes made in 1992 and the creation of the furlough boards[20] In 1992, technological changes allowed CN to do away with the car at the tail end of thetrain, which is more commonly known as the “caboose”. This decision prompted the eliminationof the position of brakeman. After this decision, Conductors, who used to work in the “caboose”,

5were moved up to the front of the train with the locomotive engineer. Eliminating the position ofbrakemen meant that CN needed less running trades’ employees to run its trains. The reduction inthe number of employees was done through the negotiation process with the Union. Thenegotiation resulted in the creation of the “furlough boards”.[21] A “furlough board” comes into existence when there is a surplus of employees, but notenough work for everyone. The “furlough board” will then guarantee the employee’s earnings upto the 4,300 miles provided for in the Collective Agreement whether he or she works or not. Theemployee on the “furlough board” has to remain available for work, but if he or she isn’t called togo to work, he or she still gets paid his or her salary.2010 CHRT 23 (CanLII)[22] The changes made to the working conditions in 1992, also created the notion of “forcing”,which produces different results for different categories of employees in the running trades.According to section 148.11 of the Collective Agreement, employees hired subsequent toJune 29 th , 1990, can be forced to cover work at another terminal in the Western region and areobligated to report at that terminal within, at most thirty (30) days unless they present a“satisfactory reason” justifying their failure to do so. These employees are commonly referred toas “category D” employees. They are also referred to as “non-protected” employees, insofar asthey are obligated to respond to a recall outside of their terminal.[23] Other categories of employees include those who were hired prior to June 29, 1990.These are referred to as “protected” employees. In this group of “protected employees” we havethose who were hired prior to 1982 and who are referred to as “Category A” and “Category B”employees, respectively. These employees cannot be assigned for work outside of their localterminals. Employees hired after 1982 but prior to June 29, 1990, are referred to as “Category C”employees and may only be assigned to protect work at adjacent terminals. For example,“Category C” employees at the Jasper terminal could only be assigned to the adjacent terminals ofEdson and Kamloops.[24] The status of “protected” employees represents an exception to the general rule. Thenumber of these employees will diminish over time through simple attrition and the status will

6eventually disappear altogether. The “protected” employees also have the benefit of the“furlough boards”. “Non-protected” employees are not entitled to the “furlough board”.[25] With the creation of the “furlough boards”, which in essence allowed some employees tobe protected at their home terminal, CN needed to find a way to fill positions in cases of shortagesat other locations. This is where section 148.11 of the Collective Agreement came into being.This provision, as we have just seen, allows CN to “force” unprotected employees to otherterminals in the Western region to cover work.[26] Prior to the enactment of section 148.11, CN would get employees to cover shortages byissuing what is referred to as a “shortage bulletins” and allowing employees to bid on theseshortages, if they so desired. These “bulletins” were put out at each “change of card” whichwould happen about four times a year. Since it is difficult for CN to predict where a shortage willoccur, these bulletins would cover various locations, whether or not there was actually a shortagethere. Employees who wished to work at a shortage at a certain location would post a bid for thatlocation and if that location ever became short, the employee who had posted a bid could be calledto cover the work there.2010 CHRT 23 (CanLII)[27] CN still puts out shortage bulletins and employees are still allowed to bid on these, butgiven that protected employees can now stay at their home terminal on the furlough board andstill be paid, there is little incentive for them to bid on these potential shortages.[28] CN also used a system which is referred to as the “whitemanning” which allows it to senda surplus of employees at one terminal to an adjacent terminal. For example, in such a scenarioemployees in Kamloops, B.C., would be running trains that the Vancouver crews would normallytake to Kamloops.[29] It is also possible that manager will be called upon during a shortage situation. Almost allof the transportation managers are qualified to operate trains. CN will call upon its managers as alast resort after it has exhausted its supply of running trades employees.

7[30] Employees who are assigned to another terminal pursuant to section 148.11 of theCollective Agreement are afforded with certain amenities at their assigned terminal. Theseinclude, when available, rooms equipped with kitchenettes and also the possibility of travellingback to their home residence at regular intervals or, alternatively, having CN cover the costassociated with bringing a family member to the shortage location.[31] According to subsection 148.11(f) of the Collective Agreement, the first employee calledupon to protect work will be the junior qualified employee on lay off in the seniority territory witha seniority date subsequent to June 29, 1990. The collective agreement does not provide for amaximum duration for covering work. If the shortage turns out to be permanent, then CN willproceed to hire people for that location.2010 CHRT 23 (CanLII)[32] Section 115 of the Collective Agreement provides that an employee who is laid off will begiven preference for re-employment when staff is increased in his seniority district and will bereturned to service in order of seniority. The provision also provides that if the employee isemployed elsewhere at the time of recall, he may be allowed thirty (30) days in which to report. Ifhe fails to report for duty or if he fails to give “satisfactory reason” for not doing so, within fifteen(15) days of the recall, he will forfeit all his seniority rights.[33] An employee, who would wish to raise a “satisfactory reason” to justify his or her failureto report for work, would first have to make a request to the Crew Management Centre (“CMC”).He or she would then be instructed to write a letter to his or her immediate supervisor at his hometerminal. If the reason raised could have an impact on the Collective Agreement somediscussions with the union might be necessary.(ii)The Complainant’s work history[34] The Complainant was hired by CN as a “brakeman” on July 2 nd , 1991 and she qualified asa freight train Conductor in 1993. Her home terminal was Jasper, Alberta. The Complainant andher husband lived in Jasper until the birth of their first child in 1999. They then moved to Brule,Alberta, a small community located at about ninety-eight (98) kilometres from Jasper. She was

8an employee of CN until her employment was terminated, in 2005, for refusing to cover theshortage in Vancouver.[35] Her husband is also employed by CN as a locomotive engineer with currently 32 years ofservice.[36] The Complainant worked as a Conductor from 1991 to 1997. In 1997, she was laid off, aswere many other employees of CN. She remained on layoff from November 1997 until February2005. However, her employment relationship with CN was maintained throughout her layoffperiod. The Collective Agreement provides that an employee on lay off will continue toaccumulate seniority. It further provides that he or she can stay on lay off indefinitively or untilhe or she is recalled or resigns.2010 CHRT 23 (CanLII)[37] Between 1997 and 2001, the Complainant had performed some work for CN onemergency calls. More precisely, she worked twenty-five (25) tours of emergency calls between1997 and 2000. In 2001, she worked four (4) more tours. She did not work from thereon.[38] In January 1999, the couple’s first child was born. The second one was born in 2003.Following the birth of her first child, the Complainant still did some emergency work on a fewoccasions, in Jasper, but the calls being unpredictable, this made it difficult for her to make thenecessary child care arrangements. After the birth of her second child, the Complainant did notdo any emergency work for CN.(iii)The Vancouver shortage[39] In February 2005, CN was experiencing a severe shortage of running trades employees inits Vancouver terminal. This situation was mainly due to a growing economy and an increase inCN’s business volume which had outpaced its capacity to provide running trades employeeslocally. According to Ms. Storms seventy two (72) Conductors were needed in Vancouver tocover the shortage and Vancouver had only fifty three (53) Conductors working. She added that“it was definitively one of the most serious shortages that I had seen in my career.”

9[40] Due to its location, the Vancouver terminal is a very active one. It includes extensive yardand intermodal operations where goods are transferred from and onto ships. The Vancouverterminal therefore constitutes a focal point for CN’s Canadian market as vast amounts ofmaterials and consumer goods shipped to and from Asia and North America transits through itand are afterwards transported throughout Canada on CN’s rail network.[41] A shortage of running trades employees in Vancouver carries significant implications, asit can affect CN’s ability to operate adequately throughout its network.[42] In order to maintain its level of operation, CN decided in February 2005 to recall laid offConductors from the Western region to protect the shortage affecting the Vancouver terminal.These employees were “non-protected” employees with a seniority date subsequent toJune 29, 1990. As such, they were subject to Article 148.11(c) of the Collective Agreement.2010 CHRT 23 (CanLII)[43] Ms. Storms also testified that during that period she went to Vancouver to help with thedeployment of officers. She added that officers had been called in from all over Canada to helpwith the shortage.[44] In terms of how long this “shortage” might last, Mr. Joe Torchia, the Director of LabourRelation for CN, indicated that it might have been possible to give an estimate, but that theywould be reluctant to do so “because then people tend to hold you to it.” He agreed that theuncertainty regarding the length of the shortage could have an impact on what housingarrangements CN might be willing to agree too. Ms. Storms was more precise and indicated thatif the Complainant had reported to Vancouver, she would have probably stayed there forapproximately a year, since the shortage situation in Vancouver was not resolved before 2006.[45] Employees reporting to cover the shortage at the Vancouver terminal, would be asked toshow up at the Thornton Yard, in Surrey, and from there, since Vancouver has a number of yards,they would be taxied to wherever they were needed. Employees would only be informed whenthey got to Vancouver where they were going to work and what shift they would be working on.

10(iv)The Conductors recalled to cover the Vancouver shortage[46] Forty-seven (47) laid off Conductors were recalled to cover the Vancouver shortage inFebruary 2005. Ms. Storms explained that, in accordance with the Collective Agreement,employees are recalled on a seniority basis, starting with the senior person in the district. Sheadded that CN would not allow a senior employee to bypass an opportunity to work, because thatwould mean that they were not protecting their seniority. At the time of the recall, theComplainant was third out of four on the seniority list of laid off employees at the Jasper terminal.2010 CHRT 23 (CanLII)[47] The forty-seven (47) employees were initially contacted by phone. Again according toMs. Storms, when these employees were called they were told that they had fifteen (15) days toreport to cover the shortage.[48] CN produced at the hearing a document providing part of the work history for some ofthese employees. Ms. Storms explained that this document was a result of information enteredinto the system by crew dispatchers at CMC. She was extensively cross-examined in regards tothis document by the Complainant’s counsel and by counsel for the CHRC. We will go over thisdocument in some detail in the following paragraphs, as it was apparent that this information wasimportant for all the parties. In order to protect the privacy of these employees, they will beidentified by letters which do not correspond to their names.[49] The employee identified by the letters AB, although recalled did not report to theVancouver shortage. On March 22 th , 2005, he was “set up” at the Sioux Lookout terminal. Hecontinued to work there to the end of the year. Having been “set up” at his home terminal, he didnot have to cover the shortage in Vancouver. Although this employee was “set up” on March22 nd , he only worked on March 24 th and then he did not work again until April 1 st . After this datehe works again on April 10 th and 11 th , but doesn’t work until April 18 th . On July 22, he takes apersonal leave and doesn’t return to work until August 12 th . He works from that date to August

1120 th , but does not work gain before September 22 nd . He works again on September 30 th and thendoes not work until October 28 th .[50] Employee HI was working on a shortage at Hornepayne at the time of the recall. Heworked on that shortage up until May 18 th , 2005. After that he went home for a week and thenwent to Vancouver to cover the shortage on May 30 th . He was later recalled to his home terminalon September 19 th 2005. He took a transfer to Fort Francis on October 29 th and worked thereuntil the end of the year.2010 CHRT 23 (CanLII)[51] According to the documents produced by CN, while he was in Vancouver, this employeestarted off by doing four (4) shifts of training. After he had completed his training on June 3 rd , heonly starts working on June 9 th , six days later. Ms. Storms specified that it could well be thatduring that time he was still in training, although she did not know for sure. After June 9th, he isshown as “available” from June 17 th to June 26 th and then he is off work for “miles”. That meansthat he had been at the shortage location for a specified amount of time and he could go home fora few days. He did not work in Vancouver from June 16 th to July 6 th . From July 23 rd toAugust 8 th he also did not work. Then he has another break on September 1 st and his nextworking date is September 25 th . On October 29 th , as I’ve stated earlier, he is “set up” inFort-Francis, but does not actually work there before December 22 nd , 2005. When asked by theComplainant’s counsel why an employee would be set up for almost two months and not work,Ms. Storms replied: “I can’t answer that.”[52] Employee P was laid off at North Battleford on February 25 th . On March 19 th he took aweek’s vacation and then he was “set up” at his home terminal on March 26 th . As alreadymentioned, when an employee is set up, he or she is no longer under an obligation to cover ashortage. Ms. Storms did emphasize though that being “set up” does not mean that the employeeis working every day. In the case of employee P, for example, from March 26 th to the end ofApril, he only worked 7 days at his home terminal, but Ms Storms added that we must be carefulwhen looking at this information as those tours can last two (2) or three (3) days each, although no

12evidence confirming that this was the case was submitted. The employee was again laid off againon April 24 th , 2005. From that date to the rest of the year, employee P moved around within theSaskatchewan zone “taking a clearance” at other terminals.[53] The expression “taking a clearance” refers to the situation where a laid off employee withseniority in the Western region elects to go to another terminal where a position he can hold isavailable. When a position becomes available at his home terminal, the employee will returnthere. If an employee is exercising his seniority and “takes a clearance”, he or she is said to beworking and will not have to report to cover a shortage. According to Ms. Storms, this wouldhave been an option for the Complainant. In order to do that, Ms Storms explained that theComplainant would have had to call CMC and inquire where she could “take a clearance”.2010 CHRT 23 (CanLII)[54] Employee Y was also called to protect the shortage in Vancouver on February 25 th , 2005.On that day he was on a “leave of absence”, but according to Ms. Storms, CMC would havecontacted him within the next few days. Ms. Storms added that she had checked into thisemployee’s work record and that it indicated that he was “Absent without Leave” onMarch 4 th , 2005 and that his employment was terminated. But then she added, “I don’t knowexactly what the details were, but I believe there was a mistake made and he should have just beenshown laid off at that time.” Whatever happened, this employee did not go to the shortage andwas eventually “set up” at his home terminal on March 15 th , 2005. On April 9 th , he was againlaid off and then on April 30 th , he was given a leave of absence by his trainmaster. Ms. Stormstestified that she tried to contact his trainmaster as well as the Superintendent of his Division tosee why this employee had been given a leave of absence, but that the trainmaster had retired andthe Division had not kept any records of this instance. She also stated that the Superintendentdidn’t have any recollection of this situation. Ms Storms also added, “We had a hard timecontacting the employee and quite frankly he was dodging us. He did work the majority of time athis home location. He either worked or was in training or was on a leave of absence for themajority of the shortage.” Finally, on December 25 th , 2005, this employee was “set up” inSaskatoon.

13[55] Employee U was called to cover the shortage in Vancouver at the same time as everyoneelse. Ms. Storms testified that she had personally talked to this employee and had been informedby him that his father was terminally ill. She added that she had then taken it upon herself toextend his time to report. This employee stayed on the laid off board until June 26 th 2005,at which time he was given a leave of absence by the trainmaster at his terminal. On July 24 th ,he was “set up” at his home terminal. His father passed away in October and he booked off onbereavement. He stayed at his home terminal for the remainder of the year.[56] Ms. Storms also testified that initially when they started contacting employees for theshortage, the staff at CMC would just write notes down in their work records as they were makingthe calls. But, because the shortage was so large, things were getting a little “unwieldy” andMs. Storms instructed her staff to put charts together so that they could see where things were andhow many people would cover the shortage. The information we find on these charts weregathered and recorded by different employees at CMC. The first chart was produced on2010 CHRT 23 (CanLII)March 7 th , 2005.[57] The entry on this chart for March 16 th 2005 for Employee E indicates “15 days to report,30 requested. G. Spanos pls advise or arrange travel.” On April 20 th , 2005, the entry shows “PerManitoba Zone [E] has been given a compassionate LOA until further notice – per Ron Smith –due to personal issue.” According to Ms. Storms, Ron Smith is the manager of the runningtrades’ employees for the Manitoba zone. Ms. Storms testified that she did recall “a little bit”about this instance. This situation was very similar to employee U. Employee E had a terminallyill parent as well. On May 19 th , 2005, the entry indicates “Per Manitoba zone this individual hasbeen given a compassionate [leave of absence] until further notice per A. Nashman andK. Carroll.” Mr. Carroll was the general manager of the Vancouver, South Division, andMr. Nashman was the general manager of the Western Operation Centre. Employee E was on aleave of absence until July 30 th , 2005 and afterwards absent without leave from July 31 st toSeptember 8 th . On September 10 th , he is transferred to another terminal (Brandon, Manitoba) andfinally he resigned on October 19 th .

14(v)The Complainant’s recall to work[58] On February 25 th , 2005, the Complainant received a phone call from an unidentifiedemployee of the CMC, in Edmonton. This employee asked her: “If CN were to set you up, howlong would you take to report to duty?” She replied that that really depended on whether she wasbeing “set up” in Jasper or if she was going to be forced somewhere else. According to herrecollection, as she wrote it in a letter dated March 4 th , 2005, addressed to C. Pizziol, theTrainmaster at the Jasper terminal, the CMC employee answered that “it did not look likely thatshe would be forced anywhere as all terminals were short, including Jasper”. In that case shefigured that she would probably need a couple of weeks to figure out some sort of child carearrangement for her two children. This evidence of the Complainant was not challenged by CN.2010 CHRT 23 (CanLII)[59] No other employee from CMC, other that the Director, Elaine Storms, was called as awitness. Elaine Storms was not privy to this conversation between the Complainant and theunidentified CMC employee.[60] The next day, on February 26, 2005, Joe Lyons, the Manager Operations,Crew Management Centre, Western Operations, spoke on the telephone with the Complainant’shusband. He informed him that the Complainant was being forced to Vancouver to cover ashortage under the provisions of the collective agreement.[61] Joe Lyons, who used to work under Ms. Storms, was not called as a witness. Besides thefact that he no longer works for CN, no other explanation was given for his absence.[62] CN also produced at the hearing a letter from Joe Lyons to the Complainant datedFebruary 28 th , 2005, which states: “Further to our telephone call on February 25, 2005, recallingyou to CN you are recalled to the working board effective immediately as per the provisions ofArticle 115 of Agreement 4.3. There is also a shortage at Vancouver which requires the Companyto invoke the provisions of Article 89.10 and 148.11(c) of Agreement 4.3. This Article providesthat non protected employees are required to protect work over the seniority territory. In keeping

15with this Article you are required to protect the shortage of Yard employees at Vancouver.”The Complainant testified that she never received this letter. This letter had been mailed to theComplainant’s former address in Jasper where she no longer resided.[63] The Complainant explained that before the recall of 2005, she had never refused beingforced to another location, but her family status had now changed making it a more difficultoption for her. In her March 4 th , 2005, letter to Mr. Pizziol she explained “I am in a very difficultsituation. I have 2 children: one aged 6 enrolled in kindergarten in a french immersion school inHinton, the other is 21 months old. We live in a hamlet, Brule, of less than 180 people situatednearly 40 km from Hinton. We have no immediate family nearby to help with the children. Thereis no registered daycare in Brule. There is a daycare in Hinton, however they only have standardbusiness hours. My husband is also a railroader who as you know is required to work around theclock and may be gone anywhere from 15 to 24 hours.” Consequently, she requested a 30 dayextension “to explore any options that may exist.”2010 CHRT 23 (CanLII)[64] Mr. Pizziol never replied to this letter. Mr. Pizziol was not called as a witness at thehearing and no explanation other than the fact that he does not work for CN anymore, was givenfor his absence.[65] On March 7 th , 2005, the Complainant made a follow-up call to Mr. Pizziol and left avoice-mail message explaining her family situation and the difficulties related to childcare.On that same day, she also wrote to the Local Chairperson of the UTU informing him of the lettershe had sent to her supervisor requesting the thirty (30) day extension, She also added “this is atroublesome situation for me and I don’t have many option due to my young family, [my husband]railroad career and where we live.”[66] On March 26 th , 2005, she again wrote to Mr. Pizziol asking him to consider her familysituation. She repeated what she had written in her earlier letter, informing him that it would bedifficult to take her children with her to Vancouver and that because of childcare responsibilities,neither was it feasible to leave them with their father whose own work obligations would cause

16the same difficulties with childcare. She also requested that her situation be considered on acompassionate basis under the collective agreement and that she be allowed to wait out untilVancouver no longer required her services or until there was work available at the Jasper terminalor at the adjacent terminal in Edson. A copy of this letter was also sent to Ms. Storms.The Complainant did not receive an answer to this letter.[67] Ms. Storms testified that she did not “specifically” recall this letter. She added that if shedid receive the letter, and knowing that Mr. Lyon was “helming” the file, she would haveforwarded it to him.2010 CHRT 23 (CanLII)[68] The last paragraph of that letter stated: “I can’t possibly be expected to put my familythrough upheaval to move them for an undetermined length of time at a whim. Employees withrestrictive medical conditions have in the past been accommodated to hold regular yard jobs i.e.diabetics when their seniority would not permit other work in the terminal instead of forcing themto relocate to where they could hold. Is it reasonable to ask the same considerations for parents ofyoung children if they demonstrate the need” and then she goes on “I’m asking you to consider mysituation on a compassionate basis”. On cross examination, counsel for the Complainant askedMs. Storms if that had indicated to her that the Complainant was seeking accommodationregarding her family status. Ms. Storms answered: “No. I wouldn’t have thought about it likethat. When you are looking for a leave of absence, you go to your own supervisor. He may haveconferred with Human Resources who look after that type of things. Most of our employees or agood deal of our employees have children and it was not a common consideration to request to beexcused from protecting shortages. I would have expected Mr. Pizziol to contactHuman Resources about this kind of thing. ” (The emphasis is mine.) No evidence thatMr. Pizziol contacted Human Resources regarding the Complainant’s situation was produced atthe hearing.[69] On March 29 th , 2005, the Complainant wrote to Joe Lyons, copying both Mr. Pizziol andMs. Storms. In this letter she wrote that she had not receive notification in writing informing herthat she was being forced to protect the shortage in Vancouver, although other employees in

17Jasper had received such notification. On that same day, she also sent a letter to Ms. Stormsrequesting her to reconsider her situation.[70] Joe Lyon wrote to the Complainant on March 30 th , 2005. In this letter, he informed theComplainant that her request for a thirty (30) extension had been authorised and that the date atwhich she would be expected to report to Vancouver was “moved to March 29 th ”.The Complainant testified that she never received that letter. The letter also makes reference to atelephone conversation of March 30 th , 2005 between the Complainant and Joe Lyons.The Complainant testified that she had no recollection of a telephone conversation on that date.2010 CHRT 23 (CanLII)[71] On April 27 th , 2005, Joe Lyon again wrote a letter to the Complainant informing her thatCN had accommodated her need for additional time to consider her options and “make thenecessary child-care arrangements”. The letter went on to state that while CN recognizes that her“child-care [issues] are important personal responsibility” her obligation to CN is “to managethose personal obligations in such a way that you are able to fulfill your employment andcollective agreement obligations”. The Complainant testified that she never received this letter.The address on the letter was not the correct address. CN acknowledged that the letter had beenreturned to the CMC stamped “unclaimed” by Post Canada and had not been remailed to theComplainant.[72] In her letter of March 4 th 2005, the Complainant had requested a thirty (30) extension toreport for work. According to CN, the Collective Agreement allows for such an extension whenan employee is employed elsewhere at the time they are notified to report for work. This was notthe case for the Complainant. Notwithstanding the provision of the collective agreement, during ameeting in May 2005, between officers of CN and officers of UTU, CN advised the union that itwould extend the time period for the Complainant to report for work until June 30 th , 2005.[73] Mr. Torchia testified on cross-examination that he had had discussion, sometime inMay 2005, with the General Chairperson of UTU regarding the possibility of extending the timethe Complainant had to report to cover the shortage. These discussions took place in Edmonton

18during a meeting where various topics were on the agenda. He added that he does not recall if hetook any notes during this meeting or if any memos or emails were thereafter prepared.He further testified that he was the “decision maker” in regards to whether or not the extensionwould be granted.[74] On June 20 th , 2005, L. Gallegos, Manager Operations. Crew Management,Western Operations Centre, who had by then replaced Mr. Lyons, wrote to the Complainantindicating that CN had accommodated her needs for additional time to consider her options andmake the necessary child-care arrangements. CN requested that the Complainant advise it byJune 30 th , 2005, whether or not she would report for duty to cover the shortage in Vancouver andit further informed her that her failure to do so would result in her forfeiting her seniority and heremployment being terminated in accordance with the terms of Article 148.11 of the collectiveagreement. The letter added:2010 CHRT 23 (CanLII)“While the Company recognizes that your child care is an important personalresponsibility, you must also acknowledge that your obligation to CN is to managethese personal obligations in such a way that you are also able to fulfill youremployment and collective agreement obligations.”[75] On June 27 th , 2005, the Complainant received another letter from Mrs. Gallegosinforming her that her failure to report to Vancouver by that day, would result in her forfeiting herseniority rights and her services with the company being dispensed with at noon on July 2 nd 2005,in accordance with the provision of the collective agreement.[76] Ms. Gallegos was not called as a witness at the hearing and no explanation for her absencewas given.[77] On June 27 th , 2005, the Complainant wrote a letter to Ms. Gallegos in which she states:You have not addressed my previous letter dated March 26/05 which clearly statesmy position and my request to CN that would alleviate this situation. I did notrequest additional time to make necessary child-care arrangements as your letter

19implies. Your letter also implied I have not provided a response to the Company ofwhether or not I will be reporting for work in Vancouver. I provided a response ina letter dated March 26 to CN Supervisor (Jasper) C. Pizziol.E. Storms also received from me a copy of a letter I addressed to J. Lyons,requesting to receive notice of recall that was sent out to other employees affected.I have since been waiting for a decision or response to my requests and to datehave not received any. The only correspondence I have received is your letterthreatening to terminate my employment with the Company. My correspondence isbeing ignored by CMC management and treated as if it does not exist. This refusalto acknowledge my requests, the persistent phone calls stating I must report forduty or lose my seniority, and the run-around I am receiving is harassment and Iask that it stops.Since the time I sent these letters in March, shortly after my medical with Medisys,I suffered a spinal injury resulting in a fractured vertebra and am still in arecovery process. I cannot work anywhere at this time. I did not informCrew Management, as I was waiting to hear back from the Company with adecision whether or not to honour my request that would allow me to remain inlaid-off status for compassionate reasons.As I have again responded in a timely manner before the latest deadline you haveimposed I hope you will do the same and I ask that you relinquish the deadlineuntil you have informed me in writing of your decision based on my request for acompassionate allowance.In the meantime, I am medically unable to report for duty and upon hearing fromyou I can provide a medical report to verify my injury.2010 CHRT 23 (CanLII)[78] The Complainant did not receive a response to this letter.[79] On July 4 th , 2005, Ms. Gallegos informed the Complainant that her seniority rights hadbeen forfeited and her employment terminated because she had failed to cover the shortage inVancouver. The Complainant’s union filed a grievance on her behalf challenging the decision toterminate her employment. The grievance was never processed to the hearing stage.[80] Ms. Storms testified that the manager of the division is the primary decision maker interms of granting or not an employee’s request to be relieved from reporting to a shortage.He would take the persons situation into account and decide what to do with it. He has the powerto either grant a leave of absence or an extension of the delay to report. She added that in the caseof a large shortage, like the one occurring in Vancouver in 2005, the manager would also discussthe situation with his general manager. In 2005, the general manager to whom Mr. Pizziol, thetrainmaster in Jasper, reported was Denis Broshko.

20[81] Mr. Broshko was not called as a witness and no explanation was given for his absence.There was also no evidence submitted by CN indicating that Mr. Pizziol had actually discussedthe Complainant’s situation with Mr. Broshko.[82] Ms. Storms also indicated that it was not the norm for CMC to grant extension of time toreport, but she added that there had been “odd times” where she had decided to extend time inconcert with the division. For example, in the case of the employee whose father was terminallyill, she said that she had spoken to the employee and had made the decision to grant him a furtherextension of fifteen (15) days. After the expiry of the fifteen (15) days extension this employeeremained on layoff status and later on he was given a further leave of absence of a few months byhis division.2010 CHRT 23 (CanLII)[83] As we’ve seen earlier, in her letter of June 27 th , 2005, the Complainant had informed heremployer that in April 2005, she had suffered an injury while horseback riding and that while shewas in the “recovery process” she could not report to the shortage in Vancouver. After it receivedthis information, CN sought more details regarding her medical condition. It was also seekingadvice from its medical department regarding the significance and the implications of her injuries.On February 27 th , 2006, CN wrote a letter to the Complainant informing her that it had“committed to review your case with the Union including the potential for reinstatement if in factyour medical evidence supports your inability to respond for work in February 2005. It must beclearly understood that any consideration of reinstatement will of course include the fact youmust protect all work at CN within the terms and conditions of your Collective Agreement.”The Complainant testified that she did not respond to this letter, because by this time she had fullyrecovered from her accident and no medical condition prevented her from working.B. ISSUES[84] The issue raised in this case is as follows: has CN discriminated against the Complainantin the context of employment contrary to sections 7 and 10 of the CHRA by failing toaccommodate her and by terminating her employment on the ground of family status.

21C. THE LAW AND THEORY OF THE CASE(i)The relevant provisions of the CHRA[85] Section 3 of the CHRA states that “family status” is a prohibited ground of discrimination.3. (1) For all purposes of this Act, theprohibited grounds of discrimination arerace, national or ethnic origin, colour,religion, age, sex, sexual orientation, maritalstatus, family status, disability andconviction for which a pardon has beengranted.3. (1) Pour l’application de la présente loi, lesmotifs de distinction illicite sont ceux quisont fondés sur la race, l’origine nationale ouethnique, la couleur, la religion, l’âge, lesexe, l’orientation sexuelle, l’étatmatrimonial, la situation de famille, l’étatde personne graciée ou la déficience.2010 CHRT 23 (CanLII)(The emphasis is mine.)[86] For its part, section 7 states:7. It is a discriminatory practice, directly orindirectly,a) to refuse to employ or continue to employany individual, orb) in the course of employment, todifferentiate adversely in relation to anemployee on a prohibited ground ofdiscrimination.7. Constitue un acte discriminatoire, s’il estfondé sur un motif de distinction illicite, lefait, , par des moyens directs ou indirects;(a) de refuser d’employer ou de continuerd’employer un individu;(b) de le défavoriser en cours d’emploi.

22[87] Section 10 of the Act provides:10. It is a discriminatory practice for anemployer, employee organization oremployer organizationa) to establish or pursue a policy or practice,orb) to enter into an agreement affectingrecruitment, referral, hiring, promotion,training, apprenticeship, transfer or any othermatter relating to employment or prospectiveemployment, that deprives or tends todeprive an individual or class of individualsof any employment opportunities on aprohibited ground of discrimination.10. Constitue un acte discriminatoire, s’il estfondé sur un motif de distinction illicite, ets’il est susceptible d’annihiler les chancesd’emploi ou d’avancement d’un individu oud’une catégorie d’individus, le fait, pourl’employeur, l’association patronale orl’organisation syndicale;(a) de fixer ou d’appliquer des lignes deconduite;(b) de conclure des ententes touchant lerecrutement, les mises en rapport,l’engagement, les promotions, la formation,l’apprentissage, les mutations ou tout autreaspect d’un emploi présent ou éventuel.2010 CHRT 23 (CanLII)[88] In considering sections 7 and 10, it is important to highlight the purpose of the CHRA asstated in section 2:2. The purpose of this Act is to extend thelaws in Canada to give effect, within thepurview of matters coming within thelegislative authority of Parliament, to theprinciple that all individuals should have anopportunity equal with other individuals tomake for themselves the lives that they areable and wish to have and to have their needsaccommodated, consistent with their dutiesand obligations as members of society,without being hindered in or prevented fromdoing so by discriminatory practices based onrace, national or ethnic origin, colour,religion, age, sex, sexual orientation, maritalstatus, family status, disability or convictionfor an offence for which a pardon has beengranted.2. La présente loi a pour objet de completer lalégislation canadienne en donnant effet, dansle champ de compétence du Parlement duCanada, au principe suivant : le droit de tousles individus, dans la mesure compatible avecleurs devoirs et obligations au sein de lasociété, à l’égalité des chancesd’épanouissement et à la prise de mesuresvisant à la satisfaction de leurs besoins,indépendamment des considérations fondéessur la race, l’origine nationale ou ethnique, lacouleur, la religion, l’âge, le sexe,l’orientation sexuelle, l’état matrimonial, lasituation de famille, la déficience ou l’état depersonne graciée.

23[89] The Supreme Court of Canada and other Courts have consistently told us to interprethuman rights in a large and liberal manner. In CNR v. Canada (Human Rights Commission)(Action Travail des Femmes), [1987] 1 S.C.R. 1114, the Court stated, at paragraph 24 :24. Human rights legislation is intended to give rise, amongst other things, toindividual rights of vital importance, rights capable of enforcement, in the finalanalysis, in a court of law. I recognize that in the construction of such legislationthe words of the Act must be given their plain meaning, but it is equally importantthat the rights enunciated be given their full recognition and effect. We should notsearch for ways and means to minimize those rights and to enfeeble their properimpact. Although it may seem commonplace, it may be wise to remind ourselvesof the statutory guidance given by the federal Interpretation Act which asserts thatstatutes are deemed to be remedial and are thus to be given such fair, large andliberal interpretation as will best ensure that their objects are attained.2010 CHRT 23 (CanLII)(ii)The Lawa) The prima facie case[90] The initial onus is on the complainant to establish a prima facie case of discrimination onthe basis of family status. A prima facie case is “one which covers the allegations made andwhich, if they are believed, is complete and sufficient to justify a verdict in the complainant’sfavour in the absence of an answer from the respondent.” (See Ontario Human RightsCommission and O’Malley v. Simpsons – Sears, [1985] 2 S.C.R. 536, at p. 558.)[91] Once a complainant establishes a prima facie case of discrimination, he or she is entitledto relief in absence of a justification by the respondent. (Ontario Human Rights Commissionv. Etobicoke, [1982] 1 S.C.R. 202, at p. 208.) In order to prove a prima facie case ofdiscrimination, the Complainant must establish that she was treated in an adverse differentialmanner and was terminated because of her family status, contrary to section 7 of the CHRA.b) What approach is to be applied to determine whether there has been discriminationon the ground of family status?[92] The evaluation of whether there is discrimination on the ground of family status is carriedout according to the test set out in Public Service Labour Relations Commission v. BCGSEU,

24[1999] 3 S.C.R. 3 (“Meiorin”), just as it would be for any other prohibited ground ofdiscrimination. However, in recent years, the interpretation of the notion of “family status” hasled to the creation of two distinct schools of thought. Some cases have adopted a broad approachtowards the scope of “family status”, while other have taken a more narrow approach. In order tobetter understand what is included in the notion of “family status” we will review a certainnumber of these cases.[93] In Schaap v. Canada (Dept. of National Defence) [1988] C.H.R.D. No. 4, the Tribunal wasconsidering whether relationships formed in a common-law relationship as opposed to those in alegal marriage fell within the protected groups of “marital status” and “family status”. In itsdecision the Tribunal found the need for a blood or legal relationship to exist and defined familystatus as including both blood relationships between parent and child and the inter-relationshipthat arises from bonds of marriage, consanguinity or legal adoption, including, of course, theancestral relationship, whether legitimate, illegitimate or by adoption, as well as the relationshipsbetween spouses, siblings, in-laws, uncles or aunts and nephews or nieces. In Lang v. Canada(Employment and Immigration Commission, [1990] C.H.R.D. No. 8, the Tribunal stated at page 3:“The Tribunal is of the view that the words “family status” include the relationship of parent andchild.”2010 CHRT 23 (CanLII)[94] In Brown v. Department of National Revenue (Customs and Excise), (1993) T.D. 7/93,the Tribunal held at pages 15 and 20:With respect to ground (b) [family status], the evidence must demonstrate thatfamily status includes the status of being a parent and includes the duties andobligations as a member of society and further that the Complainant was a parentincurring those duties and obligations. As a consequence of those duties andobligations, combined with an employer rule, the Complainant was unable toparticipate equally and fully in employment with her employer.[…]It is not suggested by counsel for the Complainant that the employer is responsiblefor the care and nurturing of a child. She was advocating however that there was a

25balance of interest and obligation as set out in s. 2 and 7(b) of the C.H.R.A. whichmust be recognized within the context of “family status”.A parent must therefore carefully weigh and evaluate how they are best able todischarge their obligations as well as their duties and obligations within the family.They are therefore under an obligation to seek accommodation from the employerso that they can best serve those interests.We can therefore understand the obvious dilemma facing the modern familywherein the present socio-economic trends find both parents in the workenvironment, often with different rules and requirements. More often than not, wefind the natural nurturing demands upon the female parent place her invariably inthe position wherein she is required to strike this fine balance between familyneeds and employment requirements.2010 CHRT 23 (CanLII)[95] The Tribunal finally concluded that the purposive interpretation to be affixed to the CHRAwas a clear recognition that within the context of “family status” it is a parent’s right and duty tostrike that balance coupled with a clear duty on the part of the employer to facilitate andaccommodate that balance within the criteria set out by the jurisprudence. The Tribunal addedthat “to consider any lesser approach to the problems facing the modern family within theemployment environment is to render meaningless the concept of “family status” as a ground ofdiscrimination.”[96] The Tribunal also considered “family status” as a ground of discrimination in Hoytv. Canadian National Railway, [2006] C.H.R.D. No. 33. In this decision, the Tribunal referred toa judicial definition of the term “family status”, as well as to prior decisions of the Tribunal whichset forth requirements to establish a prima facie case of discrimination based on that ground.The Tribunal specifically stated :117 Discrimination on this ground has been judicially defined as '... practices orattitudes which have the effect of limiting the conditions of employment of, or theemployment opportunities available to, employees on the basis of a characteristicrelating to their ... family.' (Ontario (Human Rights Commission) v. Mr. A et al[2000] O.J. No. 4275 (C.A.); affirmed [2002] S.C.J. No. 67].

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

27inappropriate to select out one prohibited ground of discrimination for a morerestrictive definition.121 In my respectful opinion, the concerns identified by the Court of Appeal,being serious workplace disruption and great mischief, might be proper matters forconsideration in the Meiorin analysis and in particular the third branch of theanalysis, being reasonable necessity. When evaluating the magnitude of hardship,an accommodation might give rise to matters such as serious disruption in theworkplace, and serious impact on employee morale are appropriate considerations(see Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990]2 S.C.R. 489 at pp. 520 - 521). Undue hardship is to be proven by the employer ona case by case basis. A mere apprehension that undue hardship would result is nota proper reason, in my respectful opinion, to obviate the analysis. (The underliningis mine.)2010 CHRT 23 (CanLII)[99] In addition to the compelling logic of the Tribunal’s decision in Hoyt for not following theapproach in Campbell River, this Tribunal concludes that the approach suggested in that caseimposes an additional burden on the Complainant by suggesting that the protected ground offamily status includes proof of a “serious interference with a substantial parental or other familyduty or obligation” and that this is inconsistent with the purpose of the CHRA. As the SupremeCourt of Canada made it clear in B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403,at para. 56, it is not appropriate, when interpreting human rights statutes, to impose additionalburdens.[100] The Tribunal’s approach in Hoyt was cited by the Federal Court of Canada in Johnstonev. Canada (Attorney General), [2007] F.C.J. No. 43, at paragraphs 29-30. This was an applicationfor judicial review by Ms. Johnstone of the decision of the CHRC to not refer her complaintalleging family status discrimination to the Tribunal.[101] In Johnstone, the Federal Court agreed with the approach of the Tribunal in Hoyt inregards to discrimination on the basis of family status, and stated that “...there is no obviousjustification for relegating this type of discrimination to a secondary or less compelling status.”(Johnstone, supra, at para. 29). The Court also stated that the suggestion of the British ColumbiaCourt of Appeal in the Campbell River case that prima facie discrimination will only arise wherethe employer changes the conditions of employment seems “to be unworkable and, with respect,

28wrong in law.” (Johnstone, supra, at para.29). The Court also found that the “serious interferencetest” which the Court viewed as the approach apparently adopted by the CHRC for not sendingthe matter to the Tribunal, “fail[ed] to conform with other binding authorities which have clearlyestablished the test for a finding of prima facie discrimination.” (Johnstone, supra, at para. 30.)[102] The Federal Court’s decision in Johnstone was upheld by the Federal Court of Appeal,although the Court of Appeal stated that it was not expressing an opinion on the proper version ofthe test in relation to prima facie discrimination on the ground of family status. Instead theFederal Court of Appeal based its reasoning on the finding that the failure of the CHRC to clearlyidentify the test it applied was “a valid basis for finding the decision of the Commission to beunreasonable. ([2008] F.C.J. No. 427, at para. 2).2010 CHRT 23 (CanLII)[103] The Tribunal has recently rendered its decision in the Johnstone matter (see Johnstonev. Canada Border Services, 2010 CHRT 20). In that decision the Tribunal held:[220] This Tribunal agrees that not every tension that arises in the context ofwork-life balance can or should be addressed by human rights jurisprudence, butthis is not the argument put forward in the present case. Ms. Johnstone’s argumentis that such protection should be given where appropriate and reasonable given thecircumstances as presented.[221] As discussed above, we are addressing here a real parent to young childrenobligation and a substantial impact on that parent’s ability to meet that obligation.It is not before this Tribunal to address any and all family obligations and any andall conflict between an employee’s work and those obligations.[…][230] […] this Tribunal finds nothing in Section 2 that creates a restrictive andnarrow interpretation of ‘family status’.[231] To the contrary, the underlying purpose of the Act as stated is to provide allindividuals a mechanism “to make for themselves the lives that they are able andwish to have and to have their needs accommodated, consistent with their dutiesand obligations as members of society…” It is reasonable that protections soafforded include those naturally arising from one of the most fundamental societal

29relationships that exists, that of parent to child. The fact that the language ofSection 2 mentions “lives that they are able and wish to have” carries with it theacknowledgement that individuals do make separate choices, including to havechildren, and that the Act affords protection against discrimination with respect tothose choices.[…][233] This Tribunal finds that the freedom to choose to become a parent is so vitalthat it should not be constrained by the fear of discriminatory consequences. As asociety, Canada should recognize this fundamental freedom and support thatchoice wherever possible. For the employer, this means assessing situations suchas Ms. Johnstone’s on an individual basis and working together with her to create aworkable solution that balances her parental obligations with her workopportunities, short of undue hardship.2010 CHRT 23 (CanLII)[104] Recently the Public Service Staffing Tribunal (the “PSST”) considered whether to followthe approach to family status set out in Hoyt or in Campbell River and determined that it wouldapply the Hoyt approach. In Chantal Rajotte v. The President of the Canada Border ServicesAgency et al, 2009 PSST 0025, the PSST stated that “the proper approach to be followed is theone set out in Hoyt which is also recognized by the Federal Court in Johnstone.” (para. 127.)The PSST further stated:Accordingly, the evidence must demonstrate that the complainant is a parent, thatshe has duties and obligations as a member of society, and further that she was aparent incurring those duties and obligations. As a consequence of those duties andobligations, combined with the respondent’s conduct, the complainant must proveshe was unable to participate equally and fully in employment. (para 127.)[105] A review of some recent cases out of the British Columbia Human Rights Tribunal(the “BCHRT”) demonstrates that the decisions of that Tribunal are not consistently following theapproach in Campbell River. For example, it has not been found to be applicable in the case ofprovision of services (Stephenson v. Sooke Lake Modular Home Co-operative Association, 2007BCHRT 341). It has also been distinguished in two BCHRT decisions involving an employmentsituation (Haggerty v. Kamloops Society for Community Living, [2008] BCHRT 172, par. 17 andMahdi v. Hertz Canada Limited, [2008] BCHRT 245, paras. 60 and 61).

30[106] In Falardeau v. Ferguson Moving (1990) Ltd., dba Ferguson Moving and Storage et al.,2009 BCHRT 272, the BCHRT referred to the Campbell River, Hoyt and Johnstone decisions, andalso to another of its decision in Miller v. BCTF (No. 2), 2009 BCHRT 34. The BCHRT pointedout that in Miller, it had stated that Campbell River applied only in the context from which itarose. It cited the following statement from Miller: “The [Campbell River] formulation of what isnecessary to establish discrimination on the basis of family status in the context of competingemployment and family obligations is not applied mechanically in all cases of allegeddiscrimination on the basis of family status.” (Falardeau, at para. 29.)[107] The issue in Falardeau concerned whether an employee, who had refused to do overtimebecause of child care responsibilities for his son, had been discriminated against on the ground offamily status. The Tribunal found that the complainant had not established a prima facie case.The Tribunal stated at paras 31 and 32:2010 CHRT 23 (CanLII)In the present case, Ferguson sought to maintain a well-established pattern ofovertime hours to meet the needs of its customers. To the extent Mr. Falardeaumade the respondents aware of his child-care needs and arrangements, theythought, correctly on the evidence before me, that he was readily able to obtaincoverage for his son's care if his work hours were extended. Indeed, he had done soon many occasions. The fact that neither the pattern of Mr. Falardeau's work, norhis childcare demands or arrangements had changed, suggests that he may havemade an issue of overtime because of his dislike of work on construction sites,rather than because of his family responsibilities.There was no evidence that his son had any special needs, or that Mr. Falardeauwas uniquely qualified to care for him. Although these factors are not required toestablish a "substantial" parental obligation, the evidence in this case establishedno other factors which would take Mr. Falardeau's case out of the ordinaryobligations of parents who must juggle the demands of their employment, and theprovision of appropriate care to their children. I am unable on these facts to find a"serious interference with a substantial parental or other family duty orobligation." (The underlining is mine.)[108] The BCHRT in Falardeau was essentially following the reasoning formulated in theCampbell River case. But even if it had followed the Hoyt approach, its conclusion might nothave been different. The main difference between the situation in Falardeau and in the present

31case is that in Falardeau there had been no changes in Mr. Falardeau pattern of work or in hischildcare demands or arrangements. Furthermore, his employer had been made aware ofMr. Falardeau’s child-care needs and arrangements and it thought, rightly, that Falardeau wasreadily able to obtain coverage for his son's care if his work hours were extended. Therefore,Mr. Falardeau had not been able to make out a prima facie case on the ground of family status, ashe had not proven that he was unable to participate equally and fully in employment as aconsequence of his duties and obligations as a parent.[109] In the present case, the Complainant by being forced to cover a shortage in Vancouver wasfacing a serious interference with her parental duties and obligations. The matter might have beendifferent had the Complainant refused to be set up at her home terminal.2010 CHRT 23 (CanLII)[110] In his closing arguments CN’s counsel argued that the Complainant’s position was basedon an incorrect premise. He qualified the complaint as a request that the employer accommodatethe Complainant’s “parental preferences and lifestyle choices.” He added that this position wasbased on an exceedingly broad interpretation of the CHRA and that the only characteristic raisedby the Complainant as triggering protection under the Act is the fact that she is a parent and assuch must see to the upbringing of her children. Counsel further submitted that requiring anemployee who is a parent to comply with his or her responsibility to report to work as required bythe collective agreement does not amount to discrimination prima facie. Rather, he argued thatthe refusal by an employee to comply with his or her responsibilities in this regard amounts to achoice which is exclusively personal in nature and which, absent exceptional circumstances,no employer is obligated to accommodate. Accordingly, he concluded that upholding thecomplaint in this case would amount to adding “parental preferences” to the list of prohibitedgrounds of discrimination set out in the CHRA under the guise of an expansion of the notion of“family status”.[111] In support of his arguments, Counsel referred to numerous cases and awards, including theBritish Columbia’s Court of Appeal decision in Campbell River which he suggested presented amore structured and pragmatic approach than the Tribunal’s decision in Hoyt. He also madereference to an arbitration award in Canadian Staff Union v. Canadian Union of Public

32Employees, (2006) 88 C.L.A.S. 212. In this case, the grievor had refused to relocate to Halifaxafter having applied for a job which indicated that the place of work would be Halifax.The grievor resided in St. John’s, Newfoundland where he had shared custody of his children withhis former spouse. He also was responsible for the care of his aging mother. The union arguedthat the notion of “family status” was not limited to the status of being a parent per se, but alsoextended to the accommodation of the grievor’s family responsibilities.[112] The award stated that the grievance raised important issues of human rights law whichwere summarized as follows: “whether an employer’s designation of a specific geographiclocation in a job posting, and insistence that an employee who wished to hold that job live wherehe or she can report regularly to work at that location prima facie constitutes discrimination on thebasis of marital status or family status, if the employee’s marital and family responsibilitieseffectively preclude him or her from living where he or she can report regularly to work at thespecified location.” (at para. 6.)2010 CHRT 23 (CanLII)[113] The arbitrator dismissed the grievance on the ground that “for the purposes of any statuterelevant here, and the Collective Agreement, it was the Grievor’s choice, not his marital andfamily responsibilities, that precluded him from moving to Halifax.” (at para. 9.) The arbitratoradded: “what the Employer did here did not constitute prima facie discrimination on the basis ofmarital status or family status and the Employer was not required by law to accommodate theGrievor to the point of undue hardship.”[114] In his analysis of the relevant cases, the arbitrator adopted the narrower approach ofCampbell River in regards to the interpretation of “family status”. Although interesting, theTribunal notes that the facts relevant to this award are in many regards different from those in thepresent case. In that case, the grievor had applied for a job, knowing full well that the jobdescription indicated that it was to be located in Halifax. The grievor had a choice, he coulddecline to go to Halifax and remain in his position in St. John’s, which is not the case for theComplainant whose choice was either to report to Vancouver for an undetermined amount of timeor see her employment relationship terminated. The facts also indicate that there was nosignificant increase in pay or benefits involved between the job in Halifax and the one in

33St. John’s and that the grievor had applied for the job posted because he wanted a change and newchallenges (para. 15). The Tribunal also notes that the grievor’s children were 19 years old,starting university, and 15, starting high school, and, as indicated by the arbitrator, although thegrievor’s sons undoubtedly benefited greatly from his regular presence in St. John’s, they requiredno special care from him, and he could make arrangement for their maintenance in his absence.(Para. 141.)[115] CN counsel also made reference to the Ontario Human Rights Tribunal’s decision inWight v. Ontario (No 2), 33 C.H.R.R. D/191, which dealt with an employee who, at the expiry ofher maternity leave, refused to return to work claiming that she was unable to make appropriatedaycare arrangements. Her employment was thereafter terminated on the ground that she hadabandoned her position. In this case the Tribunal found that the Complainant had “steadfastly”refused to acknowledge her employer’s reasonable expectations that she would take whateversteps are necessary to return to work when her maternity leave would expire. In the Tribunalwords: “She had decided she was going to be on a maternity leave until October at the earliest orJanuary at the latest.” (para. 321). The Tribunal added that this was not a case of someone who,despite her best efforts, could not find day care for her child and had to make a choice between herchild and her job. Again a factual situation which is very different from the present one.2010 CHRT 23 (CanLII)[116] Counsel also made reference to Smith v. Canadian National Railway, 2008 CHRT 15,a decision rendered in May 2008, by the then Tribunal Chairperson. The Tribunal fails to see howthis decision can be said to be “comparable” to the present situation. In the Smith case, althoughthe complainant did assert, amongst other grounds, that he had been discriminated against on thebasis of family status, the Tribunal found that this ground of discrimination had not been raised inthe complaint and that no jurisprudence was presented as to whether the facts amounted to familystatus discrimination. (para. 289.)[117] CN’s counsel finally referred the Tribunal to a series of awards rendered by theCanadian Railway Office of Arbitration (“CROA”). Although interesting, all the CROAdecisions are founded on their particular facts and do not help us in the determination of theproper test to follow in this case.

34[118] The Tribunal also disagrees with CN’s argument that an open-ended concept of familystatus would open up the floodgates and that it would have the potential of causing disruption andgreat mischief in the workplace. As the Human Rights and Citizenship Commission of Albertanoted at para. 242 of its decision in Rawleigh v. Canada Safeway Ltd, decision rendered onSeptember 29, 20009, “every case must be weighed on its own merits and unique circumstances.To support the belief that the floodgate may be opened to opportunistic individuals is verydangerous and possibly discriminatory.”[119] The Tribunal also wished to remind that the Supreme Court of Canada and other Courtshave consistently held that that human rights must be interpreted in a large and liberal manner. InCNR v. Canada (Human Rights Commission) (Action Travail des Femmes), [1987] 1 S.C.R. 1114,the Court stated, at paragraph 24 :2010 CHRT 23 (CanLII)24. Human rights legislation is intended to give rise, amongst other things, toindividual rights of vital importance, rights capable of enforcement, in the finalanalysis, in a court of law. I recognize that in the construction of such legislationthe words of the Act must be given their plain meaning, but it is equally importantthat the rights enunciated be given their full recognition and effect. We should notsearch for ways and means to minimize those rights and to enfeeble their properimpact. Although it may seem commonplace, it may be wise to remind ourselvesof the statutory guidance given by the federal Interpretation Act which asserts thatstatutes are deemed to be remedial and are thus to be given such fair, large andliberal interpretation as will best ensure that their objects are attained.[120] From the above analysis, the Tribunal concludes that there are two different interpretationsin the case law with regard to a prima facie case of discrimination based on family status: the onein Campbell River and the one in Hoyt. The Tribunal is of the opinion that the effect of theapproach in Campbell River is to impose a hierarchy of grounds of discrimination, some grounds,as the ground of family status, being deemed less important than others. This approach is notsupported by the purpose of the CHRA. Furthermore, all the permutations of the approach appliedto the ground of family status in British Columbia subsequent to the Campbell River decision,support the Tribunal’s conclusion that family status should not be singled out for a different andmore onerous or more stringent prima facie standard. The only solution is to apply the same test

35as for the other grounds enumerated in section 3 of the CHRA. This approach was accepted inHoyt and approved by the Federal Court in Johnstone.[121] I will therefore follow the approach in Hoyt which is consistent with human rightsprinciples in treating all prohibited grounds of discrimination as equal.[122] Furthermore, taking into account the special nature and status of human rights legislationas a quasi-constitutional legislation, the Tribunal concludes that the interpretation and applicationof family status proposed in Hoyt is the proper one to adopt. As stated earlier, human rightslegislation must be given a liberal and purposive interpretation, in which protected rights receive abroad interpretation, while exceptions and defenses are narrowly construed.2010 CHRT 23 (CanLII)c) Has a prima facie case of discrimination on the basis of family status been made out?[123] In 2005, the Complainant was the parent of two young children. The evidence alsoestablishes that she told CN that a temporary move to Vancouver, with no information with regardto how long she would have to stay there or about the housing arrangements once she arrivedthere, would disrupt her children’s care and that it would be impossible for her to makearrangements for appropriate child care. In addition, her husband was also a railroader with longabsences and unpredictable schedules. She had indicated that as long as she was able to work outof her home terminal in Jasper, she could manage to find child care, although, she added, withdifficulty.[124] In her various letters to CN, the Complainant explained her family situation, but she neverreceived any answer. CN’s witnesses testified that parental responsibilities such as child carewere not a “satisfactory reason” not to protect a shortage. CN considered that the Complainant’ssituation did not qualify as requiring accommodation on the basis of family status under theCHRA. It also considered the Complainant’s situation as a personal choice not to abide by herprofessional obligations in order to prioritize other aspects of her life, a situation it referred to as“work-life” balance.”

36[125] The Tribunal concludes that the law simply does not support CN’s view of family status asnot including the Complainant’s situation. The Complainant’s situation as a parent of two smallchildren and the ramifications, as she explained in her various letters, of ordering her toVancouver does bring her within the ground of family status. She specifically requestedaccommodation of CN and had directed her request to the right CN officials. CN’s witnessesrecognized that such a request should be made to the employee’s supervisor who in this case wasColin Pizziol, the trainmaster in Jasper. The Complainant had addressed her letters to him.Unfortunately, Mr. Pizziol was not called as a witness and CN’s other witnesses could not testifiedto how he had dealt with this request. The unchallenged evidence of the Complainant was thatneither her supervisor, nor any other managers of CN, had ever responded to her letters, nordiscussed with her situation.2010 CHRT 23 (CanLII)[126] Having regard to the evidence submitted at the hearing, the Tribunal concludes that theComplainant has established a prima facie case of discrimination based on the ground of familystatus. The evidence demonstrates that the Complainant was a parent and that her status includedthe duties and obligations generally incurred by parents. As a consequence of those duties andobligations, the Complainant, because of CN’s rules and practices, was unable to participateequally and fully in employment with CN. This being the case, the onus now shifts to CN todemonstrate that the prima facie discriminatory standard or action it adopted is a bona fideoccupational requirement.d) Did CN provide accommodation to the Complainant?[127] The burden to demonstrate accommodation to the point of undue hardship is that of theemployer.[128] Because of her family situation, the Complainant asked for accommodation. CN did notprovide her with accommodation, except that they did accept to extend the time she had to reportto cover the shortage in Vancouver for about 4 months. According to CN’s witnesses this“accommodation” was granted to allow her to make the “necessary child care arrangements”. It issurprising to see the term “accommodation” used, as none of CN witnesses felt that they were

37under an obligation to offer “accommodation” to the Complainant or that the CHRA applied to hersituation. CN’s position was that the Complainant had to make a choice between her job and herfamily situation and that was that. Mr. Kerry Morris, CN’s Labour Relation Manager, testified thathe “did not see family status as an accommodation issue”. His comprehension of what theComplainant was seeking, although he had never spoken to her, was an extension of the time shehad to report in order to “make childcare arrangements”. He felt that CN had given her significanttime to make the necessary arrangements.[129] For his part, Mr. Torchia testified that “the request that came to me [he did not indicatefrom whom the request came] was that they [the Complainant, CW and CR] needed more time tosort out their affairs. It was child care issues and they needed more time. I granted the request. Inmy mind I was accommodating them by giving them more time. I didn’t think that wasunreasonable what I was doing. They had been off for a period of time, not like somebody whowas set up, laid off, set up, laid off that would be expecting to go to work. They were off for aconsiderable period of time. So therefore they weren’t probably expecting this at that point in timeand giving them extra time to do that seemed reasonable in my mind.” He added that he knewthat there “was parental obligations of some sort” and he understood that the Complainant“needed some time to make arrangements”, but added that this did not raise in his mind any issueregarding the CHRA.2010 CHRT 23 (CanLII)[130] Both the testimony of the Complainant and of CN’s witnesses establishes, without adoubt, that CN did not apply its accommodation policy in the Complainant’s case. The evidencealso demonstrates that other employees who needed accommodation for reasons that could alsobring them under the purview of the CHRA and CN’s accommodation policy and who did notreport to Vancouver or did not report immediately, were not terminated by CN. For example,employees U and E, whose parents were ill, were both given leave of absence on compassionateground and were not ordered to report to Vancouver. Also, other employees whose situationswere not explained at the hearing were either given leave of absences or were set up by theirsupervisors and did not have to report to cover the shortage.

38[131] CN’s justification for denying the Complainant’s request for accommodation due tofamily status was essentially that the nature of its business required that all employees availablereport to Vancouver to help address the shortage in 2005. But, when asked by CN’s counselwhether if, had the Complainant reported to Vancouver in 2005, that would have resolved theshortage, Ms. Storms answered without any hesitation, “no”, but immediately added that it wouldhave meant that one less manager needed to fill in.[132] To evaluate whether there has been discrimination on a prohibited ground in anemployment context, and whether an employer has accommodated an employee up to the point ofundue hardship, the applicable test is the one set forth by the Supreme Court of Canada in theMeiorin decision. In that decision, the Supreme Court of Canada standardized the test applicableto discrimination and rejected the old distinction between direct and indirect discrimination.2010 CHRT 23 (CanLII)[133] Once the Complainant has established a prima facie case of discriminatory, the onus shiftsto the employer to demonstrate that the prima facie discriminatory standard or action is a bonafide occupational requirement (“BFOR”). In this regard, the Supreme Court of Canada has statedat paragraphs 54 and 55 of the Meiorin decision :An employer may justify the impugned standard by establishing on the balance ofprobabilities:(1) that the employer adopted the standard for a purpose rationally connected tothe performance of the job;(2) that the employer adopted the particular standard in an honest and good faithbelief that it was necessary to the fulfilment of that legitimate work-relatedpurpose; and(3) that the standard is reasonably necessary to the accomplishment of thatlegitimate work-related purpose. To show that the standard is reasonablynecessary, it must be demonstrated that it is impossible to accommodate individualemployees sharing the characteristics of the claimant without imposing unduehardship upon the employer.This approach is premised on the need to develop standards that accommodate thepotential contributions of all employees in so far as this can be done without unduehardship to the employer. Standards may adversely affect members of a particulargroup, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, atp. 518, "[i]f a reasonable alternative exists to burdening members of a group with agiven rule, that rule will not be [a BFOR]". It follows that a rule or standard must

39accommodate individual differences to the point of undue hardship if it is to befound reasonably necessary. Unless no further accommodation is possible withoutimposing undue hardship, the standard is not a BFOR in its existing form and theprima facie case of discrimination stands.[134] At the hearing, CN did not spend much time on the first two criteria in Meiorin, except toassert in its closing arguments that the evidence had clearly showed that the standard under reviewwas enacted for a purpose rationally connected to the performance of CN’s business interest andthat CN and the Union had enacted them in an honest and good faith belief that it was necessary tothe operation of CN’s railway network. CN did not indicate on what “evidence” it was relying tomake this affirmation and the reference to the “Union” is unsupported by the evidence, as nobodyfrom the Union was called as a witness and I have no recollection of any evidence on this point byany other witnesses. Regardless, I will proceed to analyse the two first steps in assessing whetherCN has successfully established a BFOR defence.2010 CHRT 23 (CanLII)[135] The first step is to identify the general purpose of the impugned standard and determinewhether it is rationally connected to the performance of the job. The task is to determine what theimpugned standard is generally designed to achieve. The focus at the first step is not on thevalidity of the particular standard that is at issue, but rather on the validity of its more generalpurpose. In this case, the particular standard at issue is the “forcing” of employees to cover ashortage. According to section 148.11 of the Collective Agreement, employees hired subsequentto June 29 th , 1990 can be “forced” to cover work at another terminal in the Western region and areobligated to report at that terminal within at most thirty (30) days unless they present a“satisfactory reason” justifying their failure to do so. These employees are commonly referred toas “category D” employees. They are also referred to as “non-protected” employees, insofar asthey are obligated to respond to a recall outside of their terminal. If they do not respond to a recalltheir employment with CN can be terminated.[136] Other categories of employees include those who were hired prior to June 29, 1990.These are referred to as “protected” employees. In this group of “protected employees” we havethose who were hired prior to 1982 and who are referred to as “Category A” and “Category B”employees, respectively. These employees cannot be assigned for work outside of their local

40terminals. Employees hired after 1982, but prior to June 29, 1990, are referred to as “Category C”employees and may only be assigned to protect work at adjacent terminals.[137] In this case, category “D” employees, which include the Complainant, were recalled fromlay off and “forced” to cover the shortage in Vancouver. As we have seen due to its location, theVancouver terminal is a very active one. It constitutes a focal point for CN’s Canadian market.A shortage of running trades employees in Vancouver carries significant implications, as it canaffect CN’s ability to operate adequately throughout its network. Neither the Complainant nor theCHRC contested the fact that CN had a legitimate purpose in seeking to address the shortage ofConductors in Vancouver in 2005. Forcing employees to cover shortages can be considered asrationally connected to the performance of the job, certainly when the shortage can have animpact on the operation of the employer. The Tribunal therefore concludes that CN has met thefirst part of the Meiorin tripartite test.2010 CHRT 23 (CanLII)[138] Once the legitimacy of CN’s more general purpose is established, it must take the secondstep of demonstrating that it adopted the particular standard with an honest and good faith beliefthat it was necessary to the accomplishment of its purpose, with no intention of discriminatingagainst the claimant. If the imposition of the standard was not thought to be reasonably necessaryor was motivated by a discriminatory intention, then it cannot be a BFOR. (See Meiorin, supra, atpara. 60). There was no evidence submitted at the hearing to the effect that CN’s standard offorcing employees to cover shortages, as it is expressed in article 148.11 of the Collectiveagreement, was adopted with the intention of discriminating against the claimant. It is true thatcounsel for the Complainant did raise in his closing arguments a point about article 148.11 beingdiscriminatory. More specifically, he alluded to the differences in treatment between Conductors,who were hired prior to June 1990 and those hired afterwards. He noted that the Complainant hadnot commenced her employment with CN under this distinction. The evidence shows that theComplainant was hired in 1991, but that the distinction was introduced in February 1992 andapplied to employees hired after June 1990. Counsel further argued that since the “vast majorityof women Conductors” were hired after June 1990, this distinction constituted a discriminatorypractice against women Conductors. Although interesting from an argumentative point of view,

41the Tribunal cannot find any convincing evidence to support this conclusions. The Tribunalconcludes therefore that CN has met the second part of the Meiorin test.[139] CN’s third and final hurdle is to demonstrate that the impugned standard is reasonablynecessary for the employer to accomplish its purpose. At this stage, CN must establish that itcannot accommodate the Complainant and others adversely affected by the standard withoutexperiencing undue hardship. In other words, since the Complainant was adversely affected onthe ground of her family status by the standard of forcing employees to cover shortages could CNaccommodate her without experiencing undue hardship? The answer to this question will be inthe affirmative for the following reasons.2010 CHRT 23 (CanLII)[140] The use of the term “undue” infers that some hardship is acceptable. It is only “unduehardship” that satisfies this test. (See Central Okanagan School District No. 23 v. Renaud, [1992]2 S.C.R. 970, at page 984.) It may be ideal for an employer to adopt a practice or standard that isuncompromisingly stringent, but if it is to be justified it must accommodate factors relating to theunique capabilities and inherent worth and dignity of every individual, up to the point of unduehardship. (Meiorin, supra, at para. 62.) Furthermore, when an employer is assessing whether itcan accommodate an employee it must do an individualized assessment of the employee’ssituation. In this regard, in McGill University Health Centre (Montréal General Hospital)v. Syndicat des employés de l’Hôpital general de Montréal, [2007] 1 S.C.R. 161, at para. 22, theSupreme Court of Canada stated: “The importance of the individualized nature of theaccommodation process cannot be minimized.”[141] In Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.489, at pages 520-21, Wilson J. addressed the factors that may be considered when assessing anemployer’s duty to accommodate an employee to the point of undue hardship. Amongst therelevant factors are the financial cost of the possible methods of accommodation, the relativeinterchangeability of the workforce and facilities and the prospect of substantial interference withthe rights of other employees. It was also stated that a standard or practice that excludes membersof a particular group on impressionistic assumptions is generally suspect. (British Columbia(Superintendent of Motor Vehicles) v. British Columbia Council of Human Rights, [1999] 3 S.C.R.

42868 (Grismer), at para. 31). Employers must also be innovative yet practical when consideringaccommodation options in particular circumstances.[142] In his closing arguments, CN’s counsel suggested that the Supreme Court of Canada hadrestated the principles applying to the notion of “undue hardship” in its decision in Hydro Québecv. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, sectionlocale 2000 (SCFP-FTQ), 2008 SCC. The Tribunal does not accept this interpretation of thatdecision. On the contrary, the Tribunal finds this decision to be consistent with the previousdecisions of the Supreme Court on the issue of “undue hardship”. In Hydro Québec, the Courtstated that although the employer does not have a duty to change the working conditions in“a fundamental way”, it does have the duty, if it can do so without undue hardship, to arrange theemployee’s workplace or duties to enable the employee to do his or her work. (par. 16). TheCourt also stated that “[b]ecause of the individualized nature of the duty to accommodate and thevariety of circumstances that may arise, rigid rules must be avoided. If a business can, without,undue hardship, offer the employee a variable work schedule or lighten his or her duties – or evenauthorize staff transfers – to ensure that the employee can do his or her work, it must do so toaccommodate the employee.” (para. 17.) (See also Jonhstone v. Canada Border Services, supra,at para. 218.)2010 CHRT 23 (CanLII)[143] CN argues that if accommodation was required under the CHRA, reasonableaccommodation was provided by it granting the Complainant more than four (4) months to reportto Vancouver, rather than the minimum fifteen (15) days set out in the Collective Agreement. CNfurther states that granting the relief sought by the Complainant would constitute undue hardshipbecause it would effectively grant all employees who are parents an equivalent to “superseniority” under the Collective Agreement solely on the basis of their status as parents.[144] I will address first the claim that “reasonable accommodation” was provided.[145] CN argues that providing extra time to the Complainant to report to Vancouver was all theaccommodation that it was required to provide. However, the evidence clearly shows that suchaccommodation was not in any way a meaningful response to the Complainant’s request and to

43the factual underpinnings of her situation which she had communicated to the employer throughher correspondence.[146] The unchallenged evidence of the Complainant establishes that she wrote to Mr. Pizziol,the trainmaster in Jasper, and to other managers of CN on numerous occasions, explaining herfamily situation. She informed them that it would be difficult for her to take her children toVancouver and that because of childcare responsibilities neither was it feasible to leave them withtheir father whose own work obligations would cause the same difficulties with childcare.She also requested that her situation be considered on a compassionate basis under the collectiveagreement and that she be allowed to wait out until Vancouver no longer required her services oruntil there was work available at the Jasper terminal or at the adjacent terminal in Edson.2010 CHRT 23 (CanLII)[147] Ms. Storms testified that she did not see these letters as indicating that the Complainantwas seeking accommodation regarding her family status. She added that the manager of thedivision, in this case Mr. Pizziol, was the primary decision maker in terms of granting or not anemployee’s request to be relieved from reporting to a shortage. She added that to make thatdecision, he would have taken the person’s situation into account and decided what to do with it.Mr. Pizziol had the power to either grant a leave of absence or an extension of the delay to report.Ms. Storms further added that in the case of a large shortage, like the one occurring in Vancouverin 2005, the manager would also discuss the situation with his general manager. In 2005, thegeneral manager to whom Mr. Pizziol reported was Denis Broshko.[148] As it was the case for Mr. Pizziol, Mr. Broshko was not called as a witness and noexplanation was given for his absence. There was also no evidence submitted by CN indicatingthat Mr. Pizziol had actually discussed the Complainant’s situation with Mr. Broshko.[149] Mr. Torchia testified on cross-examination that he had had discussion with theGeneral Chairperson of UTU regarding the possibility of extending the time the Complainant hadto report to cover the shortage. He added that during these discussions the issue ofaccommodation for family status was “never mentioned” and that he had never seen theComplainant’s correspondence on this matter.

44[150] The evidence clearly establishes that CN was not sensitive to the Complainant’s situation.It did not answer her many requests for some form of accommodation and did not even meet orcontact her to discuss her situation, even though its own accommodation policy directs that theemployee be met as a first step in the process. It is also clear from there evidence, that neitherMr. Storms nor Mr. Torchia felt that they had any responsibility regarding any issue pertaining tothe CHRA. They both testified that the supervisor of the employee and Human Resources werethe ones with whom this issue should be raised. Unfortunately for CN, as indicated above, neitherMr. Pizziol, nor the person responsible for Human Resources in Edmonton,Ms. Mary-Jane Morrison, were called as witnesses.2010 CHRT 23 (CanLII)[151] It is clear that CN witnesses did not consider “family status” - at least, family statusmatters that involve parental obligations and responsibilities - as a ground of discrimination thatnecessitated any form of accommodation. In their conception of the various grounds ofdiscrimination set out in the CHRA, they seem to have chosen some grounds as opening a right toaccommodation and others that did not. For example, they testified that CN had not hesitated to“accommodate” some employees who were recalled to cover the shortage in Vancouver becauseof a sick parent. They also acknowledge that CN had in the past accommodated employees formedical reason. But without inquiring into the nature of her request, they decided that theComplainant’s situation did not qualify as one requiring accommodation under the CHRA.[152] Ms. Ziemer also testified that CN had accommodated an employee in order to allow himto be absent from the working board every second weekend because he only had visitation rightsfor 48 hours every two weeks. In another case an accommodation was granted to an employeewho was involved in a lengthy custody battle in Court. This person was given additional time offfor this reason.[153] Even if the Tribunal was to accept CN’s argument that it had provided appropriate“accommodation” to the Complainant by granting her more time to report to Vancouver, CN’sfailure to meet the procedural obligations of the duty to accommodate would in itself still give riseto a violation of the Complainant’s human rights. The Supreme Court of Canada hasacknowledged that both the decision-making process and the final decision have to be taken into

45consideration in analyzing a BFOR. In Meiorin, the Court stated at para. 66: “It may often beuseful as a practical matter to consider separately, first, the procedure, if any, which was adoptedto assess the issue of accommodation and, second, the substantive content of either a moreaccommodating standard which was offered or alternatively the employer’s reasons for notoffering any such standard.” (See also Oak Bay Marina Ltd.v. British Columbia (Human RightsTribunal) (No. 2), 2004 BCHRT 225, at paras. 84-86).[154] In Lane v. ADGA Group Consultant Inc., 2007 HRTO 34, at para. 150, (decision upheld bythe Ontario Superior Court of Justice, Divisional Court, at [2008] O.J. No. 3076, 91 O.R.(3d) 649)the Ontario Human Rights Tribunal held that:2010 CHRT 23 (CanLII)…[T]he failure to meet the procedural dimensions of the duty to accommodate is aform of discrimination. It denies the affected person the benefit of what the lawrequires: a recognition of the obligation not to discriminate and to act in such away as to ensure that discrimination does not take place.[155] In Meiorin, the Supreme Court identified the following question as being relevant inanalyzing the procedural part of the accommodation process followed by the employer:i. Has the employer investigated alternative approaches that do nothave a discriminatory effect, such as individual testing against amore individually sensitive standard?ii. If alternative standards were investigated and found to be capable offulfilling the employer's purpose, why were they not implemented?iii. Is it necessary to have all employees meet the single standard for theemployer to accomplish its legitimate purpose or could standardsreflective of group or individual differences and capabilities beestablished?iv. Is there a way to do the job that is less discriminatory while stillaccomplishing the employer's legitimate purpose?v. Is the standard properly designed to ensure that the desiredqualification is met without placing an undue burden on those towhom the standard applies?

46vi. Have other parties who are obliged to assist in the search forpossible accommodation fulfilled their roles?[156] To meet the procedural component of the duty to accommodate, CN had a duty to showthat it had considered and reasonably rejected any accommodation that would haveaccommodated the needs of the Complainant.[157] The only evidence that this assessment of other form of accommodation might haveoccurred is that of Kerry Morris who testified that CN had had discussion, in the context of thegrievance negotiation with UTU, about “alternative means of accommodation” so that theComplainant and the two other employees CR and KW could stay in Jasper. He suggested thatUTU had proposed moving Conductors from an adjacent terminal to Vancouver, but according toMr. Morris this was not feasible as all employees at the Kamloops terminal were working andmoving them to Vancouver would only create a shortage in Kamloops. He explained that anotheralternative would have been to move three other employees from the Jasper terminal toVancouver to cover the shortage instead of the Complainant and KW and CR, but, according toMr. Morris, UTU felt that this solution was contrary to the seniority provision of the collectiveagreement and it was not ready to give its approval. Other than this, there was no evidence thatCN considered or investigated alternative approaches to the Complainant’s situation and evenwith these options, the evidence shows that they were only considered after the termination of theComplainant’s employment. The Tribunal also notes that this evidence is not consistent with theevidence given on this matter in the Whyte and Richards cases.2010 CHRT 23 (CanLII)[158] The evidence also indicates that CN did not apply its own accommodations guidelines andpolicies. CN has a very comprehensive accommodation policy. This policy recognizes all theprohibited grounds enumerated in the CHRA, including “family status”, and the policy clearlyindicates that, wherever possible, employment policies and practices are to be adjusted so that“no individual is denied employment opportunities...” It also specifies that accommodation“means making every possible effort to meet the reasonable needs of employees.”

47[159] CN “Accommodation Guidelines” explains that the objective of the Policy is “to ensurethat working conditions are not a barrier to employment.” It also makes clear that CN has toshow flexibility in eliminating any barriers and that it should make “every effort to ensure that noone is put at a disadvantage because of a special need or requirement.”[160] The policy also defines the process to be followed in case an accommodation for one ofthe enumerated grounds is raised and it provides a checklist to be followed by managers andsupervisors in case of such a request. The policy explains:• The first thing to do when an employee reports a problem or special need is tomeet with the individual. Allow the employee to present the problem or need, askquestions to fully understand the request, and together discuss possible solutions.2010 CHRT 23 (CanLII)• If no solutions can be identified in this manner, do not reject the request outright.Ask for advice, seek other solutions to the problem, and evaluate the impact of anypotential accommodation with the appropriate functions, including the Peopledepartment, among other. The employee has the responsibility to participateactively in the process, and to facilitate reasonable accommodation. Unions alsohave a recognized and important role and responsibility in the accommodation ofthe needs of employees.• It is extremely important to keep records of the meeting held, the various solutionsproposed, and the arguments used to accept or reject each option.This information is indispensable in the event of a complaint.• Promptly inform the person in question of the decision taken, explaining thereasons for the decision. In the event that a request for accommodation is denied,employees may have a right to grieve under the appropriate grievance procedureor make a complaint under the CHRA.[161] The person responsible for the accommodation policy at CN’s Edmonton office is, asindicated earlier, Mary-Jane Morrison, a Human Resources Officer. It is with her that people whohave question about the policy or its procedure consult. As noted earlier, Ms. Morrison was not awitness at the hearing. Instead, CN called as witness Stephanie Ziemer, the Human ResourcesOfficer in Vancouver. Ms. Ziemer had no hands on implication or any personal knowledge of theComplainant’s situation, but she did testify that she would have expected that the policy had been

48followed in this case and that “at some point Human Resources would have been involved.”No evidence of any involvement by Human Resources was presented at the hearing.[162] It is also clear from the evidence of CN other witnesses that they felt that theaccommodation policy was not any of their concerns. Mr. Torchia, for example, testified incross-examination that he knew that CN had an accommodation policy in 2005, although headded that he had never received any formal training on it. He was also unable to say if there hadbeen any “in house” training or seminars on the application of the CHRA for managers andsupervisors, although he added that he was sure there had been. He added that throughout hiscareer he had dealt with issues of accommodation in various grievances and in his dealings withthe Union.2010 CHRT 23 (CanLII)[163] Asked by CN counsel whether she was familiar with the duty to accommodate under theCHRA, Ms. Storms answered “No, not specifically. I know that it’s there and if I had to deal withit I would refer an employee to Human Resources.” On cross-examination she added: “I knew ofit but I didn’t know the specifics of it. From our end what we handle is the pay end of it and oncethe accommodation is made we’ll be directed by Human Resources and the Division to adjust thepay, that’s my area of responsibility. I would have simply left it in Pizziol’s hands. I don’t knowwhat he would have done with it. He may have gone to his boss, he could have gone several waysand I have no idea, you would have to ask Mr. Pizziol.” (The emphasis is mine.) Mr. Pizziol wasnot called as a witness.[164] Ron Morrese, the General Supervisor of Operation, a senior manager at CN, testified thathe had probably seen the accommodation policy, although he did not remember the details.He added that he was always in “operations” and that Human Resources dealt with the policy.He explained that they had the authority to tell “operations” what to do in those cases.[165] According to the Complainant’s evidence, CN’s accommodation policy was not followedin her case. She added that she never met with her supervisor, the trainmaster in Jasper, nor didshe get any response to the letters she had sent him or to other supervisors or managers of CNexplaining her situation. There was also no evidence that she had met with anybody at Human

49Resources or that she had been referred to them. It is clear from the evidence that CN did notfollow the procedure set out in its own policy and that it had decided that “family status”, at leastin terms of parental obligations and responsibilities, was not a ground of discrimination for whichaccommodation was required. It is also clear that CN never did an individualized assessment ofthe Complainant’s situation as it was required to do.[166] I will know deal briefly with CN’s position to the effect that it would be undue hardship togrant the relief sought by the Complainant because she would then be granted “super seniority”based on the simple fact of her status as a parent.2010 CHRT 23 (CanLII)[167] According to Stephanie Ziemer, CN does not capture the information regarding how manyof its employees are parents. She added that the only way to have this information would be toreview each employee’s file to see who they designate as dependants. Ms. Ziemer further addedthat from CN’s employees “group insurance” benefit plan “we can assume that approximately68% of [CN’s] workforce are parents.” This very partial evidence falls well short of the evidencethat CN would need to produce to justify discrimination on a balance of probabilities using thetripartite Meiorin BFOR test.[168] CN did not produce evidence to prove that accommodating the Complainant in this casewould have constituted undue hardship for the company. On the contrary, CN’s counsel during hisexamination of Ms. Storms asked her the following question: “If Ms. Seeley had reported toVancouver in 2005 would that have resolved the shortage?” Her answer was: “No, it wouldn’thave resolved the shortage but everybody counts. We would have had one more person to manthe operation and we would have used one less manager to fill in.” (The emphasis is mine.)[169] Furthermore, if the Tribunal was to accept CN’s argument that because a vast majority ofits employees are parents, accommodating the Complainant would cause it undue hardship, thatwould mean that any workplace with a large number of persons falling into a group with one orthe other of the personal characteristics set forth in section 3 of the CHRA would automatically beprecluded from the application of the law. For example, it would mean that women working in aworkplace where the vast majority of employees are women would be precluded from making a

50complaint of discrimination based on gender. Accepting CN’s argument would have the effect ofmaking it impossible for an individual to make a complaint on the ground of family status – atleast, family status matters that involve parental obligations and responsibilities – because most ofthe employees in the workforce are parents and could also potentially follow the same route.[170] CN did not produce any evidence that it was overwhelmed with requests foraccommodation from people in the Complainant’s situation. Only two other complaints, those ofCR and KW, were produced. In Grismer, supra, at para. 41, the Supreme Court of Canada statedquite clearly that in the context of accommodation “impressionistic evidence of increased expensewill not generally suffice.” In Lane, supra, at paragraph 117, the Ontario Divisional Court added:2010 CHRT 23 (CanLII)Undue hardship cannot be established by relying on impressionistic or anecdotalevidence, or after-the-fact justifications. Anticipated hardships caused by proposedaccommodations should not be sustained if based only on speculative orunsubstantiated concern that certain adverse consequences “might” or “could”result if the claimant is accommodated.[171] Regardless of the particular basis for CN’s claim that it will suffer undue hardship, it iswell established that the undue hardship analysis must be applied in the context of the individualaccommodation being requested. As the Supreme Court stated in Grismer, supra, at paragraph19, accommodation must be incorporated into the standard itself to ensure that each person isassessed according to her or his own personal abilities, instead of being judged against presumedgroup characteristics which are frequently based on bias and historical prejudice. Accordingly, anemployee’s individual assessment is an essential step in the accommodation process unless it is initself an undue hardship for the respondent (See Grismer, at paragraphs 22, 30, 32 and 38;Meiorin, at paragraph 65; Audet v. National Railway, 2006 CHRT 25, at paragraph 61 and Knightv. Société des transports de l’Outaouais, 2007 CHRT 15, at paragraph 72). Again, this individualassessment was not done in the case of the Complainant.[172] Arguments that the acceptance of the need to accommodate in one instance will open the“floodgates” to claims by other employees are, in my view, unacceptable. As the Human Rightsand Citizenship Commission of Alberta noted in Rawleigh v. Canada Safeway Ltd, unreported

51decision, September 29 th , 2009, at para. 242 “every case must be weighed on its own merits andunique circumstances. To support the belief that the floodgates may be opened to opportunisticindividuals is very dangerous and possibly discriminatory.”[173] In the instant case, CN failed to provide evidence that accommodating the Complainantwould cause undue hardship in terms of costs. The only evidence regarding cost was with respectto the training of Conductors and there was no attempt to relate that evidence to the situation inthe present case. We must remember that in order to be found to be “undue”, the cost ofaccommodation must be substantial. In Quesnel v. London Educational Health Centre (1995), 28C.H.R.R. D/474 (Ont. Bs. Inq.), the Ontario Human Rights Tribunal stated, at paragraph 59:““cost” would amount to undue hardship only if it would alter the essential nature or substantiallyaffect the viability of the enterprise responsible for the accommodation.” This is recognized inCN’s own Accommodation policy which states: “The costs incurred must be extremely highbefore the refusal to accommodate can be justified. The burden of justifying the refusal rests withthe employer. The cost incurred must be quantifiable and related to the accommodation.Renovations or special equipment can be expensive but financial aid may sometimes be obtainedfrom various organizations.”2010 CHRT 23 (CanLII)e) Conclusion[174] For all of the above reasons, the Tribunal concludes that the evidence has established thatCN has breached sections 7 and 10 of the CHRA. CN’s practice of requiring the Complainant toprotect the shortage in Vancouver has had an adverse effect on her because of her family status.The evidence demonstrates that CN acted contrary to sections 7 and 10 of the CHRA by pursuinga policy and practice that deprived the Complainant of employment opportunities based upon herfamily status.D. REMEDIES[175] The remedies sought by the Complainant are compensation for lost wages and benefits,compensation for pain and suffering, special compensation, legal cost and interest and an order

52that she be reinstated in her employment with CN with full seniority, benefits and all otheropportunities or privileges that were denied to her. The CHRC also seeks an order ensuring thatCN cease all discriminatory practices and behaviour and that it review its accommodation policy.(i) An Order that CN Review its Accommodation Policy[176] The CHRC requests an order, pursuant to section 53(2)a) of the CHRA, that CN takemeasures, in consultation with the CHRC, to redress its failure to properly accommodate itsemployees on the basis of family status, including issues of parental obligations andresponsibilities. It further requests an order that appropriate human rights training for CN’smanagerial, human resources and crew management personal be put in place and that regularinformation sessions on accommodation policies in an effort to eliminate discriminatory attitudesand assumptions related to family status as a ground of discrimination be held.2010 CHRT 23 (CanLII)[177] Although the Tribunal acknowledges that CN has a good policy on accommodation, it isclear that it has not been applied or implemented properly in the case of family status as a groundof discrimination. CN’s managers and supervisors have failed to follow this policy in theComplainant’s case. Having reviewed the evidence, I conclude that CHRC’s request is justified.[178] I therefore order CN to work with the Commission to ensure that the discriminatorypractice and behaviour does not continue and to make sure:a) that the appropriate policies, practices and procedures are in place, andb) that CN, in consultation with the CHRC, retains appropriate persons to conductworkplace training for managers, human resource and crew management staff onissues of discrimination and human rights and particularly on accommodation onthe ground of family status,

53(ii)Reinstatement[179] The Complainant seeks an order, pursuant to s. 53(2)(b) of the CHRA, directing CN toreturn her to her employment as a Conductor with CN. Section 53(2)(b) of the CHRA states thatwhere the Tribunal finds the complaint is substantiated, it may order a respondent to makeavailable to the victim of the discriminatory practice, on the first reasonable occasion, the rights,opportunities or privileges that were denied the victim as a result of the practice.[180] In order to provide this remedy in the present case, the Complainant must therefore bereturned to her job without loss of seniority. The Tribunal orders CN to set up the Complainant toher position as Conductor at the Jasper terminal, after she has, if necessary, updated her rules andmedical certificates. On the unchallenged facts put forward by the Complainant, there are threepossible starting dates that the Tribunal could reasonably fix for the Complainant reinstatement.2010 CHRT 23 (CanLII)The first date suggested is July 1 st , 2005, which could be seen as the effective date forimplementation of the Complainant’s request to be accommodated by being “set up” in a full timeposition in Jasper. The Tribunal does not accept this as an appropriate date as there was noevidence that the Complainant could have been set up in a full time position in Jasper at that timeor if this would have been the appropriate accommodation. There was also no evidence of anyemployees being set up in Jasper at that time.[181] The second date is March 1 st , 2006. According to the evidence, this is the date thatanother laid off employee from Jasper, who had been recalled and had reported to Vancouver, wasset up in Jasper. Since only four employees from Jasper, the Complainant, CR, KW and thisemployee, had been recalled and told to report to Vancouver it might be reasonable to expect thatthe Complainant, CR and KW would also have been set up in Jasper around March 2006. Again,there was no evidence produced showing that more than one employee had been set up in Jasperat that time and it is difficult for me to retain that date as the appropriate one.[182] Finally, evidence was produced that in March 2007, CN hired thirty-nine (39) newConductors were in Jasper and that many of these new Conductors have since been set up. It is

54reasonable to conclude therefore that the Complainant had, at that time, seniority over these newConductors and that she would have been set up in Jasper ahead of them. Therefore, I concludethat from the evidence, the Complainant would have been set up in March 2007 and this date istherefore the one retained for her reinstatement. In regards to her seniority, since senioritycontinues to accumulate even when an employee is on lay off, it will in this case continue toaccumulate as if there had never been a breach in her relationship with CN in July, 2005.(iii) Compensation for lost earnings[183] The complainant seeks compensation for all wages and benefits lost pursuant to s. 53(2)(c)of the CHRA. Considering my conclusion as to the date of reinstatement, I order that the2010 CHRT 23 (CanLII)Complainant be compensated for all lost of wages and benefits from March 1 st , 2007 to today.The parties are ordered to calculate the amount of wages owing using the formula provided for inthe Collective Agreement. In regards to extra payments that a road Conductor could receive,since it would be difficult for the Tribunal to set an amount, it is ordered that the parties establishthis amount by looking at the extras that were paid for the period to a Conductor with similarseniority working in the terminal, assuming that that Conductor had no unusual absences.The parties could, for example, take into consideration the extra payments that were paid to theemployee who was set up in Jasper in March 2006.[184] In regards to the issue of mitigation of damages, there is no question that the Complainanthad a duty to mitigate. According to the Complainant’s evidence, after the termination of heremployment with CN in 2005, she worked at odd jobs, for example, as a waitress in a restaurantor for an outfitter, but she could not give a precise list of all her employment. Surprisingly, shecould not provide a figure for her income during those years. She said that she basically workedfor tips and had no salary or was paid cash. She also added that because of the young age of herchildren she had not looked for other work during this period. The Complainant’s evidence inregards to her efforts to mitigate her damages was not very convincing and at best demonstratedthat during this period she did not make great effort to find alternative revenues.

55[185] Taking this into consideration, I conclude that it would be reasonable to reduce the amountawarded for lost of wages by thirty percent (30%).(iv)Pain and suffering[186] Section 53(2) of the CHRA provides for compensation for pain and suffering that thevictim experienced as a result of the discriminatory practice, up to a maximum of $20,000.[187] The Complainant testified that the whole situation was “deeply disturbing” and that it had“upset her very much”. She further added “I lost my career. I was discarded because I had kids.”She said that following the July 2005 letter of termination she was depressed: “I was shocked anddeeply affected. My family noticed the changes. I was irritable. I felt violated and that I had beentreated with no regards.”2010 CHRT 23 (CanLII)[188] Her husband also testified that after she was fired, the Complainant was “hurt, upset andirritable”.[189] No medical evidence was produced to substantiate these claims. Nevertheless, I agree thatCN’s conduct and nonchalant attitude towards her situations was disturbing for the Complainantand that it must have upset her. Taking, this into consideration, I order CN to pay to thecomplainant $ 15,000 in compensation for her pain and suffering.(v)Wilful or Reckless Conduct[190] Section 53(3) of the CHRA provides for additional compensation where the Respondenthas engaged in the discriminatory practice wilfully or recklessly up to a maximum of $20,000.[191] I agree that CN’s conduct in this case was reckless. CN had adopted an accommodationpolicy, in the form of the Accommodation Guidelines, which set out the procedures to be followedwith respect to any employees who required accommodation. This policy clearly identified“family status” as one of the ground for discrimination. Yet, CN and the senior managers

56involved in this case decided that they did not need to be concerned with family status andignored their responsibilities under the policy. They didn’t make any efforts to try to understandthe Complainant’s situations, ignored her letters, decided to treat her case as just a “child careissue” and to cherry-pick which ground of discrimination should give way to accommodation andwhich should not. This course of action was, in my view, reckless.[192] The Tribunal orders CN to pay to the Complainant the sum of $20,000, in additionalcompensation under section 53(3) of the Act.(vi) Costs and Interest.2010 CHRT 23 (CanLII)[193] In his closing arguments, counsel for the Complainant sought an award for legal cost.Since the close of this case, the Federal Court of Appeal has rendered a decision inCanada (Attorney General) v. Mowat, 2009 FCA 309, in which the questions were whether theTribunal had the authority to award costs and whether the authority could be found in paragraph53(2)(c) of the Act which authorizes the Tribunal to compensate a complainant for any expensesincurred as a result of the discriminatory practice.[194] After an analysis of Human Rights Codes in various provinces that allowed an award forcost and after analysing the purported intent of Parliament, the Federal Court of Appeal concludedat paragraph 95:The quest is to determine whether Parliament intended to endow the Tribunal withthe authority to award costs to a successful complainant. For the reasons given, Iconclude that Parliament did not intend to grant, and did not grant, to the Tribunalthe power to award costs. To conclude that the Tribunal may award legal costsunder the guise of “expenses incurred by the victim as a result of thediscriminatory practice” would be to introduce indirectly into the Act a powerwhich Parliament did not intend it to have[195] Taking into consideration the decision of the Federal Court of Appeal, the Tribunal cannotaccede to the Complainant’s request that CN be ordered to pay her legal cost.

57[196] In regards to interest, interest is payable in respect of all the awards in this decision(s. 53(4) of the CHRA). The interest shall be simple interest calculated on a yearly basis, at a rateequivalent to the Bank Rate (Monthly series) set by the Bank of Canada. With respect to thecompensation for pain and suffering (s. 53 (2)(e) of the CHRA) and the special compensation(s. 53(3)), the interest shall run from the date of the complaint.OTTAWA, OntarioSeptember 29, 2010“Signed by”Michel Doucet2010 CHRT 23 (CanLII)

CANADIAN HUMAN RIGHTS TRIBUNALPARTIES OF RECORDTRIBUNAL FILE: T1355/8508STYLE OF CAUSE:DATE AND PLACE OF HEARING: August 10 to 14, 2009September 21, 2009Jasper, AlbertaDenise Seeley v. Canadian National Railway2010 CHRT 23 (CanLII)DECISION OF THE TRIBUNAL DATED: September 29, 2010APPEARANCES:Simon RenoufFor the ComplainantSheila Osborne-BrownFor the Canadian Human Rights CommissionSimon-Pierre PaquetteJohanne CavéFor the Respondent

Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 2004 SCC 47Moïse Amselem, Gladys Bouhadana,Antal Klein and Gabriel Fonfederv.Syndicat NorthcrestAppellantsRespondent2004 SCC 47 (CanLII)andEvangelical Fellowship of Canada, Seventh-dayAdventist Church in Canada, World Sikh Organizationof Canada and Ontario Human Rights CommissionIntervenersandMiguel Bernfield and Edith JaulMis en causeand betweenLeague for Human Rights of B’Nai Brith CanadaAppellantv.Syndicat NorthcrestRespondentand

- 2 -Evangelical Fellowship of Canada, Seventh-dayAdventist Church in Canada, World Sikh Organizationof Canada and Ontario Human Rights CommissionandMiguel Bernfield and Edith JaulIntervenersMis en cause2004 SCC 47 (CanLII)Indexed as: Syndicat Northcrest v. AmselemNeutral citation: 2004 SCC 47.File Nos.: 29253, 29252.2004: January 19; 2004: June 30.Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel,Deschamps and Fish JJ.on appeal from the court of appeal for quebecCivil rights — Freedom of religion — Definition of freedom of religion —Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of theirreligious beliefs on balconies of their co-owned property — Syndicate of co-ownersrequesting removal of succahs because declaration of co-ownership prohibitsdecorations, alterations and constructions on balconies — Whether freedom of religioninfringed by declaration of co-ownership — If so, whether refusal to permit setting upof succahs justified by reliance on right to enjoy property and right to personal security

- 3 -— Whether Orthodox Jewish residents waived their right to freedom of religion bysigning declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q.,c. C-12, ss. 1, 3, 6.Constitutional law — Charter of Rights — Freedom of religion — Definitionof freedom of religion — Proper approach for freedom of religion analyses — CanadianCharter of Rights and Freedoms, s. 2(a).2004 SCC 47 (CanLII)The appellants A, B, K, and F, all Orthodox Jews, are divided co-owners ofunits in luxury buildings in Montréal. Under the terms of the by-laws in the declarationof co-ownership, the balconies of individual units, although constituting commonportions of the immovable, are nonetheless reserved for the exclusive use of theco-owners of the units to which they are attached. The appellants set up “succahs” ontheir balconies for the purposes of fulfilling the biblically mandated obligation ofdwelling in such small enclosed temporary huts during the annual nine-day Jewishreligious festival of Succot. The respondent requested their removal, claiming that thesuccahs violated the by-laws, which, inter alia, prohibited decorations, alterations andconstructions on the balconies. None of the appellants had read the declaration ofco-ownership prior to purchasing or occupying their individual units. The respondentproposed to allow the appellants to set up a communal succah in the gardens. Theappellants expressed their dissatisfaction with the proposed accommodation, explainingthat a communal succah would not only cause extreme hardship with their religiousobservance, but would also be contrary to their personal religious beliefs, which, theyclaimed, called for the setting up of their own succahs on their own balconies. Therespondent refused their request and filed an application for a permanent injunctionprohibiting the appellants from setting up succahs and, if necessary, permitting their

- 4 -demolition. The application was granted by the Superior Court and this decision wasaffirmed by the Court of Appeal.should be allowed.Held (Bastarache, Binnie, LeBel and Deschamps JJ. dissenting): The appealPer McLachlin C.J. and Iacobucci, Major, Arbour and Fish JJ.: Defined2004 SCC 47 (CanLII)broadly, religion typically involves a particular and comprehensive system of faith andworship. In essence, religion is about freely and deeply held personal convictions orbeliefs connected to an individual’s spiritual faith and integrally linked to his or herself-definition and spiritual fulfilment, the practices of which allow individuals to fostera connection with the divine or with the subject or object of that spiritual faith.Freedom of religion under the Quebec Charter of Human Rights andFreedoms (and the Canadian Charter of Rights and Freedoms) consists of the freedomto undertake practices and harbour beliefs, having a nexus with religion, in which anindividual demonstrates he or she sincerely believes or is sincerely undertaking in orderto connect with the divine or as a function of his or her spiritual faith, irrespective ofwhether a particular practice or belief is required by official religious dogma or is inconformity with the position of religious officials. This understanding is consistent witha personal or subjective understanding of freedom of religion. As such, a claimant neednot show some sort of objective religious obligation, requirement or precept to invokefreedom of religion. It is the religious or spiritual essence of an action, not anymandatory or perceived-as-mandatory nature of its observance, that attracts protection.The State is in no position to be, nor should it become, the arbiter of religious dogma.Although a court is not qualified to judicially interpret and determine the content of a

- 5 -subjective understanding of a religious requirement, it is qualified to inquire into thesincerity of a claimant’s belief, where sincerity is in fact at issue. Sincerity of beliefsimply implies an honesty of belief and the court’s role is to ensure that a presentlyasserted belief is in good faith, neither fictitious nor capricious, and that it is not anartifice. Assessment of sincerity is a question of fact that can be based on criteriaincluding the credibility of a claimant’s testimony, as well as an analysis of whether thealleged belief is consistent with his or her other current religious practices. Since the2004 SCC 47 (CanLII)focus of the inquiry is not on what others view the claimant’s religious obligations asbeing, but what the claimant views these personal religious “obligations” to be, it isinappropriate to require expert opinions. It is also inappropriate for courts rigorously tostudy and focus on the past practices of claimants in order to determine whether theircurrent beliefs are sincerely held. Because of the vacillating nature of religious belief,a court’s inquiry into sincerity, if anything, should focus not on past practice or pastbelief but on a person’s belief at the time of the alleged interference with his or herreligious freedom.Freedom of religion is triggered when a claimant demonstrates that he or shesincerely believes in a practice or belief that has a nexus with religion. Once religiousfreedom is triggered, a court must then ascertain whether there has been non-trivial ornon-insubstantial interference with the exercise of the implicated right so as to constitutean infringement of freedom of religion under the Quebec (or the Canadian) Charter.However, even if the claimant successfully demonstrates non-trivial interference,religious conduct which would potentially cause harm to or interference with the rightsof others would not automatically be protected. The ultimate protection of any particularCharter right must be measured in relation to other rights and with a view to theunderlying context in which the apparent conflict arises.

- 6 -Here, the impugned stipulations in the declaration of co-ownership infringeupon the appellants’ freedom of religion under s. 3 of the Quebec Charter. The trialjudge’s approach to freedom of religion was incorrect. First, he chose between twocompeting rabbinical authorities on a question of Jewish law. Second, he seems to havebased his findings with respect to freedom of religion solely on what he perceived to bethe objective obligatory requirements of Judaism, thus failing to recognize that freedomof religion under the Quebec (and the Canadian) Charter does not require a person to2004 SCC 47 (CanLII)prove that his or her religious practices are supported by any mandatory doctrine of faith.Furthermore, any incorporation of distinctions between “obligation” and “custom” or,as made by the respondent and the courts below, between “objective obligation” and“subjective obligation or belief” within the framework of a religious freedom analysisis dubious, unwarranted and unduly restrictive. On the issue of sincerity, the trial judgecorrectly concluded that the appellant A sincerely believed that he was obliged to set upa succah on his own property. The appellants K and F submitted expert evidence of theirsincere individual belief as to the inherently personal nature of fulfilling thecommandment of dwelling in a succah. Such expert testimony, although not required,suffices in positively assessing the sincerity and honesty of their belief. Lastly, theinterference with their right to freedom of religion is more than trivial and thus, leads toan infringement of that right. It is evident that in respect of A the impugned clauses ofthe declaration of co-ownership interfere with his right in a substantial way, as aprohibition against setting up his own succah obliterates the substance of his right. In thecase of K and F, they have proven that the alternatives of either imposing on friends andfamily or celebrating in a communal succah as proposed by the respondent willsubjectively lead to extreme distress and thus impermissibly detract from the joyouscelebration of the holiday. In any event, there is no doubt that all the appellants sincerelybelieve they must fulfill the biblically mandated obligation, perhaps not of setting up

- 7 -one’s own succah, but of “dwelling in” a succah for the entire nine-day festival ofSuccot. Although the declaration of co-ownership does not overtly forbid the appellantsto dwell in a succah — in that they are free to celebrate the holiday with relatives or ina proposed communal succah —, the burdens placed upon them as a result of theoperation of the impugned clauses are evidently substantial. Preventing them frombuilding their own succah therefore constitutes a non-trivial interference with and thusan infringement of their protected rights to dwell in a succah during the festival of2004 SCC 47 (CanLII)Succot.The alleged intrusions or deleterious effects on the co-owners’ rights topeaceful enjoyment of their property and to personal security guaranteed by ss. 6 and 1respectively of the Quebec Charter are, under the circumstances, at best minimal andthus cannot be reasonably considered as imposing valid limits on the exercise of theappellants’ religious freedom. The respondent has not adduced enough evidence toconclude that allowing the appellants to set up such temporary succahs would cause thevalue of the units, or of the property, to decrease. Similarly, protecting the co-owners’enjoyment of the property by preserving the aesthetic appearance of the balconies andthus enhancing the harmonious external appearance of the building cannot be reconciledwith a total ban imposed on the appellants’ exercise of their religious freedom. Thepotential annoyance caused by a few succahs being set up for a period of nine days eachyear would undoubtedly be quite trivial. Finally, the appellants’ offer to set up theirsuccahs in such a way that they would not block any doors, would not obstruct fire lanesand would pose no threat to safety or security obviated any security concerns under thecircumstances. In order to respect the co-owners’ property interests, however, theappellants should set up their succahs in a manner that conforms, as much as possible,with the general aesthetics of the property.

- 8 -Whether one can waive a constitutional right like freedom of religion is aquestion that is not free from doubt. However, even assuming that an individual cantheoretically waive his or her right to freedom of religion, a waiver argument, or anargument analogous to waiver, cannot be maintained on the facts of this case. First, theprohibitions can properly be construed as falling under s. 9.3 of the declaration ofco-ownership, which does not absolutely prohibit, but rather, simply requires solicitingthe consent of the co-owners to enclose one’s balcony. Second, the appellants did not2004 SCC 47 (CanLII)voluntarily, clearly and expressly waive their rights to freedom of religion. They had nochoice but to sign the declaration of co-ownership if they wanted to reside at thatcomplex. It would be both insensitive and morally repugnant to intimate that theappellants simply move elsewhere if they take issue with a clause restricting their rightto freedom of religion. Further, there is no evidence that the appellants were aware thatsigning the declaration amounted to a waiver of their rights to freedom of religion. Notonly would a general prohibition on constructions, such as the one in the declaration ofco-ownership, be insufficient to ground a finding of waiver, but arguably so would anydocument lacking an explicit reference to the affected Charter right.Per Bastarache, LeBel and Deschamps JJ. (dissenting): Since a religion isa system of beliefs and practices based on certain religious precepts, a nexus between thebeliever’s personal beliefs and the precepts of his or her religion must be established.To rely on his or her conscientious objection a claimant must demonstrate (1) theexistence of a religious precept, (2) a sincere belief that the practice dependent on theprecept is mandatory, and (3) the existence of a conflict between the practice and therule.

- 9 -The claimant must first show that the precept in question is genuinelyreligious and not secular. The test is reasonable belief in the existence of a religiousprecept. To this end, expert testimony will be useful, as it can serve to establish thefundamental practices and precepts of a religion the individual claims to practise. In thesecond step, the claimant must establish that he or she has a sincere belief and that thisbelief is objectively connected to a religious precept that follows from a text or anotherarticle of faith. It is not necessary to prove that the precept objectively creates an2004 SCC 47 (CanLII)obligation, but it must be established that the claimant sincerely believes he or she isunder an obligation that follows from the precept. The inquiry into the sincerity ofbeliefs must be as limited as possible, since it will expose an individual’s most personaland private beliefs to public airing and testing in a judicial or quasi-judicial setting. Thesincerity of a belief is examined on a case-by-case basis and must be supported bysufficient evidence, which comes mainly from the claimant. Although consistency inreligious practice may be indicative of the sincerity of a claimant’s beliefs, it is theclaimant’s overall personal credibility and evidence of his or her current religiouspractices that matter. The essential test must be the claimant’s intention and seriousdesire to obey the fundamental precepts of his or her religion. Finally, unless theimpugned provisions or standards infringe the claimant’s rights in a manner that is morethan trivial or insubstantial, the freedom of religion guaranteed by the Charters is notapplicable.Even if all religious conduct, practices or expression that could infringe oraffect the rights of others in a private law context are protected a priori by the purposeof freedom of religion, they are not necessarily protected under the right to freedom ofreligion. According to the first paragraph of s. 9.1 of the Quebec Charter, the rights andfreedoms subject to s. 9.1, including the right to freedom of religion, must be exercised

- 10 -in relation to one another while maintaining proper regard for democratic values, publicorder and the general well-being of citizens. The Civil Code of Québec is the mostimportant instrument for defining the principles governing public order and the generalwell-being of the citizens of Quebec. The first paragraph of s. 9.1 requires not merelya balancing of the respective rights of the parties; it is necessary to reconcile all therights and values at issue and find a balance and a compromise consistent with the publicinterest in the specific context of the case. The court must ask itself two2004 SCC 47 (CanLII)questions: (1) Has the purpose of the fundamental right been infringed? (2) If so, is thisinfringement legitimate, taking into account democratic values, public order, and thegeneral well-being? A negative answer to the second question would indicate that afundamental right has been violated. In the first step of the analysis, the person allegingthe infringement must prove that it has occurred. In the second step, the onus is on thedefendant to show that the infringement is consistent with the principles underlyings. 9.1. The reconciliation of rights is clearly different from the duty to accommodate inthe context of an infringement of the right to equality guaranteed by s. 10 of the Charter.In the case at bar, the prohibition against erecting their own succahs does notinfringe the appellants’ right to freedom of religion. Based on the evidence that wasadduced and accepted, the appellants sincerely believe that, whenever possible, it wouldbe preferable for them to erect their own succahs; however, it would not be a divergencefrom their religious precept to accept another solution, so long as the fundamentalobligation of eating their meals in a succah was discharged. It cannot therefore beaccepted that the appellants sincerely believe, based on the precepts of their religion thatthey are relying on, that they are under an obligation to erect their own succahs on theirbalconies. It is, rather, the practice of eating or celebrating Succot in a succah that isprotected by the guarantee of freedom of religion set out in s. 3 of the Quebec Charter.

- 11 -The declaration of co-ownership does not hinder this practice, as it does not bar theappellants from celebrating in a succah, in that they can celebrate Succot at the homesof friends or family or even in a communal succah, as proposed by the respondent.Assuming that the belief of the appellant A that he must erect a succah onhis own balcony is sincere and that it is based on a precept of his religion, theinfringement of his right to freedom of religion is legitimate, since the right to erect2004 SCC 47 (CanLII)succahs on balconies cannot be exercised in harmony with the rights and freedoms ofothers and the general well-being of citizens. The rights of each of the other co-ownersto the peaceful enjoyment and free disposition of their property and to life and personalsecurity under ss. 6 and 1, respectively, of the Quebec Charter are in conflict with theappellant’s freedom of religion. In the case at bar, the right to the peaceful enjoymentand free disposition of one’s property is included in the purpose of the restrictionsprovided for in the declaration of co-ownership. The restrictions are aimed first andforemost at preserving the market value of the dwelling units held in co-ownership.They also protect the co-owners’ right to enjoy the common portions reserved forexclusive use while preserving the building’s style and its aesthetic appearance of aluxury building and permitting the balconies to be used to evacuate the building in adangerous situation. The restrictions are justified, in conformity with art. 1056 C.C.Q.,by the immovable’s destination, characteristics and location. Also, preventing theobstruction of routes between balconies so that they can be used as emergency exitsprotects the co-owners’ right to life and personal security. The argument that succahscan be erected without blocking access routes too much if certain conditions arecomplied with cannot be accepted at this point in the analysis, as it is based on theconcept of reasonable accommodation, which is inapplicable in the context of s. 9.1.

- 12 -The obligation imposed on the appellants to exercise their rights ofownership in harmony with the rights of the other co-owners is not unfair. Thedeclaration of co-ownership was drafted in an effort to preserve the rights of all theco-owners, without distinction. It must also be borne in mind that the erection, asproposed by the respondent, of a communal succah would have had the desired result ofupholding not only the parties’ contractual rights, but also of the rights guaranteed byss. 6, 1 and 3 of the Quebec Charter. Such a solution would be consistent with the2004 SCC 47 (CanLII)principle that freedom of religion must be exercised within reasonable limits and withrespect for the rights of others, subject to such limitations as are necessary to protectpublic safety, order and health and the fundamental rights and freedoms of others.Per Binnie J. (dissenting): While freedom or religion as guaranteed by s. 3of the Quebec Charter should be broadly interpreted, the Quebec Charter is alsoconcerned in s. 9.1 with a citizen’s responsibilities to other citizens in the exercise oftheir rights and freedoms. Here, the threshold test of bringing the s. 3 claim within theprotected zone of religious freedom has been met but, in the circumstances of this case,the appellants cannot reasonably insist on a personal succah.The succah ritual exists as an article of the Jewish faith and at least one ofthe appellants sincerely believes that dwelling in his own succah is part of his faith,subject to a measure of flexibility when a personal succah is not available. Theconstruction of a succah on the commonly owned balconies of the building, however, isclearly prohibited by the declaration of co-ownership. Weight must fairly be given tothe private contract voluntarily made among the parties to govern their mutual rights andobligations, including the contractual rules contained in the declaration of co-ownership,as well as on the co-owners’ offer of accommodation. Buried at the heart of this

- 13 -fact-specific case is the issue of the appellants’ acceptance, embodied in the contractwith their co-owners, that they would not insist on construction of a personal succah onthe communally owned balconies of the building. A person’s right to the peacefulenjoyment of his property is one of the rights guaranteed by s. 6 of the Quebec Charterand the primary right asserted by the co-owners. Although s. 9.1 does not specificallyimpose a duty on third parties to accommodate a claimant, as a practical matter, thereasonableness of the claimant’s conduct will be measured, at least to some extent, in2004 SCC 47 (CanLII)light of the reasonableness of the conduct of the co-owners. The text of s. 9.1 puts thefocus on the claimant, who must have regard to the facts of communal living, whichincludes the rights of third parties. Lastly, the reasonableness of a claimant’s objectionmust be viewed from the perspective of a reasonable person in the position of theclaimant with full knowledge of the relevant facts. When all the relevant facts of thiscase are considered, especially the pre-existing rules of the immovable accepted by theappellants as part of the purchase of their units, the appellants have not demonstrated thattheir insistence on a personal succah and their rejection of the co-owner’saccommodation of a group succah show proper regard for the rights of others within theprotection of s. 9.1. The appellants themselves were in the best position to determinetheir religious requirements and must be taken to have done so when entering into theco-ownership agreement in the first place. They cannot afterwards reasonably insist ontheir preferred solution at the expense of the countervailing legal rights of theirco-owners. As found by the trial judge, the accommodation offered by the co-ownerswas not inconsistent with the appellants’ sense of religious obligation in circumstanceswhere a personal succah is simply not available.Cases Cited

- 14 -By Iacobucci J.Referred to: Reference re Secession of Quebec, [1998] 2 S.C.R. 217; R. v.Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; British Columbia (Public Service EmployeeRelations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British Columbia(Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),[1999] 3 S.C.R. 868; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Re Funk2004 SCC 47 (CanLII)and Manitoba Labour Board (1976), 66 D.L.R. (3d) 35; R. v. Jones, [1986]2 S.C.R. 284; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825;Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707(1981); Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989); R.v. Laws (1998), 165 D.L.R. (4th) 301; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; B. (R.) v.Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Trinity WesternUniversity v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31;Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario HumanRights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; NewfoundlandAssociation of Public Employees v. Newfoundland (Green Bay Health Care Centre),[1996] 2 S.C.R. 3; Parry Sound (District) Social Services Administration Board v.O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; R. v. Mills, [1999]3 S.C.R. 668; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Richard, [1996] 3 S.C.R. 525;Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Godbout v. Longueuil(City), [1997] 3 S.C.R. 844.By Bastarache J. (dissenting)

- 15 -Québec (Procureur général) v. Lambert, [2002] R.J.Q. 599; BritishColumbia (Public Service Employee Relations Commission) v. BCGSEU, [1999]3 S.C.R. 3; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books andArt Ltd., [1986] 2 S.C.R. 713; Bowman v. Secular Society, Ltd., [1917] A.C. 406; R. v.Registrar General, Ex parte Segerdal, [1970] 2 Q.B. 697; Barralet v. Attorney General,[1980] 3 All E.R. 918; Wisconsin v. Yoder, 406 U.S. 205 (1972); Trinity WesternUniversity v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31;2004 SCC 47 (CanLII)B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; P. (D.)v. S. (C.), [1993] 4 S.C.R. 141; Ross v. New Brunswick School District No. 15, [1996]1 S.C.R. 825; R. v. Jones, [1986] 2 S.C.R. 284; Ford v. Quebec (Attorney General),[1988] 2 S.C.R. 712; Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591;Prud’homme v. Prud’homme, [2002] 4 S.C.R. 663, 2002 SCC 85; Devine v. Quebec(Attorney General), [1988] 2 S.C.R. 790; Dagenais v. Canadian Broadcasting Corp.,[1994] 3 S.C.R. 835; Desroches v. Québec (Commission des droits de la personne),[1997] R.J.Q. 1540.By Binnie J. (dissenting)B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995]1 S.C.R. 315; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825;Trinity Western University v. British Columbia College of Teachers, [2001]1 S.C.R. 772, 2001 SCC 31; Employment Division, Department of Human Resources ofOregon v. Smith, 494 U.S. 872 (1990); Aubry v. Éditions Vice-Versa inc., [1998]1 S.C.R. 591; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712.Statutes and Regulations Cited

- 16 -Canadian Charter of Rights and Freedoms, s. 2(a).Charter of Human Rights and Freedoms, R.S.Q., c. C-12, preamble, ss. 1, 3, 6, 9.1, 10,13.Civil Code of Québec, S.Q. 1991, c. 64, preliminary provision, arts. 1039, 1056, 1063.United States Constitution, First Amendment.Authors Cited2004 SCC 47 (CanLII)Brun, Henri. “Un aspect crucial mais délicat des libertés de conscience et de religion desarticles 2 et 3 des Chartes canadienne et québécoise: l’objection de conscience”(1987), 28 C. de D. 185.Brun, Henri, et Guy Tremblay. Droit constitutionnel, 4 e éd. Cowansville, Qué.: YvonBlais, 2002.Chevrette, François. “La disposition limitative de la Charte des droits et libertés de lapersonne: le dit et le non-dit” (1987), 21 R.J.T. 461.Macklem, Timothy. “Faith as a Secular Value” (2000), 45 McGill L.J. 1.Mill, John Stuart. On Liberty and Considerations on Representative Government.Edited by R. B. McCallum. Oxford: Basil Blackwell, 1946.Quebec. Assemblée nationale. Journal des débats: Commissions parlementaires,3 e sess., 32 e lég., 16 décembre 1982, p. B-11609.Shorter Oxford English Dictionary, vol. 2, 5th ed. Oxford: Oxford University Press,2002, “precept”.Tancelin, Maurice. “L’acte unilatéral en droit des obligations ou l’unilatéralisation ducontrat”, dans N. Kasirer, dir., La solitude en droit privé. Montréal: Thémis, 2002,214.Tribe, Laurence H. American Constitutional Law, 2nd ed. Mineola, N.Y.: FoundationPress, 1988.Woehrling, José. “L’obligation d’accommodement raisonnable et l’adaptation de lasociété à la diversité religieuse” (1998), 43 McGill L.J. 325.APPEAL from judgments of the Quebec Court of Appeal, [2002] R.J.Q. 906,[2002] Q.J. No. 705 (QL), and [2002] Q.J. No. 707 (QL), affirming a judgment of the

- 17 -Superior Court, [1998] R.J.Q. 1892, [1998] Q.J. No. 1959 (QL). Appeal allowed,Bastarache, Binnie, LeBel and Deschamps JJ. dissenting.Julius H. Grey, Lynne-Marie Casgrain, Elisabeth Goodwin andJean-Philippe Desmarais, for the appellants Moïse Amselem, Gladys Bouhadana, AntalKlein and Gabriel Fonfeder.2004 SCC 47 (CanLII)David Matas and Steven G. Slimovitch, for the appellant the League forHuman Rights of B’Nai Brith Canada.Pierre-G. Champagne and Yves Joli-Coeur, for the respondent.Dale Fedorchuk, Bradley Minuk and Dave Ryan, for the interveners theEvangelical Fellowship of Canada and the Seventh-day Adventist Church in Canada.Canada.Palbinder K. Shergill, for the intervener the World Sikh Organization ofPrabhu Rajan, for the intervener the Ontario Human Rights Commission.was delivered byThe judgment of McLachlin C.J. and Iacobucci, Major, Arbour and Fish JJ.IACOBUCCI J. —I. Introduction

- 18 -1 An important feature of our constitutional democracy is respect forminorities, which includes, of course, religious minorities: see Reference re Secessionof Quebec, [1998] 2 S.C.R. 217, at paras. 79-81. Indeed, respect for and tolerance of therights and practices of religious minorities is one of the hallmarks of an enlighteneddemocracy. But respect for religious minorities is not a stand-alone absolute right; likeother rights, freedom of religion exists in a matrix of other correspondingly important2004 SCC 47 (CanLII)rights that attach to individuals. Respect for minority rights must also coexist alongsidesocietal values that are central to the make-up and functioning of a free and democraticsociety. This appeal requires the Court to deal with the interrelationship betweenfundamental rights both at a conceptual level and for a practical outcome.2 More specifically, the cases which are the subject of this appeal involve areligious claim by the appellants for the setting up of a “succah” for nine days a year inthe pursuit of their religious beliefs on their co-owned property under the QuebecCharter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec Charter”). TheQuebec courts denied the claim. With respect, I disagree and would allow the appeal.3 In particular, after defining the scope of freedom of religion and itsinfringement, I find that the appellants’ religious freedom under the Quebec Charter hasbeen infringed by the declaration of co-ownership. While the respondent has raisedrights to enjoy property and personal security as justification for its refusal to allow asuccah to be set up, I find that the impairment of the appellants’ religious freedom isserious whereas I conclude that the intrusion on the respondent’s rights is minimal. Assuch, I hold that the appellants must be permitted to set up succahs on their balconies,provided that the succahs remain only for the limited time necessary — in this case nine

- 19 -days —, allow for an emergency access route, and conform, as much as possible, withthe general aesthetics of the property. I also find the argument that the appellants waivedtheir religious rights cannot be maintained under the circumstances, nor did theyimplicitly agree not to set up succahs on their balconies by signing the declaration of coownership.II. Background2004 SCC 47 (CanLII)4 The appellants, all Orthodox Jews, are divided co-owners of residential unitsin “Place Northcrest”, two luxury buildings forming part of “Le Sanctuaire du Mont-Royal” (the “Sanctuaire”), a larger complex in Montréal. Moïse Amselem has lived atthe Sanctuaire, together with his wife Gladys Bouhadana, since 1996; Gabriel Fonfederhas lived at the complex since 1994; and, at the time of the proceedings below, ThomasKlein, the son of the appellant Antal Klein, had been living there since 1989. Under theterms of the Sanctuaire’s by-laws in the declaration of co-ownership, the balconies ofindividual units, although constituting [TRANSLATION] “common portions” of theimmovable, are nonetheless reserved to the [TRANSLATION] “exclusive use” of the coownersof the units to which they are attached.5 In late September 1996, Mr. Amselem, at the time a new resident of theSanctuaire, set up a “succah” on his balcony for the purposes of fulfilling a biblicallymandated obligation during the Jewish religious festival of Succot. A succah is a smallenclosed temporary hut or booth, traditionally made of wood or other materials such asfastened canvas, and open to the heavens, in which, it has been acknowledged, Jews arecommanded to “dwell” temporarily during the festival of Succot, which commencesannually with nightfall on the fifteenth day of the Jewish month of Tishrei. This nine-day

- 20 -festival, which begins in late September or early- to mid-October, commemorates the 40-year period during which, according to Jewish tradition, the Children of Israel wanderedin the desert, living in temporary shelters.6 Under the Jewish faith, in commemoration of the festival’s historicalconnection and as a symbolic demonstration of their faith in the divine, Jews areobligated to dwell in these succahs, as their ancestors did in the desert. Orthodox Jews2004 SCC 47 (CanLII)observe this biblically mandated commandment of “dwelling” in a succah bytransforming the succah into the practitioner’s primary residence for the entire holidayperiod. They are required to take all their meals in the succah; they customarily conductcertain religious ceremonies in the succah; they are required, weather permitting, to sleepin the succah; and they are otherwise required to generally make the succah their primaryabode for the entirety of the festival period, health and weather permitting.7 Technically, a succah must minimally consist of a three-walled, open-roofedstructure which must meet certain size specifications in order to fulfill the biblicalcommandment of dwelling in it properly according to the requirements of the Jewishfaith. While a succah is usually festively decorated interiorly, there are no aestheticrequirements as to its exterior appearance.8 During the first two and last two days of the Succot holiday, as well asduring any intermittent Saturday, Orthodox Jews are normally forbidden from inter aliaturning electricity on or off and riding in cars or elevators. Similarly, during theSaturday(s) falling within the nine-day festival, Orthodox Jews are forbidden fromcarrying objects outside of their private domiciles in the absence of a symbolicenclosure, or eruv.

- 21 -9 After Mr. Amselem put up his succah in September 1996, the syndicate ofco-ownership, Syndicat Northcrest (the “respondent” or “Syndicat”), requested itsremoval, claiming the succah was in violation of the Sanctuaire’s by-laws as stated inthe declaration of co-ownership, which inter alia prohibited decorations, alterations andconstructions on the Sanctuaire’s balconies:2004 SCC 47 (CanLII)[TRANSLATION]2.6.3 Balconies, porches and patios — the owner of each exclusive portion(dwelling unit) with a door leading to a balcony, porch or patio adjoining hisor her exclusive portion (dwelling unit) has the personal and exclusive useof the balcony, or of the portion of the porch adjoining his or her exclusiveportion, subject to the following rules:a) On porches, an area at least as wide as is required under fire safetyby-laws must be kept free of garden furniture and other accessories, asthe porches serve as emergency exits.b) No owner may enclose or block off any balcony, porch or patio inany manner whatsoever or erect thereon constructions of any kindwhatsoever.. . .Perpetual rights of way for emergency situations (including elevatorbreakdowns) are hereby created in favour of all the above-mentionedexclusive portions (dwelling units), the dominant land, on the commonportions, namely every porch, balcony, terrace or patio, the servient lands.6.5 UNIFORMITY OF DÉCOR IN THE BUILDINGEntrance doors to the exclusive portions (dwelling units), windows,painted exterior surfaces and, in general, any exterior elements contributingto the overall harmony of the building’s appearance may under nocircumstances be altered, even if they are part of the limited commonportions, without first obtaining the written permission of the Board ofDirectors, who themselves must first obtain the approval of the co-ownersat a general meeting.6.16 EXTERIOR DECORATIONS PROHIBITED

- 22 -Co-owners may not decorate, paint or alter the exterior of the exclusiveportions in any way whatsoever without first obtaining the written consentof the Board of Directors, subject to any exceptions provided for in thisdeclaration.9.3 BALCONIES AND PORCHESSubject to the law and to this declaration, each co-owner havingexclusive use of a balcony or a portion of a porch adjoining his or herexclusive portion (dwelling unit), as provided for in clause 2.6.3, shall keepsaid balcony or portion of the porch clean. The co-owner having exclusiveuse of said balcony or portion of the porch is solely responsible for the dayto-daymaintenance thereof. However, the Board of Directors is responsiblefor the replacement of or repairs to said balconies and porches as a commonexpense, unless the balcony or porch must be repaired or replaced becauseof the fault or negligence of a co-owner or someone for whom that co-owneris legally responsible, in which case the costs and expenses of any repairsor replacement shall be assumed by the co-owner in question.2004 SCC 47 (CanLII)Furthermore, subject to acts and regulations of general application,nothing other than usual outdoor furniture may be left or stored on a balconyor porch without first obtaining permission in writing from the Board ofDirectors. Under no circumstances may balconies or porches be used fordrying laundry, towels, etc.No balcony or porch may be decorated, covered, enclosed or painted inany way whatsoever without the prior written permission of the co-ownersor the Board of Directors, as the case may be.None of the appellants had read the declaration of co-ownership prior to purchasing oroccupying their individual units.10 Mr. Fonfeder similarly placed a succah on his balcony in September 1996,but received no notice or complaint.11 A year later, on October 6, 1997, and pursuant to the regulations in thedeclaration of co-ownership, Mr. Amselem requested permission from the Syndicat toset up a succah on, and thus enclose part of, his balcony to celebrate the same holiday

- 23 -of Succot. The Syndicat refused, invoking the restrictions in the declaration of coownership.12 As the holiday was imminent, Mr. Amselem, of his own accord and in hispersonal capacity, contacted the Canadian Jewish Congress (which incidentallyrepresented that it is not an organization that claims to be expert in matters of Jewishlaw) to intervene with the Syndicat in order to help facilitate a temporary solution for the2004 SCC 47 (CanLII)upcoming holiday.13 In a letter dated October 10, 1997, the Syndicat proposed to allow Mr.Amselem, in conjunction with the other Orthodox Jewish residents of the building,including the appellants Mr. Fonfeder and Mr. Klein, to set up a communal succah in theSanctuaire’s gardens.14 In their October 14, 1997 letter to the Syndicat, the appellants expressedtheir dissatisfaction with the respondent’s proposed accommodation. They explainedwhy a communal succah would not only cause extreme hardship with their religiousobservance, but would also be contrary to their personal religious beliefs which, theyclaimed, called for “their own succah, each on his own balcony”.15 In their letter, the appellants implored the Syndicat to accede to their requestand permit their own individual succahs, which they undertook to set up “in such a waythat they would not block any doors, would not obstruct fire lanes, [and] would pose nothreat to safety or security in any way”. The Syndicat refused their request.

- 24 -16 Each of the appellants nonetheless proceeded to set up a succah on his or herbalcony. Apart from Mr. Amselem and Mr. Fonfeder in September 1996, the appellantsin this appeal had not set up succahs on their balconies at the Sanctuaire in prior years;in those years they had celebrated the holiday as guests with family and friends, usingtheir hosts’ succahs.17 In response, the respondent Syndicat filed an application for permanent2004 SCC 47 (CanLII)injunction prohibiting the appellants from setting up succahs and, if necessary,permitting their demolition. The application was granted by the Superior Court on June5, 1998.III. Relevant Legislative Provisions18 Charter of Human Rights and Freedoms, R.S.Q., c. C-121. Every human being has a right to life, and to personal security,inviolability and freedom.He also possesses juridical personality.3. Every person is the possessor of the fundamental freedoms, includingfreedom of conscience, freedom of religion, freedom of opinion, freedom ofexpression, freedom of peaceful assembly and freedom of association.6. Every person has a right to the peaceful enjoyment and free dispositionof his property, except to the extent provided by law.9.1. In exercising his fundamental freedoms and rights, a person shallmaintain a proper regard for democratic values, public order and the generalwell-being of the citizens of Québec.In this respect, the scope of the freedoms and rights, and limits to theirexercise, may be fixed by law.Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”)

- 25 -1039. Upon the publication of the declaration of co-ownership, theco-owners as a body constitute a legal person, the objects of which are topreserve the immovable, to maintain and manage the common portions, toprotect the rights appurtenant to the immovable or the co-ownership and totake all measures of common interest.The legal person is called a syndicate.1056. No declaration of co-ownership may impose any restriction onthe rights of the co-owners except restrictions justified by the destination,characteristics or location of the immovable.2004 SCC 47 (CanLII)1063. Each co-owner has the disposal of his fraction; he has free useand enjoyment of his private portion and of the common portions, providedhe observes the by-laws of the immovable and does not impair the rights ofthe other co-owners or the destination of the immovable.IV. Judicial HistoryA. Superior Court, [1998] R.J.Q. 189219 Rochon J. found that the text of the declaration of co-ownership clearlyprohibited the appellants from setting up succahs on their balconies (at p. 1899):[TRANSLATION] Whether or not the succah is considered a construction isof little consequence. Enclosing, blocking off or decorating a balcony orpatio in any way whatsoever is prohibited. In short, apart from the usualoutdoor furniture, owners may not make any alterations to the exterior.They may not place anything whatsoever outside. When considered as awhole, these restrictions demonstrate a clear intent to maintain the originalcondition and uniform appearance of the building’s exterior.20 He further held that the restrictions were justified by the destination of theimmovable, its characteristics or its location, as required by art. 1056 C.C.Q. He was

- 26 -also satisfied that, contrary to the appellants’ contention, the Syndicat had applied thedeclaration of co-ownership in a uniform manner.21 Rochon J. went on to consider whether the appellants’ rights had beeninfringed by the effects of the declaration of co-ownership. He asserted that in order fora contractual clause to infringe an individual’s freedom of religion, [TRANSLATION] “theimpugned contractual clause must, whether directly or by adverse effect, either compel2004 SCC 47 (CanLII)individuals to do something contrary to their religious beliefs or prohibit them fromdoing something regarded as mandatory by their religion” (p. 1905). According toRochon J., a claimant must prove that a practice is required by the official teachings ofhis or her religion in order for it to be protected as freedom of religion under s. 3 of theQuebec Charter. It is not sufficient that a claimant possess a sincere belief that aparticular practice is required (at p. 1907):[TRANSLATION] Freedom of religion can be relied on only if there is aconnection between the right asserted by a person to practise his or herreligion in a given way and what is considered mandatory pursuant to thereligious teaching upon which the right is based. A sincere belief must besupported by the existence of a religious precept. How the teaching isobserved may vary and may not necessarily correspond to how mostbelievers perform their religious obligations. Nonetheless, the rite musthave a rational, reasonable and direct connection with the teaching. Howa believer performs his or her religious obligations cannot be grounded ina purely subjective personal understanding that bears no relation to thereligious teaching as regards both the belief itself and how the belief is to beexpressed (the rite).22 After reviewing the evidence, Rochon J., relying primarily on the testimonyof the Syndicat’s witness, Rabbi Barry Levy, asserted, at p. 1909, [TRANSLATION] “thatthere is no religious obligation requiring practising Jews to erect their own succahs”, andthat [TRANSLATION] “[t]here is no commandment as to where they must be erected”.

- 27 -23 In reaching this conclusion, Rochon J. explicitly stated that he favoured theopinion of the Syndicat’s witness, Rabbi Levy, to that of Rabbi Moïse Ohana, thewitness called by the appellants, whose testimony as to the nature of the biblicalcommandment, he felt, resulted in a standard that was too subjective.24 Rochon J. thus reasoned that the restrictions in the declaration of coownershipdid not prevent the appellants from fulfilling their objectively defined2004 SCC 47 (CanLII)religious obligations and as such did not impair their freedom of religion. This heconcluded, despite his findings, at p. 1909, that Mr. Amselem is [TRANSLATION] “theonly one who saw the obligation to erect a succah on his own property in terms of adivine command”, stemming from a sincere personal belief predicated upon Mr.Amselem’s interpretation of the Bible, as per c. 8, verses 13 to 18 of the Book ofNehemiah.25 Although Rochon J. concluded that the appellants had not established aninfringement of their rights to freedom of religion, he went on to consider, for the sakeof argument, whether such an interference could have been justified under s. 9.1 of theQuebec Charter. He concluded that any interference with the appellants’ rights tofreedom of religion was justified by the objectives of protecting the aesthetic value ofthe property and, alternatively, the security of co-owners in the event of a fire.26 Rochon J. held that since the appellants had not established an infringementof their freedom of religion, there could be no discrimination within the meaning of s.10 of the Quebec Charter. Nevertheless, he went on to consider, again for the sake ofargument, whether, in the event that the appellants had established a prima facie case ofdiscrimination, the respondent would have satisfied its duty to accommodate. He

- 28 -concluded that the accommodation proposed by the respondent — that of a communalsuccah — was reasonable, whereas the appellants were not willing to compromise inorder to reach an acceptable solution.27 Having found that the impugned by-laws were not in violation of the QuebecCharter, Rochon J. granted the respondent’s request and issued a permanent injunctionprohibiting succahs on the appellants’ balconies and requiring their removal, if2004 SCC 47 (CanLII)necessary.B. Court of Appeal, [2002] R.J.Q. 90628 Dalphond J. (ad hoc), for the majority, agreed with the trial judge and heldthat, although the impugned provisions of the declaration of co-ownership restrict theappellants’ rights by prohibiting succahs on their balconies, those restrictions were validunder art. 1056 C.C.Q. He believed that when the appellants signed the declaration ofco-ownership they had effectively waived their rights to freedom of religion. Accordingto Dalphond J., it was nonetheless open to the appellants to show that the Sanctuaire’sby-laws were discriminatory under s. 10 and thus void under s. 13 of the QuebecCharter, which protects an individual from discrimination in a juridical act, such as acontract.29 Dalphond J. reasoned that the impugned provisions were neutral inapplication since they affected all residents equally in prohibiting all “constructions” onbalconies and as such he concluded that the restrictions in the declaration of coownershipdid not create a distinction based on religion.

- 29 -30 Dalphond J. stated that even if he had found a distinction, it would not havehad the effect of “nullifying or impairing” the appellants’ rights to freedom of religion,and thus would not have amounted to discrimination within the meaning of s. 10, sincethe appellants were not religiously obligated to have succahs on their balconies.According to Dalphond J., since there was no discrimination in this case, it was notnecessary to examine the duty to accommodate. Nor did he believe it necessary to applys. 9.1 of the Quebec Charter since he reasoned that s. 9.1 is not applicable to an analysis2004 SCC 47 (CanLII)under ss. 10 and 13 of the Quebec Charter. Dalphond J. therefore dismissed the appeal.Baudouin J.A. agreed with Dalphond J.’s reasons.31 Morin J.A., in a concurring opinion, found that Rochon J. had adopted aninterpretation of freedom of religion that was unduly restrictive. After considering themeaning of freedom of religion as articulated in R. v. Big M Drug Mart Ltd., [1985] 1S.C.R. 295, he wrote, at para. 32:[TRANSLATION] According to that case, it is the sincerity of theindividual’s beliefs as dictated by his or her own conscience that must beconsidered when he or she relies on freedom of religion to justify an act ora refusal to act. It matters little that those beliefs may be erroneous inrelation to the official teachings of the leaders of the religious communityto which the individual belongs.32 Morin J.A. found that the appellants sincerely believed they must set up theirown succah (at para. 33):[TRANSLATION] The evidence shows that the appellants sincerelybelieve, based in particular on the Bible, Book of Nehemiah, Chapter 8,verses 13 to 18, that they must erect their own succahs and dwell in them forseveral days during the festival of Succot. In accordance with the principleof freedom of religion, they should normally be able to do so, but the abovequotedclauses of the declaration of co-ownership, by banning the erection

- 30 -of succahs on the balconies or terraces adjoining their dwelling units, barthem, in practice, from doing what they would like to do.He therefore found that the impugned provisions of the declaration of co-ownershipinfringed the appellants’ rights to freedom of religion under s. 3 of the Quebec Charter.33 Having found the appellants’ rights to freedom of religion had been2004 SCC 47 (CanLII)infringed, Morin J.A. concluded that the impugned provisions discriminated against theappellants. He then went on to consider the duty to accommodate, in light of this Court’sdecisions in British Columbia (Public Service Employee Relations Commission) v.BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), and British Columbia (Superintendent ofMotor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868.Morin J.A. applied all three steps of the test set out in Meiorin and concluded that (1) therespondent’s goal in establishing restrictions was rationally linked to the goal ofadministrating the building, in accordance with art. 1039 C.C.Q., and (2) the restrictionshad been enacted on the basis of a bona fide belief that they were necessary to fulfil itsmandate, in accordance with art. 1056 C.C.Q. As for undue hardship, Morin J.A. wrote,at para. 64:[TRANSLATION] In my view, the trial judge made no serious error thatwould justify the intervention of our court. On the contrary, it was theintransigent attitude adopted by the appellants that made anyaccommodation practically impossible, as they systematically refused everyproposal that did not strictly meet their requirements.34 Morin J.A. felt that this “intransigence” on the part of the appellantsdischarged the respondent from any obligation of accommodation more than thecommunal succah already proposed, which he felt was reasonable under thecircumstances. In the end, Morin J.A. believed the respondent would suffer undue

- 31 -hardship if it were forced to fully accommodate the appellants. He therefore agreed withDalphond J. to dismiss the appeal.V. Issues35 In my view, the key issues before us are: (1) whether the clauses in the bylawsof the declaration of co-ownership, which contained a general prohibition against2004 SCC 47 (CanLII)decorations or constructions on one’s balcony, infringe the appellants’ freedom ofreligion protected under the Quebec Charter; (2) if so, whether the refusal by therespondent to permit the setting up of a succah is justified by its reliance on the coowners’rights to enjoy property under s. 6 of the Quebec Charter and their rights topersonal security under s. 1 thereof; and (3) whether the appellants waived their rightsto freedom of religion by signing the declaration of co-ownership.VI. Analysis36 In my view, apart from the content and scope of freedom of religion, theinterplay of the rights in the Quebec Charter is governed by its unique content andstructure. In the reasons that follow, I begin with an analysis of freedom of religion. Ithen briefly go on to discuss the respondent’s justification in limiting the exercise ofreligious freedom in this case.A. Freedom of Religion37 The analysis that follows sets out the principles that are applicable in caseswhere an individual alleges that his or her freedom of religion is infringed under the

- 32 -Quebec Charter or under the Canadian Charter of Rights and Freedoms. In my view,the trial judge and the majority of the Court of Appeal took, with respect, an undulyrestrictive view of freedom of religion.(1) Definition of Religious Freedom38 Section 3 of the Quebec Charter, which applies in both the private and2004 SCC 47 (CanLII)public law context, states:3. Every person is the possessor of the fundamental freedoms, includingfreedom of conscience, freedom of religion, freedom of opinion, freedom ofexpression, freedom of peaceful assembly and freedom of association.39 In order to define religious freedom, we must first ask ourselves what wemean by “religion”. While it is perhaps not possible to define religion precisely, someouter definition is useful since only beliefs, convictions and practices rooted in religion,as opposed to those that are secular, socially based or conscientiously held, are protectedby the guarantee of freedom of religion. Defined broadly, religion typically involves aparticular and comprehensive system of faith and worship. Religion also tends toinvolve the belief in a divine, superhuman or controlling power. In essence, religion isabout freely and deeply held personal convictions or beliefs connected to an individual’sspiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, thepractices of which allow individuals to foster a connection with the divine or with thesubject or object of that spiritual faith.40 What then is the definition and content of an individual’s protected right toreligious freedom under the Quebec (or the Canadian) Charter? This Court has long

- 33 -articulated an expansive definition of freedom of religion, which revolves around thenotion of personal choice and individual autonomy and freedom. In Big M, supra,Dickson J. (as he then was) first defined what was meant by freedom of religion unders. 2(a) of the Canadian Charter, at pp. 336-37 and 351:A truly free society is one which can accommodate a wide variety ofbeliefs, diversity of tastes and pursuits, customs and codes of conduct. Afree society is one which aims at equality with respect to the enjoyment offundamental freedoms and I say this without any reliance upon s. 15 of theCharter. Freedom must surely be founded in respect for the inherent dignityand the inviolable rights of the human person. The essence of the conceptof freedom of religion is the right to entertain such religious beliefs as aperson chooses, the right to declare religious beliefs openly and without fearof hindrance or reprisal, and the right to manifest religious belief by worshipand practice or by teaching and dissemination. But the concept means morethan that.2004 SCC 47 (CanLII). . . Freedom means that . . . no one is to be forced to act in a way contraryto his beliefs or his conscience.. . .. . . With the Charter, it has become the right of every Canadian to work outfor himself or herself what his or her religious obligations, if any, shouldbe. . . . [Emphasis added.]41 Dickson J. articulated the purpose of freedom of religion in Big M, supra,at p. 346:Viewed in this context, the purpose of freedom of conscience andreligion becomes clear. The values that underlie our political andphilosophic traditions demand that every individual be free to hold and tomanifest whatever beliefs and opinions his or her conscience dictates,provided inter alia only that such manifestations do not injure his or herneighbours or their parallel rights to hold and manifest beliefs and opinionsof their own. [Emphasis added.]Similarly, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 759, DicksonC.J. stated that the

- 34 -purpose of s. 2(a) is to ensure that society does not interfere with profoundlypersonal beliefs that govern one’s perception of oneself, humankind, nature,and, in some cases, a higher or different order of being. These beliefs, inturn, govern one’s conduct and practices. [Emphasis added.]42 This understanding is consistent with a personal or subjective conception offreedom of religion, one that is integrally linked with an individual’s self-definition andfulfilment and is a function of personal autonomy and choice, elements which undergird2004 SCC 47 (CanLII)the right; see, generally, J. Woehrling, “L’obligation d’accommodement raisonnable etl’adaptation de la société à la diversité religieuse” (1998), 43 McGill L.J. 325.According to Professor Woehrling, at p. 385:[TRANSLATION] Virtually every judicial decision based on s. 2(a) of theCanadian Charter or s. 3 of the Quebec Charter concerns freedom ofreligion. However, it would appear that these decisions stress the subjectiveaspect of the believer’s personal sincerity rather than the objective aspect ofthe conformity of the beliefs in question with established doctrine.[Emphasis added.]43 The emphasis then is on personal choice of religious beliefs. In my opinion,these decisions and commentary should not be construed to imply that freedom ofreligion protects only those aspects of religious belief or conduct that are objectivelyrecognized by religious experts as being obligatory tenets or precepts of a particularreligion. Consequently, claimants seeking to invoke freedom of religion should not needto prove the objective validity of their beliefs in that their beliefs are objectivelyrecognized as valid by other members of the same religion, nor is such an inquiryappropriate for courts to make; see, e.g., Re Funk and Manitoba Labour Board (1976),66 D.L.R. (3d) 35 (Man. C.A.), at pp. 37-38. In fact, this Court has indicated on severaloccasions that, if anything, a person must show “[s]incerity of belief” (Edwards Books,supra, at p. 735) and not that a particular belief is “valid”.

- 35 -44 For example, in R. v. Jones, [1986] 2 S.C.R. 284, La Forest J., writing forthe minority (but not on this point), opined, at p. 295:Assuming the sincerity of his convictions, I would agree that the effectof the School Act does constitute some interference with the appellant’sfreedom of religion. For a court is in no position to question the validity ofa religious belief, notwithstanding that few share that belief. [Italics added.]2004 SCC 47 (CanLII)Although La Forest J. did not explicitly state that all that must be shown is a sincerity ofbelief, it is implicit in his reasons. Indeed, this position was subsequently explicitlyadopted by this Court in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R.825, at para. 70, where La Forest J. reasoned that “it is not the role of this Court todecide what any particular religion believes”.45 In the United States, where there is a richness of jurisprudence on thismatter, the United States Supreme Court has similarly adopted a subjective, personal anddeferential definition of freedom of religion, centred upon sincerity of belief. Forexample, in Thomas v. Review Board of the Indiana Employment Security Division, 450U.S. 707 (1981), the court held that it was the plaintiff’s subjective beliefs, and not theofficial position of the particular religion, which must be considered in evaluating thefree exercise guarantees under the First Amendment of the U.S. Constitution. Indelivering the opinion of the U.S. Supreme Court, Chief Justice Burger stated, at pp.715-16:. . . the guarantee of free exercise is not limited to beliefs which are sharedby all of the members of a religious sect. Particularly in this sensitive area,it is not within the judicial function and judicial competence to inquirewhether the petitioner or his fellow worker more correctly perceived the

- 36 -commands of their common faith. Courts are not arbiters of scripturalinterpretation.The narrow function of a reviewing court in this context is to determinewhether there was an appropriate finding that petitioner terminated his workbecause of an honest conviction that such work was forbidden by hisreligion. [Emphasis added.]This view was repeated in Frazee v. Illinois Department of Employment Security, 489U.S. 829 (1989), at p. 834, where White J., for a unanimous court, stated:2004 SCC 47 (CanLII)Undoubtedly, membership in an organized religious denomination,especially one with a specific tenet forbidding members to work on Sunday,would simplify the problem of identifying sincerely held religious beliefs,but we reject the notion that to claim the protection of the Free ExerciseClause, one must be responding to the commands of a particular religiousorganization. Here, Frazee’s refusal was based on a sincerely held religiousbelief. Under our cases, he was entitled to invoke First Amendmentprotection. [Emphasis added.]46 To summarize up to this point, our Court’s past decisions and the basicprinciples underlying freedom of religion support the view that freedom of religionconsists of the freedom to undertake practices and harbour beliefs, having a nexus withreligion, in which an individual demonstrates he or she sincerely believes or is sincerelyundertaking in order to connect with the divine or as a function of his or her spiritualfaith, irrespective of whether a particular practice or belief is required by officialreligious dogma or is in conformity with the position of religious officials.47 But, at the same time, this freedom encompasses objective as well aspersonal notions of religious belief, “obligation”, precept, “commandment”, custom orritual. Consequently, both obligatory as well as voluntary expressions of faith shouldbe protected under the Quebec (and the Canadian) Charter. It is the religious or spiritualessence of an action, not any mandatory or perceived-as-mandatory nature of its

- 37 -observance, that attracts protection. An inquiry into the mandatory nature of an allegedreligious practice is not only inappropriate, it is plagued with difficulties. Indeed, theOntario Court of Appeal quite correctly noted this in R. v. Laws (1998), 165 D.L.R. (4th)301, at p. 314:There was no basis on which the trial judge could distinguish betweena requirement of a particular faith and a chosen religious practice. Freedomof religion under the Charter surely extends beyond obligatory doctrine.2004 SCC 47 (CanLII)48 This is central to this understanding of religious freedom that a claimantneed not show some sort of objective religious obligation, requirement or precept toinvoke freedom of religion. Such an approach would be inconsistent with the underlyingpurposes and principles of the freedom emphasizing personal choice as set out byDickson C.J. in Big M and Edwards Books.49 To require a person to prove that his or her religious practices are supportedby a mandatory doctrine of faith, leaving it for judges to determine what those mandatorydoctrines of faith are, would require courts to interfere with profoundly personal beliefsin a manner inconsistent with the principles set out by Dickson C.J. in Edwards Books,supra, at p. 759:The purpose of s. 2(a) is to ensure that society does not interfere withprofoundly personal beliefs that govern one’s perception of oneself,humankind, nature, and, in some cases, a higher or different order of being.These beliefs, in turn, govern one’s conduct and practices. [Emphasisadded.]50 In my view, the State is in no position to be, nor should it become, the arbiterof religious dogma. Accordingly, courts should avoid judicially interpreting and thus

- 38 -determining, either explicitly or implicitly, the content of a subjective understanding ofreligious requirement, “obligation”, precept, “commandment”, custom or ritual. Secularjudicial determinations of theological or religious disputes, or of contentious matters ofreligious doctrine, unjustifiably entangle the court in the affairs of religion.51 That said, while a court is not qualified to rule on the validity or veracity ofany given religious practice or belief, or to choose among various interpretations of2004 SCC 47 (CanLII)belief, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerityis in fact at issue: see Jones, supra; Ross, supra. It is important to emphasize, however,that sincerity of belief simply implies an honesty of belief: see Thomas v. Review Boardof the Indiana Employment Security Division, supra.52 According to American constitutional law scholar Professor Laurence Tribe,the jurisprudence in this area evinces that inquiries into a claimant’s sincerity must beas limited as possible. He argues that “given the widening understanding of whatconstitutes religion in our society, the very rights ostensibly protected by the freeexercise clause might well be jeopardized by any but the most minimal inquiry intosincerity”: L. H. Tribe, American Constitutional Law (2nd ed. 1988), at pp. 1245-46.While this was written in the context of the First Amendment to the U.S. Constitution,I believe that it is equally applicable to delimiting the court’s role in interpretingreligious freedom under the Quebec (or the Canadian) Charter. Indeed, the court’s rolein assessing sincerity is intended only to ensure that a presently asserted religious beliefis in good faith, neither fictitious nor capricious, and that it is not an artifice. Otherwise,nothing short of a religious inquisition would be required to decipher the innermostbeliefs of human beings.

- 39 -53 Assessment of sincerity is a question of fact that can be based on severalnon-exhaustive criteria, including the credibility of a claimant’s testimony (seeWoehrling, supra, at p. 394), as well as an analysis of whether the alleged belief isconsistent with his or her other current religious practices. It is important to underscore,however, that it is inappropriate for courts rigorously to study and focus on the pastpractices of claimants in order to determine whether their current beliefs are sincerelyheld. Over the course of a lifetime, individuals change and so can their beliefs.2004 SCC 47 (CanLII)Religious beliefs, by their very nature, are fluid and rarely static. A person’s connectionto or relationship with the divine or with the subject or object of his or her spiritual faith,or his or her perceptions of religious obligation emanating from such a relationship, maywell change and evolve over time. Because of the vacillating nature of religious belief,a court’s inquiry into sincerity, if anything, should focus not on past practice or pastbelief but on a person’s belief at the time of the alleged interference with his or herreligious freedom.54 A claimant may choose to adduce expert evidence to demonstrate that hisor her belief is consistent with the practices and beliefs of other adherents of the faith.While such evidence may be relevant to a demonstration of sincerity, it is not necessary.Since the focus of the inquiry is not on what others view the claimant’s religiousobligations as being, but rather what the claimant views these personalreligious“obligations” to be, it is inappropriate to require expert opinions to show sincerity ofbelief. An “expert” or an authority on religious law is not the surrogate for anindividual’s affirmation of what his or her religious beliefs are. Religious belief isintensely personal and can easily vary from one individual to another. Requiring proofof the established practices of a religion to gauge the sincerity of belief diminishes thevery freedom we seek to protect.

- 40 -55 This approach to freedom of religion effectively avoids the invidiousinterference of the State and its courts with religious belief. The alternative wouldundoubtedly result in unwarranted intrusions into the religious affairs of the synagogues,churches, mosques, temples and religious facilities of the nation with value-judgmentindictments of those beliefs that may be unconventional or not mainstream. Asarticulated by Professor Tribe, supra, at p. 1244, “an intrusive government inquiry into2004 SCC 47 (CanLII)the nature of a claimant’s beliefs would in itself threaten the values of religious liberty”.56 Thus, at the first stage of a religious freedom analysis, an individualadvancing an issue premised upon a freedom of religion claim must show the court that(1) he or she has a practice or belief, having a nexus with religion, which calls for aparticular line of conduct, either by being objectively or subjectively obligatory orcustomary, or by, in general, subjectively engendering a personal connection with thedivine or with the subject or object of an individual’s spiritual faith, irrespective ofwhether a particular practice or belief is required by official religious dogma or is inconformity with the position of religious officials; and (2) he or she is sincere in his orher belief. Only then will freedom of religion be triggered.(2) Infringement of Religious Freedom57 Once an individual has shown that his or her religious freedom is triggered,as outlined above, a court must then ascertain whether there has been enough of aninterference with the exercise of the implicated right so as to constitute an infringementof freedom of religion under the Quebec (or the Canadian) Charter.

- 41 -58 More particularly, as Wilson J. stated in Jones, supra, writing in dissent, atpp. 313-14:Section 2(a) does not require the legislature to refrain from imposing anyburdens on the practice of religion. Legislative or administrative actionwhose effect on religion is trivial or insubstantial is not, in my view, abreach of freedom of religion. [Emphasis added.]2004 SCC 47 (CanLII)Section 2(a) of the Canadian Charter prohibits only burdens or impositions on religiouspractice that are non-trivial. This position was confirmed and adopted by Dickson C.J.for the majority in Edwards Books, supra, at p. 759:All coercive burdens on the exercise of religious beliefs are potentiallywithin the ambit of s. 2(a).This does not mean, however, that every burden on religious practicesis offensive to the constitutional guarantee of freedom of religion. . . .Section 2(a) does not require the legislatures to eliminate every minusculestate-imposed cost associated with the practice of religion. Otherwise theCharter would offer protection from innocuous secular legislation such asa taxation act that imposed a modest sales tax extending to all products,including those used in the course of religious worship. In my opinion, it isunnecessary to turn to s. 1 in order to justify legislation of that sort. . . . TheConstitution shelters individuals and groups only to the extent that religiousbeliefs or conduct might reasonably or actually be threatened. For a stateimposedcost or burden to be proscribed by s. 2(a) it must be capable ofinterfering with religious belief or practice. In short, legislative oradministrative action which increases the cost of practising or otherwisemanifesting religious beliefs is not prohibited if the burden is trivial orinsubstantial: see, on this point, R. v. Jones, [1986] 2 S.C.R. 284, per WilsonJ. at p. 314. [Emphasis added.]59 It consequently suffices that a claimant show that the impugned contractualor legislative provision (or conduct) interferes with his or her ability to act in accordancewith his or her religious beliefs in a manner that is more than trivial or insubstantial. Thequestion then becomes: what does this mean?

- 42 -60 At this stage, as a general matter, one can do no more than say that thecontext of each case must be examined to ascertain whether the interference is more thantrivial or insubstantial. But it is important to observe what examining that contextinvolves.61 In this respect, it should be emphasized that not every action will becomesummarily unassailable and receive automatic protection under the banner of freedom2004 SCC 47 (CanLII)of religion. No right, including freedom of religion, is absolute: see, e.g., Big M, supra;P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at p. 182; B. (R.) v. Children’s Aid Society ofMetropolitan Toronto, [1995] 1 S.C.R. 315, at para. 226; Trinity Western University v.British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29.This is so because we live in a society of individuals in which we must always take therights of others into account. In the words of John Stuart Mill: “The only freedomwhich deserves the name, is that of pursuing our own good in our own way, so long aswe do not attempt to deprive others of theirs, or impede their efforts to obtain it”: OnLiberty and Considerations on Representative Government (1946), at p. 11. In the realworld, oftentimes the fundamental rights of individuals will conflict or compete with oneanother.62 Freedom of religion, as outlined above, quite appropriately reflects a broadand expansive approach to religious freedom under both the Quebec Charter and theCanadian Charter and should not be prematurely narrowly construed. However, ourjurisprudence does not allow individuals to do absolutely anything in the name of thatfreedom. Even if individuals demonstrate that they sincerely believe in the religiousessence of an action, for example, that a particular practice will subjectively engendera genuine connection with the divine or with the subject or object of their faith, and even

- 43 -if they successfully demonstrate non-trivial or non-insubstantial interference with thatpractice, they will still have to consider how the exercise of their right impacts upon therights of others in the context of the competing rights of private individuals. Conductwhich would potentially cause harm to or interference with the rights of others would notautomatically be protected. The ultimate protection of any particular Charter right mustbe measured in relation to other rights and with a view to the underlying context inwhich the apparent conflict arises.2004 SCC 47 (CanLII)63 Indeed, freedom of religion, like all other rights, applicable either as againstthe State or, under the Quebec Charter, in its private dimension as against anotherindividual, may be made subject to overriding societal concerns. As with other rights,not every interference with religious freedom would be actionable, in accordance withthe limitations on the exercise of fundamental rights recognized by the Quebec Charter.(3) Alleged Justification for the Limit on the Exercise of Freedom ofReligion64 The respondent in the instant appeal has argued that the rights of the coownersto peacefully enjoy property and to personal security limit the exercise of theappellants’ religious freedom under the circumstances. I acknowledge that much can besaid about the nature of and interrelationship among the various rights found in theQuebec Charter as raised in this appeal. But such an analysis is not necessary to disposeof the issues in this case. This is because at bottom, and as discussed below, whereas Ifind the appellants’ rights to freedom of religion significantly impaired, on the facts ofthis case the impact on the respondent’s rights at issue is, at best, minimal and thuscannot be construed as validly limiting the exercise of the appellants’ religious freedom.

- 44 -B. Application to the Facts(1) Freedom of Religion and Infringement(a) As Pertaining to Setting Up One’s Own Succah65 As outlined above, the first step in successfully advancing a claim that an2004 SCC 47 (CanLII)individual’s freedom of religion has been infringed is for a claimant to demonstrate thathe or she sincerely believes in a practice or belief that has a nexus with religion. Thesecond step is to then demonstrate that the impugned conduct of a third party interfereswith the individual’s ability to act in accordance with that practice or belief in a mannerthat is non-trivial. At trial, Rochon J., relying primarily on the testimony of Rabbi Levy,whose testimony he found more compelling than that of Rabbi Ohana, found that theimpugned clauses in the declaration of co-ownership did not infringe the appellants’rights to freedom of religion since, according to him, Judaism does not require itsadherents to build their own succah (at p. 1909):[TRANSLATION] First of all, the court notes that practising Jews are notunder a religious obligation to erect their own succahs. There is nocommandment as to where they must be erected.As a result, Rochon J. believed that freedom of religion was not even triggered. AlthoughMorin J.A., in his concurring opinion, quite properly concluded that this was not thecorrect approach to take to freedom of religion, the majority of the Court of Appealseemed to endorse the trial judge’s reasoning. With respect, I believe their approach wasmistaken.

- 45 -66 More particularly, the approach adopted by Rochon J. at trial and DalphondJ. for the majority of the Court of Appeal is inconsistent with the proper approach tofreedom of religion. First, the trial judge’s methodology was faulty in that he chosebetween two competing rabbinical authorities on a question of Jewish law. Second, heseems to have based his findings with respect to freedom of religion solely on what heperceived to be the objective obligatory requirements of Judaism. He thus failed torecognize that freedom of religion under the Quebec (and the Canadian) Charter does2004 SCC 47 (CanLII)not require a person to prove that his or her religious practices are supported by anymandatory doctrine of faith.67 Furthermore, in my opinion, any incorporation of distinctions between“obligation” and “custom” or, as made by the respondent and the courts below, between“objective obligation” and “subjective obligation or belief” within the framework of areligious freedom analysis is dubious, unwarranted and unduly restrictive. In my view,when courts undertake the task of analysing religious doctrine in order to determine thetruth or falsity of a contentious matter of religious law, or when courts attempt to definethe very concept of religious “obligation”, as has been suggested in the courts below,they enter forbidden domain. It is not within the expertise and purview of secular courtsto adjudicate questions of religious doctrine.68 Similarly, to frame the right either in terms of objective religious“obligation” or even as the sincere subjective belief that an obligation exists and that thepractice is required would lead to arbitrary and hierarchical determinations of religious“obligation”, would exclude religious custom from protection, and would disregard thevalue of non-obligatory religious experiences by excluding those experiences fromprotection. Jewish women, for example, strictly speaking, do not have a biblically

- 46 -mandated “obligation” to dwell in a succah during the Succot holiday. If a woman,however, nonetheless sincerely believes that sitting and eating in a succah brings hercloser to her Maker, is that somehow less deserving of recognition simply because shehas no strict “obligation” to do so? Is the Jewish yarmulke or Sikh turban worthy of lessrecognition simply because it may be borne out of religious custom, not obligation?Should an individual Jew, who may personally deny the modern relevance of literalbiblical “obligation” or “commandment”, be precluded from making a freedom of2004 SCC 47 (CanLII)religion argument despite the fact that for some reason he or she sincerely derives acloseness to his or her God by sitting in a succah? Surely not.69 Rather, as I have stated above, regardless of the position taken by religiousofficials and in religious texts, provided that an individual demonstrates that he or shesincerely believes that a certain practice or belief is experientially religious in nature inthat it is either objectively required by the religion, or that he or she subjectively believesthat it is required by the religion, or that he or she sincerely believes that the practiceengenders a personal, subjective connection to the divine or to the subject or object ofhis or her spiritual faith, and as long as that practice has a nexus with religion, it shouldtrigger the protection of s. 3 of the Quebec Charter or that of s. 2(a) of the CanadianCharter, or both, depending on the context.70 On the question of sincerity, the respondent argues that the appellants do notsincerely believe that their religion requires them to build their own individual succahson their balconies. That said, the trial judge did find that Mr. Amselem, at least,sincerely believed that he was obliged to set up a succah on his own property, thustriggering his freedom of religion protection according to the first step in our analysis.

- 47 -71 With respect to the appellants Mr. Klein and Mr. Fonfeder, Rochon J. reliedprimarily on their past practices to question their sincerity and concluded that they mustview the setting up of their own succah as a purely optional practice, which precludedtheir freedom of religion from being triggered. This conclusion is troublesome for avariety of reasons. First, Rochon J. misconstrued the scope of freedom of religion.Given this mistaken approach, it is somewhat difficult to assess the sincerity of theappellants’ religious beliefs regarding the setting up of succahs on their balconies.2004 SCC 47 (CanLII)Second, I do not accept that one may conclude that a person’s current religious belief isnot sincere simply because he or she previously celebrated a religious holidaydifferently. Beliefs and observances evolve and change over time. If, as I haveunderscored, sincerity of belief at the relevant time is the governing standard to ensurethat a claim is honest and not an artifice, then a rigorous examination of past conductcannot be determinative of sincerity of belief.72 Furthermore, based on the above-discussed definition of freedom of religion,it appears that the trial judge applied the wrong test to the evidence adduced by theappellants in support of their belief. For if freedom of religion encompasses not onlywhat adherents feel sincerely obliged to do, but also includes what an individualdemonstrates he or she sincerely believes or is sincerely undertaking in order to engendera connection with the divine or with the subject or object of his or her spiritual faith, thenthe proper test would be whether the appellants sincerely believe that dwelling in orsetting up their own individual succah is of religious significance to them, irrespectiveof whether they subjectively believe that their religion requires them to build their ownsuccah. This is because it is hard to qualify the value of religious experience. Religiousfulfilment is by its very nature subjective and personal. To some, the religious andspiritual significance of building and eating in one’s own succah could vastly outweigh

- 48 -the significance of a strict fulfilment of the biblical commandment of “dwelling” in asuccah, and that, in and of itself, would suffice in grounding a claim of freedom ofreligion.73 When the appellants adduced Rabbi Ohana’s expert testimony, they weresubmitting evidence of their sincere individual belief as to the inherently personal natureof fulfilling the commandment of dwelling in a succah. As expounded upon by Rabbi2004 SCC 47 (CanLII)Ohana, according to Jewish law the obligation of “dwelling” must be complied withfestively and joyously, without causing distress to the individual. Great distress, suchas that caused by inclement weather, extreme cold or, in this case, the extremeunpleasantness rendered by forced relocation to a communal succah, with all attendantramifications, for the entire nine-day period would not only preclude the acknowledgedobligation of dwelling in a succah but would also render voluntary compliance wrongfuland inappropriate, thus necessitating the setting up of a private succah. In light of ourtest for freedom of religion, such expert testimony, although not required, would in myview certainly support a positive finding of sincerity and honesty of the appellants’belief. As a result, all of the appellants have, in my opinion, successfully implicatedfreedom of religion.74 According to the governing principles, however, in order for a triggered rightof religious freedom to have been infringed, the interference with the right needs to bemore than trivial or insubstantial: see Jones, supra. It is evident that in respect of Mr.Amselem the impugned clauses of the declaration of co-ownership interfere with hisright in a substantial way. For if, as Rochon J. himself found, Mr. Amselem sincerelybelieves that he is obligated by the Jewish religion to set up and dwell in his own succah,then a prohibition against setting up his own succah obliterates the substance of his right,

- 49 -let alone interferes with it in a non-trivial fashion. A communal succah is simply not anoption. Thus, his right is definitely infringed.75 In respect of Mr. Klein and Mr. Fonfeder, a finding of infringement dependsupon what the substance of their belief was. If they sincerely believed that they mustbuild their own succah because doing so engenders a greater connection with the divineor with their faith, then their rights to freedom of religion will be infringed by the2004 SCC 47 (CanLII)declaration of co-ownership to the same extent as Mr. Amselem’s. For the purposes ofdetermining if freedom of religion is triggered or whether there is a non-trivialinterference therewith, there is no distinction between sincere belief that a practice isrequired and sincere belief that a practice, having a nexus with religion, engenders aconnection with the divine or with the subject or object of a person’s spiritual faith. If,however, they sincerely believed that they must build a succah of their own because thealternatives, of either imposing on friends and family or celebrating in a communalsuccah as proposed by the respondent, will subjectively lead to extreme distress and thusimpermissibly detract from the joyous celebration of the holiday, the joy of which, asintimated by their witness Rabbi Ohana, is essential to its proper celebration, then theymust prove that these alternatives would result in more than trivial or insubstantialinterferences and non-trivial distress.76 In my opinion, this has been successfully proven. At trial, the appellantstestified as to the substantially distressing nature of the burden imposed upon them bythe prohibition and the available alternatives. The appellants believe that they must eatevery meal in the succah throughout the nine-day holiday. Imposing on others for theentire holiday amounts to a severe burden, especially when dealing with children, astestified to by Mr. Klein.

- 50 -77 Similarly, a communal succah, as the respondent proposes, would force theappellants to carry food and utensils from their units on elevated floors to the succah, andtraverse the expanse of the property to the Sanctuaire’s gardens for every course at everymeal throughout the holiday. Since Orthodox Jews are precluded from using elevatorson the Sabbath and on the first two and last two days of the Succot holiday, this wouldamount to forcing Orthodox Jewish residents, including the elderly among them, to2004 SCC 47 (CanLII)climb up and down numerous flights of stairs throughout each meal for much of the ninedayholiday period. Furthermore, by being forced to share all meals with the otherJewish residents of the complex, a communal succah would also preclude the intimatecelebration of the holiday with immediate family. Those who choose to sleep in thesuccah, weather permitting, would have to do so communally and in the open, far fromthe proximity and safety of their individual units. Such distress is even objectivelysubstantial and would undoubtedly, as the appellants assert, detract from the joyouscelebration of the holiday and thus constitute a non-trivial interference with and aninfringement of their rights to religious freedom.(b) As Pertaining to “Dwelling” in a Succah78 In the alternative, there is no doubt whatsoever from the record that all of theappellants sincerely believe that they must fulfill the biblically mandated obligation,perhaps not necessarily of having one’s own succah, but of “dwelling” in a succah forthe entire nine-day festival of Succot. This thus triggers freedom of religion. Thequestion then becomes, once again, whether the appellants’ rights have been infringed.Even though the Sanctuaire’s by-laws do not overtly forbid them to dwell in a succah —in that the appellants are free to celebrate the holiday with relatives or in a proposed

- 51 -communal succah —, the appellants’ protected rights will nonetheless be infringed,according to this Court’s jurisprudence, if the impugned clauses constrain their rights todwell in a succah in a manner that is non-trivial or not insubstantial. In my view, theydo.79 The burdens placed upon the appellants as a result of the operation of theimpugned clauses, either by requiring them to celebrate the holiday by imposing on2004 SCC 47 (CanLII)others or by forcing them, as suggested by the respondent, to celebrate in a communalsuccah, are evidently substantial. Preventing the appellants from building their ownsuccah therefore constitutes a non-trivial interference with their protected rights to dwellin a succah during the festival of Succot, which all acknowledge they sincerely regardas a religious requirement. The result is that the impugned stipulations in the declarationof co-ownership infringe upon the appellants’ freedom of religion under s. 3 of theQuebec Charter.80 Consequently, I believe that all of the appellants have successfully made outan infringement of their freedom of religion.81 As discussed above, to my mind, the impairment of the appellants’ religiousfreedom resulting from the refusal of the respondent to allow the setting up of succahson balconies is serious. As a result, the enjoyment of their rights to religious freedomhas been significantly impaired. The Syndicat’s offer of allowing the appellants to setup a communal succah in the Sanctuaire’s gardens does not remedy nor does it evenaddress that impairment.(2) The Alleged Justification for the Limit on the Exercise of Freedom ofReligion in this Case

- 52 -82 Against the appellants’ rights, the respondent Syndicat claims that thepotential setting up of succahs on the appellants’ balconies for the nine-day holiday ofSuccot would interfere with the co-owners’ rights to the peaceful enjoyment of theirproperty and to personal security, protected under ss. 6 and 1 of the Quebec Charter,respectively, thus justifying the total blanket prohibition against setting up succahs.83 More specifically, in this case the co-owners’ rights to peaceful enjoyment2004 SCC 47 (CanLII)of their co-owned property in general, and of the balconies as “common portions”thereof in particular, has been articulated as a function of preserving the economic andaesthetic value of their property, which, they assert, is a component of an individual’sright to enjoy his or her property under the Quebec Charter. Similarly, the respondentclaims that the co-owners’ rights to personal security under the Charter have beenimplicated; because the balconies of the Sanctuaire are fire-escape routes, cordoning offof the balcony would jeopardize the co-owners’ safety in an emergency situation. Inessence, the Syndicat is requesting in the name of the co-ownership that the appellantscease and desist from setting up these succahs, claiming that their presence negativelyaffects the co-owners’ aesthetic, economic, and security interests in the property.84 In the final analysis, however, I am of the view that the alleged intrusionsor deleterious effects on the respondent’s rights or interests under the circumstances are,at best, minimal and thus cannot be reasonably considered as imposing valid limits onthe exercise of the appellants’ religious freedom.85 In practice, to what degree would the respondent be harmed were theappellants allowed to set up a succah for a period of 9 out of 365 days a year? Theevidence before us does not provide a satisfactory answer. The respondent has simply

- 53 -not adduced enough evidence for us to conclude that allowing the appellants to set upsuch temporary succahs would cause the value of the units, or of the property, todecrease. Even if I were to consider the possibility that the economic value of theproperty might decrease if a substantial number of co-owners were allowed to set upsuccahs on their balconies for a lengthy time period throughout the year, any drop invalue caused by the presence of a small number of succahs for a period of nine days eachyear would undoubtedly be minimal. Consequently, in this case, the exercise of the2004 SCC 47 (CanLII)appellants’ freedom of religion, which I have concluded would be significantly impaired,would clearly outweigh the unsubstantiated concerns of the co-owners about thedecrease in property value.86 Similarly, protecting the co-owners’ enjoyment of the property by preservingthe aesthetic appearance of the balconies and thus enhancing the harmonious externalappearance of the building cannot be reconciled with a total ban imposed on theappellants’ exercise of their religious freedom. Although residing in a building with ayear-long uniform and harmonious external appearance might be the co-owners’preference, the potential annoyance caused by a few succahs being set up for a periodof nine days each year would undoubtedly be quite trivial.87 In a multiethnic and multicultural country such as ours, which accentuatesand advertises its modern record of respecting cultural diversity and human rights andof promoting tolerance of religious and ethnic minorities — and is in many ways anexample thereof for other societies —, the argument of the respondent that nominal,minimally intruded-upon aesthetic interests should outweigh the exercise of theappellants’ religious freedom is unacceptable. Indeed, mutual tolerance is one of thecornerstones of all democratic societies. Living in a community that attempts to

- 54 -maximize human rights invariably requires openness to and recognition of the rights ofothers. In this regard, I must point out, with respect, that labelling an individual’ssteadfast adherence to his or her religious beliefs “intransigence”, as Morin J.A. assertedat para. 64, does not further an enlightened resolution of the dispute before us.88 Finally, the respondent alleges that banning succahs on the appellants’balconies, portions of which are subject under the by-laws to a right of servitude in cases2004 SCC 47 (CanLII)of emergency, ensures that the balconies, as fire escape routes, would remainunobstructed in the case of emergency and, as such, the ban seeks to protect the coowners’rights to personal security under s. 1 of the Quebec Charter. I agree thatsecurity concerns, if soundly established, would require appropriate recognition inascertaining any limit on the exercise of the appellants’ religious freedom.89 However, in their October 14, 1997 letter to the respondent, the appellantsobviated any such concerns by all offering to set up their succahs “in such a way thatthey would not block any doors, would not obstruct fire lanes, [and] would pose no threatto safety or security in any way”.90 Since the appellants have never claimed that the succah need have anyexterior aesthetic religious component, the appellants should set up their succahs in amanner that conforms, as much as possible, with the general aesthetics of the propertyin order to respect the co-owners’ property interests. Counsel for the appellantsacknowledged this undertaking in oral argument.C. Waiver

- 55 -91 Dalphond J. held, and the respondent contends, that the appellants hadwaived their rights to freedom of religion — or had implicitly agreed with the terms ofthe by-laws — when they signed the declaration of co-ownership, and that the appellantsmust comply with the impugned provisions of the Sanctuaire’s by-laws, including thegeneral prohibition against decorations or constructions on balconies. I confess to somedifficulty in understanding the legal basis for this proposition. Whether it amounts to“waiver” — or to waiver by another name —, the argument does not withstand scrutiny.2004 SCC 47 (CanLII)92 Whether one can waive a constitutional right like freedom of religion is aquestion that is not free from doubt: see, e.g., for cases where waiver was disapprovedof: Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158;Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202;Newfoundland Association of Public Employees v. Newfoundland (Green Bay HealthCare Centre), [1996] 2 S.C.R. 3, at para. 21; Parry Sound (District) Social ServicesAdministration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, atpara. 28. But see where cases recognized waiver: R. v. Mills, [1999] 3 S.C.R. 668; R. v.Rahey, [1987] 1 S.C.R. 588; R. v. Richard, [1996] 3 S.C.R. 525; Frenette v. MetropolitanLife Insurance Co., [1992] 1 S.C.R. 647.93 But I need not explore that question in this case. I say that because, evenassuming that an individual can theoretically waive his or her right to freedom ofreligion, I believe that a waiver argument, or an argument analogous to waiver, cannotbe maintained on the facts of this case for the following reasons.94 First, while the respondent claims that succahs are “plainly” andunconditionally prohibited under s. 2.6.3b) of the declaration of co-ownership, I am not

- 56 -persuaded that the purported prohibition comes more squarely under s. 2.6.3b) thanunder s. 9.3. On the contrary, both deal with the enclosure of balconies. However,unlike s. 2.6.3b), s. 9.3 does not create an absolute prohibition; rather, it permits thecovering and enclosure of balconies, but only with the consent of the co-owners or thedirectors.95 This inherent ambiguity obviates any question of waiver or implicit2004 SCC 47 (CanLII)agreement on the part of the appellants. For if the prohibition can properly be construedas falling under s. 9.3, and if that clause does not contain an absolute prohibition butsimply requires soliciting the consent of the co-owners to enclose one’s balcony, thenthe appellants’ signing of the declaration of co-ownership cannot possibly be construedas a waiver or as an implicit agreement not to build succahs; it simply recognizes theneed to obtain consent from the co-owners before setting up a succah.96 Second, by its very nature, waiver of any right must be voluntary, freelyexpressed and with a clear understanding of the true consequences and effects of sodoing if it is to be effective: see Richard, supra, at para. 22.97 Looking at our jurisprudence, in Godbout v. Longueuil (City), [1997] 3S.C.R. 844, for example, La Forest J. stated that a right holder who has no other choicebut to renounce a right cannot be said to have truly waived his or her right. In that case,an employee of the City of Longueuil was faced with the following choice: undertaketo maintain her permanent residence in Longueuil for the duration of her employmentor quit and seek employment elsewhere. In the words of La Forest J., at para. 72:Stated simply, the respondent in this case had no opportunity to negotiatethe mandatory residence stipulation and, consequently, she cannot in any

- 57 -meaningful sense be taken to have freely given up her right to choose whereto live. In civilian parlance, her acquiescence in signing the residencedeclaration was (as Baudouin J.A. found in the course of his public orderanalysis) tantamount to accepting a contract of adhesion and, as such, itcannot properly be understood to constitute waiver.Because Ms. Godbout had no opportunity to negotiate the mandatory residencestipulation, the Court held that she could not be taken to have freely given up her rightto choose where to live.2004 SCC 47 (CanLII)98 Under the circumstances of the instant case, the appellants had no choice butto sign the declaration of co-ownership in order to live at the Sanctuaire. They had nomore choice than Ms. Godbout did. It would be both insensitive and morally repugnantto intimate that the appellants simply move elsewhere if they took issue with a clauserestricting their rights to freedom of religion. However, this attitude is explicitlyreflected in what Morin J.A. proposed the appellants do at paras. 69-70:[TRANSLATION] I believe the appellants will have to sacrifice their right tolive in Place Northcrest if they cannot comply with the restrictions set outin the co-ownership agreement they freely signed.. . . However, in the case at bar, the appellants could easily choose to livesomeplace other than Place Northcrest if they refuse to make anyconcessions whatsoever in terms of how they practise their religious beliefs.In my view, since the appellants did not have a real choice, it would be incorrect toconclude that they voluntarily and validly waived their rights to religious freedom.99 Further, in this case, there is no evidence whatsoever that the appellants wereaware that signing the declaration of co-ownership amounted to a waiver of their rightsto freedom of religion. In fact, the respondent admits that the appellants [TRANSLATION]

- 58 -“did not read these provisions on purchasing their co-owned property, although theywere duly given a copy of the declaration of co-ownership”. If, as the respondent itselfalleges, the appellants did not take note of these restrictions upon purchasing their units,despite the fact that a copy of the declaration of co-ownership was given to them, andwere thus not aware of the general clauses therein prohibiting the setting up of suchstructures as succahs on their balconies, I believe it is safe to conclude that there was noclear understanding of the consequences of the alleged waiver.2004 SCC 47 (CanLII)100 Third, at a minimum, waiver of a fundamental right such as freedom ofreligion, if possible at all, presumably need not only be voluntary; it must also beexplicit, stated in express, specific and clear terms. Not only would a general prohibitionon constructions, such as the one in the declaration of co-ownership, be insufficient toground a finding of waiver, but arguably so would any document lacking an explicitreference to the affected Charter right.101 In the end, it is my view that the appellants did not voluntarily, clearly andexpressly waive their rights to freedom of religion. Further, it cannot be said that theclaimants had full knowledge that signing the co-ownership agreement would result inthe waiver of their rights. I have no doubt that in signing the declaration, the furthestthing from the claimants’ minds was that by doing so they were waiving their rights tofreedom of religion, especially since s. 9.3 of the by-laws specifically allowed forenclosing portions of balconies with consent of the co-owners, which the appellantscould have assumed would not be unreasonably withheld for the setting up of temporarysuccahs to celebrate the annual festival of Succot. In fact, the record shows that theintention of at least some of the appellants when purchasing their units was to acquire

- 59 -units specifically with unobstructed balconies, open to the heavens, so that they couldtechnically put up a proper succah in accordance with the specifications of Jewish law.102 In light of the above, I do not believe the appellants in this case can be saidto have waived their rights to freedom of religion in signing the declaration of coownership.2004 SCC 47 (CanLII)VII. Conclusions and Disposition103 Based on the foregoing analysis, I find that the impugned provisions in thedeclaration of co-ownership prohibiting constructions on the appellants’ balconiesinfringe the appellants’ freedom of religion under the Quebec Charter. I also do notbelieve it can be maintained that the appellants waived their rights to freedom of religionor implicitly agreed not to set up succahs on their balconies for the religiously mandatedperiod by signing the declaration of co-ownership. Under the circumstances, I find thatthe respondent’s justificatory claims for this infringement are unfounded; the co-owners’personal security concerns are largely obviated and their property interests are, at most,minimally intruded upon. The appellants are thus legally entitled to set up succahs ontheir balconies for a period lasting no longer than the holiday of Succot, so long as thesuccahs allow room for a passageway in case of emergency as well as conform, as muchas possible, with the general aesthetics of the property.104 For the foregoing reasons, I would allow the appeal with costs throughout,set aside the decision of the Court of Appeal, and, in lieu thereof, declare that theappellants have a right to set up succahs on their balconies for the annual festival of

- 60 -Succot, subject to the undertakings they have given with regard to the size, placement,and general aesthetics of said succahs.delivered byEnglish version of the reasons of Bastarache, LeBel and Deschamps JJ.105 BASTARACHE J. (dissenting) — This appeal concerns two cases involving2004 SCC 47 (CanLII)private parties and raises the difficult problem of reconciling the freedom of religion ofcertain individuals with the rights of others to private property, to security and to havingtheir contracts respected. More specifically, it must be decided whether the appellantshave the right to erect private succahs on their balconies during the nine-day Jewishholiday of Succot, in violation of the declaration of co-ownership for Phases VI and VIIof the Sanctuaire du Mont-Royal. To decide these cases, we must establish what methodshould be used to determine which aspects of religious practice are protected by theCharter of Human Rights and Freedoms, R.S.Q., c. C-12, and the Canadian Charter ofRights and Freedoms, how the sincerity of religious belief should be assessed, and howall the rights in question are to be balanced under s. 9.1 of the Quebec Charter.I. Facts106 The appellants, who are practising Orthodox Jews, live in two buildings thatare part of a residential development in Montréal called “Le Sanctuaire du Mont-Royal”.The two buildings, built in Phases VI and VII of the development project, are knownmore specifically as “Place Northcrest”. The co-owners of the two buildings are themembers of a body known as “Syndicat Northcrest” (“Syndicat”), which is the

- 61 -respondent in the case at bar. The Syndicat is governed by a declaration ofco-ownership, certain provisions of which are contested in the instant case.A. The Declaration of Co-Ownership107 The declaration of co-ownership imposes certain restrictions on the rightsof the co-owners. The restrictions are found primarily in ss. 2.6.3, 6.5, 6.16 and 9.3 of2004 SCC 47 (CanLII)the declaration, which read as follows:[TRANSLATION]2.6.3 Balconies, porches and patios — the owner of each exclusive portion(dwelling unit) with a door leading to a balcony, porch or patio adjoining hisor her exclusive portion (dwelling unit) has the personal and exclusive useof the balcony, or of the portion of the porch adjoining his or her exclusiveportion, subject to the following rules:a) On porches, an area at least as wide as is required under fire safetyby-laws must be kept free of garden furniture and other accessories, asthe porches serve as emergency exits.b) No owner may enclose or block off any balcony, porch or patio inany manner whatsoever or erect thereon constructions of any kindwhatsoever.. . .Perpetual rights of way for emergency situations (including elevatorbreakdowns) are hereby created in favour of all the above-mentionedexclusive portions (dwelling units), the dominant land, on the commonportions, namely every porch, balcony, terrace or patio, the servient lands.6.5 UNIFORMITY OF DÉCOR IN THE BUILDINGEntrance doors to the exclusive portions (dwelling units), windows,painted exterior surfaces and, in general, any exterior elements contributingto the overall harmony of the building’s appearance may under nocircumstances be altered, even if they are part of the limited commonportions, without first obtaining the written permission of the Board ofDirectors, who themselves must first obtain the approval of the co-ownersat a general meeting.

- 62 -6.16 EXTERIOR DECORATIONS PROHIBITEDCo-owners may not decorate, paint or alter the exterior of the exclusiveportions in any way whatsoever without first obtaining the written consentof the Board of Directors, subject to any exceptions provided for in thisdeclaration.9.3 BALCONIES AND PORCHESSubject to the law and to this declaration, each co-owner havingexclusive use of a balcony or a portion of a porch adjoining his or herexclusive portion (dwelling unit), as provided for in clause 2.6.3, shall keepsaid balcony or portion of the porch clean. The co-owner having exclusiveuse of said balcony or portion of the porch is solely responsible for theday-to-day maintenance thereof. . . .2004 SCC 47 (CanLII)Furthermore, subject to acts and regulations of general application,nothing other than usual outdoor furniture may be left or stored on a balconyor porch without first obtaining permission in writing from the Board ofDirectors. Under no circumstances may balconies or porches be used fordrying laundry, towels, etc.No balcony or porch may be decorated, covered, enclosed or painted inany way whatsoever without the prior written permission of the co-ownersor the Board of Directors, as the case may be.108 The declaration of co-ownership provides that patios, porches and balconies,including those set up as terraces, are considered to be common portions. However,these common portions are reserved for the exclusive use of the co-owners of theexclusive portions (s. 2.6). The declaration also requires that all co-owners comply withthe law, with the declaration itself and with all by-laws passed by the co-owners anddirectors (ss. 6.13 and 20.2), and it further provides that [TRANSLATION] “[t]he purchase,lease or occupation of an exclusive portion constitutes ipso facto an express acceptanceof the applicable provisions of the law, of this declaration and of said by-laws” (s. 20.2).Although it is clear from the evidence that the appellants did not read the declaration ofco-ownership before purchasing or occupying their dwelling units, they are deemed,pursuant to s. 20.2, to have accepted the terms and conditions of the declaration.

- 63 -109 The declaration of co-ownership also charges the members of the Syndicat’sboard of directors with preserving the immovable, maintaining and managing thecommon portions and ensuring that the co-owners of the private portions comply withthe declaration of co-ownership (ss. 12.2 and 12.2.8).110 The immovables making up Place Northcrest, which the respondentdescribed as [TRANSLATION] “very luxurious”, are upscale buildings whose co-owners2004 SCC 47 (CanLII)have a marked interest in maintaining their harmony and aesthetic value. Thedeclaration of co-ownership in fact provides that no co-owner may, directly or indirectly,change the destination of the immovable or alienate common portions the retention ofwhich is necessary to the destination of the immovable without obtaining the unanimousconsent of the other co-owners (s. 13.5.4).111 Despite the appellants’ allegations that the Syndicat had applied thedeclaration of co-ownership inconsistently, the trial judge found that, on a preponderanceof evidence, it had [TRANSLATION] “applied the restrictions in the declaration ofco-ownership in a consistent manner” ([1998] R.J.Q. 1892, at p. 1901). Thus, since1993, the Syndicat had asked co-owners to remove, in particular, fencing (woodentrellises) that had been installed on balconies and, in 1997, a satellite dish.B. Events Leading to the Legal Proceedings112 The appellants, as practising Orthodox Jews, celebrate Succot, a holiday thatbegins four days after “Yom Kippur”, that is, on the 15th day of the month of “Tishrei”in the Jewish calendar. The trial judge gave the following description of the holiday (atp. 1897):

- 64 -[TRANSLATION] . . . practising Jews must, for a period of eight daysbeginning at sunset on the first day, dwell in a succah, that is, a roughstructure made of wood or canvas with an open roof covered with only firbranches or bamboo, as the roof must for the most part remain open to thesky.113 Although the biblical commandment is to “dwell” in succahs, the climate inthe Montréal area is such that practising Jews, including the appellants, do not in fact2004 SCC 47 (CanLII)dwell in them. Instead, the mandatory religious practice is apparently to eat supper onthe first day and all meals on the second day in a succah. The obligation is less strict forthe days that follow.114 On October 10, 1997, Mr. Amselem asked the Syndicat for permission toerect a succah for a period of 11 days, that is, from October 14 to 25, 1997. Therespondent refused, maintaining that this was prohibited under the declaration ofco-ownership. However, the Syndicat offered to set up a large tent near one of thetowers, which would serve as a communal succah for all Jewish co-owners wishing tocelebrate Succot. This offer, to which the appellant Amselem agreed, was also approvedby the Canadian Jewish Congress, which acknowledged [TRANSLATION] “the effortsmade by Syndicat Northcrest and the members of its board of directors to accommodateJewish co-owners wishing to comply with religious obligations relating to the festivalof Succot”.115 Notwithstanding Mr. Amselem’s earlier acceptance, the appellants decidedthis offer was unacceptable and proceeded to erect succahs on the balconies, porches orpatios adjoining their respective dwelling units. In response, the Syndicat took legalaction, filing a motion to institute proceedings and an application for an injunction to bar

- 65 -the appellants, immediately and in the future, from erecting succahs on the commonportions of the co-owned property that are reserved for exclusive use and, if need be, tohave any such structures demolished or dismantled.II. Judicial HistoryA. Superior Court, [1998] R.J.Q. 18922004 SCC 47 (CanLII)116 Rochon J. considered that the declaration of co-ownership clearly prohibitedthe erection of succahs on balconies, porches or patios. After reviewing the declarationof co-ownership, he reached the following conclusion (at p. 1899):[TRANSLATION] On reading together all the clauses containing restrictions,the Court quickly concluded that the erection of succahs is prohibited.Whether or not the succah is considered a construction is of littleconsequence. Enclosing, blocking off or decorating a balcony or patio inany way whatsoever is prohibited. In short, apart from the usual outdoorfurniture, owners may not make any alterations to the exterior. They maynot place anything whatsoever outside. When considered as a whole, theserestrictions demonstrate a clear intent to maintain the original condition anduniform appearance of the building’s exterior.117 Rochon J. then examined art. 1056 of the Civil Code of Québec, S.Q. 1991,c. 64 (“C.C.Q.”), which provides for restrictions on the rights of co-owners insofar asthey are justified (1) by the destination of the immovable, (2) by its characteristics, or(3) by its location. Next, he noted that the constituting act of co-ownership (1) providedthat the destination of the immovable is strictly residential, (2) described the immovableas a luxurious, upscale development and (3) placed special importance in the building’saesthetic value and exterior harmony. Rochon J. found the restrictions imposed on theco-owners by the declaration of co-ownership as regards the use of the common portions

- 66 -reserved for exclusive use to be consistent with art. 1056 C.C.Q. In his view, theevidence showed that, since taking control of the immovable in 1991, the respondent hadapplied the restrictions provided for in the declaration of co-ownership in a consistentand uniform manner.118 Rochon J. went on to review the effect of the restrictions on the appellants.After reviewing the case law, he noted that freedom of religion can be relied on only if2004 SCC 47 (CanLII)there is a connection or nexus between the asserted right and what is consideredmandatory pursuant to the religious teachings upon which the right is based. In his view,the evidence showed that Judaism does not require practising Jews to have their ownsuccahs and that there is no commandment as to where they must be erected. Heconcluded that the restrictions did not prevent the appellants from fulfilling theirreligious obligations and consequently did not infringe their freedom of religion.119 In case this conclusion was overturned, Rochon J. then considered thequestion of whether the accommodation proposed by the respondent was reasonable inthe circumstances. He pointed out that the Syndicat had adopted a respectful anddeferential attitude with respect to the appellants’ rights, had given the appellants anopportunity to express their point of view and had proposed a reasonable solutionaccommodating their needs by offering to erect a communal succah on land close to oneof the buildings, at the expense of all the co-owners, in a place that would have allowedthe appellants to comply with the precepts of their religion. Rochon J. criticized theappellants for their failure to show flexibility or a spirit of compromise in categoricallyrefusing this compromise. In his view, the appellants’ inflexibility showed that theywere not interested in reaching a solution that would be acceptable to all concerned.

- 67 -120 Continuing with the assumption that the appellants’ freedom of religion hadbeen infringed, Rochon J. found that the infringement could be justified under s. 9.1 ofthe Quebec Charter. He noted that the declaration of co-ownership created a right ofway on balconies for emergency situations and determined that the erection of succahson balconies and terraces posed a risk to the residents’ safety. He also felt that theerection of succahs affected the co-owners’ right to free enjoyment of their property —a Charter right that in his opinion is on an equal footing with any fundamental freedom2004 SCC 47 (CanLII)guaranteed by the Charter — under the agreement they had signed. He thereforeconcluded that the objectives of the declaration were legitimate and that the measureswere implemented in a reasonable and rational manner with respect to those objectives.121 Rochon J. accordingly issued a permanent injunction ordering the appellantsto refrain from setting up any shelter, structure, construction or succah on the commonportions reserved for the exclusive use of the co-owners.B. Court of Appeal, [2002] R.J.Q. 9061. Dalphond J. (ad hoc)122 Dalphond J. began by confirming that the impugned provisions of thedeclaration of co-ownership prohibited the erection of succahs on balconies, porches,and patios. Since these provisions limited the residents’ enjoyment of their balconies,porches or patios, they restricted the co-owners’ rights. Dalphond J. also agreed with thetrial judge’s conclusion that the impugned provisions imposed restrictions that werevalid under art. 1056 C.C.Q. He found that the provisions were adopted first to preserve

- 68 -the building’s style and its aesthetic appearance of a luxury building, and also to ensurethe residents’ safety.123 With regard to the applicability of the Quebec Charter, Dalphond J. pointedout that the impugned provisions were found not in a statute, but in a contract that theappellants had freely signed when they purchased a co-owned property in PlaceNorthcrest. For this reason, he considered that only s. 13 of the Quebec Charter was2004 SCC 47 (CanLII)applicable. Since the constituting act of co-ownership was a “juridical act” within themeaning of s. 13, Dalphond J. stated that the issue was whether its provisions concerningthe use of balconies, patios and terraces were discriminatory within the meaning of s. 10of the Quebec Charter.124 Applying the three-step test from Québec (Procureur général) v. Lambert,[2002] R.J.Q. 599 (C.A.), he noted that, at first glance, the impugned provisions wereneutral in application, as they prohibited all residents from placing anything other thanordinary furniture on their balconies, porches or patios. In his view, the restrictions didnot affect the appellants any differently from other co-owners with religious beliefs, norwere they any more prejudicial to co-owners with religious beliefs than to those who didnot hold such beliefs. In short, Dalphond J. found that the impugned provisions were notdiscriminatory within the meaning of s. 10 of the Quebec Charter.125 Dalphond J. concluded that the trial judge had correctly stated the law infinding that the appellants were not under a religious obligation to set up succahs on theirbalconies, terraces or patios during Succot and that what was in issue was[TRANSLATION] “an act that they wished to carry out in 1996 and 1997 to discharge amoral obligation to celebrate Succot. This is a finding of fact made by the trial judge

- 69 -that is supported by the evidence independently of the debate between the two rabbis”(para. 153). He concluded that the appellants’ right to freedom of religion had not beeninfringed. In his view, s. 9.1 of the Quebec Charter is not relevant to the case, as it doesnot apply to violations of s. 10 or s. 13. He also considered it unnecessary to rule on theissue of the duty to accommodate, given that the appellants had failed to provediscrimination within the meaning of s. 10 of the Quebec Charter.2004 SCC 47 (CanLII)126 Dalphond J. was of the view that the appeal should be dismissed, andBaudouin J.A. concurred with his reasons.2. Morin J.A.127 Morin J.A. felt that the trial judge had adopted an unduly restrictiveinterpretation of the very concept of freedom of religion. In his view, the provisions ofthe act of co-ownership infringed the freedom of religion expressly recognized in s. 3 ofthe Quebec Charter.128 Morin J.A. then proceeded to apply the three-step “unified approach” toanalysing claims of discrimination that this Court advocated in British Columbia (PublicService Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, adapting thetest to the context of private relations between a syndicate of co-owners and certain ofthe co-owners. He relied on art. 1039 C.C.Q. to conclude that the restrictions had beenadopted for a purpose rationally connected to the management of the immovable. Hethen relied on art. 1056 C.C.Q. to conclude that the restrictions had been adopted in anhonest and good faith belief that they were necessary to the fulfilment of that legitimatepurpose.

- 70 -129 Regarding the third step of the test, that is, the analysis of undue hardship,Morin J.A. stated that the appellants’ inflexible and intransigent attitude had made anyaccommodation virtually impossible. He therefore concluded that the Syndicat haddischarged its duty to accommodate by making reasonable offers to the appellants, andthat it would have suffered undue hardship had it been forced to accede to their demands.Thus, he adopted the trial judge’s findings on this point.2004 SCC 47 (CanLII)130 With respect to s. 9.1 of the Quebec Charter, Morin J.A. was of the opinionthat the trial judge had stated the law correctly when he concluded that the restrictionsimposed on the co-owners constituted reasonable limits that were justified under s. 9.1,especially since the restrictions applied to portions of the property where the right ofownership was held in common. Like Dalphond J., Morin J.A. was of the view that theappeal should be dismissed.III. Relevant Statutory Provisions131 Civil Code of Québec, S.Q. 1991, c. 64PRELIMINARY PROVISIONThe Civil Code of Québec, in harmony with the Charter of human rightsand freedoms and the general principles of law, governs persons, relationsbetween persons, and property.1056. No declaration of co-ownership may impose any restriction onthe rights of the co-owners except restrictions justified by the destination,characteristics or location of the immovable.Charter of Human Rights and Freedoms, R.S.Q., c. C-12

- 71 -1. Every human being has a right to life, and to personal security,inviolability and freedom.He also possesses juridical personality.3. Every person is the possessor of the fundamental freedoms, includingfreedom of conscience, freedom of religion, freedom of opinion, freedom ofexpression, freedom of peaceful assembly and freedom of association.6. Every person has a right to the peaceful enjoyment and free dispositionof his property, except to the extent provided by law.9.1. In exercising his fundamental freedoms and rights, a person shallmaintain a proper regard for democratic values, public order and the generalwell-being of the citizens of Québec.2004 SCC 47 (CanLII)In this respect, the scope of the freedoms and rights, and limits to theirexercise, may be fixed by law.IV. AnalysisA. The Scope of Freedom of Conscience and Religion132 Freedom of conscience and religion is guaranteed by s. 3 of the QuebecCharter and s. 2(a) of the Canadian Charter. Although most, if not all, of this Court’sdecisions relating to freedom of religion have interpreted s. 2(a) of the CanadianCharter, it is appropriate to refer to them in interpreting s. 3 of the Quebec Charter,given the similarity in the wording of the two provisions.133 In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, this Court had occasionto interpret s. 2(a) of the Canadian Charter for the first time. Dickson J. (as he then was)made a number of comments that now form the basis of our interpretation of freedom ofreligion (at pp. 336-37):

- 72 -The essence of the concept of freedom of religion is the right to entertainsuch religious beliefs as a person chooses, the right to declare religiousbeliefs openly and without fear of hindrance or reprisal, and the right tomanifest religious belief by worship and practice or by teaching anddissemination. But the concept means more than that.. . . Freedom in a broad sense embraces both the absence of coercion andconstraint, and the right to manifest beliefs and practices. Freedom meansthat, subject to such limitations as are necessary to protect public safety,order, health, or morals or the fundamental rights and freedoms of others,no one is to be forced to act in a way contrary to his beliefs of hisconscience.2004 SCC 47 (CanLII)134 A year later, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, atp. 759, Dickson C.J. wrote the following:The purpose of s. 2(a) is to ensure that society does not interfere withprofoundly personal beliefs that govern one’s perception of oneself,humankind, nature, and, in some cases, a higher or different order of being.These beliefs, in turn, govern one’s conduct and practices.135 These passages seem to show that this Court has interpreted freedom ofreligion as protecting both religious beliefs, which are considered to be highly personaland private in nature, and consequent religious practices. However, a religion is asystem of beliefs and practices based on certain religious precepts. A nexus betweenpersonal beliefs and the religion’s precepts must therefore be established. This point ofview is consistent with those encountered in other common law jurisdictions: Bowmanv. Secular Society, Ltd., [1917] A.C. 406 (H.L.); R. v. Registrar General, Ex parteSegerdal, [1970] 2 Q.B. 697 (C.A.); Barralet v. Attorney General, [1980] 3 All E.R. 918(Ch. D.); Wisconsin v. Yoder, 406 U.S. 205 (1972). Religious precepts constitute a bodyof objectively identifiable data that permit a distinction to be made between genuinereligious beliefs and personal choices or practices that are unrelated to freedom ofconscience. Connecting freedom of religion to precepts provides a basis for establishing

- 73 -objectively whether the fundamental right in issue has been violated. By identifyingwith a religion, an individual makes it known that he or she shares a number of preceptswith other followers of the religion. The approach I have adopted here requires not onlya personal belief or the adoption of a religious practice that is supported by a personalbelief, but also a genuine connection between the belief and the person’s religion. In myview, the only way the trial judge can establish that a person has a sincere belief, or hassincerely adopted a religious practice that is genuinely connected with the religion he or2004 SCC 47 (CanLII)she claims to follow, is by applying an objective test. It is one thing to assert that apractice is protected even though certain followers of the religion do not think that thepractice is included among the religion’s precepts and quite another to assert that apractice must be protected when none of the followers think it is included among thoseprecepts. If, pursuant to s. 3, a practice must be connected with the religion, theconnection must be objectively identifiable.136 This Court has also noted on a number of occasions that freedom of religion,like any other freedom, is not absolute: Trinity Western University v. British ColumbiaCollege of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29; B. (R.) v. Children’sAid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 226; P. (D.) v. S. (C.),[1993] 4 S.C.R. 141, at p. 182. It is inherently limited by the rights and freedoms ofothers. La Forest J. explained this as follows in Ross v. New Brunswick School DistrictNo. 15, [1996] 1 S.C.R. 825, at para. 72:Indeed, this Court has affirmed that freedom of religion ensures that everyindividual must be free to hold and to manifest without State interferencethose beliefs and opinions dictated by one’s conscience. This freedom is notunlimited, however, and is restricted by the right of others to hold and tomanifest beliefs and opinions of their own, and to be free from injury fromthe exercise of the freedom of religion of others. Freedom of religion issubject to such limitations as are necessary to protect public safety, order,health or morals and the fundamental rights and freedoms of others.

- 74 -137 In light of the foregoing, a method must be established for determining thescope of the protection that freedom of religion affords a claimant. If the authoritiesrefer here to [TRANSLATION] “conscientious objection” or “the possibility of exemptingoneself from the application of a law or a rule of internal management on religiousgrounds” (see H. Brun and G. Tremblay, Droit constitutionnel (4th ed. 2002), atp. 1033), it is because there are in fact two elements to consider in analysing freedom ofreligion. First, there is the freedom to believe and to profess one’s beliefs; second, there2004 SCC 47 (CanLII)is the right to manifest one’s beliefs, primarily by observing rites, and by sharing one’sfaith by establishing places of worship and frequenting them. Thus, although privatebeliefs have a purely personal aspect, the other dimension of the right has genuine socialsignificance and involves a relationship with others. It would be an error to reducefreedom of religion to a single dimension, especially in conducting a contextual analysislike the one that must be conducted under s. 9.1 of the Quebec Charter. Even an authorwho says he is favourable to a secular justification for freedom of religion, i.e., ajustification free of moral considerations, has said:Notwithstanding the wide variety of religious experience, no religion isor can be purely individual in its outlook, as ultimate concern is said to be.On the contrary, religions are necessarily collective endeavours. By thesame token, no religion is or can be defined purely by an act of personalcommitment, as the ultimate concerns of an individual are said to be.Instead, all religions demand a personal act of faith in relation to a set ofbeliefs that is historically derived and shared by the religious community.It follows that any genuine freedom of religion must protect, not onlyindividual belief, but the institutions and practices that permit the collectivedevelopment and expression of that belief.More fundamentally, while it is possible to understand religion in sucha way as to include practices that would conventionally be regarded assecular, it is simply not possible to understand religion in such a way thatthe distinction between the religious and the secular collapses, for thereligious and the secular exist in contradistinction to one another. Yet sucha collapse is implicit in the view that the secular becomes religious as andwhen it becomes a matter of ultimate concern to any individual, for whethera practice is secular or religious would then be a purely subjective question.Any objective distinction between the two would disappear.

- 75 -(T. Macklem, “Faith as a Secular Value” (2000), 45 McGill L.J. 1, at p. 25)138 However, it should be noted that to analyse a religious practice in the contextof conscientious objection, it is necessary to examine the believer’s perception. It isimportant that a believer’s religious practices not be limited to those of the majority orof an entire community, or to those that are considered to be generally accepted. Still,it is the person relying on a religious precept to establish the mandatory nature of his or2004 SCC 47 (CanLII)her religious practice who must prove that the precept exists; see J. Woehrling,“L’obligation d’accommodement raisonnable et l’adaptation de la société à la diversitéreligieuse” (1998), 43 McGill L.J. 325, at p. 388, and H. Brun, “Un aspect crucial maisdélicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienneet québécoise: l’objection de conscience” (1987), 28 C. de D. 185, at p. 195. In additionto this initial examination, there is also the question of the sincerity of the personclaiming the right. Once again, though, the two dimensions of the right to freedom ofreligion must not be forgotten. The sincerity of beliefs does not bar a court fromexamining the observance of rites, which have social significance, in light of s. 9.1 of theQuebec Charter. In fact, this is essential, since the Charter, like the Civil Code ofQuébec, constitutes a coherent legislative whole. I believe that the following commentabout the Civil Code by Professor M. Tancelin can be transposed to this situation:[TRANSLATION] A serious, and fairly common, error is made about the CivilCode, namely a belief that it is a consolidation of laws, which it may be inform, whereas it is a document that, once voted on one or more times, formsa whole. In reality, it is one law, a self-contained law that forms a wholedespite the wide variety of subjects with which it deals. Thus, the rule ofinterpretation that every legal provision be read in light of those surroundingit also applies to the articles of each of the subsets that make up thedivisions of the Code. In concrete terms, this means that each portion of theCode has been drafted in a manner consistent with the others. [Emphasis inoriginal.]

- 76 -(M. Tancelin, “L’acte unilatéral en droit des obligations oul’unilatéralisation du contrat”, in N. Kasirer, ed., La solitude en droit privé(2002), 214, at pp. 216-17)139 The first step of the analysis therefore consists in examining the belief of aclaimant who adopts a particular religious practice in accordance with the ritesprescribed by his or her religion. To this end, evidence must be introduced to establishthe nature of the belief or conviction, that is, to determine upon what religious precept2004 SCC 47 (CanLII)the belief or conviction is based: Edwards Books, supra, at p. 763. The onus is on theperson seeking to be excused from obeying a law, a rule of internal management oranother legal obligation to show that the precept in question is genuinely religious andnot secular: Brun and Tremblay, supra, at p. 1033. The court’s inquiry into the religiousobligation does not imply that it is substituting its own conscience for that of the parties.This inquiry is only needed to identify the religious precept that is the basis for theclaimant’s practice. As constitutional law experts Brun and Tremblay state, a religiousprecept is [TRANSLATION] “obviously easier to demonstrate in cases involving awell-known and established collective religion than in those concerning a new orindividual one”: Brun and Tremblay, supra, at p. 1033.140 In other words, to meet the requirements of this first step, a claimant mustprove that the conduct or practice to which he or she seeks to have freedom of religionapply is in fact based on a precept of his or her religion. The test is reasonable belief inthe existence of a religious precept. In the absence of such proof, the court cannot assessthe effects of the provisions or standards that, according to the claimant, infringe therights of one or more members of a religious group: Edwards Books, supra, at p. 767.Even though religion is, first and foremost, a question of conscience, when an individualfeels that a right as fundamental as the right to practise his or her religion has been

- 77 -infringed, a connection must be established between the religious precept and theindividual asserting the right. To this end, expert testimony will be useful, as it can serveto establish the fundamental practices and precepts of a religion the individual claims topractise.141 In the second step, the judge considers the sincerity of the claimant’sreligious beliefs. Before finding that there has been interference with the purpose of2004 SCC 47 (CanLII)freedom of religion, a judge must determine that the claimant believes in a givenreligious precept and sincerely adheres to it. In short, the claimant must establish thathe or she has a sincere belief and that this belief is objectively connected to a religiousprecept that follows from a text or another article of faith. It is not necessary to provethat the precept objectively creates an obligation, but it must be established that theclaimant sincerely believes he or she is under an obligation that follows from the precept.In R. v. Jones, [1986] 2 S.C.R. 284, at p. 295, La Forest J. described the role of the courtsas follows:Assuming the sincerity of his convictions, I would agree that the effectof the School Act does constitute some interference with the appellant’sfreedom of religion. For a court is in no position to question the validity ofa religious belief, notwithstanding that few share that belief. But a court isnot precluded from examining into the sincerity of a religious belief whena person claims exemption from the operation of a valid law on that basis.Indeed it has a duty to do so. [Emphasis in original.]As explained by Dickson C.J. in Edwards Books, supra, at p. 780, a court has no choicebut to make such an inquiry:Judicial inquiries into religious beliefs are largely unavoidable if theconstitutional freedoms guaranteed by s. 2(a) are to be asserted before thecourts. We must live with the reality that such an inquiry is necessary inorder for the same values to be given effect by the judicial system.

- 78 -142 Although any analysis of freedom of religion must include an inquiry intothe sincerity of the beliefs of those who assert it, such an inquiry must be as limited aspossible, since it will “expose an individual’s most personal and private beliefs to publicairing and testing in a judicial or quasi-judicial setting”: Edwards Books, supra, atp. 779.143 The sincerity of a belief is examined on a case-by-case basis and must be2004 SCC 47 (CanLII)supported by sufficient evidence, which comes mainly from the claimant. A method likethis was proposed by Professor Woehrling, supra, at p. 394:[TRANSLATION] . . . the sincerity of religious beliefs is a question of fact thatmust be assessed in accordance with the particular circumstances of eachcase, and the claimant’s personal credibility is of decisive importance, as hisor her testimony will always be the principal source of evidence.Although consistency in religious practice may be indicative of the sincerity of aclaimant’s beliefs, it is the claimant’s overall personal credibility and evidence of his orher current religious practices that matter. The essential test must be the claimant’sintention and serious desire to obey the fundamental precepts of his or her religion.Previous practice is but one among a number of means of demonstrating this intention.144 The approach I suggest gives a broad scope to the purpose of freedom ofreligion as guaranteed by s. 3 of the Quebec Charter. However, this is not to say that allconduct or practices will be protected so long as they are carried out in the name offreedom of religion. As I stated above, a claimant relying on conscientious objectionmust demonstrate (1) the existence of a religious precept, (2) a sincere belief that thepractice dependent on the precept is mandatory, and (3) the existence of a conflictbetween the practice and the rule.

- 79 -145 It should also be borne in mind that not all restrictions on freedom ofreligion entail an infringement of the right protected by the Canadian Charter. In Jones,supra, Wilson J., dissenting, wrote the following (at pp. 313-14):Section 2(a) does not require the legislature to refrain from imposing anyburdens on the practice of religion. Legislative or administrative actionwhose effect on religion is trivial or insubstantial is not, in my view, abreach of freedom of religion. I believe that this conclusion necessarilyfollows from the adoption of an effects-based approach to the Charter.2004 SCC 47 (CanLII)Thus, unless the impugned provisions or standards infringe the claimant’s rights in amanner that is more than trivial or insubstantial, the freedom of religion guaranteed bythe two Charters is not applicable.146 Finally, it should be noted that even if religious conduct, practices orexpression that could infringe or affect the rights of others in a private law context areprotected a priori by the purpose of freedom of religion, they are not necessarilyprotected under the right to freedom of religion. While the purpose of freedom ofreligion is defined broadly, the right to freedom of religion is restricted, as mentionedabove, by the provisions of the Quebec Charter that place limits on the right. In the caseat bar, the appellants’ right to freedom of religion must be interpreted in light of s. 9.1of the Quebec Charter, which requires that the rights and freedoms provided for in ss. 1to 9 of the Quebec Charter be exercised in respect of each other with “a proper regardfor democratic values, public order and the general well-being of the citizens ofQuébec”. It should also be mentioned that the Quebec Charter must be interpreted inharmony with the Civil Code of Québec, which is the most important instrument fordefining the principles governing public order and the general well-being of the citizens

- 80 -of Quebec (C.C.Q., preliminary provision). In a private law context, the observance ofreligious rites often affects a number of aspects of social existence; it is accordinglyimperative to consider the importance of the rites and of the requirements of security,public order and the general well-being of citizens as they relate to them.B. The Applicable Test Under Section 9.1 of the Quebec Charter in the Context ofPrivate Legal Relationships2004 SCC 47 (CanLII)147 Section 9.1 of the Quebec Charter reads as follows:9.1. In exercising his fundamental freedoms and rights, a person shallmaintain a proper regard for democratic values, public order and the generalwell-being of the citizens of Québec.In this respect, the scope of the freedoms and rights, and limits to theirexercise, may be fixed by law.148 In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, this Court hadoccasion to rule on the meaning of s. 9.1 of the Quebec Charter in a public law context.At p. 770 of that unanimous decision, the Court wrote the following:The first paragraph of s. 9.1 speaks of the manner in which a person mustexercise his fundamental freedoms and rights. That is not a limit on theauthority of government but rather does suggest the manner in which thescope of the fundamental freedoms and rights is to be interpreted. Thesecond paragraph of s. 9.1, however — “In this respect, the scope of thefreedoms and rights, and limits to their exercise, may be fixed by law” —does refer to legislative authority to impose limits on the fundamentalfreedoms and rights. [Emphasis added.]149 It would appear from this passage that the second paragraph of s. 9.1 appliesto legislative action, while the first serves rather as an interpretive tool for private lawrelationships. Since Ford, supra, dealt with public law issues, this Court did not have

- 81 -an opportunity to examine the way in which s. 9.1 can be applied as a limiting provisionin a private law context. However, it can be seen that the important distinction drawnby the Court between the first paragraph of s. 9.1, which applies to persons, and thesecond, which, like the limiting provision under s. 1 of the Canadian Charter, applies tolegislative action, means that the outcome of the application of s. 9.1 will vary dependingon the context.2004 SCC 47 (CanLII)150 As Professor F. Chevrette points out in “La disposition limitative de laCharte des droits et libertés de la personne: le dit et le non-dit” (1987), 21 R.J.T. 461, atp. 465, applying s. 9.1 to private relationships leads to [TRANSLATION] “flexibility in thepractical exercise of rights and freedoms”. An analysis of the manifestations of thisflexibility will take into account the facts and circumstances surrounding the exercise ofthe right or freedom in question. He suggests the following interpretation of s. 9.1, atp. 465:[TRANSLATION] Either the first [paragraph] has an independent scope, inwhich case implicit limits, possibly lacking a basis in law, may be imposedon the exercise of rights and freedoms, or this paragraph merely states anobjective or purpose that can be attained from a legal perspective only bythe means provided for in the second [paragraph].In support of the first interpretation, it could be argued that, as thecourts and the man in the street have long suggested, fundamental freedomsare not absolute and are inherently limited by both the realities of socialexistence and the rights of others. This interpretation is supported by thefourth paragraph of the Charter’s preamble, which states that “the rights andfreedoms of the human person are inseparable from the rights and freedomsof others and from the common well-being”. In short, the first paragraph [ofs. 9.1] would proscribe a form of abuse of rights.151 In my view, this interpretation, according to which the scope of the rightsand freedoms set out in ss. 1 to 9 of the Quebec Charter is defined in light of the rightsof others and the demands of social existence, is consistent with the legislature’s intent

- 82 -in enacting s. 9.1, as evidenced by the following comment made by the Minister ofJustice at the time the Charter was passed:[TRANSLATION] The purpose of s. 9.1 is to temper the absoluteness ofthe freedoms and rights set out in ss. 1 through 9 both by imposing limits,which are set out in the first paragraph, on the holders of those rights andfreedoms in relation to other citizens, and by establishing, in the secondparagraph, the principle that the legislature may impose limits in relation tothe community at large.2004 SCC 47 (CanLII)(Journal des débats: Commissions parlementaires, 3rd Sess., 32nd Leg.,December 16, 1982, at p. B-11609)152 In light of this comment and the reasons given by this Court for its decisionin Ford, supra, it can be seen that s. 9.1 of the Quebec Charter is a tool for interpretingrights and freedoms that is similar to, but different in a number of ways from, s. 1 of theCanadian Charter. Their similarity becomes apparent in a public law context, in whichstate actions that infringe upon rights may be justified under either s. 1 of the CanadianCharter or the second paragraph of s. 9.1 of the Quebec Charter, two provisions whichare subject to a similar test: Ford, supra, at p. 770. The important difference, however,is that the first paragraph of s. 9.1, insofar as it does not require that the infringement ofa right or freedom result from the application of the law, applies only to private lawrelationships, that is, to infringements of the rights and freedoms of private individualsby other private individuals: see Chevrette, supra, at p. 466.153 This Court had occasion to apply s. 9.1 of the Quebec Charter in a privatelaw context in Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591. In that case, theclaimant had brought an action in civil liability against the appellants, a photographerand a publisher, for taking a photograph of her sitting on a step in front of a building andpublishing it in a magazine without her consent. She alleged that the appellants’ conduct

- 83 -constituted a violation of her right to privacy under s. 5 of the Quebec Charter. In theirdefence, the appellants argued that even if there had been an infringement of theclaimant’s right to privacy, it was justified under s. 9.1 of the Charter because of thepublic’s predominant interest in obtaining the information, supported by the guaranteeof freedom of expression set out in s. 3 of the Charter.154 L’Heureux-Dubé J. and I, writing for the majority, stated the following, at2004 SCC 47 (CanLII)para. 56:The right to respect for one’s private life, like freedom of expression,must be interpreted in accordance with the provisions of s. 9.1 of the QuebecCharter. For this purpose, it is necessary to balance these two rights.Later, at para. 61, we observed that it had to “be decided whether the public’s right toinformation can justify dissemination of a photograph taken without authorization”.Thus, in Aubry, the conflict between two fundamental rights, that is, the right to privacy(s. 5) and the right to freedom of expression (s. 3) was resolved by reconciling the tworights under s. 9.1. There are many situations in which one or even a number of rightsguaranteed under the Quebec Charter impose limits that have the effect of narrowing thescope of another right or freedom also protected by the Quebec Charter. The sameapproach was favoured, to give one example, in Prud’homme v. Prud’homme,[2002] 4 S.C.R. 663, 2002 SCC 85, in which the issue was the scope of freedom ofexpression in the specific context of discharge of the duties of an elective office. Thereconciliation of rights requires more than a simple review of the alleged infringementof any one of the rights in question; it is clearly different from the duty to accommodatein the context of an infringement of the right to equality. To reconcile all the rights andvalues at issue in light of the wording of the first paragraph of s. 9.1 of the Quebec

- 84 -Charter involves finding a balance and a compromise consistent with the public interestin the specific context of the case. To attain this balance and compromise would beimpossible if the right in issue and the exercise thereof were subject only to thesubjective assessment of the person wishing to exercise it. Nor would a simple inquiryinto the relative importance of the infringement of the co-owners’ rights be appropriatein the case at bar; that would be equivalent to requiring a reasonable accommodation onthe respondents’ part, whereas accommodation is irrelevant to a s. 9.1 analysis. That is2004 SCC 47 (CanLII)why this Court stressed in Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790,at p. 818, that s. 10 of the Quebec Charter, which brings the duty to accommodate intoplay, cannot be used to circumvent the operation of s. 9.1 and thereby to avoid specifyingthe scope of the fundamental right in issue in accordance with the limits established bys. 9.1. Nor is it a question of simply comparing the inconvenience for one party with theinconvenience for the other; that would distort s. 9.1, which refers specifically to thecommon interest of all citizens of Quebec.155 A court engaged in a reconciliation exercise must ask itself twoquestions: (1) Has the purpose of the fundamental right been infringed? (2) If so, is thisinfringement legitimate, taking into account democratic values, public order, and thegeneral well-being? A negative answer to the second question would indicate that afundamental right has been violated.156 In the first step of the analysis, the person alleging the infringement of aright bears the burden of proving that it has occurred. To do this, as I explained above,the claimant must demonstrate the existence of a religious precept, a sincere belief thatthe practice dependent on the precept is mandatory, and the existence of a conflictbetween the practice and the rule. At this stage, the issue is an infringement of the

- 85 -purpose of the right, not a violation of the right itself. Consequently, even if a claimantshows in the first step that the purpose of the protected right has been infringed, thisamounts to a violation of the right itself only if the infringement is inconsistent with theprinciples underlying s. 9.1. In the second step, in my view, the onus is on the defendantto show that the infringement is consistent with s. 9.1. It is logical to place the burdenof proving an infringement on the claimant and that of proving consistency with s. 9.1on his or her adversary, since these parties are in the best position to give the required2004 SCC 47 (CanLII)proof.157 In short, the rights and freedoms subject to s. 9.1 must be exercised inrelation to one another while maintaining proper regard for democratic values, publicorder and the general well-being of citizens. Their scope is therefore defined inaccordance with how each of them is exercised in the particular circumstances of eachcase, taking into account the reconciliation of the rights in issue.C. Application to the Facts1. Freedom of Religion and Sincerity of Belief158 Like the trial judge and Dalphond J. of the Court of Appeal, I am of the viewthat the declaration of co-ownership prohibits, inter alia, the erection of succahs on thebalconies, porches and patios constituting the common spaces of Place Northcrestreserved for exclusive use. There is no ambiguity on this point, as s. 2.6.3b) of thedeclaration of co-ownership is clear. The appellants, who are all practising OrthodoxJews, allege that this prohibition infringes their right to freedom of religion bypreventing them from erecting succahs on balconies, porches or patios.

- 86 -159 The appellants submit that they sincerely believe that their religion requiresthem to construct succahs on their own balconies. The respondent contests the existenceof a sincere belief on their part. To resolve this debate, it is necessary to determinewhether the appellants’ belief is sincere and, lastly, whether it is grounded in the preceptsof their religion. As mentioned above, expert evidence will be useful in this regard, asit can serve to establish the fundamental precepts and practices of a religion upon which2004 SCC 47 (CanLII)a claimant’s desired action is based.160 In the case at bar, after reviewing the evidence presented to him, includingthe testimony of two expert witnesses, Rabbi Barry Levy and Rabbi Moïse Ohana, thetrial judge came to the following conclusion (at p. 1909):[TRANSLATION] First of all, the court notes that practising Jews are notunder a religious obligation to erect their own succahs. There is nocommandment as to where they must be erected.Rochon J. also considered the appellants’ testimony about their own practices andconcluded that all of them, with the exception of Mr. Amselem, believed that theirfundamental obligation was to eat meals in a succah, as opposed to a succah on their ownproperty, during Succot (at pp. 1908-9):[TRANSLATION] The respondents’ past conduct attests to the optionalnature of the succah’s ownership and the location where it is erected.For many years, Fonfeder went to the home of his sister, who lived notfar from his apartment on Hutchison Street, to celebrate Succot. In 1994,when he moved into the Sanctuaire, he did not erect a succah. Instead, hewent to New York state and stayed with a grandson who had his ownsuccah.

- 87 -As for Thomas Klein, he has lived in the Sanctuaire since 1989 and hadnever erected a succah before 1996. During that period, even though hepractised his religion, he usually went to New York state to celebrate Succotwith his family. For several years, he remained in Montréal for the firstimportant days of the holiday but did not erect a succah, as he thought itwould be too difficult to do so for just a few days.. . . We heard no evidence from the other respondents on this point.161 After reviewing the testimony of each of the appellants and the nature of the2004 SCC 47 (CanLII)religious teachings as explained by Rabbi Levy and Rabbi Ohana, the trial judge did notdismiss the appellants’ belief or reject their argument based on freedom of conscience.Rather, he weighed and examined the evidence before him to verify the existence of areligious precept supporting the appellants’ belief, as this examination of religiousteachings is an integral part of the required analysis.162 The evidence shows that the appellants sincerely believed they were underan obligation to eat their meals and celebrate Succot in a succah. Although it would bepreferable to do so in their own succahs whenever possible, there are numerouscircumstances, such as the ones noted by the trial judge, in which using another person’ssuccah would appear to be justified. Based on the evidence that was adduced andaccepted by the trial judge, I accept that the appellants sincerely believe that, wheneverpossible, it would be preferable for them to erect their own succahs; however, it wouldnot be a divergence from their religious precept to accept another solution, so long as thefundamental obligation of eating their meals in a succah was discharged. I thereforecannot accept that the appellants sincerely believe, based on the precepts of their religionthat they are relying on, that they are under an obligation to erect their own succahs ontheir balconies, patios or porches. Rather, it is their practice of eating or celebratingSuccot in a succah that is protected by the guarantee of freedom of religion set out in s. 3of the Quebec Charter. The declaration of co-ownership does not hinder this practice,

- 88 -as it does not bar the appellants from celebrating Succot in a succah, whether at thehomes of friends or family or even in a communal succah, as proposed by therespondent. Consequently, the prohibition against erecting their own succahs does notinfringe the purpose of the appellants’ right to freedom of religion. Any inconvenienceresulting from the prohibition against erecting individual succahs is not sufficient toelevate the preference to the status of a mandatory religious practice.2004 SCC 47 (CanLII)163 In the case of the appellant Amselem, however, the trial judge concluded thathe was [TRANSLATION] “the only one who saw the obligation to erect a succah on hisown property in terms of a divine command” (p. 1909). Assuming that his belief issincere, which the trial judge accepted, and that it is based on a precept of his religion,in accordance with the interpretation of the Book of Nechemiah, Chapter 8, verses 13 to18, accepted by Morin J.A. on appeal, it is necessary to turn to the second step and tointerpret the prohibitions imposed by the declaration of co-ownership in light of s. 9.1of the Quebec Charter to determine whether they violate Mr. Amselem’s right tofreedom of religion.2. Reconciling Rights Under Section 9.1 of the Quebec Charter164 Mr. Amselem contends that the restrictions contained in the declaration ofco-ownership infringe his right to freedom of religion under s. 3 of the Quebec Charter.According to s. 9.1 of that Charter, the right asserted by Mr. Amselem must be exercisedwith “proper regard for democratic values, public order and the general well-being of thecitizens of Québec”. If this right cannot be exercised in harmony with the rights andfreedoms of others and the general well-being of citizens, the infringement thereof maybe considered legitimate, and no violation of the right to freedom of religion provided

- 89 -for in the Quebec Charter will have been established. As I mentioned above, s. 9.1requires not merely a balancing of the respective rights of the parties, but a reconciliationof the rights that takes the general interest of the citizens of Quebec into account.165 The rights and freedoms in issue must first be identified. At this point, Iwould once again stress that the Quebec Charter must be interpreted in harmony withthe Civil Code of Québec. In the case at bar, Mr. Amselem’s freedom of religion is in2004 SCC 47 (CanLII)conflict with the right of each of the other co-owners to the peaceful enjoyment and freedisposition of their property under s. 6 of the Quebec Charter and their right to life andto personal security under s. 1 thereof. These rights must be reconciled. Thereconciliation must also take into account the other circumstances of this case, such asthe contractual rights arising out of the declaration of co-ownership which is binding onthe parties, the application of the Civil Code of Québec, the negotiations that took placeand the offers made by the parties in an attempt to find an acceptable solution. Theexercise of rights with a regard for public order and the general well-being of citizensmakes this necessary.166 In the case at bar, the right to the peaceful enjoyment and free dispositionof one’s property is included in the purpose of the restrictions provided for in thedeclaration of co-ownership. The restrictions are aimed first and foremost at preservingthe market value of the dwelling units held in co-ownership. They also protect theco-owners’ right to enjoy the common portions reserved for exclusive use whilepreserving the building’s style and its aesthetic appearance of a luxury building, not tomention the use of the balconies to evacuate the building in a dangerous situation. Thetotal ban on erecting anything whatsoever, including succahs, on the balconies isnecessary to attain this goal, since without it, harmony cannot be maintained and

- 90 -emergency routes will be compromised. In this situation, freedom of religion imposeslimits on the exercise of the rights of all the co-owners.167 The restrictions preserve not only the co-owners’ rights under s. 6 of theQuebec Charter, but also their rights under the Civil Code of Québec, which, togetherwith the Charter, provides the framework for the right of ownership in Quebec. The trialjudge reviewed the relevant articles of the Code and concluded that the restrictions in the2004 SCC 47 (CanLII)declaration of co-ownership were valid under art. 1056 C.C.Q., which provides that “[n]odeclaration of co-ownership may impose any restriction on the rights of the co-ownersexcept restrictions justified by the destination, characteristics or location of theimmovable.” He wrote the following (at p. 1899):[TRANSLATION] The legislature has restated the classic triptych of theright of ownership: the right to use, enjoy and dispose of property freely(art. 947 C.C.Q.). It has also stated that ownership may be in variousmodes. Co-ownership of an immovable is one of the “special modes ofownership” (art. 1009 C.C.Q.). Co-ownership is itself defined as “ownershipof the same property, jointly and at the same time, by several persons”(art. 1010 C.C.Q.). Co-owners may dispose of their fractions, but their useand enjoyment of both the private and common portions thereof must beconsistent with the by-laws of the immovable and must not “impair therights of the other co-owners or the destination of the immovable” (art. 1063C.C.Q.).168 Regarding the destination of the immovable, the trial judge reviewed thedeclaration of co-ownership and made the following observation (at p. 1901):[TRANSLATION] The quality of the materials used, the layout of thedwelling units, the detailed architecture and the harmony of the exterior arethe elements that give this property its appearance of luxury andcomfort. . . .What potential buyers are presented with is not just a luxurious andprestigious property, but a “lifestyle” . . . .

- 91 -. . .The preservation of these overall qualities within an upscale residentialconcept is a collective element that the co-owners will want to preserve.This led the trial judge to conclude that the restrictions imposed on the use of patios,balconies and terraces were justified, in conformity with art. 1056 C.C.Q., by theimmovable’s destination, characteristics and location.2004 SCC 47 (CanLII)169 As for the co-owners’ right to life and personal security under s. 1 of theQuebec Charter, it was protected by another purpose of the declaration of co-ownership,that is, to prevent the obstruction of routes between balconies so that they could be usedas emergency exits. To attain this objective, balconies and patios, which were commonportions reserved for exclusive use, were subject to a right of way in favour of theco-owners. The trial judge discussed the need to keep these areas free of obstructions(at p. 1914):[TRANSLATION] It is easy to see from the testimony and from a reviewof the plans and photographs of the premises that there are a number ofplaces where it is possible to move, either horizontally or vertically, fromone balcony to another. For example, people trapped on their balcony by afire raging inside their apartment could cross over to a neighbour’s balcony.It can be seen from photographs of the succahs that they hinder this type ofmovement and, depending on the materials used in their construction, couldeven block an escape route entirely.170 It is easy to see the required connection between the prohibition againstbuilding on balconies and the desire to keep emergency routes open. The purpose of theprohibition is to protect the fundamental right of all co-owners to life and personalsecurity, and this right must be taken into account when reconciling the various rightsand freedoms in issue. The argument that succahs can be erected without blocking

- 92 -access routes too much if certain conditions are complied with cannot be accepted at thispoint in the analysis, as it is based on the concept of reasonable accommodation, whichis inapplicable in the context of s. 9.1.171 The respondent also submits that allowing succahs on balconies, patios orporches would compromise safety and, according to its insurer, would be considered anincreased risk that could cause its insurance to be suspended. In a letter dated October2004 SCC 47 (CanLII)15, 1997, the senior underwriter for business insurance at the Canadian GeneralInsurance Company wrote the following:[TRANSLATION] This is to confirm that we cannot agree to cover anyliability resulting from the construction of a shelter or small structure on thepremises belonging to the insured, be they on the adjacent land or onbalconies. This would be an increase of risk in terms of coverage for thirdpartyliability and fires.In reconciling the rights at issue here, the Syndicat’s interest in maintaining its insurancecoverage and avoiding an increase of risk with respect to both the common and privateportions of Place Northcrest must be taken into account.172 Finally, it should be noted that all the co-owners have an interest inmaintaining harmony in the co-owned property and an undivided right therein, especiallywith respect to a common portion reserved for restricted use in which, by contract, theyhave a collective right of ownership. Reconciliation cannot amount to a simple requestmade to the co-owners to renounce their rights in the common portion consisting of thebalconies. Co-owners have the right to expect contracts to be respected; this expectationis also consistent with the general interest of the citizens of Quebec.

- 93 -173 Therefore, it must be decided if it is possible to reconcile the provisions ofthe declaration of co-ownership, which is binding on the parties and which preserves theco-owners’ right to the peaceful enjoyment and free disposition of their property andtheir right to personal security, with Mr. Amselem’s freedom of religion. This Court’scomment in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 877,is relevant in this regard:2004 SCC 47 (CanLII)A hierarchical approach to rights, which places some over others, must beavoided, both when interpreting the Charter and when developing thecommon law. When the protected rights of two individuals come intoconflict, . . . Charter principles require a balance to be achieved that fullyrespects the importance of both sets of rights.174 Furthermore, any reconciliation of rights must take into account the fact thatcertain rights and freedoms in the Quebec Charter, including s. 6, which is at issue here,are self-limiting. Professor Chevrette, supra, at pp. 468-69, presented two ways to lookat this situation in light of s. 9.1:[TRANSLATION] What is the effect of s. 9.1 on ss. 6 (enjoyment and freedisposition of property) and 9 (professional secrecy), given that s. 6 alreadyprovided that the guarantee existed “except to the extent provided by law”and s. 9 provided that it could be overridden by “an express provision oflaw”? Can it be argued that s. 9.1, which was enacted after these provisions,supersedes them and replaces the legislature’s discretion with the testsestablished by s. 9.1?It seems obvious that this is not the case. The clarity and theexceptional nature of these provisions make them special standards thatprevail over the subsequent general standard of s. 9.1. Since “the principlegranting priority to special legislation, or to the more recent enactment, isat best a guide or presumption of legislative intent”, the second principlemust apply, as the legislature intended that s. 9.1 should reduce rather thanincrease the precedence of the sections subject to s. 9.1 over any other law.This is, however, far from the end of the matter. Within the first chapterof the Charter, there is a superimposition of certain guarantees. Somesections are not self-limiting, although they are still subject to s. 9.1; othersare. Thus, an expropriation could be justified under s. 6 itself, in that it

- 94 -would amount to an impairment of the enjoyment of property “provided bylaw”, whereas it could not be justified under s. 8 (respect for privateproperty), which is not self-limiting, without the operation of s. 9.1.175 In Desroches v. Québec (Commission des droits de la personne), [1997]R.J.Q. 1540, at pp. 1552 and 1555, the Quebec Court of Appeal saw the limitation in s. 6of the Quebec Charter as giving precedence to another right referred to in the Charterthat was subject to no such limitation:2004 SCC 47 (CanLII)Although section 6 acknowledges the recognition our society accordsto property rights, these rights are subject to an inherent limitation,expressly stated in section 6 itself: property rights are limited by therestrictions provided for by law, including above all those limits which stemfrom the respect of other charter rights.. . .. . . Property rights cannot trump equality guarantees. Where a seeminglyneutral policy rationally related to the running of a business (for instance)has the adverse effect of discrimination, however, the courts may allow thepolicy to stand so long as the duty to accommodate is fulfilled.176 In the case at bar, not only is there a conflict between the right to freedomof religion and property rights, but the right to freedom of religion is also in conflict withthe right to life and personal security, and with contractual rights. It should also be bornein mind that the Syndicat, in an attempt to reconcile the co-owners’ competing interests,proposed the construction of a communal succah near one of the towers. This offer,which, it should be noted, Mr. Amselem had accepted, was the result of a negotiationprocess involving a number of parties. What is more, the Canadian Jewish Congressconsidered the proposed compromise to be reasonable and, in a letter datedOctober 10, 1997, thanked the Syndicat for its efforts to accommodate its Jewishresidents. All this is important to the assessment of what is consistent with the generalwell-being of citizens.

- 95 -177 In the end, the appellants rejected the Syndicat’s offer, citing a multitude ofproblems and details, but they never proposed anything other than the erection ofsuccahs on their balconies. It is clear that the communal succah would be a source ofinconvenience for Mr. Amselem, but the individual succah, too, was a source of genuineinconvenience for the other co-owners: in particular, it obstructed an emergency route,and the elevators were blocked during the construction while being used to transport the2004 SCC 47 (CanLII)materials. On this issue, the trial judge criticized the appellants for being inflexible inrejecting the compromise. In his view, their attitude showed that they were not willingto contribute to a solution that would be acceptable to all. It is especially important tonote in this respect that such a contribution is required of all rights holders by s. 9.1 ofthe Quebec Charter, by the Charter’s preamble, which recognizes that “the rights andfreedoms of the human person are inseparable from the rights and freedoms of others andfrom the common well-being”, and by the preliminary provision of the Civil Code ofQuébec, which states that the Code, “in harmony with the Charter of human rights andfreedoms and the general principles of law, governs persons, relations between persons,and property”. As I noted above, the application of s. 9.1 does not simply presupposean accommodation approaching extreme tolerance by all rights holders other thanMr. Amselem. He, too, is part of the multicultural society that demands reconciliationof the rights of all. It is not irrelevant that the trial judge, following a thorough analysis,concluded that there was a reasonable accommodation in the case at bar and that in theCourt of Appeal, Morin J.A. relied on this Court’s decision in British Columbia (PublicService Employee Relations Commission) v. BCGSEU, supra, to hold that there was noreason to interfere with this assessment of the evidence. In other words, the trier of factwas satisfied that even the most demanding test did not support the appellants’ case.

- 96 -178 The appellants contend that the obligation imposed on them to exercise theirrights of co-ownership in harmony with the rights of the other co-owners is unfair.However, it must not be forgotten that the declaration of co-ownership was drafted in aneffort to preserve the rights of all the co-owners, without distinction. It must also beborne in mind that the compromise proposed by the respondent, namely the erection, atthe expense of all the co-owners, of a communal succah on land belonging to all theco-owners located next to the building, would have had the desired result of upholding2004 SCC 47 (CanLII)the parties’ rights under ss. 6, 1 and 3 of the Quebec Charter. Such a solution would alsobe consistent with the three conditions adopted by this Court in Big M Drug Mart, supra,and approved in Ross, supra, that is, that freedom of religion must be exercised(1) within reasonable limits, (2) with respect for the rights of others and (3) bearing inmind such limitations as are necessary to protect public safety, order and health and thefundamental rights and freedoms of others. The right of co-ownership, in its essence, isexercised in harmony with the rights of all the co-owners. This does not amount torepudiating freedom of religion, but rather to facilitating the exercise thereof in a waythat takes the rights of others and the general well-being into account.179 With respect to s. 1 of the Quebec Charter, it is difficult to imagine howgranting a right of way in emergency situations, which is essential to the safety of all theoccupants of the co-owned property, could fail to justify the prohibition against settingup succahs, especially in light of the compromise proposed by the respondent. I see noneed to revisit the trial judge’s findings of fact on this subject.180 This leads me to conclude that, since Mr. Amselem’s right to freedom ofreligion cannot be exercised in harmony with the rights and freedoms of others or withthe general well-being, the infringement of Mr. Amselem’s right is legitimate. Even

- 97 -though the declaration of co-ownership’s prohibition against building prevents theappellants from erecting succahs on their balconies, porches or patios, it does not violatetheir freedom of religion.D. Waiver of Freedom of Religion181 Given that there was no violation of the appellant’s right to freedom of2004 SCC 47 (CanLII)religion, there is no need to consider the argument that the appellants implicitly waivedtheir right by signing the declaration of co-ownership, although it goes without sayingthat the submissions made in respect of this question apply to the s. 9.1 analysis.V. Conclusion182 For the foregoing reasons, I would dismiss the appeal with costs.The following are the reasons delivered byBINNIE J. (dissenting) —I. Introduction183 The unusual aspect of the claim to freedom of religion in this case is that theclaim is asserted by the appellants, not against the State but against fellow co-owners ofa Montréal luxury building (or “immovable”), all of whom (including the appellants)entered into contractual rules governing the use of commonly owned facilities. Theagreed rules, as found by all of the judges in the courts below, plainly prohibit the

- 98 -erection on the communally owned balconies of a succah, which is a makeshifttemporary dwelling, open to the sky, that is used in connection with the appellants’religious observance in the Jewish tradition for nine days in each year. The appellantsrely on a right to freedom of religion under the Quebec Charter of Human Rights andFreedoms, R.S.Q., c. C-12, to insist on building a succah on each of their balconiesdespite the contract they made with their co-owners and despite their co-owners’ offerof a communal succah in the garden of the building. There is much to be said on both2004 SCC 47 (CanLII)sides of this issue but in the end I agree with the Quebec Court of Appeal that in all thecircumstances the appellants cannot reasonably insist on a personal succah. I wouldtherefore dismiss the appeal.184 My reasons differ from those of my colleague Bastarache J. because of theweight I place on the private contract voluntarily made among the parties to govern theirmutual rights and obligations, including the contractual rules contained in the declarationof co-ownership, as well as on the co-owners’ offer of accommodation. Buried at theheart of this fact-specific case is the issue of the appellants’ acceptance, embodied in thecontract with their co-owners, that they would not insist on construction of a personalsuccah on the communally owned balconies of the building.185 There is a vast difference, it seems to me, between using freedom of religionas a shield against interference with religious freedoms by the State and as a swordagainst co-contractors in a private building. It was for the appellants, not the other coowners,to determine in advance of their unit purchase what the appellants’ particularreligious beliefs required. They had a choice of buildings in which to invest. Theyundertook by contract to the owners of this building to abide by the rules of this buildingeven if (as is apparently the case) they accepted the rules without reading them. They

- 99 -thereafter rejected the accommodation offered by their co-owners of a communal succahin the garden because it did not fully satisfy their religious views although theaccommodation was not, as will be seen, inconsistent even with Mr. Moïse Amselem’ssense of religious obligation in circumstances where a personal succah is simply notavailable.A. Freedom of Religion2004 SCC 47 (CanLII)186 I agree that freedom of religion as guaranteed by s. 3 of the Quebec Chartershould be broadly interpreted. Judges have no manageable criteria by which to evaluatethe merits or “validity” of an individual’s own faith-based belief in what imperils his orher immortal soul (in the Judeo-Christian tradition), or to appraise the conduct on thisearth that conformity to that belief demands. However, care must be taken when itcomes to religious practices or conduct that impinge not on private worship but on therights of others. Due regard must be had to obligations freely undertaken by the claimanttoward other individuals, and to broader relationships with people living in a community,as reflected in the opening paragraph of s. 9.1 of the Quebec Charter, which provides:In exercising his fundamental freedoms and rights, a person shall maintaina proper regard for democratic values, public order and the general wellbeingof the citizens of Québec.Thus the Quebec Charter is concerned not only with rights and freedoms but with acitizen’s responsibilities to other citizens in the exercise of those rights and freedoms.187 The law does not provide a general definition of freedom of religion for allpurposes. Much depends on the context. The context and structure of the Canadian

- 100 -Charter of Rights and Freedoms, which applies only to constrain State action and doesnot regulate private relationships, is different. Even in the case of the Canadian Charter,however, the Court has observed that “although the freedom of belief may be broad, thefreedom to act upon those beliefs is considerably narrower”: B. (R.) v. Children’s AidSociety of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 226. See also Ross v.New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 72; Trinity WesternUniversity v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31,2004 SCC 47 (CanLII)at para. 30.188 It is helpful to approach s. 3 of the Quebec Charter using the frameworkproposed by the authors H. Brun and G. Tremblay, in their text Droit constitutionnel (4thed. 2002), at p. 1033, which poses four requirements: [TRANSLATION] “(1) existence ofa religious precept; (2) sincere belief in that precept; (3) existence of a conflict betweenthe precept and the rule; and (4) reasonableness of the objection”.189 I accept that Mr. Amselem has met the threshold test of bringing his claimwithin the protected zone of religious freedom. (For present purposes, as I conclude theappeal should be dismissed, it is unnecessary to dwell on the alleged insufficiencies ofthe evidence of the other appellants.) Mr. Amselem clearly respects the succah ritual asa religious precept, by which I understand him to mean a divine command (ShorterOxford English Dictionary (5th ed. 2002), vol. 2, at p. 2316). There is no doubtexpressed by any of the parties that in general terms the precept exists as an article of theJewish faith. We are not dealing here with a religion of one phenomenon, or a nontraditionalclaim such as the smoking of peyote as part of a claimed religious experience(Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.872 (1990)). Those types of issues will have to be addressed when they arise.

- 101 -190 I do not think it is the function of the courts to choose between thecompeting views of Rabbi Levy and Rabbi Ohana, each of great respectability, as to theprecise content of the divine command. Mr. Amselem believes what he believes, and hesincerely believes that dwelling in his own succah, rather than just in a succah, is partof his faith, subject to a measure of flexibility when a personal succah is not available,as hereinafter described.2004 SCC 47 (CanLII)191 The rigour of the analysis should, in my view, not occur at the front end ofthe s. 3 analysis, when the existence of a religious precept (or divine command) and thesincerity in the belief of that religious precept is being considered, where the freedomshould be generously accorded, but at the subsequent limitation stage under s. 9.1 where,in the private context, the reasonableness of the exercise of a religious practice at theexpense of others is being assessed. Religion is by nature an intensely personal andsubjective matter. It is therefore, as Iacobucci J. demonstrates, a right of immensepotential scope. The appellants urge both a broad front end acceptance of religious beliefand a restricted view of acceptable accommodation. Such an approach would create animbalance between the rights of the individual and the countervailing rights and interestsof other members of Quebec society, whose “general well-being” is also protected bys. 9.1 of the Quebec Charter. As stated by the Quebec Minister of Justice when s. 9.1was adopted in 1982:[TRANSLATION] The purpose of s. 9.1 is to temper the absoluteness ofthe freedoms and rights set out in ss. 1 through 9 both by imposing limits,which are set out in the first paragraph, on the holders of those rights andfreedoms in relation to other citizens, and by establishing, in the secondparagraph, the principle that the legislature may impose limits in relation tothe community at large. [Emphasis added.]

- 102 -(Journal des débats: Commissions parlementaires, 3rd sess., 32nd Leg.,December 16, 1982, at p. B-11609)See also Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591, at para. 18.B. Rights and Freedoms of the Other Co-Owners2004 SCC 47 (CanLII)192 The primary right asserted by the respondent is under s. 6 of the QuebecCharter, which states in part as follows:6. Every person has a right to the peaceful enjoyment and free dispositionof his property, except to the extent provided by law.Article 1063 of the Civil Code of Québec, S.Q. 1991, c. 64, provides in the case of coownershipthat “[e]ach co-owner has the disposal of his fraction” and “has free use andenjoyment of his private portion and of the common portions, provided he observes theby-laws of the immovable and does not impair the rights of the other co-owners or thedestination of the immovable” (emphasis added). The rules of a building/immovableunder divided co-ownership, contained in the declaration of co-ownership, promotepeaceful enjoyment of the units (one of the s. 6 rights) by all co-owners. The regulationof common areas enhance the appearance and value of the building as a whole, and theappellants accept that this is so.193 Section 3 of the Quebec Charter groups freedom of religion compendiouslywith freedom of conscience, freedom of opinion, freedom of expression, freedom ofpeaceful assembly and freedom of association. While there are security and insuranceconcerns about succahs on balconies, the co-owners’ primary concern is the appearance

- 103 -of their home as an expression of how they wish to be seen by the world. This is relatedto maintaining the value of their investment.194 The strictness of the rules agreed to by the co-owners, including theappellants, would have been evident had the appellants made even the most casualexamination. Section 2.6, titled [TRANSLATION] “Limited Common Portions”, includess. 2.6.3b) dealing with [TRANSLATION] “Balconies, porches and patios” which provides2004 SCC 47 (CanLII)in part:[TRANSLATION]b) No owner may enclose or block off any balcony, porch or patio in anymanner whatsoever or erect thereon constructions of any kind whatsoever.[Emphasis added.]The prohibition in s. 2.6.3b) does not include a consent provision but seems absolute, ascompared with (for example) s. 9.3 dealing with decoration:[TRANSLATION] No balcony or porch may be decorated, covered,enclosed or painted in any way whatsoever without the prior writtenpermission of the co-owners or the Board of Directors, as the case may be.Irrespective of whether a structure which is “open to the skies” can be said to be“covered” or “enclosed” under s. 9.3, I agree with the trial judge and the judges of theCourt of Appeal that the construction of a succah was prohibited under a combinationof the other rules. Indeed counsel for the appellants frames one of the issues in disputeas follows:

- 104 -Can one waive his or her right to freedom of religion in advance by signinga contract of adhesion containing a general prohibition against decorationsor constructions on one’s balcony?The appellants undertook to respect not only s. 9.3 but also s. 2.6.3b) of the declarationof co-ownership, and even if (as Iacobucci J. suggests) the appellants might have beenencouraged by the possibility of consent from their co-owners under s. 9.3 (had they readit), they would still have appreciated that a succah is a “construction of any kind” under2004 SCC 47 (CanLII)s. 2.6.3b), and that construction of such structures on the outside balconies of thisparticular building was prohibited. Thus, while the offer of a communal succah in thegarden of the building was less than the appellants desired, it was more than they hadcontracted for.195 None of these restrictions in the rules of the immovable had a religiouspurpose. The rules were certainly not aimed at persons of the Jewish faith. The rulessimply express a certain style of architectural austerity or collective anonymity whichthe co-owners wanted to present to the world in a building shorn of any external displayof individual personality. The owners have gone so far in recent rulings as to prohibitthe display of garden trellises and television reception dishes. They told the Ambassadorof the Netherlands to remove his national flag. Such micro-control of the exteriorappearance of the building may not be to everyone’s taste, but it was the collective willof the co-owners of the building in which the appellants had decided to invest.C. Existence of a Conflict

- 105 -196 There is clearly a conflict between the austere external appearance envisagedby the rules of the immovable and the appellants’ desire to construct individual succahson their balconies, even if only for a brief period of nine days a year.D. Reasonableness of the Appellants’ Objection197 Although s. 9.1 of the Quebec Charter does not specifically impose a duty2004 SCC 47 (CanLII)on third parties to accommodate a claimant, no doubt as a practical matter, thereasonableness of the claimants’ conduct will be measured, at least to some extent, inlight of the reasonableness of the conduct of the co-owners. The text of s. 9.1, however,puts the focus on the claimant who, in the exercise of his or her rights, must have regardto the facts of communal living which, of course, includes the rights of third parties. Forconvenience, I repeat the relevant part of s. 9.1:In exercising his fundamental freedoms and rights, a person shall maintaina proper regard for democratic values, public order and the general wellbeingof the citizens of Québec. [Emphasis added.]As this Court said in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, a casedealing with State interference in freedom of expression, s. 9.1 imposes interpretativelimits on the scope of the protected freedom (at p. 770):The first paragraph of s. 9.1 speaks of the manner in which a person mustexercise his fundamental freedoms and rights. That is not a limit on theauthority of government but rather does suggest the manner in which thescope of the fundamental freedoms and rights is to be interpreted. [Emphasisadded; emphasis in original deleted.]

- 106 -198 In my view, the “reasonableness” of the objection test, proposed by Brun andTremblay, supra, viewed from the perspective of a reasonable person in the position ofthe appellants with full knowledge of the relevant facts, accords well with s. 9.1 of theQuebec Charter.199 The trial judge made a finding of fact that use of the communal succahwould not compromise the appellants’ observance of the festival of Succot, and the2004 SCC 47 (CanLII)evidence of Mr. Amselem, the most exigent of the appellants in this respect, supportsthat conclusion. Mr. Amselem testified that it would not be contrary to his faith to goto the communal succah in the garden:[TRANSLATION]Q. . . . So you do not transgress the law by walking from your unit to theproposed communal succah or in the communal garden?A. No.Q. Is that right: you do not transgress Jewish law?A. No.Mr. Amselem immediately notes a prohibition against “transporting” food to the succahbut he then explains that (in the case of the communal succah at the synagogue) the foodmust be put on location prior to the holy day(s):[TRANSLATION]Q. Is that not what is done at the synagogue, Mr. Amselem?A. No, you don’t cook at the synagogue. As I told you earlier, what peopledo at the synagogue is they bring their food the day before, at theSabbath, during Succot . . . .

- 107 -200 Mr. Amselem then outlines the possibility of celebrating Succot in acommunal succah at the synagogue:[TRANSLATION] The meals given at the synagogue are for people for whomit is physically impossible to make a succah at home, because they have noroom, they live in an apartment where there is no balcony. If a person isreligious and has a balcony open to the sky and enough room, he makes asuccah. [Underlining added.]2004 SCC 47 (CanLII)201 He then states that his religion permits him to find alternatives:[TRANSLATION]A. If it’s impossible for me to do it where I live, if I don’t have thephysical space to do it where I live?Q. Yes.A. Well, in that case, I find alternatives. I go to the synagogue. [Emphasisadded.]202 Apart from the synagogue, going to see family and sharing their succah isalso permitted, according to Mr. Amselem:[TRANSLATION]Q. . . . When you went to your son’s home, did that comply with theprecepts of Jewish law, the commandments?A. Yes.Q. Yes?A. Absolutely.203 Friends are yet another possibility:

- 108 -[TRANSLATION]Q. You said earlier — if I remember correctly — that you’ve already spentSuccot with friends at their homes?A. Yes.. . .A. But if you’re travelling or visiting someone, or a cousin or son invitesyou to spend the holiday in his home, well, if he has a succah, that’sgreat. But it isn’t an obligation. You make accommodations to betogether. It’s the mitzvah, the commandment is fulfilled, but it’s bychance. Normally, you want to spend Succot at your own home.[Underlining added.]2004 SCC 47 (CanLII)This language (you want) shows the “precept” is permissive not mandatory, a fact whichhe subsequently confirms:[TRANSLATION]A. No, I’ll go to my children’s home, to the synagogue, or I have friends,or I’ll go to Miami, to the home of my brother, who’s a rabbi.Q. You could go to the homes of friends or family?A. My family, my children.Q. Or to the synagogue?A. Or to the synagogue. . . .204 The appellants called as their expert Rabbi Moïse Ohana, who testified ontheir behalf that the faithful are exempted from celebrating Succot if such celebrationcauses [TRANSLATION] “serious discomfort”:[TRANSLATION] In practice, though, if eating meals in a succah leads togenuine drudgery, day after day after day, we then start to come under aprovision of the law according to which if the succah is a source of seriousdiscomfort, you are ipso facto released from the obligation to stay there.

- 109 -205 There was thus ample evidence before the trial judge that Mr. Amselem andthe other appellants could have had recourse to a communal succah, whether at thesynagogue, in the communal garden with friends, or elsewhere. If a succah isunavailable, or if use of it involves “serious discomfort” (“inconfort sérieux”), thefaithful are to that extent “released” of their religious obligation (“libéré del’obligation”). These conclusions are not the subject of controversy but flow directlyfrom the evidence of Mr. Amselem and his own expert and they are borne out by the2004 SCC 47 (CanLII)historical practice of the other appellants.206 With all due respect for the contrary view, I do not believe it is necessary forthe respondent to show that the appellants “waived” their freedom of religion byaccepting the rules of the immovable. The issue is much narrower. There is no“general” waiver involved. The dispute is limited to the erection of a personal succah,a practice accepted as obligatory by some but not all members of the Jewish faith, andeven in the case of Mr. Amselem is not obligatory where a personal succah is notavailable. The co-owners were entitled to conclude that when the appellants acceptedthe declaration of co-ownership they were indicating that the practice of their religionpermitted them to live within the existing rules. Accordingly, rather than elevate theissue to one of waiver of “freedom of religion”, which would overdramatize thesituation, it seems to me the issue is more modestly and accurately framed as whetherthe appellants in this case can reasonably insist on a personal succah in all thecircumstances, including their contract not to construct a personal dwelling, even atemporary dwelling, on the commonly owned balconies of the immovable.207 The issue here is not a simple balance of advantages and disadvantages,i.e., whether in the Court’s view the appellants would be more disadvantaged by the

- 110 -denial of construction of their personal succah than would be the co-owners by havinga number of succahs constructed on the exterior of their building. Thus I cannot acceptas dispositive the test offered by my colleague, Iacobucci J. (at para. 84), namely that inhis viewthe alleged intrusions or deleterious effects on the respondent’s rights orinterests under the circumstances are, at best, minimal and thus cannot bereasonably considered as imposing valid limits on the exercise of theappellants’ religious freedom.2004 SCC 47 (CanLII)With respect, such an approach goes too far in relieving private citizens of theresponsibility for ordering their own affairs under contracts which they choose to enterinto and upon which other people rely. Section 9.1 of the Quebec Charter imposes amore nuanced approach. Each side to this appeal insists on a legal entitlement, and theonus was on the appellants to make their case. I believe s. 9.1 required reasonablepersons in the situation of the appellants to have regard to the facts that:1. There is no state action involved here.2. There is a set of rules governing the immovable voluntarily agreed toby the parties, including the appellants. The prohibition in s. 2.6.3 is plainand obvious.3. The vendors did what they could to ensure that these rules were read bythe appellants in advance of their purchase.4. Reasonable people, when making a major purchase such as a residentialunit, are expected to read the terms of the agreement before they sign,

- 111 -including the declaration of co-ownership that will govern their communallife.5. Given the importance the appellants attached to constructing a dwellingon a communally owned balcony, the respondent co-owners couldreasonably have expected the appellants to have satisfied this concern beforethey purchased.2004 SCC 47 (CanLII)6. Purchasers who do not take the trouble to read the rules should notenjoy greater rights under the contract than the diligent and conscientiouspurchasers who do.7. This particular immovable was only one of several potentialimmovables in which the appellants could have chosen to invest.8. The balconies were designated as commonly owned property, althoughset aside for the use of the co-owner.9. The rules prohibited construction of a dwelling on the balconies of thebuilding at the time the appellants made their investment (although theduration of the succah was only nine days a year).10. The co-owners had offered the alternative of a communal succah in thegarden.

- 112 -11. A succah in the garden had some disadvantages compared with a succahon the balcony for some of the appellants, but the disadvantages seemed tobe physical (e.g., Mr. Amselem objected to going up and down severalflights of stairs), rather than spiritual.12. Mr. Amselem’s religious beliefs did not, according to his owntestimony, preclude recourse to a communal succah where a personal succah2004 SCC 47 (CanLII)was not available.208 I conclude that in all the circumstances, and especially having regard to thepre-existing rules of the immovable accepted by the appellants as part of the purchaseof their units, and their own evidence of use of a communal succah when a personalsuccah is not available, the appellants have not demonstrated that their insistence on apersonal succah and their rejection of the accommodation of a group succah show properregard for the legal rights of others within the protection of s. 9.1.209 I note again the fact-specific nature of this case. If the rules of theimmovable had permitted the construction of a succah at the time the appellantspurchased, and a majority of the co-owners had afterwards sought to impose a ban ontheir construction at a later date, a different issue would arise. The point in this case isthat the appellants themselves were in the best position to determine their religiousrequirements and must be taken to have done so when entering into the co-ownershipagreement in the first place. They cannot afterwards reasonably insist on their preferredsolution at the expense of the countervailing rights of their co-owners.II. Disposition

- 113 -210 I would dismiss the appeal with costs.JJ. dissenting.Appeal allowed with costs, BASTARACHE, BINNIE, LEBEL and DESCHAMPSSolicitors for the appellants Moïse Amselem, Gladys Bouhadana, Antal Klein2004 SCC 47 (CanLII)and Gabriel Fonfeder: Grey Casgrain, Montréal.Solicitor for the appellant the League for Human Rights of B’Nai BrithCanada: Steven G. Slimovitch, Montréal.Solicitors for the respondent: de Grandpré Joli-Coeur, Montréal.Solicitors for the interveners the Evangelical Fellowship of Canada and theSeventh-day Adventist Church in Canada: Chipeur Advocates, Calgary.Solicitors for the intervener the World Sikh Organization of Canada:Peterson Stark Scott, Surrey.Solicitor for the intervener the Ontario Human Rights Commission: OntarioHuman Rights Commission, Toronto.

CITATION: VILVEN V. AIR CANADA, 2009 FC 367,[2010] 2 F.C.R. 189T-1674-07T-1678-07T-1680-07George Vilven (Applicant)v.Air Canada, Air Canada Pilots Association and Canadian Human Rights Commission(Respondents)Robert Neil Kelly (Applicant)v.T-1678-072009 FC 367 (CanLII)Air Canada, Air Canada Pilots Association and Canadian Human Rights Commission(Respondents)Canadian Human Rights Commission (Applicant)v.George Vilven, Robert Neil Kelly and Air Canada Pilots Association (Respondents)INDEXED AS: VILVEN V. AIR CANADA (F.C.)Federal Court, Mactavish J.—Ottawa, November 24, 25, 26, 27, 2008; April 9, 2009.T-1680-07Human Rights — Judicial review of Canadian Human Rights Tribunal’s dismissal of age-baseddiscrimination complaints — Pilots with Air Canada forced to retire from positions at 60 years of age —Tribunal finding 60 “normal age of retirement” for positions similar to those occupied by applicants at time ofretirement, as contemplated by Canadian Human Rights Act, s. 15(1)(c), termination of employment thus notamounting to discriminatory practice within meaning of Act — Tribunal also finding Act, s. 15(1)(c) notviolating equality rights provision under Canadian Charter of Rights and Freedoms, s. 15(1) — Onus on AirCanada, Air Canada Pilots Association to establish applicants Vilven, Kelly (applicants) retired in accordancewith normal age of retirement for similar positions — Tribunal mischaracterizing essential features ofapplicants’ positions, choosing wrong comparator group — To establish s. 15(1)(c) defence, shared meaning ofEnglish, French versions thereof requiring age of retirement in issue be normal, customary, standard withinrelevant industry sector — Existence of binding rule mandating retirement at particular age not required —Determination of normal age of retirement requiring statistical analysis — Tribunal’s conclusion 60 normal ageof retirement for employees in positions similar to those occupied by applicants reasonable — Applicants’forced retirement not amounting to discriminatory practice within meaning of Act, s. 15(1)(c) — Fundamentalproblem with paragraph 15(1)(c): provision allowing for discrimination, as long as pervasive within industry —Remedy available under Charter, s. 15(1) — Act, s. 15(1)(c) denying older workers equal protection of law,perpetuating group disadvantage, prejudice — Only serving to perpetuate stereotypical view older workers lesscapable, deserving of recognition, value as human beings, members of Canadian society — Act, s. 15(1)(c)violating Charter, s. 15(1) — Applications in T-1674-07, T-1678-07 allowed; application in T-1680-07dismissed.Constitutional Law — Charter of Rights — Equality Rights — Constitutionality of limiting provision in humanrights legislation — Canadian Human Rights Act, s. 15(1)(c) providing termination of employment notdiscriminatory where person having reached normal age of retirement for employees working in similarpositions — Whether Act, s. 15(1)(c) violating Charter, s. 15(1) — S. 15(1)(c) denying workers over “normal

age of retirement” equal protection, benefit of Act — Applicants disadvantaged by being forced to leavepositions merely because having reached age 60, without regard to individual abilities, skills, capacities — Act,s. 15(1)(c) thus violating Charter, s. 15(1).Construction of Statutes — Whether binding rule required for there to be “normal age of retirement” forpurposes of Canadian Human Rights Act, s. 15(1)(c) — Difference between wording of English, French versionsof s. 15(1)(c) — Shared meaning of two versions requiring that age of retirement in issue be normal, customary,standard within relevant industry sector — Existence of binding rule mandating retirement at particular age notrequired.These were applications for judicial review of the Canadian Human Rights Tribunal’s dismissal of age-baseddiscrimination complaints filed by the applicants Vilven and Kelly (applicants). Both pilots with Air Canada,they were forced to retire from their positions when they turned 60 years of age, in accordance with themandatory retirement provisions of the collective agreement in force between their union and the airline. Therewas no issue as to the applicants’ capacity to fly safely; the only reason for the termination of their employmentwas the application of the mandatory retirement provisions. Paragraph 15(1)(c) of the Canadian Human RightsAct provides that it is not a discriminatory practice if an individual’s employment is terminated “because thatindividual has reached the normal age of retirement for employees working in positions similar to the position ofthat individual”. The Tribunal found that 60 was the “normal age of retirement” for positions similar to thoseoccupied by the applicants at the time of their retirement, as contemplated by paragraph 15(1)(c), andconsequently, that the termination of their employment did not amount to a discriminatory practice within themeaning of the Act.2009 FC 367 (CanLII)The Tribunal also concluded that, although paragraph 15(1)(c) of the Act deprived the applicants of theopportunity to challenge the mandatory retirement policy, the loss of this opportunity did not violate their dignityor fail to recognize them as full and equal members of society, and therefore did not violate subsection 15(1) ofthe Canadian Charter of Rights and Freedoms (Charter).The applicants and the Canadian Human Rights Commission each brought applications for judicial reviewchallenging the Tribunal’s finding that 60 was the normal age of retirement for positions similar to thoseoccupied the applicants. The applicants also challenged the constitutionality of paragraph 15(1)(c) of the Act.The issues raised by the applications were: (1) whether the Tribunal erred in defining the “normal age ofretirement” by mischaracterizing the essential features of the applicants’ positions or by choosing aninappropriate comparator group; (2) whether a binding rule is required for there to be a “normal age ofretirement” for the purposes of paragraph 15(1)(c) of the Act; (3) whether there was a “normal age of retirement”for pilots occupying positions similar to those occupied by the applicants at the time of their forced retirement;and (4) whether paragraph 15(1)(c) violates subsection 15(1) of the Charter.Held, the applications in T-1674-07 and T-1678-07 should be allowed; the application in T-1680-07 should bedismissed.(1) The onus was on Air Canada and Air Canada Pilots Association (ACPA) to establish that the applicantswere retired in accordance with the normal age of retirement for similar positions. In assessing whether aposition is “similar” to that occupied by a complainant in order to identify the “normal age of retirement” for thepurposes of paragraph 15(1)(c), the focus should be on the objective duties and functional responsibilities of theposition in question rather than on the subjective perceptions of the position such as status or prestige. TheTribunal erred in its identification of the essential features of the complainants’ positions, which led it to err inits choice of comparator group, i.e. “pilots who fly with regularly scheduled, international flights … with majorinternational airlines.” As well, by ignoring the situation of other Canadian pilots and comparing Air Canadapilots to pilots flying for legacy carriers in other countries, the Tribunal compared the situation of individualswho enjoy the protection of the Act to those who do not. This was unreasonable. In light of the essential featuresof the applicants’ positions, the appropriate comparator group should have been “pilots working for Canadianairlines who fly aircraft of varying sizes and types, transporting passengers to both domestic and internationaldestinations, through Canadian and foreign airspace”.(2) There is a difference between the wording of the English and French versions of paragraph 15(1)(c). Whilethe English version speaks of a “normal” age of retirement in force for a certain type of position, the Frenchversion refers to “la règle de l’âge de la retraite en vigueur”. It appears that the use of the French word “règle”does not necessarily refer to a formal, rigid, binding rule. The English word “normal” does not, in its ordinarysense, contemplate a binding rule. In order to establish the defence provided by paragraph 15(1)(c) of the Act,

the shared meaning of the English and French versions requires that the age of retirement in issue be normal,customary or standard within the relevant industry sector. The existence of a binding rule mandating retirementat a particular age is not required. Requiring so would be contrary to the intent of Parliament in enacting thisprovision.(3) Given that paragraph 15(1)(c) refers to the normal age of retirement for “employees working in positionssimilar” to that occupied by a complainant, the determination of this age requires a statistical analysis of the totalnumber count of relevant positions. At the time the applicants were forced to leave their positions at Air Canada,several Canadian airlines allowed their pilots to fly until they were 65. Nevertheless, 56.13% of Canadian airlinepilots retired by the time they reached the age of 60. Despite errors in the Tribunal’s analysis, its conclusion that60 was the normal age of retirement for employees in positions similar to those occupied by the applicants priorto their forced retirement fell within the range of possible acceptable outcomes. As the complainants were forcedto retire at this age, in accordance with the mandatory retirement provisions of the collective agreement, this didnot amount to a discriminatory practice within the meaning of paragraph 15(1)(c) of the Act.That being said, the fact that almost all of the 56.13% of the Canadian airline pilots who are required to retireby age 60 fly for Air Canada did raise a concern with the airline’s ability, as the dominant industry player, toskew the analysis with its own mandatory retirement policy. While this was indeed a troubling question, it wasindicative of a more fundamental problem with paragraph 15(1)(c) of the Act, which allows for discrimination tooccur, as long as it is pervasive within an industry. The remedy to this problem was under section 15 of theCharter.2009 FC 367 (CanLII)(4) The legislative objective underlying paragraph 15(1)(c) of the Act is to protect a long-standingemployment regime, which includes pensions, job security, wages and benefits. It is clear that, at the time of itsenactment, the provision was intended to create an exception to the quasi-constitutional rights otherwiseprovided by the Act, so as to allow for the negotiation of mandatory retirement arrangements between employersand employees, particularly through the bargaining process.In this case, the relevant comparison to be made for the purpose of the Charter, s. 15 analysis was betweenolder workers who exceed the normal age of retirement for their type of position, and younger workersoccupying similar positions who have not reached this age. The effect of paragraph 15(1)(c) of the Act is to denyworkers over the “normal age of retirement” the equal protection and benefit of the Act. This is clearly adistinction based upon an enumerated ground.The claimants were disadvantaged by this distinction as they were forced to leave positions they loved merelybecause they had reached the age of 60, without regard to their individual abilities, skills or capacities. Thisweighed in favour of a finding that paragraph 15(1)(c) of the Act has the effect of perpetuating a groupdisadvantage, suggesting a violation of subsection 15(1) of the Charter.Paragraph 15(1)(c) draws a distinction between those who may claim the protection of the Act and those whomay not, based upon the normal age of retirement for similar positions. Individuals who are involuntarily retiredafter reaching that age are thus deprived of protection from age discrimination, regardless of their own individualneeds, circumstances or capacities. Moreover, paragraph 15(1)(c) takes no account of the needs, circumstancesor capacities of older workers as a group. As there is no correspondence between the impugned law and theactual needs, circumstances and capacities of the disadvantaged group, this further favoured a finding that theprovision violates the Charter.Paragraph 15(1)(c) of the Act has no ameliorative purpose or effects that accord with subsection 15(1) of theCharter’s purpose to not only prevent discrimination, but to ameliorate the position of groups within Canadiansociety who have suffered disadvantage by exclusion from mainstream society. As observed by the SupremeCourt in McKinney, legislation that has as its objective the forcible retirement of older workers in order to makeway for younger workers would be in itself discriminatory. Furthermore, there is evidence suggesting that thepractice of mandatory retirement has an adverse differential effect on individuals who enter the workforce laterin life, namely women and immigrants. Legislation that would permit the continuation of an employmentpractice that can have such an adverse differential effect cannot be said to have an ameliorative purpose.Finally, the interest at stake herein was the claimants’ ability to continue to work in the career of their choice.This interest could not be overstated as employment plays a crucial role in the dignity and self-worth of anindividual.

For these reasons, paragraph 15(1)(c) of the Act was found to deny older workers such as the applicants theequal protection of the law and, as such, perpetuate the group disadvantage and prejudice faced by older workersin this country. It promotes the perception that older workers such as the applicants are less worthy and lessdeserving of the equal protection of the law than are younger workers who lose their jobs for age-related reasonsat an age below the normal age of retirement for a particular type of position. Moreover, the provision can onlyserve to perpetuate the stereotypical view that older workers are less capable or deserving of recognition or valueas human beings or as members of Canadian society. As a consequence, paragraph 15(1)(c) of the Act violatessubsection 15(1) of the Charter.Because of its conclusion in relation to subsection 15(1), the Tribunal did not turn its mind to whetherparagraph 15(1)(c) could be justified under section 1 of the Charter. The matter was thus remitted to the Tribunalto determine whether paragraph 15(1)(c) of the Act could be so justified.STATUTES AND REGULATIONS CITEDCanadian Bill of Rights, R.S.C., 1985, Appendix III.Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, CanadaAct 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.2009 FC 367 (CanLII)Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 3(1), 7, 9 (as am.idem, s. 12), 10 (as am. idem, s. 13(E)), 14(c), 15, 48.1(2) (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s.65; S.C. 1998, c. 9, s. 27), 50(2) (as am. idem).Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 14(c) (as am. by S.C. 1980-81-82-83, c. 143, s. 7).Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 57 (as am. by S.C. 1990, c.8, s. 19; 2002, c. 8, s. 54).Federal Courts Rules, SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2), Tariff B, Column III.Human Rights Act, S.B.C. 1984, c. 22.Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a).Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 13.TREATIES AND OTHER INSTRUMENTS CITEDInternational Civil Aviation Organization. Annex 1 to the Convention on International Civil Aviation:Personnel Licensing, 10th ed. Montréal: ICAO, 2006, online:.CASES CITEDAPPLIED:Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th)1, 43 C.C.E.L. (2d) 49; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1,291 D.L.R. (4th) 577; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, (1989), 56 D.L.R.(4th) 1, [1989] 2 W.W.R. 289; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, 294 D.L.R. (4th) 1, [2008] 8W.W.R. 1; Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General) (2008), 92 O.R. (3d) 16,292 D.L.R. (4th) 623, 67 C.C.E.L. (3d) 56 (Ont. S.C.J.); R. v. Turpin, [1989] 1 S.C.R. 1296, (1989), 48C.C.C. (3d) 8, 69 C.R. (3d) 97.CONSIDERED:Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536,(1985), 52 O.R. (2d) 799, 23 D.L.R. (4th) 321; McKinney v. University of Guelph, [1990] 3 S.C.R. 229,(1990), 76 D.L.R. (4th) 545, 91 CLLC 17,004; Harrison v. University of British Columbia, [1990] 3 S.C.R.

451, (1990), 52 B.C.L.R. (2d) 105, 77 D.L.R. (4th) 55; Gosselin v. Quebec (Attorney General), 2002 SCC84, [2002] 4 S.C.R. 429, 221 D.L.R. (4th) 257, 100 C.R.R. (2d) 1; New Brunswick (Human RightsCommission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604, 332 N.B.R.(2d) 341, 295 D.L.R. (4th) 1; Quebec (Commission des droits de la personne et des droits de la jeunesse) v.Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand(City), 2000 SCC 27, [2000] 1 S.C.R. 665, 185 D.L.R. (4th) 385, 50 C.C.E.L. (2d) 247; Campbell v. AirCanada (1981), 2 C.H.R.R. D/602 (C.H.R.T.); Stevenson v. Canadian Human Rights Comm., [1984] 2 F.C.691, (1983), 150 D.L.R. (3d) 385, 2 C.C.E.L. 177 (C.A.); McAllister v. Maritime Employers Association,(1999), 172 F.T.R. 161, 99 CLLC 230-027 (F.C.T.D.); Prior v. Canadian National Railway Company(1983), 4 C.H.R.R. D/268 (C.H.R.T.); CKY-TV v. Communications, Energy and Paperworkers Union ofCanada (Local 816) (Kenny Grievance) (2008), 175 L.A.C. (4th) 29; Reference re Public Service EmployeeRelations Act (Alta.), [1987] 1 S.C.R. 313, (1987), 78 A.R. 1, 38 D.L.R. (4th) 161; Dickason v. Universityof Alberta, [1992] 2 S.C.R. 1103, (1992), 127 A.R. 241, 95 D.L.R. (4th) 439; Auton (Guardian ad litem of)v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, 245 D.L.R. (4th) 1, [2005] 2W.W.R. 189; Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3S.C.R. 357, 244 D.L.R. (4th) 257, 125 C.R.R. (2d) 48; Egan v. Canada, [1995] 2 S.C.R. 513, (1995), 124D.L.R. (4th) 609, 95 CLLC 210-025; Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769, 210 D.L.R.(4th) 193, 15 C.C.E.L. (3d) 159; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, (1997), 152D.L.R. (4th) 1, 123 Man. R. (2d) 1; The Queen v. Oakes, [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200,24 C.C.C. (3d) 321; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, (1997), 151D.L.R. (4th) 577, [1998] 1 W.W.R. 50.2009 FC 367 (CanLII)REFERRED TO:Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, (1995), 121D.L.R. (4th) 385, 27 Admin. L.R. (2d) 1; Toronto (City) Board of Education v. O.S.S.T.F., District 15,[1997] 1 S.C.R. 487, (1997), 144 D.L.R. (4th) 385, 44 Admin. L.R. (2d) 1; Canada (Citizenship andImmigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, 304 D.L.R. (4th) 1, 82 Admin. L.R. (4th) 1;Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, (1992), 100 D.L.R. (4th) 658, 13 Admin. L.R.(2d) 1; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, (1992), 93D.L.R. (4th) 346, 12 C.C.L.I. (2d) 206; Insurance Corporation of British Columbia v. Heerspink et al.,[1982] 2 S.C.R. 145, (1982), 137 D.L.R. (3d) 219, [1983] 1 W.W.R. 137; Canadian National Railway Co.v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, (1987), 40 D.L.R. (4th) 193, 27Admin. L.R. 172; Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, (1996), 133 D.L.R. (4th) 449, 18B.C.L.R. (3d) 1; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279,(1988), 53 D.L.R. (4th) 609, 88 CLLC 17,031; Quebec (Commission des droits de la personne et des droitsde la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68, [2003] 3 S.C.R. 228, 233 D.L.R. (4th) 385, [2003]CLLC 230-030; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R.(4th) 193; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, (1985), 19 D.L.R. (4th) 1, 35Man. R. (2d) 83; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, (1990), 76 D.L.R. (4th)700, [1991] 1 W.W.R. 577; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R.222, 302 D.L.R. (4th) 577, [2009] 2 C.N.L.R. 102; Eaton v. Brant County Board of Education, [1997] 1S.C.R. 241, (1996), 31 O.R. (3d) 574, 142 D.L.R. (4th) 385; Evans v. Teamsters Local Union No. 31, 2008SCC 20, [2008] 1 S.C.R. 661, 292 D.L.R. (4th) 577, 65 C.C.E.L. (3d) 1; Newfoundland (Treasury Board) v.N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, 242 Nfld. & P.E.I.R. 113, 244 D.L.R. (4th) 294; Nova Scotia(Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003SCC 54, [2003] 2 S.C.R. 504, 217 N.S.R. (2d) 301, 231 D.L.R. (4th) 385; Dunmore v. Ontario (AttorneyGeneral), 2001 SCC 94, [2001] 3 S.C.R. 1016, 207 D.L.R. (4th) 193, 13 C.C.E.L. (3d) 1; Machtinger v.HOJ Industries Ltd., [1992] 1 S.C.R. 986, (1992), 91 D.L.R. (4th) 491, 40 C.C.E.L. 1; SlaightCommunications Inc. v. Davidson, [1989] 1 S.C.R. 1038, (1989), 59 D.L.R. (4th) 416, 26 C.C.E.L. 85;Wilson v. British Columbia (Medical Services Commission) (1988), 53 D.L.R. (4th) 171, [1989] 2 W.W.R.1, 30 B.C.L.R. (2d) 1 (B.C.C.A.); Greater Vancouver Regional District Employees’ Union v. GreaterVancouver Regional District, 2001 BCCA 435, 206 D.L.R. (4th) 220, 43 Admin. L.R. (3d) 12, [2002]CLLC 230-002.AUTHORS CITEDBlack, William and Lynn Smith. “The Equality Rights”, in Gérald-A. Beaudoin and Errol Mendes, eds.Canadian Charter of Rights and Freedoms, 4th ed. Markham, Ont.: LexisNexis Butterworths, 2005.Concise Oxford Dictionary of Current English, 9th ed. Oxford: Clarendon Press, 1995, “normal”.

Côté, Pierre-André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.Fyfe, James R. “Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court ofCanada” (2007), 70 Sask. L. Rev. 1.Greschner, Donna. “Does Law Advance the Cause of Equality?” (2001), 27 Queen’s L.J. 299.Nouveau Petit Robert: dictionnaire alphabétique et analogique de la langue française. Paris: DictionnairesLe Robert, 1993, “règle”.Random House Webster’s Unabridged Dictionary, 2nd ed. New York: Random House, 2001, “normal”.Smith, Lynn. “Development of Equality Rights: Contribution of the Right Honourable Antonio Lamer”.Paper presented at the CIAJ Annual Conference, Reasonable Accommodation and the Role of the State: ADemocratic Challenge, 25–26 September 2008, unpublished.Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis Canada, 2008.2009 FC 367 (CanLII)APPLICATIONS for judicial review of the Canadian Human Rights Tribunal’s dismissal (2007CHRT 36) of age-based discrimination complaints filed by applicants Vilven and Kelly on the basisthat 60 was the normal age of retirement for the purpose of paragraph 15(1)(c) of the CanadianHuman Rights Act, and that this provision did not violate subsection 15(1) of the Charter.Applications allowed in T-1674-07 and T-1678-07; application dismissed in T-1680-07.APPEARANCESRaymond D. Hall and David Baker for applicants (respondents in T-1680-07) George Vilven andRobert Neil Kelly.Daniel Poulin and Sulini Sarugaser for respondent (applicant in T-1680-07) Canadian HumanRights Commission.Maryse Tremblay and Jennifer Black for respondent Air Canada.Bruce Laughton, Q.C. for respondent Air Canada Pilots Association.SOLICITORS OF RECORDBakerlaw, Toronto, for applicants (respondents in T-1680-07) George Vilven and Robert NeilKelly.Canadian Human Rights Commission, Ottawa, for respondent (applicant in T-1680-07) CanadianHuman Rights Commission.Heenan Blaikie LLP, Montréal, for respondent Air Canada.Laughton & Company, Vancouver, for respondent Air Canada Pilots Association.TABLE OF CONTENTSI. Introduction 1II. Background to the complaints 11Paragraph

(i) Mandatory retirement at Air Canada 11(ii) George Vilven’s complaint 13(iii) Robert Neil Kelly’s complaint 19III. The human rights complaints 24IV. The proceedings before the Canadian Human Rights Tribunal 28V. Issues 58VI. Standard of review 60VII. Did the Tribunal err in defining the “normal age of retirement” for employeesworking in positions similar to those occupied by Messrs. Vilven and Kelly? 752009 FC 367 (CanLII)(i) The Canadian Human Rights Act 76(ii) Where the onus lies in relation to paragraph 15(1)(c) of the CHRA 84(iii) The characterization of Messrs. Vilven and Kelly’s positions and the choiceof comparator group 87(iv) Is a binding rule required for there to be a “normal age of retirement”?127(v) Was there a “normal age of retirement” for Canadian airline pilots? 164(vi) Conclusion with respect to the availability of the “normal age of retirement”defence 175VIII. Does paragraph 15(1)(c) of the CHRA violate subsection 15(1) of the Charter?184(i) Early Supreme Court of Canada jurisprudence regarding mandatory retirement190(ii) The decision in Law v. Canada 200(iii) The Tribunal’s decision on the Charter issue 204(iv) The Supreme Court’s decision in Kapp228(v) Analysis 242(a) The purpose of paragraph 15(1)(c) of the CHRA 243(b) Does paragraph 15(1)(c) of the CHRA create a distinction based on anenumerated ground? 249(c) Does the age-related distinction contained in paragraph15(1)(c) of the CHRA create a disadvantage by perpetuating prejudice orstereotyping? 262

(i) Pre-existing disadvantage suffered by the individual or group 265(ii) The degree of correspondence between the impugned law and the actualneeds, circumstances, and capacities of the individual or group 279(iii) Does the law have an ameliorative purpose or effect? 283(iv) The nature and scope of the interest affected 291(v) Other observations 303(d) Conclusion with respect to the subsection 15(1) Charter issue 334IX. Disposition 340X. Costs 3422009 FC 367 (CanLII)The following are the reasons for judgment and judgment rendered in English byMACTAVISH J.:I. Introduction[1] Paragraph 15(1)(c) of the Canadian Human Rights Act (the Act or CHRA) is an unusualprovision to find in human rights legislation, in that it allows for employers to discriminate againsttheir employees on the basis of age, as long as that discrimination is pervasive within a particularindustry.[2] George Vilven and Robert Kelly were each forced to retire from their positions as pilots withAir Canada when they turned 60 years of age, in accordance with the mandatory retirementprovisions of the collective agreement in force between their union and the airline.[3] Human rights complaints filed by Messrs. Vilven and Kelly were dismissed by the CanadianHuman Rights Tribunal [2007 CHRT 36], which found that [at paragraph 7] 60 was the “normal ageof retirement” for positions similar to those that they occupied at the time of their retirement, ascontemplated by paragraph 15(1)(c) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6. As aresult, the termination of their employment did not amount to a discriminatory practice within themeaning of the Act.[4] The Tribunal also found that paragraph 15(1)(c) of the Canadian Human Rights Act did notviolate subsection 15(1) of the Canadian Charter of Rights and Freedoms, being Part I of theConstitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,No. 44].[5] Mr. Vilven, Mr. Kelly, and the Canadian Human Rights Commission have each broughtapplications for judicial review with respect to the Tribunal’s decision. All three applicationschallenge the Tribunal’s finding that 60 was the normal age of retirement for positions similar tothose occupied by Messrs. Vilven and Kelly at the time of their retirement from Air Canada. Messrs.Vilven and Kelly have each also challenged the constitutionality of paragraph 15(1)(c) of theCanadian Human Rights Act in their applications, while the Commission has not.[6] The three applications for judicial review were heard together, and these reasons pertain to allthree cases, with the proviso that the Court’s Charter analysis does not apply in relation to theCommission’s application for judicial review (file T-1680-07).

[7] It should also be noted at the outset that while the applicants have raised a number of issues intheir various applications for judicial review, what is not in issue in this case is any question relatingto pilot safety. The parties agree that the fitness of individual pilots to fly is determined not by AirCanada, but by Transport Canada, as part of its pilot licensing regime. If, after an individualizedassessment, Transport Canada determines that an individual is no longer fit to fly, then that individualwill not receive a pilot’s licence.[8] For the reasons that follow, I find that while the Tribunal made errors in relation to its “normalage of retirement” analysis, its conclusion that 60 was the normal age of retirement for pilots inpositions similar to those occupied by Messrs. Vilven and Kelly was reasonable. Consequently, theCanadian Human Rights Commission’s application for judicial review will be dismissed.[9] However, the Tribunal erred in its analysis of the constitutionality of paragraph 15(1)(c) of theCanadian Human Rights Act. The statutory provision violates subsection 15(1) of the Charter, as itdenies the equal protection and equal benefit of the law to workers over the normal age of retirementfor similar positions. In so doing, paragraph 15(1)(c) has the effect of perpetuating the groupdisadvantage and prejudice faced by older workers by promoting the perception that such individualsare less worthy and less deserving of the protection of the law.2009 FC 367 (CanLII)[10] As a consequence, Messrs. Vilven and Kelly’s applications for judicial review will be allowed,the decision of the Canadian Human Rights Tribunal will be set aside, insofar as it relates to theCharter issue, and the matter will be remitted to the Tribunal for further consideration in accordancewith these reasons.II. Background to the complaints(i) Mandatory retirement at Air Canada[11] Mandatory retirement for pilots at Air Canada began as a company policy. Since 1957, the AirCanada pension plan has stipulated that 60 is the compulsory age of retirement for pilots. As of theearly 1980s, provisions mandating retirement at age 60 have been included as part of the collectiveagreement in force between Air Canada and its pilots’ union. Since 1995, Air Canada pilots havebeen represented by the Air Canada Pilots Association (ACPA).[12] Shortly before the Tribunal hearing regarding Messrs. Vilven and Kelly’s human rightscomplaints was to begin, ACPA held a referendum on the mandatory retirement issue, with 75% ofits members voting in favour of retaining mandatory retirement for Air Canada pilots.(ii) George Vilven’s complaint[13] George Vilven was hired as a pilot in training by Air Canada in May of 1986. Shortlythereafter, he qualified as a second officer on Boeing 727 aircraft, and began flying from a base inWinnipeg. As a result of his seniority, Mr. Vilven was subsequently able to bid for a position as afirst officer on Boeing 727 aircraft. After receiving the necessary training, Mr. Vilven qualified as afirst officer in January of 1990.[14] Over the ensuing years, Mr. Vilven relocated to Toronto, and was later able to use his seniorityto transfer his base from Toronto to Vancouver. He was also able to bid on a succession of higherstatus and higher paying positions as a first officer on larger and larger aircraft. In his last positionwith Air Canada, Mr. Vilven was flying as a first officer on Airbus 340 aircraft.[15] Mr. Vilven turned 60 on August 30, 2003. In accordance with the mandatory retirementprovisions of the collective agreement, Mr. Vilven was required to retire on the first day of the monthfollowing his 60th birthday—namely September 1, 2003.

[16] There is no suggestion that there were any job performance problems or medical fitness issueswith respect to Mr. Vilven. Indeed, it is common ground that the sole reason for the termination of hisemployment with Air Canada was the application of the mandatory retirement provisions of thecollective agreement in effect between Air Canada and ACPA.[17] Based upon his years of service with Air Canada, together with his pre-employment militaryservice, Mr. Vilven received pension benefits of $6 094.04 per month until he turned 65, and willreceive $5 534.33 per month from age 65 until his death.[18] After leaving his employment with Air Canada, Mr. Vilven was able to continue his career inaviation. He flew with Flair Airlines from April of 2005 until May of 2006, when he ceased flying inorder to prepare for his hearing before the Canadian Human Rights Tribunal. At the time of theTribunal hearing, Mr. Vilven continued to hold a valid Canadian Air Transport Pilot’s Licence.(iii)Robert Neil Kelly’s complaint[19] Robert Neil Kelly was hired by Air Canada as a DC-8 second officer in September of 1972.Using his seniority, he was able to qualify as a Captain in 1992, flying as the pilot-in-command ofvarious types of aircraft. At the time of his retirement from Air Canada, Mr. Kelly was flying as thecaptain and pilot-in-command of an Airbus 340.2009 FC 367 (CanLII)[20] The term “pilot-in-command” should not be confused with that of “captain”. Pilot positions atAir Canada include captains, first officers and relief pilots. The “International Standards on PersonnelLicensing” promulgated by the International Civil Aviation Organization (ICAO), the United Nationsorganization charged with fostering civil aviation safety, requires that one pilot on each flight bedesignated as the pilot-in-command of the flight: see the International Civil Aviation Organization,International Standards and Recommended Practices, Annex 1 to the Convention on InternationalCivil Aviation: Personnel Licensing (Montréal: ICAO, 2006). Although the captain of an aircraft willordinarily be the pilot-in-command, this is not necessarily the case.[21] Mr. Kelly turned 60 on April 30, 2005. In accordance with the mandatory retirementprovisions of the collective agreement, Mr. Kelly was forced to retire from Air Canada on May 1,2005. As was the case with Mr. Vilven, there was no issue as to Mr. Kelly’s capacity to fly safely,and the parties agree that the only reason for the termination of Mr. Kelly’s employment with AirCanada was the application of the mandatory retirement provisions found in the governing collectiveagreement.[22] In accordance with the pension option that he selected, Mr. Kelly will receive $10 233.96 inpension benefits each month until he turns 65, and $9 477.56 per month thereafter until his death.[23] Like Mr. Vilven, Mr. Kelly was able to continue flying after leaving Air Canada. He initiallyworked on contract as a first officer with Skyservice Airlines, flying Boeing 757s and 767s. At thetime of the Tribunal hearing, Mr. Kelly continued to hold a valid Canadian Air Transport Pilot’sLicence, and was working on contract with Skyservice as a captain and pilot-in-command, flyingroutes, including international routes, on Boeing 757s.III. The human rights complaints[24] Mr. Vilven filed his complaint against Air Canada with the Canadian Human RightsCommission in August of 2004. He asserted that in forcing him to retire at age 60, Air Canadaviolated sections 7 and 10 [as am. by S.C. 1998, c. 9, s. 13(E)] of the Canadian Human Rights Act. Acopy of the relevant statutory provisions is attached as an appendix to these reasons.

[25] In contrast, Mr. Kelly’s human rights complaint was brought against both Air Canada andACPA, and was filed with the Commission on March 31, 2006. His complaint alleged discriminationon the basis of age, contrary to the provisions of sections 7, 9 [as am. idem, s. 12] and 10 of the Act.[26] Both complaints were referred to the Canadian Human Rights Tribunal by the Commission,and the two cases were heard together at a single hearing.[27] In the course of the parties’ oral submissions, I was advised that there are some 58 additionalhuman rights complaints brought by former Air Canada pilots now pending before the Tribunal. Thehearings into these complaints are evidently on hold, pending receipt of the Court’s decision in thismatter.IV.The proceedings before the Canadian Human Rights Tribunal[28] The hearing into Messrs. Vilven and Kelly’s complaints was held over some 11 days, before athree-person panel of the Canadian Human Rights Tribunal. The two complaints were joined, andACPA was granted “interested party” status before the Tribunal in relation to Mr. Vilven’scomplaint. The Tribunal also granted interested party status to the “Fly Past 60 Coalition”, a group ofcurrent and former Air Canada pilots who are united in their goal of eliminating the mandatoryretirement age at Air Canada.2009 FC 367 (CanLII)[29] In advance of the Tribunal hearing, the Fly Past 60 Coalition filed a notice of constitutionalquestion, challenging the constitutionality of paragraph 15(1)(c) of the Canadian Human Rights Acton the basis that it violated subsection 15(1) of the Charter. Paragraph 15(1)(c) of the Act providesthat it is not a discriminatory practice if an individual’s employment is terminated “because thatindividual has reached the normal age of retirement for employees working in positions similar to theposition of that individual.”[30] As was noted earlier, the Canadian Human Rights Tribunal dismissed Mr. Vilven’s and Mr.Kelly’s complaints, finding that age 60 was the normal age of retirement for persons working inpositions similar to those of the complainants at the operative time. The Tribunal also found thatparagraph 15(1)(c) of the Canadian Human Rights Act did not contravene subsection 15(1) of theCharter.[31] In concluding that age 60 was the normal age of retirement for persons working in positionssimilar to those of Messrs. Vilven and Kelly, the Tribunal started by observing that Canada has nomaximum licensing age for airline pilots. To be licensed, pilots must successfully pass a medicalexamination approved by Transport Canada. Pilots under the age of 40 must undergo a medicalexamination once a year, whereas pilots over 40 must undergo a medical examination twice eachyear.[32] The Tribunal then considered where the burden of proof lay in relation to paragraph 15(1)(c)of the Act. That is, the Tribunal asked itself whether it was up to complainants to demonstrate thatthey had not reached the normal age of retirement for positions of the type that they had occupied, orwhether it was up to Air Canada and ACPA to show that 60 was indeed the normal age of retirementfor the purposes of the statutory provision. The Tribunal concluded that the onus lay on Air Canadaand ACPA to show that 60 was the normal age of retirement for the purposes of paragraph 15(1)(c)of the Act.[33] In coming to this conclusion, the Tribunal had regard to the decision in Ontario Human RightsCommission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536, where the SupremeCourt of Canada held that the burden was on a complainant to establish a prima facie case ofdiscrimination.

[34] According to the Supreme Court, a prima facie case of discrimination is one that covers theallegations made, and which, if believed, is complete and sufficient for a decision in favour of thecomplainant, in the absence of a reasonable answer from the respondent. Once a prima facie case ofdiscrimination has been established by a complainant, the burden then shifts to the respondent toprovide a reasonable explanation for the conduct in issue.[35] As the Tribunal noted, it is the respondent that will ordinarily be in possession of the necessaryinformation to respond to the prima facie case. Indeed, in this case, Mr. Vilven testified as to thesignificant difficulties he had encountered in trying to assemble information with respect toretirement ages and mandatory retirement policies at other airlines in Canada and around the world.In contrast, with some effort, Air Canada was able to obtain a considerable amount of data withrespect to the retirement policies and retirement ages for airlines around the world.[36] Having regard to the remedial nature of the legislation, the Tribunal was satisfied that the goalsof the Canadian Human Rights Act were best attained by placing the onus on employers todemonstrate that their employees were retired in accordance with the normal age of retirement forsimilar positions.2009 FC 367 (CanLII)[37] Given that there was no question but that the employment of Messrs. Vilven and Kelly hadbeen terminated because they had reached 60 years of age, the Tribunal was satisfied that a primafacie case of discrimination contrary to the provisions of section 7 of the Canadian Human Rights Acthad been established against Air Canada in each case.[38] The Tribunal was also satisfied that a prima facie case of discrimination contrary to paragraph10(b) of the Canadian Human Rights Act had been made out as against Air Canada and ACPA. Thisprovision makes it a discriminatory practice for an employer or employee organization to enter intoan agreement that deprives an individual of an employment opportunity on a prohibited ground. Inlight of the mandatory retirement provisions of the Air Canada/ACPA collective agreement, theTribunal found that there had been a prima facie breach of this statutory provision as well.[39] The Tribunal further found that ACPA had agreed to the inclusion of the mandatory retirementprovision in the collective agreement. Given that section 9 of the Act makes it a discriminatorypractice for an employee organization to act in a way that would deprive an individual of anemployment opportunity, the Tribunal concluded that a prima facie case against the union had alsobeen established in relation to the section 9 complaint asserted in Mr. Kelly’s case.[40] As a consequence, the Tribunal held that the burden shifted to Air Canada and ACPA todemonstrate that 60 was indeed the normal age of retirement for pilots in similar positions.[41] In this regard, the Tribunal observed that the term “normal age of retirement” in paragraph15(1)(c) is identified in relation to “employees working in positions similar to the position of theindividual” who filed the complaint. This led the Tribunal to ask itself two questions: firstly, “What isthe proper comparator group to identify the positions that are similar to that occupied by thecomplainants?” and secondly, “What is the normal age of retirement?”.[42] In relation to the first question, the Tribunal rejected ACPA’s submission that it should limitits consideration to individuals occupying positions with airlines within Canadian federal jurisdiction.The Tribunal noted that using Canadian airline pilots as the proper comparator group would result inAir Canada setting the industrial norm, because of its dominance in Canada’s airline industry. This inturn would allow Air Canada to effectively determine the application of paragraph 15(1)(c) of the Actas it relates to the airline industry in this country.[43] In the Tribunal’s view, in choosing the appropriate comparator group, the proper approach wasto identify the essential features of the positions in question. In this regard, the Tribunal was of theview that no differentiation should be made between pilots working as captains, and those working as

first officers. While noting that captains have ultimate control over the aircraft, in the Tribunal’sview, the two positions were otherwise very similar.[44] Based upon the evidence of Messrs. Vilven and Kelly, the Tribunal determined [at paragraph55] that the appropriate comparator group was “pilots who fly with regularly scheduled, internationalflights with … major international airlines.”[45] Insofar as the determination of the normal age of retirement was concerned, the Tribunal hadregard to the wording of both the English and French versions of paragraph 15(1)(c), which providethat:15. (1) It is not a discriminatory practice if 15. (1) Ne constituent pas des actesdiscriminatoires :…(c) an individual’s employment is terminated becausethat individual has reached the normal age of retirementfor employees working in positions similar to theposition of that individual.[…]c) le fait de mettre fin à l’emploi d’une personneen appliquant la règle de l’âge de la retraite envigueur pour ce genre d’emploi.2009 FC 367 (CanLII)[46] The Tribunal observed that one could use either a normative or an empirical approach indetermining the normal age of retirement for similar positions within a given industry. In this regard,the Tribunal found that the French version of paragraph 15(1)(c) suggested the use of a normativeapproach, in light of the reference to “the application of a rule in force for this type of job” (theTribunal’s translation [at paragraph 56]). According to the Tribunal, this normative approach asksone to search for the existence of a rule governing the maximum age of retirement in the airlineindustry.[47] The Tribunal found just such a rule in the International Standards on Personnel Licensingprescribed by ICAO. Under the ICAO standards in effect at the time of the retirements of Messrs.Vilven and Kelly, contracting states (including Canada) were not to permit anyone to act as pilots-incommandof aircraft engaged in international air transport operations if the individual had reached hisor her 60th birthday. ICAO also recommended, but did not require, that individuals not be permittedto co-pilot aircraft engaged in international air transport operations, if the individual was over the ageof 60.[48] Although not relevant to these complaints, it bears noting that since the time of Messrs. Vilvenand Kelly’s retirement, these standards have been amended to allow pilots to continue to fly ininternational airspace as pilots-in-command until age 65. The ICAO recommendations with respect toco-pilots now also refer to 65 as the relevant age.[49] In the Tribunal’s view, the ICAO standards qualified as a rule or standard within the meaningof paragraph 15(1)(c), as they governed the same community of major international carriers that theTribunal had chosen as comparators to determine “positions similar” to those of Messrs. Vilven andKelly. In this regard, the Tribunal did not distinguish between the mandatory rule governing pilots-incharge,and the recommended practice with respect to co-pilots.[50] The Tribunal also considered what the result would be if the empirical approach were used todetermine the normal age of retirement. In this regard, the Tribunal examined the statistical evidencewith respect to retirement ages for commercial airline pilots, both in Canada and around the world.The Tribunal concluded [at paragraph 60] that no Canadian airline other than Air Canada wouldqualify as a “major international carrier”. As a consequence, the statistical evidence with respect toretirement ages at these airlines could not be considered in determining what the normal age ofretirement was for positions similar to those of Messrs. Vilven and Kelly.

[51] The Tribunal found that complete data was available for 10 major international airlines,collectively employing some 25 308 pilots. During the 2003–2005 period, 80% of pilots working forthese airlines were required to retire at age 60 or younger. This led the Tribunal to conclude that 60was the retirement age for the majority of positions similar to those of Messrs. Vilven and Kelly, andwas thus the “normal age of retirement” for the purposes of paragraph 15(1)(c) of the CanadianHuman Rights Act.[52] As a result, the Tribunal found that Air Canada’s mandatory retirement policy did not amountto a discriminatory practice within the meaning of the Act.[53] The Tribunal then turned to consider whether paragraph 15(1)(c) of the Canadian HumanRights Act violated subsection 15(1) of the Charter, which provides that “[e]very individual is equalbefore and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on … age”.[54] The Tribunal started its analysis with a consideration of the Supreme Court of Canada’sdecisions in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 and Harrison v. University ofBritish Columbia, [1990] 3 S.C.R. 451. The Tribunal noted that in McKinney, the Supreme Court haddetermined that a statutory provision very similar to paragraph 15(1)(c) of the Canadian HumanRights Act, namely paragraph 9(a) of the Ontario Human Rights Code, 1981 [S.O. 1981, c. 53],violated subsection 15(1) of the Charter, as it deprived individuals of a benefit under the Code on thebasis of an enumerated ground.2009 FC 367 (CanLII)[55] The Tribunal went on to observe that at the time that McKinney was decided, considerationsregarding the nature and scope of rights under subsection 15(1) were dealt with under section 1 of theCharter. Citing the Supreme Court’s intervening decisions in Law v. Canada (Minister ofEmployment and Immigration), [1999] 1 S.C.R. 497 and Gosselin v. Quebec (Attorney General),2002 SCC 84, [2002] 4 S.C.R. 429, the Tribunal found that the law regarding the analysis ofdiscrimination claims under subsection 15(1) of the Charter had evolved since McKinney wasdecided.[56] After reviewing this jurisprudence, the Tribunal identified the question to be answered indetermining whether paragraph 15(1)(c) of the Canadian Human Rights Act violated subsection 15(1)of the Charter as being “whether, as a result of the age-based distinction in s. 15(1)(c) of the CHRA,the complainants’ dignity was affronted or they experienced negative stereotyping relating to theirage” [at paragraph 89].[57] The Tribunal concluded that although paragraph 15(1)(c) of the Act deprived Messrs. Vilvenand Kelly of the opportunity to challenge the mandatory retirement policy in their workplace, the lossof this opportunity did not violate their dignity, or fail to recognize them as full and equal members ofsociety. As a consequence, the Charter challenge was also dismissed.V. Issues[58] These applications for judicial review raise the following issues:1. Did the Tribunal err in defining the “normal age of retirement” for employees working inpositions similar to those occupied by Messrs. Vilven and Kelly by:a. Mischaracterizing the essential features of their positions? andb. Choosing an inappropriate comparator group?2. Is a binding rule required for there to be a “normal age of retirement” for the purposes ofparagraph 15(1)(c) of the Canadian Human Rights Act ?

3. Was there a “normal age of retirement” for pilots occupying positions similar to those occupiedby Messrs. Vilven and Kelly at the time that they were forced to retire from Air Canada? If so, whatwas it?4. Did the Tribunal err in concluding that paragraph 15(1)(c) does not violate subsection 15(1) ofthe Charter?[59] Before turning to consider each of these questions, however, the Court must first identify theappropriate standard of review to be applied in relation to each of the issues.VI. Standard of review[60] The parties are in agreement as to the standards of review to be applied to every issue in thiscase, save one.[61] Most of the issues relating to the application of paragraph 15(1)(c) of the Canadian HumanRights Act involve the application of the provisions of paragraph 15(1)(c) to the facts of this case.With this in mind, I agree with the parties that deference is owed to these aspects of the Tribunal’sdecision, and that each of these issues should be reviewed against the standard of reasonableness.2009 FC 367 (CanLII)[62] Insofar as the Tribunal’s finding that paragraph 15(1)(c) of the Canadian Human Rights Actdoes not violate subsection 15(1) of the Charter is concerned, the parties all accept that this aspect ofthe Tribunal’s decision is to be reviewed against the standard of correctness. I agree. Charterquestions must be decided consistently and correctly: see Dunsmuir v. New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190, at paragraphs 58 and 163.[63] Where the parties disagree is in relation to the standard of review to be applied to the questionof whether a binding rule is required for there to be a “normal age of retirement” for the purposes ofparagraph 15(1)(c) of the Canadian Human Rights Act. The answer to this question involves theinterpretation of the statutory provision, and the potential need to reconcile the French and Englishversions of the legislation.[64] Messrs. Vilven and Kelly submit that as a question of statutory interpretation is involved, theTribunal’s conclusions should be reviewed against the standard of correctness. In contrast, theCanadian Human Rights Commission, Air Canada and ACPA all submit that as it is the Tribunal’senabling statute that is at issue in this case, the Tribunal’s interpretation of the statutory provisionshould be reviewed against the reasonableness standard.[65] The Tribunal did not make any effort to reconcile the French and English versions ofparagraph 15(1)(c) in this case, nor did it identify precisely what was required in order to establishthe existence of a “normal age of retirement”, whether it be a binding rule or merely an industrycustom or practice. Instead, the Tribunal examined the evidence using both the normative approachwhich Mr. Vilven and Mr. Kelly say is required by the French version of paragraph 15(1)(c), and theempirical approach arguably required by the English version.[66] As will be explained below, I agree with the Commission, Air Canada and ACPA that, to theextent that the Tribunal’s reasons could be read to interpret paragraph 15(1)(c) of the Act as requiringthat there be a binding rule in place in a given industry mandating retirement at a specified age inorder for the defence contemplated by the provision to be available to an employer, the Tribunal’sinterpretation should be entitled to deference.[67] Citing earlier decisions such as Canadian Broadcasting Corp. v. Canada (Labour RelationsBoard), [1995] 1 S.C.R. 157 and Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997]1 S.C.R. 487, the Supreme Court observed at paragraph 54 of Dunsmuir that “[d]eference will usually

esult where a tribunal is interpreting its own statute or statutes closely connected to its function, withwhich it will have particular familiarity”.[68] The Supreme Court went on to observe that regard must be had to the nature of the question oflaw at issue in a given case, in determining whether any deference is owed to the decision maker.Where the question of law is of “central importance to the legal system … and outside the …specialized area of expertise” of the Tribunal in question, the correctness standard will always apply.However, a question of law that does not rise to this level may be compatible with a reasonablenessstandard: see Dunsmuir, at paragraph 55. See also Canada (Citizenship and Immigration) v. Khosa,2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 25.[69] In determining whether the reasonableness standard should apply to a question of law in aparticular case, the Supreme Court held that regard should be had to whether the statute contains aprivative clause. As the Court observed, a privative clause is “a statutory direction from Parliament ora legislature indicating the need for deference”: Dunsmuir, at paragraph 55.[70] The reviewing court should also consider whether there exists “[a] discrete and specialadministrative regime in which the decision maker has special expertise”: Dunsmuir, at paragraph 55.2009 FC 367 (CanLII)[71] The Canadian Human Rights Act does not contain a privative clause, nor does it provide for astatutory right of appeal. It does, however, create a discrete and specialized administrative regime todeal with complaints of discrimination at the federal level. In addition, the Canadian Human RightsTribunal—the body entrusted by Parliament with the adjudication of such complaints—is an experttribunal: CHRA, at subsection 48.1(2) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C.1998, c. 9, s. 27]. Moreover, the Tribunal is one specifically empowered to decide questions of law:CHRA, at subsection 50(2) [as am. idem].[72] The question of law at issue in this case is not one of “central importance to the legal system… and outside the … specialized area of expertise” of the Canadian Human Rights Tribunal. Rather,it relates to the proper interpretation of the Tribunal’s enabling legislation, and involves a questionthat is directly within the Tribunal’s own area of expertise.[73] In my view, these factors, taken together, point to a standard of reasonableness. As theSupreme Court observed at paragraph 56 of Dunsmuir, “There is nothing unprincipled in the fact thatsome questions of law will be decided on the basis of reasonableness. It simply means giving theadjudicator’s decision appropriate deference in deciding whether a decision should be upheld, bearingin mind the factors indicated.”[74] In reviewing a decision against the reasonableness standard, the Court must consider thejustification, transparency and intelligibility of the decision-making process, as well as whether thedecision falls within a range of possible acceptable outcomes which are defensible in light of the factsand the law: see Dunsmuir, at paragraph 47.VII. Did the Tribunal err in defining the “normal age of retirement” for employees working inpositions similar to those occupied by Messrs. Vilven and Kelly?[75] In order to put the issues raised by the parties in relation to the normal age of retirementquestion into context, it is helpful to start by identifying the purpose of the Canadian Human RightsAct, and by reviewing the principles established by the jurisprudence governing the interpretation ofhuman rights legislation.(i) The Canadian Human Rights Act[76] The Canadian Human Rights Act is quasi-constitutional legislation, which has been enacted togive effect to the fundamental Canadian value of equality, a value which has been described as lying

at the very heart of a free and democratic society: see Canada (Attorney General) v. Mossop, [1993]1 S.C.R. 554, at page 615.[77] As identified in section 2 [as am. by S.C. 1998, c. 9, s. 9] of the Act, the purpose of thelegislation is to ensure that individuals have an equal opportunity to make for themselves the life thatthey are able and wish to have, without being hindered by discriminatory practices based uponconsiderations such as race, sex and age, amongst others.[78] Human rights legislation has been described as “the final refuge of the disadvantaged and thedisenfranchised”: see Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R.321, at page 339. As such, the Supreme Court of Canada has repeatedly warned of the dangers ofstrict or legalistic approaches which would restrict or defeat the purpose of such a quasiconstitutionaldocument: see Mossop, at page 612.[79] Indeed, the Supreme Court has observed on numerous occasions that human rights legislationis to be given a large, purposive and liberal interpretation in a manner consistent with its overarchinggoals, so as to ensure that the remedial goals of the legislation are best achieved: see, for example,Mossop, at page 611. See also Insurance Corporation of British Columbia v. Heerspink et al., [1982]2 S.C.R. 145; O’Malley, previously cited; Canadian National Railway Co. v. Canada (CanadianHuman Rights Commission), [1987] 1 S.C.R. 1114.2009 FC 367 (CanLII)[80] This means that ambiguous language must be interpreted in a way that best reflects theremedial goals of the statute. It follows that a strict grammatical analysis may be subordinated to theremedial purposes of the law: see New Brunswick (Human Rights Commission) v. PotashCorporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604, at paragraph 67.[81] That is, “it is inappropriate to rely solely on a strictly grammatical analysis, particularly withrespect to the interpretation of legislation which is constitutional or quasi-constitutional in nature”:Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City),2000 SCC 27, [2000] 1 S.C.R. 665, at paragraph 30 (citing Gould v. Yukon Order of Pioneers, [1996]1 S.C.R. 571, and O’Malley).[82] This interpretive approach does not, however, permit interpretations which are inconsistentwith the wording of the legislation: see Potash Corporation, at paragraph 19.[83] Finally, while human rights legislation is generally to be broadly interpreted, this is not so withrespect to the defences provided for in the human rights statute in question, which are to beinterpreted narrowly: see Brossard (Town) v. Quebec (Commission des droits de la personne), [1988]2 S.C.R. 279.(ii) Where the onus lies in relation to paragraph 15(1)(c) of the CHRA[84] No issue has been taken by either Air Canada or ACPA with respect to the Tribunal’sconclusion that the onus was on Air Canada and ACPA to establish that Messrs. Vilven and Kellywere retired in accordance with the normal age of retirement for similar positions.[85] I agree that once a complainant has established a prima facie case of discrimination on thebasis of a proscribed ground such as age, the burden shifts to the responding parties to bringthemselves within one of the exemptions identified in section 15 of the Canadian Human Rights Act,such that there exists a bona fide justification for the action taken: see Quebec (Commission desdroits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68, [2003] 3S.C.R. 228.

[86] Indeed, as the Supreme Court of Canada has observed, limits on rights conferred by humanrights legislation must be justified by those seeking to impose them: see Potash Corporation, atparagraph 83, per Chief Justice McLachlin.(iii) The characterization of Messrs. Vilven and Kelly’s positions and the choice of comparatorgroup[87] In order to determine whether there existed a “normal age of retirement” within the meaning ofparagraph 15(1)(c) of the Act at the time that Messrs. Vilven and Kelly were compelled to retire fromAir Canada, the Tribunal had to identify which positions were similar to those that they occupied.This required the Tribunal to first identify the essential features of the complainants’ own positions.[88] In this latter regard, the Tribunal was of the view that no differentiation should be madebetween captains’ positions and those of first officers. While noting that captains have ultimatecontrol over the aircraft, in the Tribunal’s view, the positions were otherwise very similar.[89] Based upon the evidence of Messrs. Vilven and Kelly, the Tribunal found that the prestige andstatus that came with working for a major international airline was an essential feature of thepositions that they held. The Tribunal [at paragraph 53] also identified flying “on regularly scheduledinternational flights on wide-bodied aircraft, to many international destinations, with a majorinternational airline” as essential features of their positions. The Tribunal defined a “majorinternational airline” as one that “is often the dominant carrier in the country, employing a significantnumber of pilots and where regularly scheduled international flights make up a significant portion ofits operations.”2009 FC 367 (CanLII)[90] With this understanding of the essential features of Messrs. Vilven and Kelly’s positions, theTribunal [at paragraph 55] then went on to identify the appropriate comparator group of “positionssimilar” as “pilots who fly with regularly scheduled, international flights with … major internationalairlines.”[91] The applicants say that the Tribunal’s characterization of the essential features of thecomplainants’ positions was unreasonable for several reasons.[92] Firstly, Messrs. Vilven and Kelly say that focusing on their own personal circumstances asindividuals flying on international routes, rather than on their positions as members of theirbargaining unit, would lead to perverse consequences. Contrary to the principle that all members of abargaining unit should be treated equally, the result of the Tribunal’s characterization of thecomplainants’ positions would lead to some, but not all, of the members of Messrs. Vilven andKelly’s bargaining unit being subject to mandatory retirement.[93] Messrs. Vilven and Kelly also submit that the comparator group chosen by the Tribunal wasunduly narrow, as it includes only positions that were identical to their pilot positions at Air Canada,and did not include positions that were “similar” to their own positions. Moreover, the comparatorgroup chosen by the Tribunal does not reflect the norm for Air Canada pilots, most of whom areengaged in flying narrow-bodied aircraft on domestic and transborder routes.[94] According to Messrs. Vilven and Kelly, the Tribunal’s choice of comparator group could leadto Air Canada pilots adjusting their positions and “shopping their comparator group” in the monthsimmediately preceding their retirement. That is, rather than seeking more highly paid flights on largeraircraft flying international routes, as would ordinarily be the case, pilots nearing 60 could use theirseniority to bid on smaller aircraft flying domestic and transborder routes, so as to avoid thecomparator group identified by the Tribunal.[95] All of the applicants say that the Tribunal’s choice of such a narrow comparator group wasalso unreasonable as it includes only pilots working for airlines outside Canada, while ignoring the

situation of pilots working in Canada, including those transporting passengers for regional carriers,charter and discount airlines, amongst others. Subject to the comments below, Messrs. Vilven andKelly submit that the comparator group should properly be “Canadian pilots holding airline transportlicenses”.[96] The applicants contend that the Tribunal should have asked itself whether, in enactingparagraph 15(1)(c) of the Canadian Human Rights Act, Parliament intended that the rights ofCanadian citizens be determined by reference to the forced retirement of individuals in othercountries, countries which may not offer the same level of protection against age discrimination asdoes Canada, and not at all by reference to the normal age of retirement for airline pilots in thiscountry.[97] The applicants further submit that even if the comparator group should properly be “Canadianpilots holding airline transport licenses”, it would still be inappropriate to use statistical informationwith respect to retirement ages for Canadian airline pilots. This is because Air Canada plays such adominant role within the Canadian airline industry. The high proportion of Canadian pilots flying forAir Canada means that the company would effectively set the industry norm.2009 FC 367 (CanLII)[98] In these circumstances, the applicants submit that there is no appropriate comparator group inthis case. As a consequence, there can be no “normal age of retirement” for airline pilots, with theresult that the defence under paragraph 15(1)(c) of the Canadian Human Rights Act should not beavailable to the respondents.[99] Air Canada argues that the Tribunal’s characterization of the essential elements of Messrs.Vilven and Kelly’s positions was a finding of fact made by the Tribunal based upon their ownevidence, and was not unreasonable. The evidence established that there were significant differencesbetween flying for Air Canada, and flying for regional carriers such as Jazz. The evidence alsoindicated that pilot positions with Air Canada were acknowledged to be the most prestigious, highlypaid and highly sought-after pilot positions in Canada.[100] Air Canada further submits that the Tribunal did not limit its consideration to the positionsactually held by Messrs. Vilven and Kelly immediately prior to their retirement. According to AirCanada, the applicants’ argument about the potential for “shopping the comparator group” ispredicated upon the erroneous assumption that pilot positions at Air Canada can be divided into thosethat fly internationally and those that do not. In fact, 86% of Air Canada flights are either to aninternational destination, or pass through foreign (primarily American) airspace, en route to aCanadian destination. Between 20 and 25% of the remaining 14% of Air Canada flights have anAmerican airport as an alternate airport where planes are to land if, for example, weather precludeslanding at the regularly scheduled Canadian airport.[101] As a result, only 10.5% of Air Canada’s “domestic” flights are truly domestic, and less than5% of Air Canada’s overall operations involve flying on purely Canadian routes. According to AirCanada, it was therefore reasonable for the Tribunal to have concluded that an essential feature of thecomparator group positions was that they involved international flying—a determination that issignificant in light of the ICAO standards dealing with pilot age.[102] Air Canada also points out that nothing in the Canadian Human Rights Act specificallyrequires that the comparator group used for the purposes of paragraph 15(1)(c) be solely made up ofCanadian workers.[103] Air Canada further contends that even though pilots for other Canadian airlines fly tointernational destinations, they nevertheless do not occupy “positions similar” to those that wereoccupied by Messrs. Vilven and Kelly. According to Air Canada, they do not fly “regularinternational flights”, as such flights are not substantively part of their airlines’ mandates, but arerather simply part of the airlines’ schedules.

[104] Although ACPA took the position before the Tribunal that the proper comparison should bemade to pilots flying for other Canadian air carriers, before this Court, ACPA argues that the entirediscussion regarding the appropriate comparator group is academic. Whether the comparator group ismade up of pilots flying for international airlines, or those flying for Canadian airlines, the fact is thateither way, the majority of commercial airline pilots retire at age 60.[105] Moreover, ACPA says that there is no danger in using the figures for the retirement ages ofCanadian pilots to set the industry norm, even though, as the dominant industry player, Air Canadawill effectively set that norm. This is because the mandatory retirement age for pilots at Air Canadabecame part of the collective agreement through the collective bargaining process, and was the resultof negotiations between a very strong union and the company.[106] While recognizing that considerable deference is owed to the Tribunal’s findings in thisregard, I am nevertheless of the view that the Tribunal erred in its identification of the essentialfeatures of Messrs. Vilven and Kelly’s positions. This then led the Tribunal to err in its choice ofcomparator group for the purposes of its analysis in relation to paragraph 15(1)(c) of the Act.2009 FC 367 (CanLII)[107] Insofar as the Tribunal’s identification of the essential features of Messrs. Vilven and Kelly’spositions is concerned, it was, in my view, unreasonable for the Tribunal to focus on the status andprestige associated with pilot positions at Air Canada as an essential feature of those positions, ratherthan examining the actual functional requirements of the positions themselves.[108] In the human rights context, when one is assessing whether an individual is qualified for aparticular position, or is fit to perform the duties of that position, the focus should be on thequalifications of the individual relative to the actual objective functional requirements of the position,rather than on a subjective perception of what a qualified candidate “should be”, or should be able todo.[109] In the same vein, in assessing whether a position is “similar” to that occupied by acomplainant in order to identify a “normal age of retirement” for the purposes of paragraph 15(1)(c),the focus should be on the objective duties and functional responsibilities of the position in question,rather than on subjective perceptions of the position such as its “status” or “prestige”, and whether ornot the airline in question is a “legacy carrier”.[110] That is, while status and prestige may be part of the reason why individuals may want to flyfor Air Canada, they do not form part of what Air Canada pilots actually do.[111] The essence of what Air Canada pilots do is to fly aircraft of varying sizes and types,transporting passengers to both domestic and international destinations, through Canadian andforeign airspace.[112] The error in the identification of the essential features of Messrs. Vilven and Kelly’s positionsthen led the Tribunal to err in its identification of the appropriate comparator group. In light of theessential features of Messrs. Vilven and Kelly’s positions, the appropriate comparator group shouldhave been pilots working for Canadian airlines who fly aircraft of varying sizes and types,transporting passengers to both domestic and international destinations, through Canadian andforeign airspace.[113] The evidence before the Tribunal demonstrated that, as of the date of the agreed statement offacts, there were five principal airlines in Canada (apart from Air Canada) that were engaged intransporting passengers to domestic and international destinations. These were Jazz, Air Transat,CanJet, Skyservice and WestJet. (It should be noted that Jazz was a subsidiary of Air Canada at thetime of the termination of Mr. Vilven’s employment in 2003, but not at the time that Mr. Kelly retiredin 2005.)

[114] The fact that other Canadian airlines transport passengers to international destinations isillustrated by the evidence relating to Mr. Kelly. According to the agreed statement of facts, Mr.Kelly continued flying after leaving Air Canada, working on contract as both a Captain and pilot-incommand,and as a first officer, with Skyservice Airlines. In these positions, Mr. Kelly flew Boeing757s and 767s on routes which included charter flights to international destinations. Counsel for AirCanada also acknowledged at the hearing before this Court that Jazz flew to destinations in theUnited States.[115] I am also satisfied that it was an error in principle for the Tribunal to look at retirementrequirements for pilots from other countries in assessing whether age 60 was the “normal age ofretirement” for the purposes of paragraph 15(1)(c) of the Canadian Human Rights Act.[116] In this regard, I note that consideration of foreign comparators was specifically rejected bythe Tribunal in Campbell v. Air Canada (1981), 2 C.H.R.R. D/602 (C.H.R.T.), an early caseinvolving Air Canada flight attendants and paragraph 14(c) [as am. by S.C. 1980-81-82-83, c. 143, s.7] of the Canadian Human Rights Act [S.C. 1976-77, c. 33], the predecessor to what is nowparagraph 15(1)(c) of the Act.2009 FC 367 (CanLII)[117] In rejecting Air Canada’s argument that one should look world-wide for comparable positionsfor the purposes of paragraph 14(c) of the Act, the Tribunal in Campbell observed that there is asocial context that is inherent in the statute. The Act prescribes a measure by which an exception towhat would otherwise be a discriminatory practice can be evaluated. Given that the Canadian HumanRights Act is a Canadian statute, the Tribunal was of the view that the measure should be a Canadianmeasure.[118] It is true that the Federal Court of Appeal had regard to the ICAO standards, as well as theretirement rules in force for airline pilots in the United States, in the Stevenson decision [Stevenson v.Canadian Human Rights Comm., [1984] 2 F.C. 691]. That case involved a challenge to the provisionsof then paragraph 14(c) of the Canadian Human Rights Act under the Canadian Bill of Rights,R.S.C., 1985, Appendix III. However, the Court only looked to the U.S. situation after first findingthat age 60 was the normal age of retirement invariably applied at Air Canada and at many otherCanadian airlines. As will be discussed further on in these reasons, this is no longer the case.[119] Citing the evidence of Professor Jean-François Gaudreault-Desbiens, Air Canada’s expertwitness in the field of comparative law, the airline says that the countries that are home to many ofthe foreign legacy carriers in the Tribunal’s comparator group have legal systems that offer humanrights protection to their citizens that are comparable to that afforded to Canadian pilots under theCanadian Human Rights Act. As a consequence, there was nothing inappropriate in the Tribunalhaving compared the situation of Air Canada pilots to those flying for foreign legacy carriers, inascertaining whether there is a normal age of retirement for such pilots.[120] While this may be true in relation to some of the countries in question, it does not appear tobe the case for all of them. For example, the available information for Royal Dutch Airlines (KLM)indicates that at the time of Messrs. Vilven and Kelly’s retirement from Air Canada, pilots flying forthat airline were obliged to retire from full-time employment at age 56. The source of this mandatoryretirement age is identified as the pilots’ collective agreement.[121] There is no indication in the survey information that was before the Tribunal that there was alegislative regime in place in Holland at the relevant time that would limit or prohibit mandatoryretirement for these pilots before they were 60.[122] Similarly, pilots flying for Finnair were required to retire at age 58, in accordance with theprovisions of the applicable collective agreement. Again, there is nothing in the evidence that wouldsuggest that pilots in Finland were protected by comparable domestic anti-age discriminationlegislation at the time that Messrs. Vilven and Kelly were compelled to retire from Air Canada.

[123] Finally, although the survey information that was before the Tribunal suggests that the “legalretirement age” for pilots flying for Cathay Pacific Airways was 60 at the relevant time, this evidencealso indicates that Cathay Pacific pilots had to retire at age 55, unless their contracts of employmentwere extended by the airline. Whether or not this occured in a given case appears to be adiscretionary decision on the part of the airline. There is no suggestion in the evidence that pilotshave any legal entitlement to employment after age 55.[124] As was noted earlier, the Canadian Human Rights Act was enacted to give effect to thefundamental Canadian value of equality—a value which the Supreme Court of Canada has describedas lying at the very heart of our free and democratic society. By ignoring the situation of otherCanadian pilots, and by comparing Air Canada pilots to pilots flying for legacy carriers in othercountries, the Tribunal compared the situation of individuals who enjoy the protection of the Act tothose who do not. This was, in my view, unreasonable.[125] To summarize my findings to this point: the essence of what Air Canada pilots do can bedescribed as “flying aircraft of varying sizes and types, transporting passengers to both domestic andinternational destinations, through Canadian and foreign airspace”. There are many Canadian pilotsworking in similar positions, including those working for other Canadian airlines. These pilots formthe comparator group for the purposes of paragraph 15(1)(c) of the Canadian Human Rights Act.2009 FC 367 (CanLII)[126] In determining what the normal age of retirement is for the comparator group, it is nextnecessary to decide whether paragraph 15(1)(c) requires that there be a binding rule mandatingretirement at a given age in order for the defence to be available.(iv) Is a binding rule required for there to be a “normal age of retirement”?[127] The Tribunal recognized in its reasons that there is a difference between the English andFrench versions of paragraph 15(1)(c). According to the Tribunal, one could use either a normativeapproach to determining the normal age of retirement in a given industry, based upon the Frenchversion of the legislation, or an empirical approach, based upon the English version.[128] Likely because the issue was not argued before it, the Tribunal did not attempt to reconcilethe two versions of the legislation, or to find their shared meaning, which, the applicants now say,amounts to an error of law. Instead, the Tribunal considered the issue from both a normative and anempirical approach, coming to the conclusion that 60 was the normal age of retirement for pilots inpositions similar to those of Messrs. Vilven and Kelly, whichever approach was used.[129] While Air Canada initially objected to the issue of the need to reconcile the English andFrench versions of paragraph 15(1)(c) being raised for the first time before this Court, the airlinesubsequently acknowledged that the issue involves a question of law, that the record relating to theissue is complete, and that it has not been prejudiced in any way by having the issue raised for thefirst time on judicial review. As a consequence, I will deal with the applicants’ argument.[130] Although I agree with Messrs. Vilven and Kelly that the Tribunal erred in finding that therewas a rule governing the maximum age of retirement in the airline industry, I am not persuaded thatproof of the existence of such a rule was in fact required before the defence under paragraph 15(1)(c)could be established.[131] The Tribunal held that the ICAO standard in effect at the time of the retirements of Messrs.Vilven and Kelly qualified as a “rule” governing the age of retirement in the airline industry, as itgoverned the same community of international carriers that the Tribunal had chosen as comparatorsto determine “positions similar” to those of Messrs. Vilven and Kelly. This finding is problematicfrom a couple of perspectives.

[132] Firstly, as Air Canada has now conceded, the mandatory ICAO standard for pilot-incommandflying in international airspace did not even apply to Mr. Vilven, who was working as afirst officer at the time that he was forced to retire, and thus would not ordinarily have beendesignated as the pilot-in-command of aircraft. As a “co-pilot”, Mr. Vilven would only have beensubject to ICAO’s maximum age recommendation.[133] Secondly, the ICAO standard in effect at the time that Messrs. Vilven and Kelly were forcedto retire from Air Canada did not “require retirement at age 60” for pilots-in-command, as theTribunal stated at paragraph 58 of its decision. The mandatory standard simply stipulated that pilotscould not act as pilots-in-command of aircraft engaged in international commercial air transportoperations if the individual had attained 60 years of age. Nothing in the ICAO standard necessarilyprecluded pilots over the age of 60 from acting as co-pilots on such flights.[134] As was explained earlier, although the “pilot-in-command” of an aircraft would usually bethe captain, this is not necessarily so. As a consequence, Mr. Kelly would not have been caught bythe mandatory ICAO standard if, for example, his first officer was designated as the pilot-incommandon his flights, or if he had used his seniority to bid for a position as a first officer, ratherthan as a captain.2009 FC 367 (CanLII)[135] That said, I am not persuaded that proof of the existence of an industry rule is required inorder for there to be a “normal age of retirement” for the purposes of paragraph 15(1)(c) of the Act.[136] As the Tribunal recognized, there is a difference between the wording of the English versionof paragraph 15(1)(c) of the Canadian Human Rights Act, and that contained in the French version ofthe same provision. The applicants say that the shared meaning of the French and English versions ofthe provision requires that there be a binding rule in place mandating mandatory retirement at a givenage before the defence under paragraph 15(1)(c) will be available to an employer.[137] Given that no such binding rule exists in this case, the applicants argue that the Tribunal’sdecision was unreasonable.[138] The English version of the legislation states that it is not a discriminatory practice if anindividual’s employment is terminated because that individual has reached “the normal age ofretirement for employees working in positions similar to the position of that individual”. In contrast,the French version of paragraph 15(1)(c) provides that it is not a discriminatory practice if anindividual’s employment is terminated “en appliquant la règle de l’âge de la retraite en vigueur pource genre d’emploi” (emphasis added).[139] According to the applicants, the French version of the legislation is perfectly clear, requiringthat there be a “règle” or “rule” in effect for similar positions before the defence provided for inparagraph 15(1)(c) of the Act can be made out. In contrast, the English version of the same provisionis ambiguous, referring as it does to the “normal age of retirement”. The applicants say that if“normal” is understood to mean “usual”, or “the statistical norm”, this then leads to a conflict withthe French version of the legislation.[140] The applicants submit that the French version of the provision is narrower than the Englishversion. Given that paragraph 15(1)(c) creates an exception to the rights provided for in the CanadianHuman Rights Act, the narrower version of the legislation should be preferred.[141] Air Canada and ACPA say that the reconciliation of the two versions of the Act is notdifficult when regard is had to the broader context of the legislation, and, in particular, to subsection9(2) of the Act, which provides that:9. (1) …

(2) Notwithstanding subsection (1), it is not a discriminatory practice for an employee organization to exclude,expel or suspend an individual from membership in the organization because that individual has reached thenormal age of retirement for individuals working in positions similar to the position of that individual.[Emphasis added.][142] The respondents submit that the language in the concluding portion of subsection 9(2) in theEnglish version of the Act is identical to that contained in the English version of paragraph 15(1)(c),whereas the French versions of the two provisions differ.[143] As a consequence, the respondents argue that in three of the four places in the Act wherereference is made to the retirement age for individuals working in positions similar to that of acomplainant, the term “normal” is used. This, they say, demonstrates that there is a shared meaningbetween the English and French versions of both subsection 9(2) and paragraph 15(1)(c), which givesthe words their most obvious, ordinary meaning and accords with the context and purpose of theenactment in which they occur.[144] Thus, the respondents say that all that is required is for the Tribunal to determine the usual orcustomary age of retirement for a particular group of individuals, and that a binding rule mandatingretirement at a specified age is not necessary for a defence under paragraph 15(1)(c) of the Act tosucceed.2009 FC 367 (CanLII)[145] Finally, the respondents point to comments made by the Minister of Justice and by theAssistant Deputy Minister of Justice for Policy and Planning prior to the enactment of the CanadianHuman Rights Act as evidence of the fact that Parliament did not intend that there would have to be abinding rule in place before the defence under paragraph 15(1)(c) of the Act could be available torespondents.[146] When addressing a question of statutory interpretation, the words of an Act are to be read intheir entire context, and in their grammatical and ordinary sense, harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament: see Rizzo & Rizzo Shoes Ltd. (Re),[1998] 1 S.C.R. 27, at paragraph 21, and see Ruth Sullivan, Sullivan on the Construction of Statutes,5th ed. (Markham, Ont.: LexisNexis Canada, 2008), at page 1.[147] Both the French and the English versions of federal legislation have equal authenticity, andneither is to be preferred over the other: see Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31,section 13 and Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at page 774.[148] Where the English and French versions of legislation do not say the same thing, a meaningthat is common to both ought to be adopted: see Sullivan on the Construction of Statutes, at page 100.That is, an interpretation reconciling the two versions is to be favoured, because it is assumed thatthis better reflects the work of a rational legislature: see Pierre-André Côté, The Interpretation ofLegislation in Canada, 3rd ed. (Scarborough, Ont.: Carswell, 2000), at pages 323–324 and 349.[149] Where a shared meaning has been identified, it may nonetheless be tested against otherindicators to ensure that it is the meaning intended by Parliament. The shared meaning may also berejected if there is another interpretation that is for some reason preferable: see Sullivan on theConstruction of Statutes, at pages 100–101.[150] In this case, the English version of paragraph 15(1)(c) speaks of the “normal” age ofretirement in force for a certain type of position. “Normal” is defined by the Concise OxfordDictionary of Current English, 9th ed. (Della Thompson, ed., Oxford: Clarendon Press, 1995) as“conforming to a standard; regular, usual, typical”. Similarly, the Random House Webster’sUnabridged Dictionary, 2nd ed. (New York: Random House, 2001) defines “normal” as “conformingto the standard or the common type; usual, not abnormal; regular; natural.”

[151] In contrast, the French version of the provision refers to “la règle de l’âge de la retraite envigueur” (emphasis added). “Règle” is defined in Le Nouveau Petit Robert : dictionnairealphabétique et analogique de la langue française, Josette Rey-Debove & Alain Rey, ed., Paris:Dictionnaires Le Robert, 1993, as “Ce qui est imposé ou adopté comme ligne directrice de conduite→ coutume, habitude, usage. Formule qui indique ce qui doit être fait dans un cas déterminé →convention, institution.” “Règle” is also defined as “loi, norme, précepte, prescription, principe”.[152] Thus it appears that the use of the word “règle” in the French version of paragraph 15(1)(c)does not necessarily refer to a formal, rigid, binding rule as the applicants suggest. As the dictionarydefinition cited above indicates, while a “règle” may amount to a binding law, it may also refer to anorm, usage, custom or standard. On the other hand, the word “normal” may relate to a standard, or aregular, usual or typical practice, but does not, in its ordinary sense, contemplate a binding rule.[153] In order to establish the defence contemplated by paragraph 15(1)(c) of the Act, the sharedmeaning of the English and French versions of the provision requires that the age of retirement inissue must be normal, customary or standard within the relevant industry sector. The existence of abinding rule mandating retirement at a particular age is not required.2009 FC 367 (CanLII)[154] In light of the foregoing analysis, to the extent that the Tribunal’s reasons may be read asrequiring that there be a binding rule in place mandating retirement at a fixed age in order for there tobe a “normal age of retirement” for the purposes of paragraph 15(1)(c) of the Canadian HumanRights Act, the Tribunal’s decision was unreasonable.[155] I note that my interpretation of paragraph 15(1)(c) is consistent with the jurisprudence: see,for example, McAllister v. Maritime Employers Association (1999), 172 F.T.R. 161 (F.C.T.D.); Priorv. Canadian National Railway Company (1983), 4 C.H.R.R. D/268 (C.H.R.T.); Campbell andStevenson, both previously cited.[156] In McAllister, this Court relied on dictionary definitions to interpret the phrase “normal age ofretirement” as it is used in paragraph 15(1)(c) to mean “‘standard, a type; what is expected orregarded as normal; customary behaviour, appearance’ (in this case: to guide and regulate theretirement age in the industry)”: at paragraph 69.[157] In coming to the conclusion that a binding rule is not required for the defence underparagraph 15(1)(c) of the Act to be available to an employer, I have given careful consideration to theapplicants’ argument that the narrower French version of the legislation is to be preferred, given thatthe provision creates an exception to the rights protected by the Canadian Human Rights Act, and assuch should be narrowly construed.[158] While it is true that defences under the Act are to be narrowly construed, the words of the Actmust still be given their ordinary meaning, and cannot be interpreted in a manner that is inconsistentwith the wording of the legislation: see Potash Corporation, at paragraph 19. Reading the Englishversion of paragraph 15(1)(c) as requiring the existence of a binding rule before a “normal age ofretirement” can be established, would, in my view, do violence to the ordinary meaning of thelanguage contained in the paragraph. Moreover, it would be contrary to the intent of Parliament inenacting this provision.[159] In this regard, I refer to the comments of Minister of Justice Ron Basford, and AssistantDeputy Minister Strayer, who explained that the intent of the provision was to leave the question of amandatory retirement age in the private sector to be negotiated between employers and employees.[160] Minister Basford testified as follows [in Campbell, at paragraph 5482]:… I would like to point out that the determination of retirement age in the federal public sector is a matter oflegislation or regulatory policy. In the private sector this is a matter which has traditionally been left to bedetermined between employers and employees.

[161] Similarly, Assistant Deputy Minister Strayer testified that [in Campbell, at paragraph 5482]:What clause 14(c) [now paragraph 15(1)(c)] means is that as long as the individual is obliged to retire at thesame age as everyone else in his kind of employment, then it would not be treated as a discriminatory act torequire him to retire. The problem is in knowing what to do to go beyond that. As the Minister says in hisstatement, public service employment, which is one of the largest areas of employment covered by the bill, isalready governed by law as far as the retirement age is concerned. As for the rest, I believe retirement is often amatter of collective bargaining, it is also a matter of personal negotiation, and as far as we could determine thenext best arrangement would be to somehow enable the commission to review what was a reasonable retirementage in that particular employment.[162] Clearly, at the time that the Canadian Human Rights Act was enacted, it was notcontemplated that the defence under paragraph 15(1)(c) of the Act would only be available wherethere was a binding rule in a given industry mandating retirement at a particular age.[163] The next question, then, is whether there was a normal, customary or standard age ofretirement for Canadian pilots flying aircraft of varying sizes and types, transporting passengers toboth domestic and international destinations, through Canadian and foreign airspace.2009 FC 367 (CanLII)(v) Was there a “normal age of retirement” for Canadian airline pilots?[164] As was noted earlier in these reasons, in addition to utilizing a normative approach to the“normal age of retirement” issue, the Tribunal also used an empirical approach in determining that 60was the normal age of retirement for airline pilots.[165] The Tribunal considered the statistical evidence presented at the hearing with respect toretirement ages for commercial airline pilots, both in Canada and around the world. Because theTribunal concluded that no Canadian airline apart from Air Canada would qualify as a “majorinternational carrier”, information regarding these airlines was not used to identify the normal age ofretirement for positions similar to those of Messrs. Vilven and Kelly.[166] The Tribunal found that complete data was available for less than half of the majorinternational airlines that were included in the survey. The 10 major international airlines for whichcomplete data was available collectively employed some 25 308 pilots. During the 2003–2005 period,80% of these pilots were required to retire at age 60 or younger. This led the Tribunal to concludethat 60 was the retirement age for the majority of positions similar to those of Messrs. Vilven andKelly, and was thus the “normal age of retirement” for the purposes of paragraph 15(1)(c) of theCanadian Human Rights Act. As a consequence, the Tribunal found that Air Canada’s mandatoryretirement policy did not amount to a discriminatory practice within the meaning of the Act.[167] As the Federal Court of Appeal observed in the Stevenson case, previously cited, theidentification of the “normal age of retirement” for the purposes of paragraph 15(1)(c) presents itsproblems: see paragraph 11. However, the approach taken by human rights tribunals has generallybeen based upon a number count of similar positions: see for example, Campbell and Prior, bothpreviously cited.[168] In Campbell, the Tribunal found 60 to be the normal age of retirement where approximately81% of Canadian flight attendants were required to retire by that age. In Prior, the fact that 60% ofCanadian freight checkers were subject to retirement at age 65 was deemed sufficient for a findingthat 65 was the “normal age of retirement” for such positions. A similar approach has been taken bylabour arbitrators: see CKY-TV v. Communications, Energy and Paperworkers Union of Canada(Local 816) (Kenny Grievance) (2008), 175 L.A.C. (4th) 29.[169] Given that paragraph 15(1)(c) refers to the normal age of retirement for “employees workingin positions similar” to that occupied by a complainant, I agree with the Tribunal that thedetermination of the normal age of retirement requires a statistical analysis of the total number count

of relevant positions. As the Tribunal observed in Campbell, it would be unreasonable for a verysmall airline to be weighted on an equal footing with a large airline such as Air Canada indetermining the industry norm: see paragraph 5481.[170] However, as was explained earlier, I am of the view that the Tribunal erred in itsidentification of the “positions similar” to those occupied by Messrs. Vilven and Kelly. It is pilotsworking for Canadian airlines flying aircraft of various sizes to domestic and internationaldestinations, through Canadian and foreign airspace, that form the proper comparator group.[171] I also agree with the Tribunal’s observation that there are problems associated with usingCanadian data for comparison purposes. Citing the Tribunal decision in Campbell, the Tribunal notedthat because of Air Canada’s dominant position within the Canadian airline industry, a comparison ofpilot positions within Canada would result in Air Canada setting the industry norm. This would allowAir Canada to effectively determine the “normal age of retirement” for the purposes of paragraph15(1)(c) of the Act.[172] What the Tribunal did not mention was that the Tribunal in Campbell nevertheless went on touse the available Canadian data, noting that its concern with respect to the effect of Air Canada’sindustry dominance was somewhat tempered by the fact that the mandatory retirement age had beennegotiated between Air Canada and Mr. Campbell’s union. ACPA argues that this is also the casehere, and that the retirement age in issue in this case was arrived at through negotiation between AirCanada and a very strong union.2009 FC 367 (CanLII)[173] The statistical information before the Tribunal with respect to airline pilots working for bothAir Canada and other Canadian airlines flying aircraft of various sizes to domestic and internationaldestinations, through Canadian and foreign airspace, reveals that at the time that Messrs. Vilven andKelly were forced to leave their positions at Air Canada, several Canadian airlines allowed theirpilots to fly until they were 65, and one had no mandatory retirement policy whatsoever.Nevertheless, 56.13% of Canadian airline pilots retired by the time they reached the age of 60.[174] Therefore, despite the errors identified above, the Tribunal’s conclusion that 60 was thenormal age of retirement for employees in positions similar to those occupied by Messrs. Vilven andKelly prior to their forced retirements from Air Canada was one that fell within the range of possibleacceptable outcomes which are defensible in light of the facts and the law.(vi) Conclusion with respect to the availability of the “normal age of retirement” defence[175] Given that 60 was the normal age of retirement for employees in positions similar to thoseoccupied by Messrs. Vilven and Kelly, the fact that they were forced to retire at 60 in accordancewith the mandatory retirement provisions of the collective agreement in effect between Air Canadaand ACPA did not amount to a discriminatory practice within the meaning of paragraph 15(1)(c) ofthe Canadian Human Rights Act.[176] Before turning to consider the Tribunal’s decision with respect to whether paragraph 15(1)(c)of the Canadian Human Rights Act violates subsection 15(1) of the Charter, two further commentsshould be made.[177] The first relates to the significance of the ICAO standards regarding pilot age. Although Ihave found that the ICAO standards did not amount to a binding rule for the purpose of the analysisunder paragraph 15(1)(c) of the Canadian Human Rights Act, the standards are not irrelevant toMessrs. Vilven and Kelly’s human rights complaints.[178] That is, the inability to have a pilot-in-command who is over 60 (now 65) on a flight leavingCanadian airspace will undoubtedly cause logistical difficulties for Air Canada in scheduling pilots,having regard to the significant amount of transborder flying carried out by the airline. Whether these

difficulties can be accommodated by Air Canada, or rise to the level of undue hardship, are issuesthat the Tribunal may ultimately have to address.[179] The second comment relates to the concern with respect to Air Canada’s ability, as thedominant industry player, to skew the analysis with its own mandatory retirement policy. Indeed, it isnoteworthy that almost all of the 56.13% of Canadian airline pilots who are required to retire by age60 fly for Air Canada.[180] The arbitrator in the CKY-TV decision put it well when he asked “[w]hy should the Employergain assistance from its own organizational practices in defending against a human rightschallenge?”: at paragraph 133.[181] While this is indeed a troubling question, I agree with the arbitrator in CKY-TV that it isindicative of a more fundamental problem with paragraph 15(1)(c) of the Canadian Human RightsAct, which is that the provision allows for discrimination to occur, as long as it is pervasive within anindustry: see paragraph 133. However, as the arbitrator also noted, if the process is flawed, theremedy is under the Charter: see paragraph 134.2009 FC 367 (CanLII)[182] The Tribunal itself observed in its 1983 decision in Prior that paragraph 15(1)(c) “is a rathercurious provision in human rights legislation”, going so far as to suggest that the provision would notsurvive a challenge under section 15 of the Charter, which had not yet come into force: seeparagraphs 11456–11460.[183] This then leaves the question of whether paragraph 15(1)(c) of the Canadian Human RightsAct does in fact violate subsection 15(1) of the Charter.VIII. Does paragraph 15(1)(c) of the CHRA violate subsection 15(1) of the Charter?[184] Prior to the hearing of these applications, a notice of constitutional question was served byMessrs. Vilven and Kelly on the federal and provincial attorneys general, pursuant to the provisionsof section 57 [as am. by S.C. 1990, c. 8, s. 19; 2002, c. 8, s. 54] of the Federal Courts Act [R.S.C.,1985, c. F-7, s. 1 (as am. idem, s. 14)]. The notice advises that these applicants are challenging theconstitutional validity of paragraph 15(1)(c) of the Canadian Human Rights Act on the basis that itviolates subsection 15(1) of the Charter. Messrs. Vilven and Kelly further assert that this violation isnot saved by operation of section 1 of the Charter.[185] Subsection 15(1) of the Charter provides that:15. (1) Every individual is equal before and under the law and has the right to the equal protection and equalbenefit of the law without discrimination and, in particular, without discrimination based on race, national orethnic origin, colour, religion, sex, age or mental or physical disability.[186] In essence, Messrs. Vilven and Kelly argue that paragraph 15(1)(c) of the Canadian HumanRights Act denies them the equal benefit and equal protection of the law. It does so by permittingtheir employer to compel them to retire at a fixed age, without any regard to their individual abilities,skills and capacities, as long as that age is the normal age of retirement for positions similar to thosethat they occupied prior to their retirement.[187] At the outset of the hearing, the parties confirmed that the Attorney General of Canada wasindeed aware of these applications, but had elected not to participate at this stage in the proceedings.[188] It should also be noted that the Canadian Human Rights Commission made only briefsubmissions in relation to the Charter issue. The Commission was of the view that it was constrainedas to the position that it could take in relation to this issue, as it was its own enabling legislation thatwas under challenge in this proceeding.

[189] Before turning to discuss the Tribunal’s treatment of the Charter issue, and in order to put thatdiscussion into context, it is helpful to start by reviewing some of the early Supreme Court of Canadajurisprudence in relation to section 15 of the Charter, especially as it relates to the issue of mandatoryretirement.(i) Early Supreme Court of Canada jurisprudence regarding mandatory retirement[190] The Supreme Court of Canada’s 1989 decision in Andrews v. Law Society of BritishColumbia, [1989] 1 S.C.R. 143, “set the template” for the Court’s approach to claims under section15 of the Charter: see R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at paragraph 14.[191] In Andrews, the Supreme Court first articulated its commitment to the principle ofsubstantive, rather than formal, equality. “Formal equality” requires that everyone, regardless of theirindividual circumstances, be treated in an identical fashion.[192] In contrast, “substantive equality” recognizes that in some circumstances it is necessary totreat different individuals differently, in order that true equality may be realized. In this regard,“substantive equality” is based upon the concept that “[t]he promotion of equality entails thepromotion of a society in which all are secure in the knowledge that they are recognized at law ashuman beings equally deserving of concern, respect and consideration”: Andrews, at page 171, perMcIntyre J.2009 FC 367 (CanLII)[193] As William Black and Lynn Smith explained in “The Equality Rights”, in Gérald-A.Beaudoin and Errol Mendes, eds., Canadian Charter of Rights and Freedoms, 4th ed. (Markham,Ont.: LexisNexis Butterworths, 2005), at page 969:The term “substantive equality” indicates that one must take account of the outcomes of a challenged law oractivity and of the social and economic context in which a claim of inequality arises. Assessing that contextrequires looking beyond the law that is being challenged and identifying external conditions of inequality thataffect those outcomes. Substantive equality requires attention to the “harm” caused by unequal treatment.[194] The majority in Andrews defined “discrimination” in the following terms (at page 174):… a distinction, whether intentional or not but based on grounds relating to personal characteristics of theindividual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individualor group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantagesavailable to other members of society.[195] The Andrews approach to section 15 of the Charter was utilized by the Supreme Court in aseries of cases in the early 1990s dealing with the issue of mandatory retirement: see McKinney andHarrison, both previously cited, Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 andDickason v. University of Alberta, [1992] 2 S.C.R. 1103.[196] McKinney and Harrison are of particular relevance to this proceeding, as these decisionsdealt not only with mandatory retirement imposed under the provisions of collective agreements, butalso with the constitutionality of limiting provisions in human rights legislation, in light of section 15of the Charter.[197] The decisions in McKinney and Harrison ultimately turned on the Supreme Court’sdetermination that universities did not form part of government, and as such were beyond the reach ofthe Charter. Nevertheless, the Court went on in each case to address provisions in the Ontario andBritish Columbia [Human Rights Act, S.B.C. 1984, c. 22] human rights codes that limited theprotection afforded by the legislation to those less than 65 years of age.

[198] In this regard, the Supreme Court was unanimous in concluding that legislation denyinghuman rights protection to those over 65 violated subsection 15(1) of the Charter, as it deniedindividuals equal protection under the law, based upon their age.[199] However, after reviewing issues such as the place of mandatory retirement within society,demographics within the workplace, and the fact that mandatory retirement policies are typicallynegotiated through the collective bargaining process, the majority of the Supreme Court concludedthat the legislative provisions in question would have been saved under section 1 of the Charter.(ii) The decision in Law v. Canada[200] In 1999, the Supreme Court of Canada rendered its decision in Law v. Canada, previouslycited. As the Supreme Court subsequently observed in Gosselin, the central lesson of Law was theneed for a contextual inquiry in order to establish whether a statutory distinction conflicts with thepurpose of subsection 15(1) of the Charter, such that “a reasonable person in circumstances similar tothose of the claimant would find that the legislation which imposes differential treatment has theeffect of demeaning his or her dignity”: see Gosselin, previously cited, at paragraph 25.2009 FC 367 (CanLII)[201] That is, the Supreme Court held in Law that in order to establish a violation of subsection15(1) of the Charter, a claimant must establish, on the civil standard of proof, that the law in questionimposes differential treatment as between the claimant and others, either in purpose or in effect. Theclaimant must further demonstrate that this differential treatment is based on one or more enumeratedor analogous grounds. Finally, the claimant must show that the impugned law has a purpose or effectthat is discriminatory in the sense that it denies human dignity on one of the enumerated or analogousgrounds.[202] In this regard, the Supreme Court observed that a distinction made on an enumerated oranalogous ground will violate the claimant’s human dignity if it reflects or promotes the view that theindividuals affected are less deserving of concern, respect, and consideration than others.[203] In addressing the final component of the Law test, the Supreme Court identified four“contextual factors” to assist in determining whether a distinction contained in an impugned law,when viewed from the perspective of a reasonable person in the claimant’s circumstances, impairs hisor her human dignity. These factors include [at pages 501–502]:(A) [Any p]re-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual orgroup at issue[;]…(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and theactual need, capacity, or circumstances of the claimant or others[;]…(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group insociety[;] and(D) The nature and scope of the interest affected by the impugned law.(iii) The Tribunal’s decision on the Charter issue…[204] Before the Tribunal, Messrs. Vilven and Kelly argued that there was no material differencebetween the provisions in the Ontario and British Columbia human rights codes at issue in McKinney

and Harrison, and paragraph 15(1)(c) of the Canadian Human Rights Act. As such, they asserted thatthe decisions in McKinney and Harrison were binding on the Tribunal, and it necessarily followedthat paragraph 15(1)(c) of the CHRA also breached subsection 15(1) of the Charter.[205] As was noted earlier in these reasons, the Tribunal did not accept this argument, noting thatsince McKinney and Harrison had been decided, the law regarding the approach to be taken to claimsunder subsection 15(1) of the Charter had evolved. In this regard, the Tribunal made specificreference to the decisions of the Supreme Court of Canada in Law and Gosselin, both previouslycited.[206] The Tribunal noted that in Law, the Supreme Court held that the purpose of subsection 15(1)of the Charter is “to assure that human dignity is not harmed by arbitrary distinctions created by thelaw or government action”, and further that “the overriding concern with protecting and promotinghuman dignity infuses all elements of the discrimination analysis”: Tribunal decision, at paragraphs81–82, quoting from Law, at paragraph 54.[207] The Tribunal [at paragraph 89] then identified the issue before it as being “whether, as aresult of the age-based distinction in s. 15(1)(c) of the CHRA, the complainants’ dignity was affrontedor they experienced negative stereotyping relating to their age.”2009 FC 367 (CanLII)[208] After considering the issue, the Tribunal concluded that, although paragraph 15(1)(c) of theAct deprived Messrs. Vilven and Kelly of the ability to challenge Air Canada’s mandatory retirementpolicy, the loss of this opportunity did not violate their dignity, or fail to recognize them as full andequal members of society.[209] In coming to this conclusion, the Tribunal asked itself firstly, whether paragraph 15(1)(c) ofthe Act drew a distinction between Messrs. Vilven and Kelly and others on the basis of their personalcharacteristics; secondly, whether they were subject to differential treatment on an enumerated oranalogous ground; and thirdly, whether the differential treatment imposed a burden on them whichreflected or reinforced a negative disadvantage or stereotype, or had a negative effect on their dignityor self-worth.[210] The Tribunal identified this third question as being central to its decision.[211] As to whether paragraph 15(1)(c) of the Act drew a distinction between Messrs. Vilven andKelly and others on the basis of their personal characteristics, the Tribunal concluded that although itwas clear that airline pilots, as pilots, did not constitute a group which suffered from negativestereotyping or pre-existing disadvantage, the more appropriate focus of the Tribunal’s analysis was[at paragraph 92] “whether the complainants, as members of the group of older workers whoseemployment has been forcibly terminated, are subject to pre-existing disadvantage or negativestereotyping.”[212] In this regard, the Tribunal found that the disadvantages suffered by older workers have beennoted in the case law, noting that in McKinney, the Supreme Court observed that “[b]arring specificskills, it is generally known that persons over 45 have more difficulty finding work than others. Theydo not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter arefrequently more recently trained in the more modern skills”: at page 299.[213] The Tribunal then went on to find that there was no indication that Messrs. Vilven and Kellyhad themselves experienced these age-related disadvantages or negative stereotyping. The evidencebefore the Tribunal [at paragraph 95] established that both “were fully up-to-date in the latesttechnology and skills required to fly some of the most sophisticated aircraft in a major internationalairline.” Moreover, both Mr. Vilven and Mr. Kelly had been able to obtain new employment as pilotswith other airlines that did not have mandatory retirement policies.

[214] Insofar as the effect of paragraph 15(1)(c) of the Canadian Human Rights Act on the dignityof Messrs. Vilven and Kelly was concerned, the Tribunal found that the purpose of the provision wasto strike a balance between the need for protection against age discrimination, and the desirability ofthose in the workplace being able to bargain for and organize their own terms of employment.[215] The Tribunal further observed that paragraph 15(1)(c) does not mandate mandatoryretirement; rather, it is permissive, allowing parties such as Air Canada and ACPA to negotiatecontracts that include a mandatory retirement provision.[216] The Tribunal noted that mandatory retirement policies are usually in place in situations wherethe employees have considerable bargaining power, most commonly through trade unionrepresentation. In this regard, the Tribunal observed that the overwhelming majority of mandatoryretirement policies are found in unionized workplaces.[217] In this case, ACPA and Air Canada agreed to retirement at age 60 in exchange for a richcompensation package, including a pension plan that put Air Canada pilots in an elite group ofpensioners. Based upon the testimony of an Air Canada witness, the Tribunal observed [at paragraph100] that employees, including Air Canada pilots, are not faced with the indignity of retiring becausethey have been found to be incapable of performing the requirements of their position or because offailing health. Instead, “retirement at age 60 for pilots is the fully understood and anticipatedconclusion of a prestigious and financially rewarding career.”2009 FC 367 (CanLII)[218] The Tribunal further noted that Messrs. Vilven and Kelly had each been aware of AirCanada’s mandatory retirement policy when they commenced their employment with the airline, andhad benefited from it throughout their careers, by being able to progress through the ranks at AirCanada at a more rapid pace as a consequence of their increasing seniority. Having reaped the benefitof Air Canada’s mandatory retirement policy throughout their careers, the Tribunal held that it shouldnot be perceived as unfair to require Messrs. Vilven and Kelly to ultimately bear the burden of thatpolicy.[219] The Tribunal concluded that although paragraph 15(1)(c) of the Act deprived Messrs. Vilvenand Kelly of the opportunity to challenge the mandatory retirement policy in their workplace, the lossof this opportunity did not violate their dignity, or fail to recognize them as full and equal members ofsociety. As a consequence, the Charter challenge was dismissed.[220] That said, the Tribunal also accepted that when Messrs. Vilven and Kelly reached age 60 andhad to retire from Air Canada, each experienced a blow to his self-esteem. Both complainants hadtestified that they missed the prestige and exciting work that they had as Air Canada pilots. Mr. Kellyhad also testified to missing the friendships that he had formed at Air Canada.[221] The Tribunal also found that the termination of one’s employment will have a profoundimpact on the self-worth and dignity of an individual (citing the Reference Re Public ServiceEmployee Relations Act (Alta.), [1987] 1 S.C.R. 313, at page 368). However, the Tribunal held thatthe assessment of the impact of the termination of their employment on the dignity of Messrs. Vilvenand Kelly had to be viewed in the broader context of the entirety of their careers.[222] In this regard, the Tribunal noted that the Supreme Court of Canada has repeatedly cautionedagainst assessing the impact of age distinctions on human dignity based solely on isolated momentsin time: citing Law, at paragraph 102; Gosselin, at paragraph 32, and McKinney, at pages 296–298.[223] Referring to the evidence of Professor Hugh Carmichael, the labour economist who testifiedon behalf of Air Canada, the Tribunal observed [at paragraph 105] that age distinctions are vieweddifferently by most people than distinctions based on grounds such as gender and race. Because weall will become older, “young workers generally do not resent the fact that an older employee

working beside them is paid more than them as long as they believe that they will be treated the samewhen they reach a similar stage in their career.”[224] The Tribunal [at paragraph 105] thus held that age-based distinctions will be seen as fair, andwill not offend human dignity, as “we can all expect to reap the benefits and bear the burden of thedistinctions at some point in our lives.”[225] Having regard to the totality of Messrs. Vilven and Kelly’s careers at Air Canada, theTribunal concluded [at paragraph 109] that denying them the right to challenge Air Canada’smandatory retirement policy because of the operation of paragraph 15(1)(c) of the Canadian HumanRights Act does not communicate the message that they “are not valued as members of society, nordoes it necessarily marginalize them.” According to the Tribunal, “[i]t simply reflects the view that itis not unfair to require the complainants to assume their final responsibility as Air Canada pilots. Thismessage cannot reasonably be viewed as an affront to their dignity.”[226] As a result, the Tribunal concluded that Messrs. Vilven and Kelly’s right to equality undersubsection 15(1) of the Charter had not been violated by virtue of paragraph 15(1)(c) of the CHRA.2009 FC 367 (CanLII)[227] Between the time that the Tribunal rendered its decision and the hearing of this application,the Supreme Court of Canada released its decision in Kapp, previously cited, which re-examines theapproach to be taken in relation to claims under subsection 15(1) of the Charter. Before turning toconsider whether the Tribunal was correct in its analysis of the section 15 Charter issue, it is thereforefirst necessary to have regard to what the Supreme Court had to say in Kapp.(iv) The Supreme Court’s decision in Kapp[228] As a consequence of the Supreme Court’s decision in Law and its progeny, a concerndeveloped with respect to the increasing complexity of the analytical framework to be applied inrelation to claims under section 15 of the Charter. Indeed, there was much academic criticism withrespect to the role of “human dignity” as the core interest protected by section 15: see, for example,Donna Greschner, “Does Law Advance the Cause of Equality?” (2001), 27 Queen’s L.J. 299; R.James Fyfe, “Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court ofCanada” (2007), 70 Sask. L. Rev. 1.[229] Questions also emerged as to the continuing significance of the Supreme Court’s decision inAndrews, in light of the intervening jurisprudence: see Lynn Smith, “Development of EqualityRights: Contribution of the Right Honourable Antonio Lamer” (paper presented at the CIAJ AnnualConference, Reasonable Accommodation and the Role of the State: A Democratic Challenge, 25–26September 2008) (unpublished), at page 5.[230] Although the primary focus of Kapp is on subsection 15(2) of the Charter, the decision isnevertheless significant in that it also reflects an attempt on the part of the Supreme Court to addressthe concerns identified above, and to clarify the current state of the law as it relates to claims undersubsection 15(1) of the Charter.[231] In this regard, the Court observed that subsection 15(1) of the Charter is aimed at preventingdiscriminatory distinctions that impact adversely on members of groups identified by reference to thegrounds enumerated in section 15 or analogous grounds: Kapp, at paragraph 16.[232] That is, the focus of subsection 15(1) of the Charter is on “preventing governments frommaking distinctions based on the enumerated or analogous grounds that: have the effect ofperpetuating group disadvantage and prejudice; or impose disadvantage on the basis of stereotyping”:Kapp, at paragraph 25 (emphasis in the original).

[233] Tracing the evolution of the section 15 jurisprudence, the Supreme Court noted that the“template” in Andrews, as subsequently developed in cases such as Law, established what was inessence a two-part test for establishing claims of discrimination under subsection 15(1) of theCharter. The Court identified the two parts of the test as firstly, whether the law creates a distinctionbased on an enumerated or analogous ground and secondly, whether the distinction creates adisadvantage by perpetuating prejudice or stereotyping. Although these criteria were divided intothree steps in Law, Kapp confirms that the test remains substantially the same: Kapp, at paragraph 17.[234] Insofar as the significance of the Law decision was concerned, the Supreme Court noted inKapp that Law suggested that “discrimination should be defined in terms of the impact of the law orprogram on the ‘human dignity’ of members of the claimant group”: Kapp, at paragraph 19. Thisdetermination was to be made on the basis of the four contextual factors identified by the Court.[235] However, the Court also recognized in Kapp that difficulties have arisen in using humandignity as a legal test. In this regard, the Court observed that although human dignity is an essentialvalue underlying the subsection 15(1) equality guarantee, “human dignity is an abstract andsubjective notion that, even with the guidance of the four contextual factors, cannot only becomeconfusing and difficult to apply; it has also proven to be an additional burden on equality claimants,rather than the philosophical enhancement it was intended to be”: Kapp, at paragraph 22 (emphasis inthe original).2009 FC 367 (CanLII)[236] The Supreme Court also acknowledged that the decision in Law had additionally been thesubject of criticism for the way that it “allowed the formalism of some of the Court’s post-Andrewsjurisprudence to resurface in the form of an artificial comparator analysis focussed on treating likesalike”: Kapp, at paragraph 22.[237] The Supreme Court then observed that the analysis in a given case “more usefully focusseson the factors that identify impact amounting to discrimination.” The four contextual factorsidentified by the Supreme Court in Law “are based on and relate to the identification in Andrews ofperpetuation of disadvantage and stereotyping as the primary indicators of discrimination”: Kapp, atparagraph 23.[238] The Court then went on to hold that “Law does not impose a new and distinctive test fordiscrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrewsand developed in numerous subsequent decisions”: Kapp, at paragraph 24.[239] Thus, the factors identified in Law are not to be read literally “as if they were legislativedispositions, but as a way of focussing on the central concern of s. 15 identified in Andrews—combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping”: Kapp, atparagraph 24.[240] Since Kapp, the Supreme Court of Canada has reminded us of the importance of lookingbeyond the impugned legislation in a section 15 Charter analysis, and of the need to examine thelarger social, political and legal context of the legislative distinction in a substantive equalityanalysis: see Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222, atparagraphs 193–194.[241] With this understanding of the relevant jurisprudence, I turn now to examine whether theTribunal was correct in concluding that paragraph 15(1)(c) of the Canadian Human Rights Act doesnot violate subsection 15(1) of the Charter.(v) Analysis[242] In approaching the Charter question, it must be kept in mind from the outset that what is inissue at this point is not the mandatory retirement provisions of the Air Canada collective agreement.

Rather, it is the permissive provision in paragraph 15(1)(c) of the Canadian Human Rights Act whichprovides that it is not a discriminatory practice if an individual is required to retire at the normal ageof retirement for positions similar to that occupied by the claimant.(a) The purpose of paragraph 15(1)(c) of the CHRA[243] The Tribunal described the purpose of paragraph 15(1)(c) of the Canadian Human Rights Actas being “to strike a balance between the need for protection against age discrimination and thedesirability of those in the workplace to bargain for and organize their own terms of employment”: atparagraph 98.[244] The Tribunal’s description of the purpose of the provision is accurate, as far as it goes. Amore fulsome description of the purpose of the impugned legislation was provided by the arbitrator inthe CKY-TV case, cited earlier. In this regard, the arbitrator observed [at paragraph 210] that thelegislative objective underlying paragraph 15(1)(c) of the Act “was to protect a longstandingemployment regime.”2009 FC 367 (CanLII)[245] Referring to the comments of Minister Basford cited earlier in these reasons, the arbitratornoted that the Minister had made reference to the “‘many complex social and economic factors’involved in mandatory retirement”, leading the arbitrator to conclude that “[t]he government’s statedpreference was to continue the traditional approach whereby the issue in the private sector wasaddressed between employers and employees”: CKY-TV, at paragraph 210.[246] The arbitrator further held that the objective of paragraph 15(1)(c) of the Act was to allow forthe continuation of a socially desirable employment regime, which included pensions, job security,wages and benefits. This was to be achieved by allowing mandatory retirement “if the age matchedthe predominant age for the position”: CKY-TV, at paragraph 211.[247] It is clear from the statements made by Minister Basford and Assistant Deputy MinisterStrayer at the time that the Canadian Human Rights Act was enacted that paragraph 15(1)(c) of theAct was intended to create an exception to the quasi-constitutional rights otherwise provided by theAct, so as to allow for the negotiation of mandatory retirement arrangements between employers andemployees, particularly through the collective bargaining process.[248] In determining whether paragraph 15(1)(c) of the Act violates subsection 15(1) of theCharter, it is necessary to examine the issue in light of the tests articulated in Andrews and Law,taking into account the comments of the Supreme Court of Canada in Kapp.(b) Does paragraph 15(1)(c) of the CHRA create a distinction based on an enumerated ground?[249] The first stage of the inquiry is to ask whether paragraph 15(1)(c) of the Canadian HumanRights Act creates a distinction based upon an enumerated or analogous ground. As reformulated inLaw, the Court must ask itself whether the impugned law imposes differential treatment between theclaimant and others, in purpose or effect, and whether one or more enumerated or analogous groundsof discrimination are the basis for the differential treatment.[250] In approaching a section 15 claim, the Supreme Court in Law teaches that the determinationof the appropriate comparator, and the evaluation of the contextual factors which determine whetherthe impugned legislation has the effect of demeaning a claimant’s dignity must be conducted from theperspective of the claimant. However, the focus of the discrimination inquiry is both subjective andobjective.[251] That is, the inquiry is subjective “in so far as the right to equal treatment is an individualright, asserted by a specific claimant with particular traits and circumstances”. The inquiry isobjective “in so far as it is possible to determine whether the individual claimant’s equality rights

have been infringed only by considering the larger context of the legislation in question, and society’spast and present treatment of the claimant and of other persons or groups with similar characteristicsor circumstances”: Law, at paragraph 59.[252] The Tribunal found that, although paragraph 15(1)(c) of the Canadian Human Rights Act wasworded differently than the provision of the Ontario Human Rights Code, 1981 at issue in McKinney,the two provisions were comparable as both exempt mandatory retirement policies from conduct thatwould otherwise amount to prima facie age discrimination. As I understand the Tribunal’s reasons,the Tribunal accepted that paragraph 15(1)(c) of the Canadian Human Rights Act makes an age-baseddistinction, which deprived Messrs. Vilven and Kelly of the ability to challenge Air Canada’smandatory retirement policy.[253] Neither Air Canada nor ACPA have challenged this finding. Indeed, ACPA acknowledged inits oral submissions that there was no material difference between paragraph 15(1)(c) of the CHRAand the provision of the Ontario Human Rights Code, 1981 at issue in McKinney. As a consequence, Iwill deal only briefly with this issue.2009 FC 367 (CanLII)[254] Equality is inherently a comparative concept. As a consequence, in order to determinewhether there has been a breach of subsection 15(1) of the Charter, it is necessary to first identifyspecific personal characteristics or circumstances of the claimant, and compare the treatment of thatindividual to the treatment accorded to a relevant comparator. This comparison will assist indetermining whether the claimant has experienced differential treatment, which is the first step indetermining whether there has been a violation of subsection 15(1) of the Charter: see Law, atparagraph 24.[255] Insofar as the choice of comparator is concerned, the Supreme Court stated in Auton(Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657,that the comparator group (at paragraph 53):... should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought,except for the personal characteristic related to the enumerated or analogous ground raised as the basis for thediscrimination …. The comparator must align with both the benefit and the “universe of people potentiallyentitled” to it and the alleged ground of discrimination ....[256] In Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3S.C.R. 357, the Court reiterated that the appropriate comparator group will be the one which mirrorsthe characteristics of the claimant or claimant group relevant to the benefit or advantage sought, withthe exception “that the statutory definition includes a personal characteristic that is offensive to theCharter or omits a personal characteristic in a way that is offensive to the Charter”: at paragraph 23.[257] The relevant comparison in this case is to be made between older workers such as Messrs.Vilven and Kelly, who exceed the normal age of retirement for their type of position, and youngerworkers occupying similar positions who have not yet reached the normal age of retirement: seeStevenson, previously cited, at paragraph 24, where the Federal Court of Appeal described thedistinction drawn by the predecessor to paragraph 15(1)(c) of the Act as being “between persons whohave reached the normal age of retirement and younger employees in the same class who have notreached that age.”[258] Unlike the provision of the Ontario Human Rights Code, 1981 at issue in McKinney,paragraph 15(1)(c) of the Canadian Human Rights Act does not stipulate a specific age beyond whichthe protection of the Act will not be available. Rather the reference is to the “normal age ofretirement” as the relevant demarcation point.[259] Thus, in McKinney, workers under age 65 could claim the protection of the Code in relationto claims of age discrimination, whereas those over 65 could not. In this case, the differential

treatment is as between workers under the “normal age of retirement” for positions similar, and thoseover that “normal age of retirement”.[260] That is, the effect of paragraph 15(1)(c) of the Canadian Human Rights Act is to denyworkers over the “normal age of retirement” the equal protection and equal benefit of the Act.Paragraph 15(1)(c) allows these individuals’ employment to be terminated solely because of theirage, regardless of their individual circumstances, career aspirations, needs, abilities or merits. Incontrast, individuals who are below the normal age of retirement who lose their jobs for reasonsrelating to their age will have recourse under the Act. This is clearly a distinction based upon anenumerated ground.[261] The next question, then, is whether the age-related distinction contained in paragraph 15(1)(c)of the Canadian Human Rights Act creates a disadvantage by perpetuating prejudice or stereotyping.(c) Does the age-related distinction contained in paragraph 15(1)(c) of the CHRA create adisadvantage by perpetuating prejudice or stereotyping?2009 FC 367 (CanLII)[262] As the Supreme Court observed in Kapp, Andrews teaches that the question to be asked atthis stage in the inquiry is “[d]oes the distinction create a disadvantage by perpetuating prejudice orstereotyping?”: Kapp, at paragraph 17.[263] As was explained earlier, in Law, the Court reformulated this question to require a court toexamine whether the distinction in issue was discriminatory, in the sense of perpetuating orpromoting the view that the claimant was less capable or worthy of recognition or value as a humanbeing or as a member of Canadian society. To this end, courts were directed to focus on whether animpugned law negatively affected a claimant’s “human dignity”. To assist in this analysis, fourcontextual factors were identified as “points of reference”.[264] Kapp teaches that the four Law factors should not be read literally as if they were a legislativetest. Instead, they should be understood as a way to focus on the central concern of subsection 15(1)of the Charter: namely combating discrimination defined in terms of perpetuating disadvantage andstereotyping. That is, the focus is on preventing governments from making distinctions based on theenumerated or analogous grounds that have the effect of perpetuating group disadvantage andprejudice, or that impose disadvantage on the basis of stereotyping.(i) Pre-existing disadvantage suffered by the individual or group[265] In applying the above jurisprudence to the facts of this case, the first of the contextual factorsto be considered is whether the group to which the claimants belong suffers from a pre-existingdisadvantage, vulnerability, stereotyping or prejudice.[266] Citing Gosselin, at paragraph 31, Air Canada points out that age-based distinctions are acommon way of ordering our society, and do not automatically evoke pre-existing disadvantagesuggesting discrimination and marginalization in the way that other enumerated or analogous groundsmay. It bears noting, however, that these comments were made by the Supreme Court in the contextof a statutory age-based distinction that had an adverse differential effect in relation to youngerindividuals.[267] Indeed, the Court went on in Gosselin to observe that age-based section 15 claims typicallyrelate to discrimination against older people “who are presumed to lack abilities that they may in factpossess”: at paragraph 32.[268] Moreover, as the Supreme Court observed in Law, “the most prevalent reason that a givenlegislative provision may be found to infringe s. 15(1) is that it reflects and reinforces existinginaccurate understandings of the merits, capabilities and worth of a particular person or group within

Canadian society, resulting in further stigmatization of that person or the members of the group orotherwise in their unfair treatment”: at paragraph 64.[269] Similarly, in Gosselin, Chief Justice McLachlin stated that “a law that imposes restrictions ordenies benefits on account of presumed or unjustly attributed characteristics is likely to deny essentialhuman worth and to be discriminatory”: at paragraph 37.[270] The Tribunal found that Messrs. Vilven and Kelly were members of a group which itidentified as “older workers”. Supreme Court of Canada jurisprudence has repeatedly recognized thepre-existing disadvantages and stereotyping suffered by this group.[271] By way of example, in addition to the comments of the Supreme Court in Gosselin and Lawquoted above, the Court in McKinney also made reference to “the stereotype of older persons asunproductive, inefficient, and lacking in competence.” Justice Wilson went on in McKinney toobserve that by denying protection to older workers, the Ontario Human Rights Code, 1981 had theeffect of “reinforcing the stereotype that older employees are no longer useful members of the labourforce and their services may therefore be freely and arbitrarily dispensed with”: both quotations frompage 413, Wilson J. dissenting, but not on this point.2009 FC 367 (CanLII)[272] As a consequence, it is clear that older workers, as a group, suffer from a pre-existingdisadvantage, vulnerability, stereotyping or prejudice.[273] The Tribunal [at paragraph 92] had already found that although airline pilots, as pilots, didnot constitute a group which suffered from negative stereotyping or pre-existing disadvantage, themore appropriate question was “whether the complainants, as members of the group of older workerswhose employment has been forcibly terminated, are subject to pre-existing disadvantage or negativestereotyping.”[274] The Tribunal [at paragraph 95] accepted that this was the case, but then went on to find thatthere was “no indication” that either Mr. Vilven or Mr. Kelly personally experienced these agerelateddisadvantages or stereotypes. Not only were they kept fully up-to-date in the latest skills andtechnology required to fly some of the most sophisticated aircraft for a major airline, in addition, afterthe termination of their employment by Air Canada, they were able to secure alternate employmentwith other Canadian airlines that did not have mandatory retirement policies.[275] Two observations may be made in relation to this aspect of the Tribunal’s decision.[276] Firstly, to the extent that the focus of this stage of the analysis is on the group to which theclaimants belong, for the reasons given above it is clear that older workers suffer from a pre-existingdisadvantage, vulnerability, stereotyping or prejudice. Indeed, the Tribunal found that this was thecase.[277] Secondly, it is true that Messrs. Vilven and Kelly’s training may have been kept up-to-datewhile they were at Air Canada, and that they may indeed have been able to obtain alternateemployment as pilots after being forced by the airline to retire (albeit with less favourable workingconditions and compensation). However, one must not lose sight of the fact that even though therewas no concern with respect to either of their individual abilities, skills or capacities, they werenonetheless disadvantaged by being forced to leave positions that they clearly loved, merely becausethey had reached the age of 60.[278] As a consequence, I am satisfied that this consideration weighs in favour of a finding thatparagraph 15(1)(c) of the Canadian Human Rights Act has the effect of perpetuating a groupdisadvantage, suggesting that the provision violates subsection 15(1) of the Charter.

(ii) The degree of correspondence between the impugned law and the actual needs, circumstances,and capacities of the individual or group[279] As the Supreme Court observed in Kapp, this factor relates to the issue of stereotyping: seeparagraph 23.[280] The Supreme Court further noted in Law that both Eaton v. Brant County Board ofEducation, [1997] 1 S.C.R. 241 and Andrews make the point that “legislation which takes intoaccount the actual needs, capacity, or circumstances of the claimant and others with similar traits in amanner that respects their value as human beings and members of Canadian society will be less likelyto have a negative effect on human dignity”: see Law, at paragraph 70.[281] Paragraph 15(1)(c) draws a distinction between those who may claim the protection of theCanadian Human Rights Act and those who may not, based upon the normal age of retirement forsimilar positions. Individuals who are involuntarily retired after reaching the normal age of retirementfor positions similar are thus deprived of protection from age discrimination, regardless of their ownindividual needs, circumstances, or capacities. Indeed, there is no suggestion in this case that eitherMr. Vilven or Mr. Kelly was not fully qualified or capable of continuing to work safely as a pilot forAir Canada.2009 FC 367 (CanLII)[282] Moreover, paragraph 15(1)(c) of the Act takes no account of the needs, circumstances orcapacities of older workers, as a group. As there is no correspondence between the impugned law andthe actual needs, circumstances, and capacities of the disadvantaged group, this contextual factor alsofavours a finding that paragraph 15(1)(c) of the Canadian Human Rights Act violates subsection15(1) of the Charter.(iii) Does the law have an ameliorative purpose or effect?[283] The purpose of subsection 15(1) of the Charter is “not only to prevent discrimination by theattribution of stereotypical characteristics to individuals, but also to ameliorate the position of groupswithin Canadian society who have suffered disadvantage by exclusion from mainstream society”:Eaton, cited previously, at paragraph 66.[284] To this end, the Supreme Court observed in Law that legislation that has an ameliorativepurpose, or effects that accord with the purpose of subsection 15(1) of the Charter, “will likely notviolate the human dignity of more advantaged individuals where the exclusion of these moreadvantaged individuals largely corresponds to the greater need or the different circumstancesexperienced by the disadvantaged group being targeted by the legislation”: Law, at paragraph 72.[285] The purpose of paragraph 15(1)(c) of the Canadian Human Rights Act was discussed earlierin these reasons. ACPA has not suggested that the provision has any ameliorative purpose.[286] To the extent that Air Canada has argued that the provision has the effect of freeing uppositions for younger workers as older workers are forced to retire, there has been no suggestion that“younger workers” constitute a disadvantaged group who are being targeted by the legislation.[287] Moreover, as the Supreme Court observed in McKinney, legislation that has as its objectivethe forcible retirement of older workers in order to make way for younger workers would be in itselfdiscriminatory “since it assumes that the continued employment of some individuals is less importantto those individuals, and of less value to society at large, than is the employment of other individuals,solely on the basis of age”: at page 303.[288] Furthermore, there is evidence to suggest that the practice of mandatory retirement has anadverse differential effect on individuals who enter the workforce later in life. This is because of theinability of these individuals to accrue sufficient pension benefits over the course of their careers, and

the resultant financial challenges that such people face when forced to retire. Professor Carmichaelhimself acknowledged in his evidence that this group will be predominantly made up of women, whospend the early part of their careers out of the workplace while raising children, and immigrants whocome to Canada later in life.[289] A similar observation was made by Justice L’Heureux-Dubé in her dissenting opinion inDickason, where she noted that not only do women often interrupt their careers to raise families, theyare particularly hard hit by mandatory retirement because they tend to have lower paying jobs whichare less likely to offer pension coverage: see page 1191. (See also McKinney, at page 415, for similarobservations by Justice Wilson, dissenting, but not on this point.)[290] I am mindful of the fact that the issue before the Court in this case is not the constitutionalityof Air Canada’s mandatory retirement policy, but rather the constitutionality of the provision in theCanadian Human Rights Act that permits the practice of mandatory retirement in certain specifiedcircumstances. That said, legislation that would permit the continuation of an employment practicethat can have an adverse differential effect on women and immigrants can hardly be said to have anameliorative purpose.2009 FC 367 (CanLII)(iv) The nature and scope of the interest affected[291] The final contextual factor identified in Law for use in determining whether a claimant’sdignity has been violated is the nature and scope of the interest affected by the impugned legislation.[292] The Supreme Court explained this factor in Law by reference to the comments of JusticeL’Heureux-Dubé in Egan v. Canada, [1995] 2 S.C.R. 513, where she observed that “[i]f all otherthings are equal, the more severe and localized the … consequences on the affected group, the morelikely that the distinction responsible for these consequences is discriminatory within the meaning ofs. 15 of the Charter”: Egan, at paragraph 63, cited in Law, at paragraph 74.[293] In the case of Messrs. Vilven and Kelly, the interest at stake is the ability to continue to workin the career of their choice. The importance of this interest cannot be overstated. Indeed, Canadianjurisprudence is replete with references to the crucial role that employment plays in the dignity andself-worth of the individual.[294] By way of example, in Reference Re Public Service Employee Relations Act (Alta.), theSupreme Court of Canada stated that (at page 368):Work is one of the most fundamental aspects in a person’s life, providing the individual with a means offinancial support and, as importantly, a contributory role in society. A person’s employment is an essentialcomponent of his or her sense of identity, self-worth and emotional well-being.[295] Although this quotation comes from Chief Justice Dickson’s dissenting judgment, similarsentiments regarding the central role that employment plays in the dignity and self-worth of theindividual have been expressed in many other judgments of the Supreme Court, and of otherCanadian courts: see, for example, Evans v. Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1S.C.R. 661; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; NovaScotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v.Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at paragraph 104; Lavoie v. Canada, 2002 SCC 23,[2002] 1 S.C.R. 769, at paragraph 45; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001]3 S.C.R. 1016; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Machtinger v. HOJIndustries Ltd., [1992] 1 S.C.R. 986, at page 1002; McKinney, at page 278; Slaight CommunicationsInc. v. Davidson, [1989] 1 S.C.R. 1038, at page 1054; Wilson v. British Columbia (Medical ServicesCommission) (1988), 53 D.L.R. (4th) 171 (B.C.C.A.); Assn. of Justices of the Peace of Ontario v.Ontario (Attorney General) (2008), 92 O.R. (3d) 16 (Ont. S.C.J.), at paragraphs 113–120.

[296] In Lavoie, Justice Bastarache described work as “a fundamental aspect of a person’s life”: atparagraph 45. Martin describes work and employment as being crucially important as elements ofessential human dignity under subsection 15(1) of the Charter: at paragraph 104. Indeed, in Wallace,the Supreme Court went so far as to describe work as one of the “defining features” of peoples’ lives:at paragraph 94.[297] The implications of being forced to retire against one’s will have also been discussed in thejurisprudence. In this regard, Justice L’Heureux-Dubé observed in her dissenting judgment inDickason that (at page 1192):Given the central importance that our society accords to career as a way of defining an individual’s status andself-worth, it is hardly surprising that being dismissed without cause on account of one‘s age is extremelytraumatic.[298] After reviewing the evidence with respect to the effects that mandatory retirement can haveon workers, Justice L’Heureux-Dubé went on in Dickason to observe that the shock of mandatoryretirement, together with the loss of earning power and productive work “often leads to physical andemotional deterioration and premature death”: at page 1193.2009 FC 367 (CanLII)[299] Similarly, in McKinney, the majority decision observed that “[i]n a work-oriented society,work is inextricably tied to the individual’s self-identity and self-worth”: at page 300. With this inmind, Justice LaForest went on in McKinney to draw a similar link between mandatory retirementand the loss of an individual’s self-worth, identity and emotional well-being.[300] That is, after recognizing the intrinsic importance of work to the individual, Justice LaForestheld that “[m]andatory retirement takes this away, on the basis of a personal characteristic attributedto an individual solely because of his association with a group”: McKinney, at page 278.[301] It once again bears repeating that what is in issue in this case is not Air Canada’s mandatoryretirement policy, but rather the provision of the Canadian Human Rights Act that denies individualssuch as Messrs. Vilven and Kelly the ability to challenge the company’s mandatory retirement policy.[302] That said, the comments of the Supreme Court with respect to the impact of mandatoryretirement on the self-esteem and dignity of individuals are directly relevant to the nature and scopeof the interest adversely affected by paragraph 15(1)(c) of the Canadian Human Rights Act.(v) Other observations[303] The Tribunal framed the Charter issue before it in the following terms [at paragraph 89]:“whether, as a result of the age-based distinction in s. 15(1)(c) of the CHRA, the complainants’dignity was affronted or they experienced negative stereotyping relating to their age.”[304] Much of the Tribunal’s ensuing Charter analysis is taken up with a discussion of Messrs.Vilven and Kelly’s dignity. As was noted earlier, the Tribunal did not have the benefit of theSupreme Court’s reasons in Kapp at the time that it rendered its decision in this matter. As aconsequence, its focus on Messrs. Vilven and Kelly’s dignity, and its use of dignity as a litmus testwith respect to subsection 15(1) of the Charter is understandable. Nevertheless, the Tribunal’s focuson the dignity issue serves as an example of the very problem that the Supreme Court identified inKapp.[305] That is, the Tribunal’s determination that having regard to all of the surroundingcircumstances, it could not reasonably be said that Messrs. Vilven and Kelly’s dignity was adverselyaffected by the fact that they were denied the opportunity to challenge Air Canada’s actions by virtueof paragraph 15(1)(c) of the Canadian Human Rights Act was necessarily a subjective one, relating towhat is essentially an abstract notion: see Kapp, at paragraph 22.

[306] In coming to the conclusion that Messrs. Vilven and Kelly’s dignity was not negativelyaffected by their inability to challenge their mandatory retirement by Air Canada under the provisionsof the Canadian Human Rights Act, the Tribunal found that the effect of mandatory retirement onMessrs. Vilven and Kelly could not be viewed at an isolated point in time. Rather, regard had to begiven to the impact of mandatory retirement over the “life cycle” of the applicants’ careers with theairline.[307] In this regard, the Tribunal considered the fact that Messrs. Vilven and Kelly were aware ofthe mandatory retirement policy when they commenced their employment with Air Canada, and thatthey had benefited from the policy through the course of their careers. According to the Tribunal, itwas not unreasonable to expect them to have to bear the burden of the policy at the end of theircareers. There are several problems with the Tribunal’s finding in this regard.[308] First of all, it is not the impact of Air Canada’s mandatory retirement policy on Messrs.Vilven and Kelly that is in issue in this case, but rather the effect of paragraph 15(1)(c) of theCanadian Human Rights Act.2009 FC 367 (CanLII)[309] The Tribunal’s conclusion that paragraph 15(1)(c) of the Act did not have a negative impacton Messrs. Vilven and Kelly’s dignity was largely based upon its assessment of the specificmandatory retirement policy at Air Canada, and the role that mandatory retirement played in theentirety of their careers with the airline. I agree with the arbitrator in CKY-TV that in this regard theTribunal “slipped” to some extent “from a constitutional review of legislation into an assessment ofAir Canada’s particular policy as applied to its pilots”: at paragraph 188.[310] Furthermore, it appears that similar “life cycle” arguments were advanced in McKinney, acase that involved another group of well-educated and well-paid individuals who were able toadvance in their careers through seniority and who were entitled to substantial pension benefits as aresult of their employment. Nevertheless, the Supreme Court of Canada had no difficulty in findingthat the legislative provision in issue in that case deprived the claimants of the equal protection of thelaw on the basis of an enumerated ground. This in turn conveyed the message that the claimants wereless deserving of concern, respect and consideration, thus violating subsection 15(1) of the Charter:see paragraph 76.[311] It is also difficult to reconcile the Tribunal’s recognition that Messrs. Vilven and Kelly eachsuffered a blow to their self-esteem when they were forced to retire from Air Canada with itsconclusion that denying them the right accorded to others to challenge their forced retirement underthe provisions of the Canadian Human Rights Act did not have a negative impact on their dignity.[312] That is, after being forced to leave the jobs that they loved, Messrs. Vilven and Kelly weretold that, unlike other Canadians, they did not enjoy the protection of the Canadian Human RightsAct because 60 was the normal age of retirement for their type of positions. Unlike other Canadiansfacing age-based workplace discrimination, Messrs. Vilven and Kelly were not afforded “anopportunity equal with other individuals to make for themselves the lives that they are able and wishto have … without being hindered in or prevented from doing so by discriminatory practices based on… age”: see Canadian Human Rights Act, section 2.[313] To add insult to injury, as the dominant player in the Canadian airline industry, it was AirCanada’s own mandatory retirement policy that effectively set the industry norm and deprivedMessrs. Vilven and Kelly of the equal benefit of the law. In other words, paragraph 15(1)(c) of theAct allowed Air Canada’s own discriminatory conduct to provide the company with a defence toMessrs. Vilven and Kelly’s human rights complaints.[314] ACPA argues that paragraph 15(1)(c) was intended to allow for a negotiated age ofretirement, and that no negative stereotyping results if an entire industry is regulated in that fashion.In this regard, I note that in McKinney, Justice LaForest accepted that 65 was the normal age ofretirement for university professors in Canada, yet he still found that denying the equal protection of

the law to university professors over that age violated subsection 15(1) of the Charter as itperpetuated the stereotypical assumption that older workers were less valued members of society.[315] Moreover, the assertion that employers should be allowed to terminate an individual’semployment, solely because of the employee’s age, as long as many other employees performingsimilar jobs are experiencing similar treatment contradicts the guarantee of equality embodied insubsection 15(1) of the Charter, that “all persons enjoy equal recognition at law as human beings …equally capable and equally deserving of concern, respect and consideration”: Law, at paragraph 88,as discussed at paragraph 174 of CKY-TV.[316] Indeed, the Supreme Court of Canada has specifically rejected the proposition that pervasivediscrimination may preclude a finding that subsection 15(1) of the Charter has been breached. In R. v.Turpin, [1989] 1 S.C.R. 1296, the Court held that the fact that departures from the principlesenshrined in subsection 15(1) of the Charter may have been widely condoned in the past is no answerto a claim that the equality provisions of the Charter have been breached. In this regard, the SupremeCourt stated that the fact that the consequences of such an approach “would be novel and disturbingis not, in my respectful view, an acceptable approach to the interpretation of Charter provisions”: atpage 1328.2009 FC 367 (CanLII)[317] All of this having been said, there are any number of arguments that have been advanced infavour of mandatory retirement as an employment practice, primarily supported in this case by theevidence of Professor Carmichael. (It should be noted that contrary arguments were advanced byProfessor Kesselman. Professor Kesselman holds a PhD in economics, and is a Professor in theGraduate Public Policy Program at Simon Fraser University.)[318] Amongst other arguments, Professor Carmichael and the respondents point out thatmandatory retirement policies exist primarily in organized workplaces. Mandatory retirement agesare negotiated through the collective bargaining process, as part of a complex, integrated lifetimecontractual arrangement that will usually include deferred compensation in the form of pensionbenefits. Mandatory retirement policies allow for stability in pension schemes. Moreover, suchpolicies spare older workers the pain of having their jobs terminated because of age-relateddeterioration in their performance, allowing them instead to leave the workplace with their dignityintact.[319] The respondents further argue that mandatory retirement allows both the employer and theemployee to plan for the employee’s retirement. They contend that mandatory retirement is alsointegral to the seniority system, which will ultimately benefit all employees, including those who willeventually be retired in accordance with the retirement policy. Compelling the retirement ofemployees at a fixed age also allows for “new blood” to enter the workplace, renewing the workforceand creating opportunities for younger workers.[320] Indeed, the respondents point out that the Supreme Court of Canada observed in the majoritydecision in McKinney that mandatory retirement “has become part of the very fabric of theorganization of the labour market in this country”: at page 295.[321] The respondents’ arguments raise what was described in McKinney as a complex socioeconomicproblem—one that “involves the basic and interconnected rules of the workplacethroughout the whole of our society”: at page 302.[322] Whatever the merits may be of the arguments advanced by the respondents to justify thestatutory provision allowing for the continuation of mandatory retirement in certain circumstances,the question arises as to where it is that these arguments should be considered. That is, do they formpart of the section 15 analysis, or should they more properly be taken into account at the section 1stage of the inquiry?

[323] In McKinney, arguments of the type advanced by the respondents in this case to justify asimilar statutory provision were all addressed by the Supreme Court in the context of its section 1analysis.[324] It is true that since Law, the line between the section 15 analysis, and that required by section1 of the Charter is not always clear: see William Black and Lynn Smith, “The Equality Rights”,previously cited, at page 959. Indeed, a review of the jurisprudence from the Supreme Court ofCanada since Law reveals that Justices of the Supreme Court of Canada have not always agreed as towhether certain factors should be considered as part of the section 15 analysis, or are more properlydealt with at the section 1 stage: see, for example, Gosselin, previously cited.[325] I have considered the respondents’ “life cycle” argument in assessing the impact thatparagraph 15(1)(c) had on Messrs. Vilven and Kelly’s self-worth. I also recognize that there has beenan evolution in the section 15 Charter jurisprudence since the days of McKinney. Nevertheless, I amof the view that the other arguments advanced by the respondents in this case to justify theperpetuation of mandatory retirement policies through paragraph 15(1)(c) of the Canadian HumanRights Act are ones that should be addressed in considering whether the statutory provision can bejustified as a reasonable limitation in a free and democratic society.2009 FC 367 (CanLII)[326] This view is borne out by an examination of recent jurisprudence. By way of example, in theAssn. of Justices of the Peace of Ontario case cited earlier, it was argued that justices of the peace didnot suffer a loss of dignity when they were forced to retire at the age of 70, because they had enjoyedsecurity of tenure until that point. Their forced retirement did not, it was argued, reflect on them asindividuals, but rather served to preserve judicial independence.[327] The trial Judge held that this argument related to the object of the legislation in issue, and notwhether it was discriminatory. As a consequence, he was of the view that the argument shouldproperly be taken into account as a justification for the statutory provision in question under section 1of the Charter, as opposed to “the negation of the limit from the outset”: Assn. of Justices of thePeace of Ontario, at paragraphs 109–110. The same may be said of the respondents’ arguments inthis case.[328] Section 1 allows for the limitation of the rights guaranteed under section 15 of the Charterwhere such limitations are “reasonable limits prescribed by law as can be demonstrably justified in afree and democratic society.” The section 1 test originally articulated by the Supreme Court ofCanada in The Queen v. Oakes, [1986] 1 S.C.R. 103 requires that consideration be given to whetherthe objective of the law is “pressing and substantial”. In addition, the party invoking section 1 mustdemonstrate that the means chosen are reasonable and demonstrably justified. This involves anassessment of proportionality.[329] There are three components to the proportionality test. Firstly, “the measures adopted must becarefully designed to achieve the objective in question”, and “must not be arbitrary, unfair or basedon irrational considerations.” Rather they must “[be] rationally connected to the objective.” Secondly,the measures “should impair ‘as little as possible’ the right or freedom in question”. Finally, “theremust be a proportionality between the effects of the measures which are responsible for limiting theCharter right or freedom, and the objective which has been identified as of ‘sufficient importance’”:Oakes, at page 139.[330] In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Courtobserved that the application of the Oakes test “requires close attention to the context in which theimpugned legislation operates”, and that “where the legislation under consideration involves thebalancing of competing interests and matters of social policy, the Oakes test should be appliedflexibly, and not formally or mechanistically”: at paragraph 85.[331] Thus, the arguments advanced by the respondents including the context in which paragraph15(1)(c) of the Canadian Human Rights Act operates, the importance of collective bargaining as a

constitutionally protected right, the need for certainty in pension plans, the link between age anddeclining health, as well as the arguments relating to the balancing of competing interests and mattersof social policy, would all have to be taken into account by the Tribunal in determining whether thestatutory provision is saved by section 1 of the Charter.[332] At the same time, the Tribunal would also have to have regard to matters such as evolvingsocietal attitudes with respect to age discrimination, including the fact that a number of Canadianprovinces have now outlawed mandatory retirement, in determining whether there is still a pressingand substantial legislative objective behind the legislation: see also the discussion regarding issuessuch as this in Assn. of Justices of the Peace of Ontario, previously cited, at paragraphs 33 to 45, andin Greater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District,2001 BCCA 435, 206 D.L.R. (4th) 220, at paragraph 127.[333] The evidence provided by Dr. Kesselman as to the negative effects of mandatory retirement,and the limited fallout that has resulted from the abolition of mandatory retirement in a number ofjurisdictions would also have to be addressed in relation to the section 1 issue. So too would otherconsiderations, such as the extent to which improvements in fitness testing have obviated the need foracross-the-board safety-related retirement rules.2009 FC 367 (CanLII)(d) Conclusion with respect to the subsection 15(1) Charter issue[334] The effect of the Supreme Court of Canada’s decisions in Andrews, Law and Kapp is that tosucceed in a claim under subsection 15(1) of the Charter, it will not be enough for a claimant to showthat he or she is not receiving equal treatment before and under the law, or that the law has adifferential impact on him or her in the protection or benefits accorded by the law in question.[335] A claimant must also be able to show that the legislative impact of the law is discriminatory.Two questions must be addressed in determining whether the impact of a law is discriminatory: first,does the law create a distinction based on an enumerated or analogous ground; and second, does thedistinction create a disadvantage by perpetuating prejudice or stereotyping: see Ermineskin IndianBand and Nation, previously cited, at paragraph 188.[336] Regard must be had to the “particular traits and circumstances” of the individual claimant, aswell as to “the larger context of the legislation in question, and society’s past and present treatment ofthe claimant and of other persons or groups with similar characteristics or circumstances”: Law, atparagraph 59.[337] Paragraph 15(1)(c) of the Canadian Human Rights Act denies older workers such as Messrs.Vilven and Kelly the equal protection of the law that has been described by the Supreme Court ofCanada as “the final refuge of the disadvantaged and the disenfranchised”: Zurich Insurance Co.,previously cited, at page 339.[338] In so doing, paragraph 15(1)(c) of the Act has the effect of perpetuating the groupdisadvantage and prejudice faced by older workers in this country. Viewed both objectively, andfrom the subjective perspective of Messrs. Vilven and Kelly, the statutory provision promotes theperception that older workers such as Messrs. Vilven and Kelly are less worthy and less deserving ofthe equal protection of the law than are younger workers who lose their jobs for age-related reasons atan age below the normal age of retirement for a particular type of position.[339] Moreover, the statutory provision can only serve to perpetuate the stereotypical view thatolder workers are less capable, or are less deserving of recognition or value as human beings or asmembers of Canadian society. As a consequence, I find that paragraph 15(1)(c) of the CanadianHuman Rights Act violates subsection 15(1) of the Charter.IX. Disposition

[340] Because of its conclusion in relation to the subsection 15(1) issue, the Tribunal did not turnits mind to whether paragraph 15(1)(c) of the Canadian Human Rights Act could be justified undersection 1 of the Charter. Accordingly, the subsection 15(1) aspect of the Tribunal’s decision is setaside, and the matter is remitted to the Tribunal to determine on the basis of the existing recordwhether paragraph 15(1)(c) of the Act can be demonstrably justified as a reasonable limit in a freeand democratic society.[341] In the event that the Tribunal determines that paragraph 15(1)(c) of the Act is not saved undersection 1 of the Charter, the Tribunal will then have to address the merits of Messrs. Vilven andKelly’s human rights complaints, including Air Canada’s contention that requiring that all of its pilotsbe younger than 60 amounts to a bona fide occupational requirement within the meaning of section15 of the Canadian Human Rights Act.X. Costs[342] I see no reason why costs should not follow the events insofar as Messrs. Vilven and Kellyare concerned. Given that they were represented by the same counsel, and that their applications wereheard together, they are entitled to a single set of costs on the ordinary scale, payable jointly andseverally by the respondents. Having regard to the complexity of the issues involved, Messrs. Vilvenand Kelly are entitled to the costs of second counsel.2009 FC 367 (CanLII)[343] The Commission was unsuccessful in relation to the issues raised in its application forjudicial review with respect to paragraph 15(1)(c) of the Canadian Human Rights Act, and was notinvolved in the Charter issue on which Messrs. Vilven and Kelly’s application ultimately succeeded.Having regard to all of the circumstances, including the public interest mandate of the CanadianHuman Rights Commission, I make no order of costs with respect to the Commission.THIS COURT ORDERS AND ADJUDGES that:JUDGMENT1. Paragraph 15(1)(c) of the Canadian Human Rights Act violates subsection 15(1) of the CanadianCharter of Rights and Freedoms;2. The applications for judicial review of Messrs. Vilven and Kelly are allowed. Their human rightscomplaints are remitted to the same panel of the Tribunal, if available, for the determination of theremaining outstanding issues in accordance with these reasons, on the basis of the existing record;3. Messrs. Vilven and Kelly are entitled to a single set of costs with respect to their applications forjudicial review, including the costs of second counsel, to be calculated at the middle of Column III ofthe table to Tariff B of the Federal Courts Rules [SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)];and4. The application for judicial review of the Canadian Human Rights Commission is dismissed,without costs.APPENDIXRelevant provisions of the Canadian Human Rights Act2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters comingwithin the legislative authority of Parliament, to the principle that all individuals should have an opportunityequal with other individuals to make for themselves the lives that they are able and wish to have and to havetheir needs accommodated, consistent with their duties and obligations as members of society, without beinghindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin,

colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offencefor which a pardon has been granted.3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin,colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which apardon has been granted.…7. It is a discriminatory practice, directly or indirectly,(a) to refuse to employ or continue to employ any individual, or(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited groundof discrimination.…2009 FC 367 (CanLII)9. (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination(a) to exclude an individual from full membership in the organization;(b) to expel or suspend a member of the organization; or(c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive theindividual of employment opportunities, or limit employment opportunities or otherwise adversely affect thestatus of the individual, where the individual is a member of the organization or where any of the obligationsof the organization pursuant to a collective agreement relate to the individual.(2) Notwithstanding subsection (1), it is not a discriminatory practice for an employee organization to exclude,expel or suspend an individual from membership in the organization because that individual has reached thenormal age of retirement for individuals working in positions similar to the position of that individual.10. It is a discriminatory practice for an employer, employee organization or employer organization(a) to establish or pursue a policy or practice, or…(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship,transfer or any other matter relating to employment or prospective employment,that deprives or tends to deprive an individual or class of individuals of any employment opportunities on aprohibited ground of discrimination.15. (1) It is not a discriminatory practice if…(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to anyemployment is established by an employer to be based on a bona fide occupational requirement;…(c) an individual’s employment is terminated because that individual has reached the normal age of retirementfor employees working in positions similar to the position of that individual;…

(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupationalrequirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification,it must be established that accommodation of the needs of an individual or a class of individuals affected wouldimpose undue hardship on the person who would have to accommodate those needs, considering health, safetyand cost.…(8) This section applies in respect of a practice regardless of whether it results in direct discrimination oradverse effect discrimination.2009 FC 367 (CanLII)

Canadian HumanRights TribunalTribunal canadiendes droits de la personneBETWEEN:GEORGE VILVEN- and -CANADIAN HUMAN RIGHTS COMMISSION- and -ComplainantCommission2010 CHRT 27 (CanLII)AIR CANADA- and -RespondentAIR CANADA PILOTS ASSOCIATIONFLY PAST 60 COALITIONInterested PartiesAND BETWEEN:ROBERT NEIL KELLY- and -ComplainantCANADIAN HUMAN RIGHTS COMMISSION- and -CommissionAIR CANADAAIR CANADA PILOTS ASSOCIATIONRespondentsDECISIONMEMBER: J. Grant Sinclair 2010 CHRT 272010/11/08

TABLE OF CONTENTSI. Introduction.................................................................................................................................. 1PageII. Cease and Desist Order................................................................................................................ 2A. Conclusion on Cease and Desist Order............................................................................... 3III. Reinstatement .............................................................................................................................. 4IV. Pension Remedy .......................................................................................................................... 5V. Compensation for Lost Income and Position on the Seniority List ............................................ 5A. Vilven ................................................................................................................................. 6(i) Proxy Seniority Number................................................................................................ 6(ii) Conclusion on Vilven Maximizing His Earnings.......................................................... 10B. Kelly, Calculation Loss of Income and Seniority............................................................... 11(i) Proxy Seniority.............................................................................................................. 11C. Mitigation ........................................................................................................................... 13(i) Vilven ............................................................................................................................ 13(ii) Kelly .............................................................................................................................. 14(iii) Conclusion on Mitigation ............................................................................................. 162010 CHRT 27 (CanLII)VI. Pain and Suffering ...................................................................................................................... 18A. Vilven.................................................................................................................................. 18B. Kelly.................................................................................................................................... 18C. Conclusion on Pain and Suffering ...................................................................................... 19VII. Wilful and Reckless Damages ..................................................................................................... 19A. Conclusion on Wilful and Reckless Damages.................................................................... 20VIII. OTHER Expenses ....................................................................................................................... 21A. Conclusion of Other Expenses............................................................................................ 21IX. Air Canada/ACPA Calculation of Loss of Income and Seniority ............................................... 22A. Scenario One: No Compensation Until August 28, 2009.................................................. 23(i) Vilven ............................................................................................................................ 23(ii) Kelly .............................................................................................................................. 24B. Scenario Two: Period of Compensation Limited to Two Years........................................ 24(i) Kelly .............................................................................................................................. 24(ii) Vilven ............................................................................................................................ 25C. Conclusion on Compensation for Lost Wages ................................................................... 26

2D. Conclusion on Seniority ..................................................................................................... 31E. Previous Financial Advantage Due to Mandatory Retirement ........................................... 32F. Conclusion on Previous Financial Advantage .................................................................... 34X. Order ............................................................................................................................................ 342010 CHRT 27 (CanLII)

I. Introduction[1] On August 28, 2009, this Tribunal rendered its second decision finding that therespondents Air Canada and the Air Canada Pilots Association (“ACPA”) had engaged in adiscriminatory practice against the complainants George Vilven (“Vilven”) and Robert Neil Kelly(“Kelly”) contrary to the Canadian Human Rights Act. The Tribunal held a subsequent hearing todetermine the complainants’ remedy under s.53 of the CHRA.[2] The complainants ask for an order that:2010 CHRT 27 (CanLII)i. Air Canada and ACPA cease applying the mandatory retirement provisions in theAir Canada pilots pension plan and in the collective agreement with respect to allpilots employed by Air Canada;ii.they be reinstated as pilots with Air Canada and return to flying a regularassignment in accordance with their seniority as determined by the Tribunal;iii.they receive compensation for lost wages from the date of their retirement to thedate of their reinstatement;iv.that upon reinstatement they continue to accrue pension and other benefits on thesame terms and conditions as before their retirement;v. each of them be awarded $20,000 as compensation for pain and suffering and$20,000 as compensation for the wilful and reckless conduct of the respondents;vi.out of pocket expenses;vii.interest on the compensation.

2II.Cease and Desist Order[3] The complainants ask for an order that the respondents cease applying s.5.1 of the AirCanada Pilots Pension Plan and the corresponding provisions in the collective agreement, therebyeliminating mandatory retirement for all Air Canada pilots.[4] Section 5.1 provides that a member of the pension plan shall retire from the company nolater than his normal retirement date. Normal retirement date is defined in s.1.2(ii) as the first ofthe month immediately following the month the member attains the age of 60. The respondentsagree to an order to cease applying s.5.1 of the pension plan but only with respect to these twocomplainants.2010 CHRT 27 (CanLII)[5] In its second decision, this Tribunal, upon concluding that s.15(1)(c) contravened theCharter, refused to apply this provision to the facts of this case. This conclusion followed thewell-established principle set out in a number of Supreme Court of Canada (“SCC”) decisionsstarting with Cuddy Chicks v. Ontario, [1991] 2 S.C.R. 517, where the Court referring to theOntario Labour Relations Board, said that a formal declaration of invalidity is not available to theBoard, nor can it expect any curial deference with respect to its constitutional decisions.[6] In the more recent SCC decision in Nova Scotia (WCB) v. Martin, [2003] 2 S.C.R. 504, theCourt reiterated the principle that constitutional remedies available to administrative tribunals arelimited and do not include general declarations of invalidity. Further, a determination by a tribunalthat a provision of its enabling statute is invalid under the Charter is not binding on a futuretribunal or other decision maker.[7] The complainants agree with this statement of the law as does the Commission. However,they are asking that this Tribunal only exercise its remedial powers under s.53(2)(a) of the CHRA.In particular, that the Tribunal order that the respondents cease the discriminatory practice ofmandatory retirement and take measures in consultation with the Commission to prevent the sameor similar practices from occurring in the future. Otherwise, to apply this remedial provision only

3to the complainants would not have the effect of preventing the discriminatory practice in thefuture.[8] In support of its position, the Commission relies on the SCC decision in CN v. Canada(CHRC), [1987] 1 S.C.R. 1114 (Action Travail des Femmes). In this case, the ATF, a publicinterest pressure organization, filed a human rights complaint alleging that CN discriminated in itshiring and promotion practices by denying employment opportunities to women in certainunskilled blue-collar jobs.[9] The Tribunal substantiated the complaint and ordered, in effect, an ‘employment equityprogram’ to address the systemic discrimination. CN appealed arguing that the Tribunal lackedthe power to make this kind of remedial order under s.41(2)(a) of the CHRA (now 53(2)(a)).2010 CHRT 27 (CanLII)[10] The SCC disagreed pointing out that this provision was designed to deal with the problemof systemic discrimination and the employment equity program was designed to break thecontinuing cycle of discrimination. More to the point, the Court noted that the goal was not tocompensate past victims or provide new opportunities for specific individuals who have beenunfairly refused specific jobs or promotions in the past.A. Conclusion on Cease and Desist Order[11] In my opinion, the Commission cannot rely on the ATF decision. The present case doesinvolve a systemic complaint. ATF involved a complaint by a public interest group on behalf of alarge number of alleged victims of a discriminatory practice. This is a case of two separateindividual complainants with the same complaint. It is not a group complaint. What thecomplainants are asking is to have their remedy extend beyond their individual complaints.[12] Further, and as this Tribunal pointed out in its previous decision, its finding that s.15(1)(c)offends the Charter is not a legal precedent and is applicable only to the facts of this case. In thesecircumstances, s.15(1)(c) remains operative and may be relied upon by other respondents as a

4defence to any other outstanding or future complaints regarding the mandatory policy in question.To grant the order requested would be to deprive them of the defence afforded by this section.[13] Finally, if this Tribunal made this order, using its remedial jurisdiction under s.53(2)(a), itwould be expanding its powers to that of a s.96 court. In my opinion, this remedial power mustread with the limitations imposed by the Supreme Court in Martin.[14] The more appropriate way of applying both Martin and s.53(2)(a) in terms of remedy isfor this Tribunal to rescind the termination of the complainants by an order to the respondents tocease applying s.5(1) of the pension plan vis a vis the complainants and redress the discriminatorypractice by ordering their reinstatement.2010 CHRT 27 (CanLII)III.Reinstatement[15] Air Canada’s stated position is that the complainants will be reinstated to employment oncondition that the normal eligibility requirements are met. These are that they must have a validpilot licence, a valid medical certificate showing that they are fit to fly a commercial aircraftunder the applicable Transport Canada medical standards, and either a current instrument flightrating or the ability to renew their rating. Kelly meets these requirements. At the time of thehearing, Vilven did not have a current instrument flight rating, but has the ability to renew hisrating.[16] Once these requirements are met, Air Canada will reinstate the complainants and they willbe eligible to attend the next available training course for the equipment that they are entitled tofly according to their seniority. Upon the successful completion of their training, they would nothave to wait for the next equipment bid. They would be placed on the position list at the nextmonthly bid. The complainants said that they were satisfied with this.[17] In terms of training they would need a full training course, ground school, a simulatorcourse and a flight with a line captain. Air Canada estimated that the ground school would be

5approximately two weeks, the flight simulator course, two weeks and a regular flight with a linecaptain. To get a course date could take two to three months to at the most.IV. Pension Remedy[18] In respect of the pension remedy, the complainants ask that, upon reinstatement, theyreceive the wages and benefits of an active employee including continual accrual of pensionbenefits on the same terms and conditions as before their retirement. This is the position putforward by Air Canada in its evidence subject to “unwinding” the previous pension transactions.2010 CHRT 27 (CanLII)[19] Unwinding involves the complainants repaying the monthly pension payments receivedfrom the start date of their compensation for lost wages to their reinstatement date and remittingthe required pension contributions for that period.[20] ACPA’s initial view was that an order for continued accrual past age 60 would be contraryto the provisions of the pension plan and beyond the Tribunal’s jurisdiction. However, havingagreed to a cease order relating to s.5.1 of the pension plan in favour of the complainants, ACPAno longer maintains this objection.V. Compensation for Lost Income and Position on the Seniority List[21] The complainants claim that the compensation period should be the period from the dateof their respective retirements to the date of their reinstatement to employment with Air Canada.They claim to be compensated for the income, including bonus and profit-sharing, that theywould have earned had they continued in their employment, less any mitigation income andpension payments received in the compensation period.

6A. Vilven[22] For the purpose of determining his loss of income, Vilven used the compensation periodfrom August 31, 2003 to April 30, 2010. His methodology was first, to determine his “proxy”seniority number, that is, the seniority number on the Air Canada Pilots Seniority List that hewould have held for the years 2003 to 2010 if he had not been retired. The next step was todetermine his “proxy” pilot position assignment that he would have held for each of the yearsbased on his proxy seniority number.[23] Finally, the monthly income for each of these proxy pilot positions was calculated byreference to the collective agreement pay tables, assuming that the pilots in these positions wouldhave flown schedules according to the following agreed upon by the parties to be reasonableassumptions:2010 CHRT 27 (CanLII)(a)hourly pay rates as per the collective agreement for the proxy position in therespective compensation periods;(b)81 hours of flying per month, averaged at half-day, half-night rates of payplus overseas premium pay for 71hours;(c)monthly pay is multiplied by 12 to obtain an annualized salary for eachperiod.(i)Proxy Seniority Number[24] When Vilven retired in August 2003, his seniority number was 1404. For the subsequentyears 2004 to 2010, Vilven used pilot C.E. Hintz as his benchmark or proxy pilot. According toVilven, Hintz was hired by Air Canada one year after Vilven so that if he had not been retired, hewould have held Hintz’s seniority position for those years.[25] To determine his proxy pilot position. Vilven initially positioned himself as aB747 FO YYZ. He had bid for this position sometime in 2001 but continued to fly as an

7A340 FO YVR until his retirement. However, from July 2003 to August 2003 he was paid at therate of a B747 FO YYZ.[26] The next step was to strike his proxy cohort for the years 2003 to 2010 which consisted offive pilots senior to him and 5 pilots junior to him who were based in Toronto. His reasoning wasthat but for Article 25.06.02 of the collective agreement, he would have been awarded thatposition in 2003.[27] By reference to the Air Canada Pilot Position Assignment List for these years and on thebasis of his proxy seniority, Vilven concluded that he would have bid and held the positions andseniority set out in Appendix I.2010 CHRT 27 (CanLII)[28] Applying the pay rates referred to above, Vilven claims his total income would have been$1,086,093 from September 1, 2009 to April 30, 2010. (see Appendix I). This amount does nottake into account his pension income received, required pension contributions or mitigationincome during that period.[29] The question at this point is whether Vilven is justified in using the B747 FO YYZposition as his starting point rather than his retiring position of A340 FO YVR. Under the AirCanada Pilots Pension Plan, a pilot’s pension payout is based on the average of their best fiveyears of earnings which is normally the sixty months prior to their retirement multiplied by theiryears of service.[30] Vilven turned 60 in August 2003. At that time he had 22 years of pensionable service. Tomaximize his pensionable earnings, Vilven said that his practice was to always exercise hisseniority rights to bid a position on a higher aircraft with a higher rate of pay.[31] In 1998, Vilven held the position of an A320 FO in Winnipeg. He knew that inAugust 1998, he was entering his last five years as an Air Canada pilot. But he did not bid for ahigher position to maximize his earnings until late 1999 or early 2000 when he exercised his

8seniority to transfer to Toronto as an A340 FO. When asked why he did not do so earlier, heexplained that he made a mistake, he miscalculated.[32] About six months later in 2000, Vilven transferred to Vancouver as an A340 FO. He did soknowing that there was no difference in the pay rate between Toronto and Vancouver for anA340 FO. He also recognized that his relative seniority in Vancouver was less than in Toronto sothat he would not have the same opportunity to select the more desirable vacation and monthlyschedules.[33] Vilven explained why he chose to transfer to Vancouver in 2000 as an A340 FO ratherthan bid for a higher captain position elsewhere. During the Tribunal hearing in January 2007,when this Tribunal was considering the merits of his complaint, he testified that the reason heremained an A340 FO because he wanted to fly the big airplanes and that wasn’t possible if he gotpromoted on the A320. He also testified that he was raised in Vancouver, his mother, his twosisters and his friends live there and it was only natural that he bid the Vancouver base.2010 CHRT 27 (CanLII)[34] Vancouver is the most senior base in Air Canada and it was not possible for him to hold acaptain’s position there. He said that he could have held a captain’s position in Winnipeg, Torontoor Montreal. But he wanted Vancouver as his base and he wanted to fly internationally. With hisyears of service it was not possible to do that as a captain.[35] Vilven also testified that at times he decided not to exercise his seniority rights because hewanted to stay in a certain city. Vilven also told this Tribunal in the January 2007 hearing that ifhe was successful in his complaint, he would like to return as an Air Canada pilot in Vancouver.[36] In the subsequent remedy hearing before the Tribunal, Vilven said that his previoustestimony about why he transferred to Vancouver was not correct. Although his base wasVancouver, he lived in Calgary/Airdrie, about an hour-and-a-half away. Many Air Canada pilotsdo not live in the base that they fly from.

9[37] He also said that there is another part to the story. He bid for Vancouver because therewere more opportunities to do drafting and simulator work than in Toronto because many of themore senior Vancouver pilots were not willing to work on their days off. He was able to determinethis by reviewing the open time and pilots passing flights. At the Toronto base, the flying wasmore structured and it appeared to him that more senior pilots in Toronto wanted to fly more.[38] By doing so, he was able to maximize his earnings. For example, his pensionable earningsas an A340 FO YVR in 2000 were $179,000; in 2001, $175,000; in 2002, $176,000; and for eightmonths in 2003, $130,000. He could have held the position of an A320 Captain, but in contrast anA320 Captain earned approximately $165,000 in 2006 and there were no pay raises prior to thattime.2010 CHRT 27 (CanLII)[39] Vilven agreed that when he bid to transfer to Toronto as a B747 FO, he would lose thedrafting and simulator work in Vancouver, except he said there might have been some possibilitiesin Toronto to do that extra work. But he then agreed that he transferred from Toronto toVancouver in the same position of an A340 FO because he could make more in Vancouver.[40] So why move back to Toronto? Vilven said that his reason for bidding the B747 FO YYZposition in 2001 was because there had previously been a pay decrease of approximately15 percent for Air Canada pilots. The uplift on the B747 was 12 1/2 percent and by bidding theB747 he was able to mitigate to a large extent the 15% salary reduction.[41] He agreed that $179,000 he earned as an A340 FO YVR in 2000 was about $30,000 morethan his base A340 FO rate, which is considerably more than 12 1/2 percent. Vilven’s responsewas that some of his colleagues who were B747 FOs in Toronto were making in excess of$200,000. There was a lot of opportunity in these years and they were drafting like crazy. Whenasked why then did he not bid earlier, his response was that he obviously miss-timed it.[42] The evidence of Captain Duke from Air Canada is that pilots generally bid the positionwith the highest salary and regardless of the base in the remaining months prior to retirement,

10knowing that they will be frozen in their current position under Article 25.06 02 of the collectiveagreement.[43] They do so with the knowledge that they will not have to occupy that position or transferto another base which may involve moving, taking an aircraft training course and end up as amore junior pilot on the new equipment and suffer a junior schedule.[44] So for Vilven it was the best of both worlds. He could retain his monthly biddingprivileges of being senior in the A340 FO YVR position, continue his drafting and simulator workand be paid the higher rate of a B747 FO. That is the way the collective agreement is set up andmany pilots take advantage of this.2010 CHRT 27 (CanLII)(ii)Conclusion on Vilven Maximizing His Earnings[45] In my opinion, Vilven has failed to demonstrate a pattern of maximizing his earnings. Thefacts are that he knew in 1998 that he was entering his final sixty months before retirement. Yet hedid not transfer to Toronto until 2000 where he could have increased his pensionable earnings.The reason being that he miscalculated.[46] He spent about six months in Toronto and then moved to Vancouver in the same positionthat he held in Toronto. It seems that he did earn well above his basic A340 FO salary there, buthe did not bid for the B747 FO YYZ position until 2001 even though he knew that many of hiscolleagues were “drafting like crazy” and earning over $200,000 annually. In this case, his timingwas off.[47] Vilven’s evidence that he calculated his moves so as to maximize his earnings is not veryconvincing. He did not do so when the opportunity was there. Although he later disavowed it, hisearlier evidence supports the conclusion that his preferred base was Vancouver which wasrelatively close to his Calgary home and close to his family and friends who lived in Vancouver.

11[48] I prefer the evidence of Capt. Duke that pilots in Vilven’s situation bid for a positionknowing that they will not be obliged to change their position. Vilven had the best of both worlds.He remained an A340 FO based in Vancouver, was paid at the B747 FO rate for a time andcontinued to supplement his income through drafting and simulator work.[49] Thus, for the purpose of calculating Vilven’s lost wages, the monthly rate should be that ofan A340 FO YVR in effect during the compensation period as determined by the Tribunal.B. Kelly, Calculation Loss of Income and Seniority2010 CHRT 27 (CanLII)[50] For the purpose of determining his loss of income and seniority, Kelly considered thecompensation period to run from May1, 2005 to April 30, 2010. He used the same methodologyas Vilven, first, determining his “proxy” seniority number and then his “proxy” pilot positionassignment for each of the years.(i)Proxy Seniority[51] Kelly retired as an A340 YYZ Captain on May 1, 2005. His seniority number on the AirCanada Pilots’ System Seniority list was 79. However, because of the then ICAO rules, he couldonly fly internationally as a FO and not as a captain until after November 23, 2006. Kelly, atseniority number 79, would have been high on the seniority list and could have held the mostsenior A340 FO YYZ position.[52] For the years 2006 to 2010, in terms of seniority as shown on the Pilots’ System SeniorityList, Kelly considered W.C. Ronan as his benchmark or proxy pilot. Tracking the seniority list forthese years, Kelly’s seniority number would have been one number below Ronan.[53] Next, by reference to the Air Canada Pilot Position Assignment List for those years and onthe basis of his proxy seniority number, Kelly concluded that he would have held the seniority andpositions set out in Appendix II.

12[54] Kelly provided two calculations for lost income. First, applying the pay rates set out inAppendix II for the proxy pilot assignment positions produces a total income of $1,040,128 fromMay 1, 2005 to April 30, 2010.[55] The other calculation is found in a document Kelly submitted in evidence, “Statement ofAnnual Income, R.N. Kelly”. This shows his estimated loss of income from May 2005 toApril 2010 to be $341,574.[56] Kelly was challenged by ACPA with respect to his proxy pilot scenario which shows thatfrom May 1, 2005 until December 1, 2006 he bid down from an A340 Captain to an A340 FO tosatisfy the ICAO standards. After December 1, 2006, he bid up to a captain’s position.2010 CHRT 27 (CanLII)[57] ACPA pointed out that this does not take into account Article 25.06.06 of the collectiveagreement which gives Air Canada the discretion to freeze a pilot from changing equipmentand/or status for a period of 48 months.[58] The evidence of Captain Duke was that the purpose of Article 25.06.06 is to preventAir Canada from incurring training costs. It goes against the pattern of a pilot’s general careerpath, where you start at the bottom of the position hierarchy and move up as your seniority goesup. And along with that you are trained for moving up on to the higher equipment.[59] He said the major factor that would be considered in exercising the discretion would bethe training costs. He agreed that the training costs to move from the left seat to the right seat ona particular aircraft would be minimal, one or two hours in a simulator and perhaps a line check.[60] There are three reasons to discount or ignore this factor. First, the proxy pilot assignmentscenario reflects a hypothetical situation. Second, if the training costs are the major considerationand are so minimal, it is not reasonable to conclude that Air Canada would exercise its discretionagainst the bid particularly where Air Canada has engaged in a discriminatory practice. Third,Air Canada’s expert Alexandra Leslie, in her compensation scenarios, also did not considerArticle 25.06.06. So both are on the same footing.

13C. Mitigation(i)Vilven[61] Vilven said that, in 2003, in anticipation of his retirement and to allow him to continueflying, he registered with Park Aviation, a hiring agency in Europe, and emailed a number ofEuropean airlines. He did not obtain any employment through these enquiries. He did not produceany of these emails or any employment applications.[62] He also said that he called a number of airlines in Canada but it is not apparent in whatyears he did so. He compiled a list of airlines that he contacted every six months to kind of updatehis resume. The list did not have dates as to when he did so and he forgot to produce the list at thehearing.2010 CHRT 27 (CanLII)[63] His evidence was that he would contact the airlines and talk to the chief pilot or theirsecretary. The airlines he said he contacted included Flair, Skyservice, Air Transat, KelownaFlightcraft, Arctic Sunwest, Buffalo Airways, Hawk Air, Nolinor Aviation, Morning StarAviation, Pacific Coastal and Air Saskatchewan. He did not contact Jazz Airline, Air Inuit,Canadian North, Porter Airline, Air Tindi, North Caribou Airline, Prince Edward Air, ProvincialAirlines, Regional One Airlines, Trans Capitol Air, Transwest, Air Wasaya Airways, CentralMountain Air, Labrador Airline or Calm Air.[64] Vilven felt that there was a bit of a major roadblock as far as getting jobs with theseairlines. He told them that he was in the process of filing a human rights complaint and that it washis intention to go back to Air Canada if he could. He wanted them to know this because if theyhad to spend $15,000 or $20,000 to train him and he might quit shortly after did not seem to himmorally or ethically correct.[65] Vilven was not employed with any airline from September 2003 untilJanuary/February 2005 when he started flying with Flair Airlines. He stopped flying with Flair inMay 2006. At that time he was flying approximately 15 days a month, was paid by the trip and

14earned about $5,000 a month. Since his retirement he had flown about 150 hours, all with FlairAirlines.[66] The reason he left was because Flair had a military contract flying troops back and forthfrom Trenton to Edmonton and wanted a commitment from him to fly approximately 15 days amonth. He would be based in Calgary but flying out of Toronto.[67] Vilven said he could not make this commitment because the Tribunal hearing hiscomplaint was scheduled to start in January 2007. He believed that it required a lot of preparationon his part and he would not have the time to prepare if he had to fly. He wanted to devote himselffull time to advancing his human rights complaint and thought that this superseded his duty tomitigate his damages.2010 CHRT 27 (CanLII)[68] Vilven agreed that both the Fly Pass 60 Coalition and the Commission, although not hiscounsel, represented his interests. He did not produce any records showing the amount of timethat he spent preparing for the hearing, but estimated that, between the time he quit Flair andJanuary 2007 when the hearing started, he would put in at least 20 to 30 hours/ week. In that timehe said he read articles and verified certain evidence. His final written argument to the Tribunalamounted to two pages and it took him about four days to write these two pages.(ii)Kelly[69] When he retired in May 2005, his rating on the Airbus 330/340, B757 and B767 was validuntil sometime in 2007. He has maintained his category one Aviation Medical and his pilot’slicence.[70] Kelly started flying with Skyservice in November 2005 and did so until the end ofApril 2006. He was invited back to Skyservice and was employed there from November 2006 toMarch 2007, not as a full time employee but as a contract employee without benefits.

15[71] His employment with Skyservice was as a contract flight crew member, initially flying asa first officer the first season and the second season as a captain. He was offered a winterassignment from November 2007 to April 2008 out of Calgary as a first officer. He advisedSkyservice that he would accept a position as a first officer based in Toronto or a captain inCalgary, but was told that these positions were not available. For him, it did not make sensefinancially to operate out of Calgary as a first officer because the hotel costs, commuting andmeals would have consumed his entire salary.[72] Kelly applied to Jet Airways in November 2007 but was told that because his pilotproficiency check was over two years old, it would require a full course and they were unable tooffer him a position at that time.2010 CHRT 27 (CanLII)[73] From 2005, he consulted various web sites containing information about airlinesworld-wide for airline pilot positions. He submitted his CV with Park Aviation in 2005 showinghis flight experience and aircraft ratings.[74] Kelly produced documentation showing the search results and other efforts he made from2005 to 2010 to obtain employment. He responded to several of these opportunities and also did ajob search for airlines within Canada operating the aircraft types for which he was current at thetime. He was current when he started applying in 2005 but his currency expired.[75] He also contacted Zoom Airlines in 2005 but they were not hiring. He contacted HarmonyAirlines but they were in decline at the time and were not hiring pilots. He also did an Internetsearch for A330 postings for captains in Europe, Australia and Canada. There was a contractposition through Park Aviation but they wanted pilots under the age of 50 and who had flown anA330 within the previous six months.[76] Because he was no longer current after April 2007 he would have to take a full trainingcourse in order to fly commercially at a personal cost of around $40,000. This did not seem to himto be a good investment at this point.

16[77] Kelly said he also made some preliminary inquiries with some of the freight carriers inCanada. However they weren’t prepared to train him at their expense. He recalls contactingKelowna Flightcraft and Cargo Jet during the period 2007 and 2008.[78] His view was that the prospects of gaining alternative employment after Skyservice werefairly remote unless he invested in an endorsement on an aircraft in demand and pay for theretraining costs.[79] He did indicate, however, that there were opportunities to fly overseas as a contractemployee in 2006 and 2007. But he elected not to do summer operations because they operated inEurope and he didn’t want to be away from his family for the entire year.2010 CHRT 27 (CanLII)[80] Kelly’s assessment of the job market was that in 2007 there was a shortage of pilotsworldwide especially in India and China. But there was limited demand within Canada. Hisposition was that were he to transfer to an airline based in India for example, it would involveabout a six month training period to qualify. His experience was that the bureaucracy was notfavourable to contract expats taking flying jobs in India. He had done many trips to India andfrankly it was not a place he would prefer to live. He chose Canada as a country to live and heprefers to live and work in Canada.[81] His son-in-law flies for Air Georgia out of Toronto. But Kelly was not qualified on anyaircraft that Air Georgia operates. He could have qualified on a turbo prop aircraft at his cost ofabout $30,000, but he was anticipating a return to Air Canada.(iii)Conclusion on Mitigation[82] The respondents argue that the complainants have a duty to mitigate their damages andcite the Chopra decision as support for this. In the case of Vilven, they say that he failed to do solimiting his job searches and declining to continue with Flair Airlines after May 2006 to devotehimself to preparing his human rights complaint. Because of his failure to satisfy his obligation to

17mitigate, the respondents ask that the Tribunal should not award him any compensation for lostwages.[83] As for Kelly, the respondents recognize that he made greater efforts to find employmentbut characterize his attempts as falling somewhat short of the mark. They list his unwillingness towork overseas in the summer months with Skyservice outside of Canada, or seek a pilot positionoverseas because he chose to live and work in Canada and the fact that he declined a third winterwith Skyservice because he did not think it financially advantageous. The respondents requestthat the Tribunal discount any award of compensation to Kelly for lost wages by 50 per cent.2010 CHRT 27 (CanLII)[84] Chopra does not impose a duty on the complainants to mitigate their damages. Thedecision of the Federal Court of Appeal reads otherwise. The Court agreed with the appellantDr. Chopra, that there is no legal requirement under the CHRA that the doctrine of mitigation beinvoked to limit to limit compensation for lost wages.[85] The Tribunal, given its jurisdiction to award compensation for any or all of lost wages, hasthe discretion to apply the doctrine of mitigation but it is not bound to do so.[86] I decline to exercise this discretion in favour of the respondents and impose the duty tomitigate on the complainants. The complainants are the victims of the discriminatory practice notthe respondents. Clearly the complainants have suffered loss of income. Yet, as set out later in thisdecision, for reasons of the Charter and the principle of limited immunity, the amount of theaward for lost wages has been substantially reduced from the amounts claimed.[87] Now the respondents, in the case of Vilven, ask for even more, that the award for his lostwages be zero. And for Kelly, only 50 per cent. In these circumstances, there is no principledbasis for the Tribunal to accede to the respondents’ request.

18VI.Pain and SufferingA. Vilven[88] Vilven claims $20,000 as compensation for pain and suffering, the maximum unders.53(2)(e) of the CHRA. In terms of how his forced retirement affected him personally, he saidflying has always been a significant part of his life. Most of his friends are pilots who continue tofly but he was not able to do so.[89] Vilven said that the impact on his personal life is that he paid a terrible price for institutingand pursuing his complaint. His wife is extremely disappointed and saddened the way he’s beentreated. He has lost family friends. He was told that at the Winnipeg retirement dinner forAir Canada pilots on June 16, 2006, there was a mannequin portraying him in a very unflatteringway. He said his wife would have been very upset if she had been there and so would he but he didnot attend that dinner.2010 CHRT 27 (CanLII)B. Kelly[90] Kelly is claiming $20,000 for pain and suffering. He said that the impact of thetermination of employment at Air Canada on his personal life has been very difficult. He has lostthe comradeship of a lot of friends. He has lost the ability to visit regularly with his son who wasresident in Hong Kong and which was a regular destination when he was flying.[91] Kelly says that he’s been employed continuously since the age of 16 and this is the firsttime in his life that he hasn’t been employed. He finds it’s very damaging to his dignity and senseof self worth, particularly the fact that he still has two younger children, one in university and onestill in high school. He has to rely on his wife to earn the additional income required to maintaintheir lifestyle when he is perfectly fit and able to continue employment. He said relationshipswith friends have been strained.

19C. Conclusion on Pain and Suffering[92] With respect to Vilven and Kelly claims for pain and suffering, in my opinion these claimsshould not be allowed. They both ask for the maximum of $20,000 without explaining why theyare entitled to the maximum. The Tribunal jurisprudence clearly indicates that the maximumaward is reserved for the most egregious discriminatory practice. The facts presented by thecomplainants do not meet this standard.[93] Rather the facts of this case militate against any award for pain and suffering. From thetime Vilven and Kelly joined Air Canada they were well aware of the mandatory retirement age of60. Yet they did nothing to challenge this as being discriminatory until after they were retiredfrom Air Canada at age 60.2010 CHRT 27 (CanLII)[94] On the contrary, they benefitted from this discriminatory practice by being able to moveup more quickly in terms of seniority, higher paid positions, preferred monthly schedules andvacation schedules. This was because the pilots ahead of and more senior to them were obliged toretire at age 60.[95] As this Tribunal noted in its earlier decision on liability, the complainants may be unhappyabout ending their rewarding pilots careers with Air Canada but that situation cannot be viewed inisolation. It must be seen in the context of a system that was designed to assign the responsibilitiesand benefits of being a pilot at Air Canada over different stages in their careers. All pilots atAir Canada understand that they will share these benefits and burdens equally at the appropriatestages in their careers.VII.Wilful and Reckless Damages[96] Vilven and Kelly also claim $20,000 against each respondent under 53(3) of the CHRA.They say that the respondents were fully aware that there were no negative consequences if the

20complainants continued with Air Canada. It would require only a small adjustment and therespondents could have accommodated this request within the ICAO standards.[97] Yet the respondents refused to do so even after the Tribunal finding of a discriminatorypractice. This demonstrates, argue the complainants, a wanton and reckless disregard for therights of older pilots in favour of the interests of the younger pilots. As such, this calls for asubstantial award of special compensation.A. Conclusion on Wilful and Reckless Damages2010 CHRT 27 (CanLII)[98] Section 53(3) of the CHRA allows for an award of special compensation where it is foundthat the person is engaging in the discriminatory practice wilfully or recklessly. In this case thediscriminatory practice engaged by the respondents was applying the policy of mandatoryretirement found in the pension plan and collective agreement, which presumably was agreedupon some time ago through the process of collective bargaining by Air Canada and ACPArepresenting the pilots.[99] It was only by the Tribunal’s August 2009 decision that the mandatory retirement policywas found to be discriminatory. Prior to that time the respondents were entitled to and did rely onthe established legal authorities that such a policy did not offend the Charter or human rightslegislation. It was reasonable for the respondents to apply this policy and in so doing they cannotbe said to have acted wilfully or recklessly.[100] The question that remains is whether the respondents have acted wilfully or recklessly byrefusing to reinstate the complainants immediately after the policy was found to bediscriminatory. In my view, the answer is no.[101] Reinstatement is one of the remedies sought by the complainants. All parties agreed tobifurcate the hearing into liability and remedy. Reinstatement does not necessarily flow from afinding of liability. Further, even if reinstatement was ordered, there still remained the question ofthe complainant’s position on the seniority list. This question is in dispute between the parties. For

21the respondents to await a Tribunal decision on remedy does not amount to wilful or recklessconduct.VIII. OTHER Expenses[102] Both Vilven and Kelly have claimed out-of-pocket expenses. These are detailed onExhibit C-18. Items 1 to 6 are for hotel, meals and travel expenses incurred to attend the hearingboth as witnesses and as observers.2010 CHRT 27 (CanLII)A. Conclusion of Other Expenses[103] The Tribunal has the discretion under s.53(2)(c) of the CHRA to award compensation forexpenses incurred as a result of the discriminatory practice. In Warman v. Winnicki, [2006]C.H.R.D No.18,the Tribunal concluded that travel, accommodation and meal expenses are not thekind of expenses contemplated by this section because they are not directly related to presenting acase to the Tribunal. They are one step removed. This was so even though the complainant inWarman appeared as a witness and provided evidence at the hearing.[104] The Tribunal noted that counsel in Warman could not refer to any authority to support anaward for these types of expenses. Nor did the complainants in this case provide any authority fortheir position that they should be reimbursed for expenses incurred to attend the hearing aswitnesses or observers.[105] Items 7, 8 and 9 relate to supplemental life insurance, retirement supplemental health planand additional cost-health plan. Air Canada provided these benefits that ended upon retirement.There is no evidence whether the benefits were fully funded by Air Canada or whether there wereemployee contributions.[106] The basis of the complainants’ claim is that they now have to wholly fund these benefits.But to participate in these plans were at the option of the complainants. Further, they would have

22retired at some point in the near future and the expenses that they now claim have been slightlyaccelerated. In any case there is no substantiation of the amounts shown on Exhibit C-18. Thesame is true for Vilven’s claim for Item 16, Air Canada pass charges.[107] As for Items 10 to 15, bonus and profit sharing, these amounts are included inAir Canada’s compensation calculations and are allowed, subject to adjustment to reflect thecompensation period determined by this Tribunal. Accordingly, compensation for items 10 to 15only is awarded.2010 CHRT 27 (CanLII)IX.Air Canada/ACPA Calculation of Loss of Income and Seniority[108] In determining loss of income and seniority, Air Canada put forward alternative scenarios.The first scenario is: No Compensation Until August 28, 2009 (date of the Tribunal’s seconddecision). The second alternative scenario is: Period of Compensation Limited to Two years.[109] Both scenarios contemplate that Vilven and Kelly would be reinstated to full serviceeffective April 1, 2010. Once the reinstatement occurs, Vilven and Kelly would receive wages andbenefits of an active employee which would include continued accrual of pension benefits on thesame terms and conditions as before their retirement.[110] Under the first Scenario, the compensation period would run from September 1, 2009(being the first complete month following the second Tribunal decision) to April 1, 2010. Nocompensation would be paid for any period prior to September 1, 2009.[111] Air Canada and ACPA take the position that, pursuant to the decision of the SupremeCourt of Canada in Canada (Attorney General) v. Hyslop, [2007] 1 S.C.R. 429, if certain criteriaas set out in that decision are satisfied, no retroactive compensation should be granted. This is incontrast to Vilven and Kelly who claim that the compensation period should be from the date oftheir retirement to the date of their reinstatement.

23A. Scenario One: No Compensation Until August 28, 2009[112] To calculate their loss of income, the “proxy” seniority positions that Vilven and Kellywould have held on September 1, 2009 must first be determined. Air Canada took the positionthat, to be consistent, if no compensation should be awarded for the period prior to September 1,2009, similarly, no seniority should be credited prior to that period.(i) Vilven[113] To determine Vilven’s seniority as of that date, Air Canada reasoned this way. In the caseof Vilven, as six years had elapsed between his retirement date and the Tribunal’s decision, sixyears of seniority growth should be deducted from the elapsed time since his hire date(“carveout”).2010 CHRT 27 (CanLII)[114] Vilven was hired by Air Canada in May 1986. To reflect the carveout, Air Canada addedsix years to Vilven’s date of hire in May 1986, giving him an “adjusted hire date” of May 1992.As no pilots were hired between 1989 and 1993, Vilven’s seniority number at September 1, 2009would be one lower than the last pilot hired in 1989. Air Canada determined this to beCaptain Di Stazio whose seniority number in 2009 was 1221. Therefore Vilven’s proxy senioritynumber would be 1222.[115] At retirement, Vilven was an A340 FO YVR. At September 1, 2009, seniority number1222 on the pilot position assignment list would allow a Vancouver based first officer to hold anA340 FO position.[116] Applying the basic monthly salary rate for an A340 FO for seven months, plus an amountfor bonuses and profit sharing and pension paid, Air Canada calculated Vilven’s loss of incomeincluding bonus/profit sharing for the period September 1, 2009 to March 31, 2010 to be $88,984.Deducting $39,036 for pension reimbursement and $4,051 for required pension contributions,leaves a net loss of income or compensation payable of $45,897.

24(ii)Kelly[117] As to Kelly’s seniority, four years and four months elapsed between his retirement dateand September 1, 2009. As he was hired in September 1972, his carveout or “adjusted date ofhire” would be January 1977. His proxy seniority number as of September 1, 2009 would be 176.As such, he could hold the position of B777 Captain with the highest salary rate. Using the samemethod as used for Vilven, Air Canada calculated his net loss of income or compensation for theperiod to be $62,711.B. Scenario Two: Period of Compensation Limited to Two Years2010 CHRT 27 (CanLII)[118] In this alternative Scenario, Vilven and Kelly would only be compensated for two years oflost income, namely, the two years immediately following their date of retirement.[119] They would be reinstated effective April 1, 2010 and after reinstatement they wouldreceive wages and benefits as an active employee and continue to accrue pension benefits on thesame terms and conditions as before their retirement.(i)Kelly[120] In this Scenario, Air Canada calculated Kelly’s compensation for loss of income for theperiod to be $42,376. This amount is based on lost wages and bonus/profit sharing of $384,891;less income from other sources, $65,825; less reimbursement of pension paid, $258,683; lessemployee required pension contributions, $18,007.[121] This calculation was done on the basis of taking Kelly’s seniority and determining thepositions he could hold between May 1, 2005 and May 1, 2007. He was very high on the senioritylist, but because of the ICAO standards he could only fly internationally as a B777 FO fromMay 2005 until November 2006 and as a B777 Captain until May 1, 2010.

25[122] The salary he would have earned was based on 81 flying hours per month and the relevantsalary rates for the B777 FO for 2005 and 2006. For 2007, it was based on the average of his peergroup. In fact, however, there was little difference between the average monthly salary of the peergroup of $19,792 in 2007 and the monthly salary of a B777 Captain of $19,434 inDecember 2006. The use of the peer group analysis was of little consequence for Kelly.(ii) Vilven[123] Under this Scenario, Air Canada used a peer group analysis. In contrast to Vilven wholocated himself as a B747 FO YYZ at retirement, the peer group for Vilven consisted ofA340 FO YVR pilots, the same position Vilven had at retirement, five of whom wereimmediately above and five immediately below him relative to his position on the seniority list athis retirement date. The average pensionable earnings of the peer group of ten pilots were thentracked for the years September 2004 to September 2005.2010 CHRT 27 (CanLII)[124] Air Canada considered the peer group analysis more appropriate than Vilven’s pilot cohortbecause the group of 10 pilots remained unchanged throughout the analysis period. Anyindividual choices in terms of changing equipment, status or base would be automaticallyreflected as would earnings without having to make hypothetical decisions as to when anindividual would exercise the various options that they have under the collective agreement.Whereas with the Vilven pilot cohort approach, there was a change in position every year.[125] Air Canada’s position is that the peer analysis requires less judgement because it startswith Vilven and his position at the time of his retirement and follows his peer group forward. It isbased on actual decisions rather than on an hypothesis of what may or may not have happened.The peer group had similar seniority to Vilven, who also had the option of bidding into theToronto base and becoming a first officer on a B767 and they did not do so.[126] Air Canada calculated Vilven’s loss of income for those two years to be $178,989,comprised of lost wages and bonus/profit sharing of $337,807; less mitigation income of $15,767;less pension reimbursement of $126,770; less employee pension contributions of $16,281.

26[127] Air Canada seeks to support the two year compensation period on the basis of the expertevidence of Alexandra Leslie. In her opinion, if the pension plan had been amended to remove themandatory retirement age of 60, the average retirement age of two years would be at the outsidebounds of what an anticipated increase would be.[128] She pointed out that the vast majority of Air Canada pilots retire at 60. Should mandatoryretirement be removed, her expectation would be that a large number would continue to retire at60 simply because it has been a policy for so long. From an individual planning perspective,individuals tend to focus on that and it will take time for the de facto retirement age to move awayfrom 60.2010 CHRT 27 (CanLII)[129] It is interesting to note that there is much similarity between the Vilven cohort analysisand the Air Canada peer group analysis. Both use ten pilots, five above and five below Vilven byseniority. Both use the A340 position for the 2005 period. The difference is in the bottom linedollar amount for the two year period is attributable to the difference in the pay rate for aB747 FO and an A340 in 2003 and 2004.C. Conclusion on Compensation for Lost Wages[130] The complainants assert that the only limiting factors on their claim to be compensated forthe period from retirement to reinstatement are that their claim must be causally connected to thediscriminatory practice and their efforts at mitigation must be reasonable. (Chopra v. Canada(Attorney General), [2007] F.C.J.1134.[131] The respondents argue that there is another factor limiting the compensation and that is thedecision of the Supreme Court of Canada in Canada (Attorney General) v. Hyslop, 2007 SCC 10.On the basis of Hyslop, the Tribunal should not grant a retroactive remedy, i.e. it should not awardany compensation for lost wages for the period prior to August 28, 2009.[132] The complainants disagree that Hyslop should have this effect. That the Supreme Courtdecision in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504 makes it

27clear that, apart from the limiting factors set out above, the Tribunal has full remedial authority tomake both prospective and retroactive awards.[133] In Martin, there were two appellants. The appellant, Martin, suffered a workplace injury inFebruary 1996, returned to work several times but ultimately had to stop work. The Workers’Compensation Board provided him with temporary disability and rehabilitation benefits. Whenthese benefits were terminated in August 1996, he applied for a review of the decision but hisclaim was denied by the WCB.[134] The other appellant, Laseur, also suffered a workplace injury, received temporarydisability benefits, attempted to return to work but was unable to do so. She applied for apermanent partial disability award and vocational rehabilitation assistance. Both were denied.2010 CHRT 27 (CanLII)[135] Both appealed these decisions to the WCB Appeals Tribunal, Martin arguing that s.10Band certain regulations under the Workers’ Compensation Act infringed s.15(1) of the Charter.The Appeals Tribunal found the legislation contravened the Charter and that Martin was entitledto temporary loss of earnings benefits and medical aid up to October 1996. The Nova Court ofAppeal reversed this and the case found its way to the Supreme Court of Canada.[136] The primary issue at the Supreme Court was whether the Appeals Tribunal had thejurisdiction to apply the Charter. The Court concluded that the Appeals Tribunal did have suchjurisdiction and did correctly decide that the impugned legislation offended the Charter. In theresult, the Supreme Court ordered that the decision of the Appeals Tribunal be restored and thatMartin should receive the benefits that he claimed.[137] As to Laseur, the Appeals Tribunal refused to grant her the benefits that she had claimedbecause she had not challenged the validity of the applicable legislation. The Supreme Court inthis situation sent the matter back to the Appeals Tribunal to decide the Charter issue if she raisedit and her entitlement to the benefits claimed in accordance with the Court’s decision.

28[138] In Martin, the Supreme Court decided three questions. First, that the Appeals Tribunal hadthe jurisdiction to decide Charter issues relating to the provisions of its enabling statute; second,that the provisions in question were contrary to s.15(1) of the Charter and were not saved by s.1;and third, the constitutional remedies available to the Appeals Tribunal were limited todisregarding the impugned provisions and ruling on the applicant’s claim as if the provisions werenot in force. It did not deal with the question of when a retroactive remedy should or should not beawarded.[139] Whether it was because the Appeals Tribunal did not apply these provisions or because theSupreme Court decided that they were of no force and effect, the result for Martin was the same.He was awarded the retroactive benefits he sought because there was no longer any legal basis todeny them.2010 CHRT 27 (CanLII)[140] The Vilven and Kelly situation is different. What this Tribunal decided on the Charterissue was that s.15(1)(c) of the CHRA was not available as a defense for the respondents. But thisfinding did not trigger any remedies. It did not operate in the same way as the decision in Martin.It did not confer on the complainants any remedy. That remained to be determined.[141] The facts in Hyslop are as follows. To be entitled to a survivor’s pension under the CanadaPension Plan (“CPP”), the survivor had to be married to the contributor or be a common-lawpartner of the opposite sex in a conjugal relationship at the time of the contributor’s death.[142] If so qualified, the survivor could apply for a survivor’s pension which would be payablefor each month after the death of the contributor. If the application was not received within12 months of the contributor’s death, the arrears that could be claimed were limited to the12 months preceding the receipt of the application.[143] In 2000, following the Supreme Court’s decision in M v. H, [1999] 2 S.C.R. 3, the federalgovernment amended the CPP to extend survivor benefits to same-sex partners by changing thedefinition of “common-law partner” so that there was no reference to the gender of the partner.

29[144] In addition to this amendment, s.44(1.1), 72(1) and 72(2) were added to the CPP. Unders.44(1.1), a same-sex survivor would not be eligible for survivor’s pension unless they becamesurvivors after January 1, 1998. Section 72(2) precluded payments to survivors for any monthbefore July 2000 irrespective of when the same-sex partner became eligible.[145] The effect of this provision was to preclude any retroactive survivor benefits to same-sexsurvivors including the opportunity to seek up to 12 months of pension arrears which wasavailable to opposite-sex survivors under s.72(1). Section 72(2) came to an end as of June 2001,because after that date, same-sex and opposite-sex partners were treated the same under s.72(1).2010 CHRT 27 (CanLII)[146] Hyslop was a class action and the position of the class was that same-sex survivors whosecontributing partner died any time after April 17, 1985, should be entitled to retroactive benefitsto the month following the death of their same-sex partner.[147] The Supreme Court found that s.44(1.1) and s.72(2) infringed the Charter and thenconsidered the question of the appropriate remedy. As a starting point, the Court noted that wherethe offending provision is declared unconstitutional, the result under s.52(1) of the Charter, is thenullification of the law from the outset. In such case, the courts generally grant retroactiveremedies.[148] However, where the law changes through judicial intervention, it may be appropriate for acourt to limit the retroactive effect of its judgement, that is, apply the principle of limitedimmunity. Under this principle, “it is a general rule of public law that, absent conduct that isclearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harmsuffered as a result of the mere enactment or application of a law that is subsequently declared tobe unconstitutional.” (Makin and Guimond v. Quebec, [1996] 3 S.C.R. 347, para.78).[149] To justify a prospective remedy only, the Supreme Court required that the thresholdrequirement of a “substantial change in the law” must be satisfied. Once this is met, other factorssuch as reasonable reliance, good faith, fairness to litigants and respecting parliament’s role mustbe considered.

30[150] For the Supreme Court in Hyslop, the substantial change in the law came in the Court’searlier decision in M v. H, which the Court considered to be a marked departure from thepre-existing jurisprudence on same sex equality rights. Prior to M v. H, the Court had held that theConstitution did not require equal benefits for same-sex couples.[151] As to the other factors, the Court concluded that the denial of benefits to same-sex partnersunder the former CPP was reasonable given the previous state of the s.15(1) equalityjurisprudence. The government did not act in bad faith in failing to extend same-sex survivorbenefits pre M v. H. And imposing liability for payment of arrears that could reach as far back as1985, in the absence of bad faith, unreasonable reliance or wrongful conduct, would underminethe balance between the protection of constitutional rights and the need for effective government.2010 CHRT 27 (CanLII)[152] In my opinion, the Tribunal’s August 28, 2009 decision represents a clear departure fromthe existing state of the law. Prior to the Tribunal’s decision s.15(1)(c) was available as a defencefor employers to a claim under the CHRA that a mandatory retirement policy was discriminatory.[153] The Supreme Court of Canada, from McKinney and going forward, has consistentlyconcluded that legislative provisions permitting mandatory retirement were justifiable limitationsunder s.1 of the Charter. (see McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v.University of British Columbia, [1990] 3 S.C.R. 451; Dickason v. University of Alberta [1992]2 S.C.R 1103; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483).[154] Apart from the recent decision of the Manitoba Court of Queen’s Bench in CKY-TV v.C.EP. Local 816, 252, which was subsequent to the Tribunal’s decision in Vilven and Kelly, theFederal Court and arbitrators have accepted this provision as constituting a valid defense.[155] In terms of the other considerations, reasonable reliance, good faith and fairness to thelitigants, as the Supreme Court noted in Hyslop that, “an approach to constitutional interpretationthat makes it possible to identify, in appropriate cases, a point in time when the law changed,makes it easier to ensure that persons and legislatures who relied on the former legal rule while itprevailed will be protected. In this way, a balance is struck between the legitimate interests of

31actors who make decisions based on a reasonable assessment of the state of the law at the relevanttime on the one hand and the need to allow constitutional jurisprudence to evolve over time on theother”.[156] Given the then state of the law, the respondents acted in good faith and reasonably inapplying the mandatory retirement policy to the complainants. As to considerations of fairness tothe litigants, in my view, a fair balance is struck, on the one hand, by not imposing on therespondents the burden of damages for a policy that was legal at the time, and, on the other hand,by awarding damages to the complainants from the time the policy was declared to be illegal.2010 CHRT 27 (CanLII)[157] I conclude that Hyslop should apply in this case and that the complainants should not beawarded any compensation for lost wages prior to August 28, 2009. This being the case, it is notnecessary to decide the respondents’ alternative position that the compensation period should belimited to two years from the date of the complainants’ retirement.D. Conclusion on Seniority[158] It is well established in human rights jurisprudence that the purpose of awarding a remedyis to make whole the victim of the discrimination in the appropriate circumstances. This suggeststhat Vilven and Kelly should be credited with the seniority that they would have accrued had theynot been retired, unless there is some reason for discounting their seniority.[159] According to their calculations as detailed earlier in this decision, Vilven’s senioritynumber on reinstatement in 2010 would be 751 and Kelly’s seniority would be 5. Therespondents, relying on the “carveout”, concluded that the complainants should return withseniority number 1222 for Vilven and 176 for Kelly.[160] In coming to this conclusion, the respondents use this logic. First they say that in the pilotworld, the collective agreement is structured on seniority and this drives compensation. As pilotsprogress in seniority they have the ability to bid on the higher equipment which pays the highersalary.

32[161] Thus the respondents argue, if seniority is equated with compensation, then Hyslop shouldapply. To allow the complainants to accrue seniority prior to August 28, 2009 would be contraryto the principle that the respondents are entitled to rely on the law as it was prior to the Tribunal’sdecision.[162] But as the evidence shows, seniority also determines benefits other than justcompensation. For example pilot position (equipment, status and base), monthly schedules,vacation schedules, working conditions, layoffs are all tied to seniority.[163] Seniority gives pilots lifestyle choices. Some may forego compensation for a preferredbase or a better monthly or vacation schedule. Hyslop did not consider the question of seniorityand retroactive remedies. If seniority cannot be tied exclusively to compensation, then Hyslopshould not apply.2010 CHRT 27 (CanLII)[164] Further, in limiting retroactive relief, Hyslop requires that fairness to the litigants beconsidered. In my opinion, the balance in terms of fairness, favors the complainants. Thecomplainants are two in number. There is no evidence that their reinstatement at the senioritynumbers they claim would have any negative effect on Air Canada’s operations. As for ACPA,awarding this seniority to Vilven and Kelly does not result in them jumping ahead. They merelymaintain their seniority position as if not retired. Some ACPA members may be displeased, but asthis Tribunal noted in its earlier decision, it would only delay the younger pilots’ seniorityprogression.[165] For these reasons, I have concluded that Vilven and Kelly should be reinstated withseniority number 751 for Vilven and seniority number 5 for Kelly.E. Previous Financial Advantage Due to Mandatory Retirement[166] The respondents ask that any compensation awarded to Vilven or Kelly be discounted toreflect the fact that their careers progressed and were accelerated in an employment environmentwhere mandatory retirement applied. Previous and current Air Canada pilots such as Vilven and

33Kelly have benefited from being hired earlier and promoted faster due to the existence of themandatory retirement age.[167] They argue that Vilven and Kelly have the freedom to work as long as they are qualifiedwithout enduring any offsetting delay. So the question is, should the fact that Vilven and Kellyhave not suffered any offsetting delay in career progression be a factor in determining theircompensation. In other words, should they get the benefits without paying the price.[168] Air Canada asked its expert witness Ms. Leslie to quantify this previous financialadvantage. She acknowledged that such an exercise would be hypothetical because it depends inlarge part on the average age of the pilots in the absence of mandatory retirement which isunknown.2010 CHRT 27 (CanLII)[169] Ms. Leslie hypothesized that if the average age increased by two years, current pilotswould have benefited by a two year acceleration throughout their careers. The only facts that shecould offer on this question was that the average age of retirement in the Air Canada pilots plan is59.2, and that the vast majority of their pilots retire on their normal retirement date. What is notknown is if mandatory retirement was removed, how many pilots would still retire at age 60 andhow many of them would retire at what age in the future.[170] Ms. Leslie concluded that, assuming the average age to retirement was delayed for twoyears and given Kelly’s final average pensionable earnings of $224,000, a decent approximationof the financial advantage that he obtained through the existence of mandatory retirement wouldbe in the order of $450,000. For Vilven with his final average earnings of $167,000 and assumingtwo years, Ms. Leslie said that would amount to about $334,000.[171] Ms. Leslie acknowledged that this was only a rough approximation and her attempt toquantify the advantage has weaknesses. Further, she also agreed that she was not suggesting thatthe complainants’ compensation be reduced by those amounts, but only that the compensationshould be discounted. Air Canada left it to the Tribunal to calculate the discount.

34F. Conclusion on Previous Financial Advantage[172] There are problems with this claim. Even assuming that there has been a financialadvantage, the basis for quantifying the amount is very weak. It is impressionistic rather thanfactual. Further, if the discount is to be less than 100 per cent, what should it be. In the absence ofany formula from the respondents, it is not for the Tribunal to guess.[173] Finally, in my view, the respondents are more than overreaching by asking for thisdiscount. By seeking to apply Hyslop, the respondents have in effect reduced the complainants’compensation by approximately six years and four years respectively, considerably more than thetwo years suggested by Ms. Leslie. Their request for a further reduction is rejected.2010 CHRT 27 (CanLII)X. Order[174] The Tribunal orders as follows:1) The respondents are to cease applying to the complainants, s.5.1 of the Air CanadaPilots Pension Plan and the corresponding provisions of the collective agreementPlan;2) The complainants are to be reinstated to employment as pilots with Air Canada asof the date of this decision on condition that they have a valid pilot licence, a validmedical certificate showing that they are fit to fly a commercial aircraft under theapplicable Transport Canada medical standards and a current instrument flightrating;3) Upon reinstatement, the complainants shall be enrolled in the next availabletraining course for the equipment that they are entitled to fly according to theirseniority. Upon the successful completion of their training, they shall be scheduled

35for flying at the next opportunity for monthly bidding and placed on the pilotposition list;4) Upon reinstatement, Vilven is to hold seniority number 751 and Kelly, senioritynumber 5 on the pilots’ seniority list;5) Upon reinstatement, the complainants are to receive the wages and benefits of anactive employee including continual accrual of pension benefits on the same termsand conditions as before their retirement;2010 CHRT 27 (CanLII)6) The complainants are to be compensated by the respondents for lost income for theperiod from September 1, 2009 to the date of their reinstatement as activeemployees. The compensation is to be calculated on the basis of the monthly salaryfor the position of 81 hours of flying per month, averaged at half-day, half-nightrates of pay, plus overseas premium pay for 71 hours. The compensation shallinclude any profit sharing/bonus paid in that period. Vilven shall be compensatedat the salary rate of an A340 FO and Kelly at the salary rate of a B777 Captain untilApril 30, 2010 and thereafter at the salary rate of a B777 FO.7) The compensation for lost wages shall be net of the amounts of the pension paid tothe complainants from September 1, 2009 to the date of their reinstatement.8) The respondents are to pay interest on the net amount of the compensation fromSeptember 1, 2009 until the compensation is paid. The amount of the interest shallbe calculated on the basis set out by Ms. Leslie in her expert report (Exhibit AC-13,as am. by AC-13A) and as agreed with by the complainants.

369) Air Canada is to pay fifty per cent and ACPA is to pay fifty per cent of the netcompensation and profit sharing/bonus and the interest payable.OTTAWA, OntarioNovember 8, 2010Signed byJ. Grant Sinclair2010 CHRT 27 (CanLII)

APPENDIX I2010 CHRT 27 (CaPay RateEffective:2003-06-012006-07-012007-07-012008-07-01PeriodGeorge Vilven, Proxy Position Assignment an Proxy Income, 2003-2010NumRevisedProxy Positionber Monthly PayProxyAssignment, Perof Rate, PerPositionExhibit C-9Mont Table 3AssignmenthsProxySeniority#PeriodIncomeYearAnnualIncome2003-09-01 to 2003-12-31 1406 YYZ B744 F/O 4 $13,387 $53,548 2003 $53,5482004-01-01 to 2004-12-31 1533 YYZ B744 F/O 12 $13,387 $160,644 2004 $160,6442005-01-01 to 2005-12-31 1323 YYZ A320 CA YYZ A340 F/O 12 $11,964 $143,568 2005 $143,5682006-01-01 to 2006-06-30 1188 YYZ A320 CA YYZ A340 F/O 6 $11,964 $71,7842006-07-01 to 2006-11-30 188 YYZ A320 CA YYZ A340 F/O 5 $12,207 $61,0352006-12-01 to 2006-12-31 1188 YYZ A320 CA 1 $13,702 $13,7022007-01-01 to 2007-06-30 1093 YYZ A320 CA 6 $13,702 $82,2122007-07-01 to 2007-07-31 1093 YYZ A320 CA 1 $13,942 $13,9422007-08-01 to 2007-12-31 1093 YYZ B767 CA 5 $16,790 $83,9502008-01-01 to 2008-06-30 972 YYZ B767 CA 6 $16,790 $100,7402008-07-01 to 2008-08-31 972 YYZ B767 CA 2 $17,084 $34,1682008-09-01 to2008-12-30 972 YYZ B777 F/O 4 $13,340 $53,3602006 $146,5212007 $180,1042008 $188,2682009-01-01 to 2009-12-31 868 YYZ B777 F/O 12 $13,340 $160,080 2009 $160,0802010-01-01 to 2010-04-30 751 YYZ B777 F/O 4 $13,340 $53,360 2010 $53,360$1,086,093 $1,086,093

APPENDIX II2010 CHRT 27 (CaPay RateEffective:2003-06-012006-07-012007-07-012008-07-01PeriodNeil Kelly, Proxy Position Assignment an Proxy Income, 2005-2010MonthlyProxy Position NumberProxyPayAssignment, Per ofSeniority #Rate, PerExhibit C-13 MonthsTable 3PeriodIncomeYearAnnualIncome2005-05-01 to 2005-12-31 79 YYZ A340 F/O 8 $11,964 $95,712 2005 $95,7122006-01-01 to 2006-06-302006-07-01 to 2006-11-305252YYZ A340 F/OYYZ A340 F/O65$11,964$12,207$71,784$61,035 2006 $151,1462006-12-01 to 2006-12-31 52 YYZ A340 CA 1 $18,327 $18,3272007-01-01 to 2007-03-31 39 YYZ A340 CA 3 $18,327 $54,9812007-04-01 to 2007-06-30 39 YYZ B777 CA 3 $19,435 $58,305 2007 $231,9362007-07-01 to 2007-12-31 39 YYZ B777 CA 6 $19,775 $118,6502008-01-01 to 2008-06-30 20 YYZ B777 CA 6 $19,775 $118,6502008-07-01 to2008-12-31 20 YYZ B777 CA 6 $20,122 $120,7322008 $239,3822009-01-01 to 2009-12-31 11 YYZ B777 CA 12 $20,122 $241,464 2009 $241,4642010-01-01 to 2010-04-30 5 YYZ B777 CA 4 $20,122 $80,488 2010 $80,488$1,040,128 $1,040,128

CANADIAN HUMAN RIGHTS TRIBUNALPARTIES OF RECORDTRIBUNAL FILES: T1176/5806, T1177/5906 & T1079/6005STYLE OF CAUSE:Robert Neil Kelly v. Air Canada and Air CanadaPilots Association and Geroge Viven v.Air Canada2010 CHRT 27 (CanLII)DATE AND PLACE OF HEARING: February 1, 2, 4, 5, 2010March 3, 4, 22 to 24, 2010April 28 to 29, 2010Ottawa, OntarioDECISION OF THE TRIBUNAL DATED: November 8, 2010APPEARANCES:Raymond HallDavid BakerFor the ComplainantsDaniel PoulinFor the Canadian Human Rights CommissionMaryse TremblayFred HeadonFor the RespondentBruce Laughton, Q.C.For the Air Canada Pilots Association

Canadian HumanRights TribunalTribunal canadiendes droits de la personneBETWEEN:KASHA A. WHYTEComplainant2010 CHRT 22 (CanLII)- and -CANADIAN HUMAN RIGHTS COMMISSIONCommission- and -CANADIAN NATIONAL RAILWAYRespondentDECISIONMEMBER: Michel Doucet 2010 CHRT 222010/09/29

TABLE OF CONTENTSPageI. INTRODUCTION ....................................................................................................................... 1A. THE FACTS ....................................................................................................................... 2(i) The Canadian National Railway.................................................................................... 2a) General information.......................................................................................... 2b) Running trade employees.................................................................................. 4c) The changes made in 1992 and the creation of the furlough boards ................ 6(ii) The Complainant ........................................................................................................... 9(iii) The Vancouver shortage................................................................................................ 12(iv) The Conductors recalled to cover the Vancouver shortage........................................... 15(v) The Complainant’s recall to work ................................................................................. 23B. ISSUES ............................................................................................................................... 35C. THE LAW AND THEORY OF THE CASE...................................................................... 35(i) The relevant provisions of the CHRA........................................................................... 35(ii) The Law......................................................................................................................... 36a) The prima facie case ......................................................................................... 36b) What approach is to be applied to determine whether there has beendiscrimination on the ground of family status? ................................................ 37(iii) Has a prima facie case of discrimination on the basis of family status been made out? 48(iv) Did CN provide accommodation to the Complainant? ................................................. 51(v) Conclusion..................................................................................................................... 65D. REMEDIES ........................................................................................................................ 66(i) An Order that CN Review its Accommodation Policy ................................................. 66(ii) Reinstatement ............................................................................................................... 67(iii) Compensation for lost wages......................................................................................... 69(iv) Pain and suffering.......................................................................................................... 70(v) Willful or Reckless Conduct ......................................................................................... 70(vi) Costs and Interest. ......................................................................................................... 71(vii) Interest ........................................................................................................................... 722010 CHRT 22 (CanLII)

I. INTRODUCTION[1] This is an employment discrimination case on the basis of section 7 of the CanadianHuman Rights Act (the “CHRA”). Kasha A. Whyte (the “Complainant”) filed a complaintalleging that the Respondent, the Canadian National Railway (“CN”) has discriminated againsther on the basis of her family status by failing to accommodate her and by terminating heremployment.[2] CN denies the complainant’s allegations.2010 CHRT 22 (CanLII)[3] All the parties, including the Canadian Human Rights Commission (“CHRC”), werepresent at the hearing and were represented by counsel.[4] There are two other similar complaints filed against CN. By agreement of the parties, thematter in Denise Seeley v. CN was treated in a different hearing which was heard prior to this one.Although heard together, it was agreed during a case management conference that the complaintsof Cindy Richards and Kasha A. Whyte would be rendered in two different decisions.[5] Although the facts in the Seeley case and in the Richards and Whyte cases are very similarand that the witnesses for CN were the same, except for Cathy Smolynek who only testified in thetwo latter cases, the evidence submitted in the Seeley case and in the Richards and Whyte cases is,in many regards, different. The witnesses of CN, who had testified previously in the Seeleymatter, did not, without necessarily contradicting themselves, repeat exactly the same evidence inthe Richards and Whyte cases. Also, documents which had not been presented at the Seeleyhearing were filed as evidence in the Richards and Whyte cases. These differences will explainany discrepancies that may exist in the facts of the Richards and Whyte matter when they arecompared to the Seeley decision.

2A. THE FACTS(i)The Canadian National Railwaya) General information[6] CN is a federally regulated corporation which derives its revenues from the transportationof goods by train. It is a transcontinental railway company which operates in Canada and in theUnited States. Its freight trains transport goods 24 hours a day, 7 days a week, 365 days a year.2010 CHRT 22 (CanLII)[7] CN has more than 15,000 employees in Canada. These employees are organised in twodistinct groups described as “operating” and “non-operating”. The “non-operating” group iscomprised of employees working in clerical, mechanical and engineering positions.The “operating” group employees, also known as “running trade employees”, consist ofConductors and locomotive engineers.[8] CN has over 4,000 “running trades” employees throughout Canada of which 2,400 areConductors. According to Ms. Stephanie Ziemer, a Human Resources Officer for CN inVancouver, the figure for Conductors in 2005 would have been slightly higher at 2,500.[9] In answer to a question from CN’s counsel, Ms. Ziemer indicated that CN does not trackthe number of its employees who are parents. She added that this information is only solicitedwhen the employees enroll for CN’s group insurance benefits. She further added that “based onthat information roughly 69 percent of our employees are parents.” According to her evidence thisinformation would be up to date to May 2009. She added that she “would estimate [the number]as being higher because, not everybody participates in our group insurance benefits, particularly ifthey have a spouse that has coverage outside of CN in terms of their employment.”[10] Challenged by Counsel for the Complainant about the accuracy of those numbers,Ms. Ziemer explained that they had been gathered by CN’s manager of benefits administration inMontreal. CN’s counsel then showed counsels for the Complainant and the CHRC what was

3described by the Complainant’s counsel as “a thick bundle of names listed by what appears to bepersonnel number order.” Although this list did identify Conductors and their dependants,counsel for the Complainant added that there was “nothing about the 69 percent figure”. Shetherefore concluded that “someone must have then taken that document and done somecalculations.” She then asked that the documents where these calculations were done beproduced.[11] Mr. Paquette, counsel for CN, explained that the calculation had been done by “someone”at CN’s legal department. He then added that he had “very likely” communicated these numbersto the witness. Asked by the Chair if, when Ms. Ziemer had indicated that the numbers had beencommunicated to her by someone in Montreal, she meant the legal department, counsel answered“very likely”, but he added that the information itself comes from CN's human resourcesdepartment. He added that it was simply a question of “sitting down and doing the adding one byone.”2010 CHRT 22 (CanLII)[12] On cross-examination, Ms. Ziemer indicated that she had not done the calculation herself.She added that the figure of 69% for both group was given to her during a conference call, but shecould not remember who the person who gave her the information was. Regarding the “thickbundle of names”, Ms. Ziemer indicated that she was seeing this document for the first time at thehearing. Considering the evidence of Ms. Ziemer, the Tribunal will not give much weight to thispart of her testimony.[13] For operation purposes, CN is divided in two main regions, the Eastern region and theWestern region. The Western Region includes all of CN’s rail terminals from Vancouver,British Columbia, to Thunder Bay, Ontario.[14] The Crew Management Centre (“CMC”) in Edmonton is a very important part of CNoperations. It is responsible for all crew callings and deployment for the Western region.It manages the workforce deployment for “running trade” employees and a payroll of 204 milliondollars. The CMC has fifty-four (54) employees who report to Elaine Storms, the Director of

4CMC. Ms. Storms occupied that position in 2005 and she was a key witness for CN at thehearing.[15] CN also has a “Peoples Department” which includes Human Resources and LabourRelations. Although both fall under the same department, they have very distinct functions.Human Resources deals, amongst other, with human rights complaints, while labour relation willdeal with matters arising out of the collective agreement. In 2005, Mary-Jane Morrison was theHuman Resources person in charge of the portfolio for running trade employees in Jasper.b) Running trade employees2010 CHRT 22 (CanLII)[16] As stated earlier, locomotive engineers and Conductors form part of what is identified asthe “running trade employees”. Locomotive engineers operate the engine and Conductors arebasically in charge of all the other aspects pertaining to the movement of a train.[17] Running trade employees either work “road” or “yard”. “Road work” consists ofemployees who will get on a train at a particular terminal and take the train to another terminal.A yard employee would typically work in the yard, switching box cars and making up trains. Theyard employee does not leave the terminal.[18] In terms of hiring, CN tends to hire its running trade employees in large group. Accordingto Ms. Ziemer, CN did a lot of hiring in the seventies and a “little bit” of hiring in the '80s and inthe early '90s. She further added that CN has done “significant hiring” from 2005 straight throughto the end of 2009.[19] In 1996, the percentage of women in the “running trades” was about 3 %. This figure was3.7 % in 2006 and is now around 3.1%.[20] The cost of training a Conductor is around 50,000 to 80,000 dollars. This amount includesthe wages of the employee and of the instructor and also, if necessary, their accommodation.

5The training takes from four (4) to six (6) months. The cost of training a locomotive engineer isbetween 28,000$ to 30,000$, in addition to what it cost to train him or her as a Conductor.[21] In order to be qualified to work as a Conductor, an employee must have his rules andmedical cards up to date. These cards have to be renewed every three years. If the employee is onthe working board, he or she will generally get a notice telling him or her that his or her cards areabout to expire and then he or she just needs to make the proper arrangements to bring them up todate. If the employee is on lay off, he will need to take care of this on his own, although for therules card, he or she will need the approval of his supervisor.2010 CHRT 22 (CanLII)[22] When an employee is working or available to work, he is said to be on the “workingboard”. The “working board” includes all employees who are not on lay off. Employees on the“working board” are either on “assignments” or in a “pool”.[23] An employee can also be “set up”, meaning that he will be on the “working board” at histerminal. The decision to “set up” an employee is made by the manager of the terminal.The decision is based on the number of employees needed at the terminal to perform the work thatis expected.[24] There is also another board, which forms part of the “working board” and which isdesignated as the “spare board” or “emergency board”. Employees on this board are only calledto work to fill in when other employees are either on vacation or unavailable to work for any otherreasons.[25] Due to the nature of CN’s operations, running trades employees must be able to workwhere and when required, subject to restrictions imposed by law and by the collective agreement.In light of these considerations, CN feels that mobility and flexibility constitutes basic jobrequirements for these employees. It considers these requirements as necessary because of thevolume of goods CN transports and because of the fluctuation in traffic which can occur over ashort period of time due, for example, to changes in the economy or to seasonal factors such as thegrain harvesting season.

6[26] The work schedule of a Conductor is very unpredictable. Depending on which board theConductor is set on, he or she may know more or less about the kind of work he or she may becalled upon to execute. Therefore, all working assignments on road service have totallyunpredictable schedules. A Conductor is expected to be available to report to work within twohours of receiving a call from CMC. Once a Conductor reports for duty, he or she will have noidea of when exactly they will return home. They may be gone for a few hours up to almost twodays.[27] Running trade employees work on a mileage basis. The working board is adjusted on aweekly basis so that each employee can do approximately 4,300 miles a month. When doing theadjustment of the working board, CN will look at the previous week to see how many miles weremade by the employees. They will divide this number by 4,300 and the result will indicate thenumber of employees that would potentially be needed at a certain terminal for the followingweek.2010 CHRT 22 (CanLII)[28] At all relevant times to this matter, Conductors in the Western Region of Canada wererepresented by the United Transportation Union (“Union”). The applicable collective agreementfor Conductors in the Western Region is Agreement 4.3 (the “Collective Agreement”).c) The changes made in 1992 and the creation of the furlough boards[29] In 1992, technological changes allowed CN to do away with the car at the tail end of thetrain, which is commonly known as the “caboose”. This decision prompted the elimination of theposition of brakeman. After this decision, Conductors, who used to work in the “caboose”, weremoved up to the front of the train with the locomotive engineer. Eliminating the position ofbrakeman meant that CN needed less running trades’ employees to run its trains. The reduction inthe number of employees was done through the negotiation process with the Union.The negotiation resulted in the creation of the “furlough boards”.[30] A “furlough board” comes into existence when there is a surplus of employees at aterminal, but not enough work for everyone. The employee on the “furlough board” has to remain

7available for work, but if he or she isn’t called to go to work, he or she still gets paid his or hersalary. Only a certain category of employees are allowed to “bid” on the “furlough boards”.These are called “protected” employees, while the “non-protected” employees are not entitled tothe “furlough board”.[31] The changes made to the working conditions in 1992, also created the notion of “forcing”,which produces different results for different categories of employees in the running trades.According to section 148.11 of the Collective Agreement, employees hired subsequent toJune 29 th , 1990, can be forced to cover work at another terminal in the Western region and areobligated to report at that terminal within at most thirty (30) days, unless they present a“satisfactory reason” justifying their failure to do so. These employees are commonly referred toas “category D” employees. They are also referred to as “non-protected” employees, insofar asthey are obligated to respond to a recall outside of their terminal.2010 CHRT 22 (CanLII)[32] Other categories of employees include those who were hired prior to June 29 th , 1990.These are referred to as “protected” employees. In this group of “protected employees”, we havethose who were hired prior to 1982 and who are referred to as “Category A” and “Category B”employees, respectively. These employees cannot be assigned for work outside of their localterminals. Employees hired after 1982, but prior to June 29 th , 1990, are referred to as “CategoryC” employees and may only be assigned to protect work at adjacent terminals. For example,“Category C” employees at the Jasper terminal could only be assigned to the adjacent terminals ofEdson and Kamloops.[33] The status of “protected” employees represents an exception to the general rule.The number of these employees will diminish over time through simple attrition and the statuswill eventually disappear altogether.[34] With the creation of the “furlough boards”, which in essence allowed some employees tobe protected at their home terminal, CN needed to find a way to fill positions in cases of shortagesat other locations. This is where section 148.11 of the Collective Agreement came into being.

8It is this provision that allows CN to “force” unprotected employees to other terminals in theWestern region to cover shortages.[35] Prior to the enactment of section 148.11, CN would get employees to cover shortages byissuing what is referred to as a “shortage bulletins” and allowing employees to bid on theseshortages, if they so desired. These “bulletins” were put out at each “change of card” whichwould happen about four times a year. Since it is difficult for CN to predict where a shortage willoccur, these bulletins would cover various locations, whether or not there was actually a shortagethere. Employees who wished to work at a shortage at a certain location would post a bid for thatlocation and if that location ever became short, the employee who had posted a bid could be calledto cover the work there.2010 CHRT 22 (CanLII)[36] CN still puts out shortage bulletins and employees are still allowed to bid on these, butgiven that protected employees can now stay at their home terminal on the furlough board andstill be paid, there is little incentive for them to bid on these potential shortages.[37] CN also uses a system which is referred to as “whitemanning” which allows it to send asurplus of employees at one terminal to an adjacent terminal. For example, in such a scenarioemployees in Kamloops, B.C., would be running trains that the Vancouver crews would normallytake to Kamloops. According to Ms. Storms, “whitemanning” is the first thing CN turns to incase of a shortage, because it is a lot “cheaper” financially than forcing employees to cover ashortage.[38] It is also possible that managers will be called upon during a shortage situation. Almostall of the transportation managers are qualified to operate trains. As a general rule, CN will callupon its managers as a last resort after it has exhausted its supply of running trades employees,including laid off employees.[39] Employees who are assigned to another terminal pursuant to section 148.11 of theCollective Agreement are afforded with certain amenities at their assigned terminal. Theseinclude, when available, rooms equipped with kitchenettes and also the possibility of travelling

9back to their home residence at regular intervals or, alternatively, having CN cover the costassociated with bringing a family member to the shortage location.[40] According to subsection 148.11(f) of the Collective Agreement, the first employee calledupon to protect work will be the junior qualified employee on lay off in the seniority territory witha seniority date subsequent to June 29, 1990. The collective agreement does not provide for amaximum duration for covering work. If the shortage turns out to be permanent, then CN willproceed to hire people for that location.[41] Section 115 of the Collective Agreement provides that an employee who is laid off will begiven preference for re-employment when staff is increased in his seniority district and will bereturned to service in order of seniority. The provision also provides that if the employee isemployed elsewhere at the time of recall, he may be allowed thirty (30) days to report. If he orshe fails to report for duty or fails to give “satisfactory reason” for not doing so, he or she willforfeit all his or her seniority rights.2010 CHRT 22 (CanLII)[42] An employee who would wish to raise a “satisfactory reason” to justify his or her failureto report for work would first have to make a request to Crew Management Centre (“CMC”).He or she would then be instructed to write a letter to his or her immediate supervisor at his hometerminal. If the reason raised could have an impact on the Collective Agreement somediscussions with the union might be necessary.(ii)The Complainant[43] The Complainant hired on with CN in Jasper, Alberta, on April 1 st , 1991. She initiallyworked as a brakeman until she qualified as a Conductor in 1993. She continued to work as aConductor until she was laid off in September 1998.[44] Over her career, the Complainant worked at a number of railway terminals coveringshortages, while always maintaining Jasper as her home terminal. In 1993, she worked a shortagein Calgary for almost a year until she was recalled to Jasper in 1994. In 1996, she bid on a

10shortage in Vancouver and worked there for about three months. In 1998, she bid on anothershortage in Terrace, B.C. She was recalled to Jasper in August 1998 where she worked for twomonths before she was laid off.[45] During the fall of 1998, she became pregnant and her son was born in June, 1999.She then took some time off but later returned to the “available laid off status”. From 1999 to2001, she worked the Emergency Board in Jasper. The possibility to work the Emergency Boardwas made possible because of a local agreement concluded in 1998 between the local Unionrepresentatives in Jasper and the manager of the terminal. That agreement allowed for laid offConductors who booked on the emergency board to be called to work ahead of those employeeson the active furlough board. This local agreement was changed in 2001 when CN decided that itwanted to be able to call the active furlough board employees before any employees on lay off.CN felt that since it was paying a guarantee to the furlough board employees, but not to the laidoff employees, it was financially advantageous for the company to use the furlough boardemployees first before calling the laid off employees to perform emergency board work.After this change, given the number of employees on the furlough board in Jasper, there was nochance for a laid off employee who booked “OK” on the emergency board being called.2010 CHRT 22 (CanLII)[46] On cross-examination, the Complainant testified that she understood that coveringshortages was part of her job and that Conductors could be called to work away from their hometerminal. She even added that she loved to cover shortages, but that considering her familysituation in 2005, she was not able to cover the shortage in Vancouver.[47] The Complainant is a single parent with sole custody of her son. Although, the fathermaintains a regular relationship with his son, the Complainant has the primary responsibility forall aspects of parenting. The paternal grandparents live next door to the Complainant and theyhave an excellent relationship with their grandson.[48] The father runs an outfitting business taking clients into the mountain for wilderness trips.In the winter he also runs a ski lodge. The Complainant explained during her testimony that the

11nature of the father’s work makes him almost unavailable to undertake any parental obligations orduties.[49] In 2002, while on lay off, the Complainant answered a canvas by the Union PacificRailroad for Conductors to cover a shortage in St. Louis, Missouri, U.S.A. She worked therefrom August 2 nd to December 15 th , 2002. At that time, she made the decision to leave her son,who was then three years old, under the care of his paternal grandparents. She testified that whileshe was away, her absence did not seem to have any negative effect on her son, but when shereturned home, she realized that leaving him behind was a mistake. She explained that he wasvery distressed by her absence. She testified that the negative emotional effects on her son wereobvious. She gave as an example, the fact that he would not leave her side and was upset whenshe was not present. When his dad would come to pick him up, he would refuse to leave. TheComplainant testified that she learned a lot from this experience and that unless, she could bringher son with her, she would not do it again.2010 CHRT 22 (CanLII)[50] In the summer of 2003, the Complainant was contacted by the human resourcesdepartment of the Union Pacific Railroad, regarding work on another shortage. She accepted theoffer and reported to work in Tucson, Arizona, U.S.A, from October 28 th , 2003 to March 15 th ,2004.[51] She testified that, given the negative impact that her time in St. Louis had on her son, shehad determined this time that she was not going to leave him behind. Working with theUnion Pacific Railway’s human resources department, she was able to arrange to rent anapartment in Tucson large enough for herself, her son and a family member. The railwaycompany covered the cost of travel to Tucson for her son and his father. After a while, thepaternal grandparents came out and took over from the father who was able to return to his workin Jasper.[52] She also testified that during that period she was by herself for a period of 1½ to 2 months.During that time, her son went back to Jasper with his parental grandparents.

12[53] After her return to Jasper from Tucson, the Complainant noticed that her son wascoughing a lot and that he could not breathe well when playing. She became concerned andsought medical attention. In January 2005, the condition became worse and her doctor referredher to a specialist. She was able to make an appointment for April 2005. Her son was diagnosedwith respiratory difficulties.(iii) The Vancouver shortage[54] In February 2005, CN was experiencing a severe shortage of running trades employees inits Vancouver terminal. This situation was mainly due to a growing economy and an increase inCN’s business volume which had outpaced its capacity to provide enough running tradeemployees locally to cover the work it had. According to Ms. Storms, seventy-two (72)Conductors were needed in Vancouver to cover the shortage and Vancouver had only fifty-three(53) Conductors working, so they were nineteen (19) short. She added that “it was definitivelyone of the most serious shortages that I had seen in my career.”2010 CHRT 22 (CanLII)[55] To accentuate the seriousness of this shortage, Ms. Storms testified that for the periodbetween February 4 th , 2005 to January 15 th , 2006, the Vancouver yard had 726 overtime shifts fora total amount of $229,350.30. On cross-examination, she added that these numbers included theovertime done not only by Conductors, but also by locomotive engineers and, she added, possiblyby yardmasters.[56] Ms. Storms also testified that at about the same period the Jasper terminal was in a surplussituation. She explained that when, as it was the case in Jasper, a terminal has a furlough board, issupporting other terminals with “whitemen” and has employees on lay off, it is considered to be ina surplus situation. But she did acknowledge that in 2005, managers were used in Jasper becauseof train delays. She also added that for “part of 2005” it became busier in Jasper and that afterAugust 6 th , 2005, there was no longer any employees on the furlough board there.

13[57] Due to its location, the Vancouver terminal is a very active one. It includes extensive yardand intermodal operations where goods are transferred from and onto ships. The Vancouverterminal therefore constitutes a focal point for CN’s Canadian market as vast amounts of materialsand consumer goods shipped to and from Asia and North America transits through it and areafterwards transported throughout Canada on CN’s rail network.[58] A shortage of running trades employees in Vancouver carries significant implications, as itcan affect CN’s ability to operate adequately throughout its network.[59] In order to maintain its level of operation, CN decided in February 2005 to recall laid offConductors from the Western region to protect the shortage affecting the Vancouver terminal.These employees were “non-protected” employees with a seniority date subsequent to2010 CHRT 22 (CanLII)June 29 th , 1990. As such, they were subject to Article 148.11(c) of the Collective Agreement.[60] According to Ms. Storms’ evidence, shortages are managed by the Board AdjustmentGroup at CMC. This Group was at that time under the direction of Joe Lyon who reported directlyto Ms. Storms. The Board Adjustment Group dealt with the Vancouver shortage of 2005, butbecause it was short on staff, crew dispatchers were also involved in contacting the employeeswho were recalled to cover the shortage.[61] Ms. Storms testified that during that period she went to Vancouver to help with thedeployment of officers. She added that officers had been called in from all over Canada to helpwith the shortage. She also testified that 2,144 “tours” had been handled by officers during theVancouver shortage. She further added that this “would be the most usage of officers that I’veseen in the west in my career.”[62] In terms of how long this “shortage” might last, Ms. Storms testified that if theComplainant had reported to Vancouver, she would have probably stayed there for approximatelya year, since the shortage situation in Vancouver was not resolved before 2006.

14[63] According to the evidence of Ms. Ziemer the shortage was eventually resolved “over aperiod of a couple of years” by CN “hiring the right amount of employees in order to keep aheadof the amount of attrition and the significant growth in the business.” She further explained thatVancouver is a very competitive job market: “Unfortunately the construction industry wasbooming. We also lost a lot of potential candidates to the boom in the oil and gas industry inNorthern Alberta. […], it was very difficult for us to recruit over those two years [2005 and 2006],and it became cyclical. We didn't have enough successful employees through the recruitmentselection process, so we had to readvertise, hold numerous career fairs. We had to advertise overand over again until we had the right amount of employees. And this was cyclical from 2005through to probably mid-2007.”2010 CHRT 22 (CanLII)[64] Employees reporting to cover the shortage at the Vancouver terminal, would be asked toshow up at the Thornton Yard, in Surrey, and from there, since Vancouver has a number of yards,they would be taxied to wherever they were needed. Employees would only be informed whenthey got to Vancouver where they were going to work and what shift they would be working on.[65] Ms. Ziemer also testified as to the housing arrangements for employees reporting to theVancouver shortage. She explained that there were two hotels available in Surrey, B.C. One ofthese hotels was situated several blocks from CN’s yards. This hotel, according to Ms. Ziemer’srecollection, “had large suites with fridges inside and then there was a communal kitchen set upfor CN employees.” The other hotel was closer to the yard and had suites. Ms. Ziemer added“My understanding is that they had kitchen facilities in the suites as well.”[66] She also testified that CN could approve the rental of a house, an apartment or a condo.She referred to a situation which occurred in Vancouver – although she did not say when – whereCN had approved the rental of a property because the price of the rental made more senseeconomically than paying “$90 a night or $100 a night or a hotel for the 20 or 30 days that anemployee would be required to be at the location to protect work

15(iv)The Conductors recalled to cover the Vancouver shortage[67] Forty-seven (47) laid off Conductors in the Western region were recalled to cover theVancouver shortage in February 2005. Ms. Storms explained that employees are recalled on aseniority basis, starting with the senior person in the district. She added that CN would not allow asenior employee to bypass an opportunity to work, because that would mean that they were notprotecting their seniority according to the Collective Agreement. At the time of the recall, theComplainant was first on the seniority list of laid off employees at the Jasper terminal.[68] Of the forty-seven (47) laid-off employees recalled, ten (10) reported to Vancouver andthirty (30) did not report and either resigned or were dismissed. The remaining seven (7) wereeither excused from reporting or were required at their home terminal.2010 CHRT 22 (CanLII)[69] The forty-seven (47) employees were initially contacted by phone. According toMs. Storms, when these employees were called they were told that they had fifteen (15) days toreport to cover the shortage. She further added that she had instructed her group not to ventureany information about the possible duration of the shortage since they did not have thatinformation.[70] At the hearing, CN produced Excel Spreadsheets containing information relevant to fiveemployees who, according to its Amended Statement of Particulars, had reported to Vancouver.Counsel for the CHRC requested that CN produce the same information it had provided for thesefive employees for all of the other forty two employees recalled to Vancouver. These documentswere disclosed in the form of Excel spreadsheets and contained numerous pages of informationconcerning their status during the particular period relevant to these proceedings.[71] According to the “Respondent List of Exhibits” in this hearing, CN put into evidence theCATS records for five employees. (See Exhibit R-1, Tab 27 through Tab 31 inclusively.) It putinto evidence two other CATS records (See Exhibits R-10 and R-11). Ms. Storms was questionedand cross-examined thoroughly on them by counsels. For its part the Commission put into

16evidence the CATS records for fifteen other employees. (See Exhibits HR-1, Tab 5 through andincluding Tab 10 and HR-2, Tab 23 through and including Tab 30).[72] The remainders of the CATS records disclosed by CN were put into evidence by thecomplainants’ counsel (See Exhibit C-33). These documents were not put into evidence in theformat provided by CN. The Complainant’s counsel, during her cross-examination ofMs. Storms, explained that she had created what she described as “a document in a new format byre-sorting the information contained in the original Excel spreadsheet provided by CN”. This newdocument was re-sorted in such way that it showed which employees recalled to Vancouver were“available” on any given date in the year 2005.2010 CHRT 22 (CanLII)[73] On the last day of the hearing, CN’s counsel raised an issue concerning the accuracy ofsome of the information on the spreadsheets. On January 18 th , 2010, more than two months afterthe hearing, CN filed a motion asking permission to reopen its case to file further new evidence.This motion was dealt with in a ruling which can be found at 2010 CHRT 6.[74] CN produced the documents and, as noted earlier, decided to put it in through the evidenceof Ms. Storms. We can infer from this that CN felt that she had sufficient knowledge of theinformation contained on these documents to be able to testify to them. We will go over some ofthe information contained in these documents in some detail, as it was apparent that they wereimportant for all the parties. In order to protect the privacy of the employees concerned, they willbe identified by letters which do not correspond to their actual names.[75] The documents indicate that employee AB, although recalled, did not report to theVancouver shortage. On March 22 th , 2005, he was “set up” at the Sioux Lookout terminal.He continued to work there to the end of the year. Having been “set up” at his home terminal, hedid not have to cover the shortage in Vancouver. Although this employee was “set up” onMarch 22 nd , the documents indicate that he only worked on March 24 th and then did not workagain until April 1 st . After this date, he works on April 10 th and 11 th , but doesn’t work after thatuntil April 18 th . On July 22 nd , he takes a personal leave and doesn’t return to work until

17August 12 th . He works from that date to August 20 th , but does not work after that date untilSeptember 22 nd . He works again on September 30 th and then does not work until October 28 th .During the time when he was not working, this employee did not report to the Vancouvershortage.[76] Employee HI was working on a shortage at Hornepayne at the time of the recall.He worked on that shortage up until May 18 th , 2005. After that he went home for a week and thenwent to Vancouver to cover the shortage on May 30 th . He was later recalled to his home terminalon September 19 th, 2005. He took a transfer to Fort Francis on October 29 th and worked thereuntil the end of the year.2010 CHRT 22 (CanLII)[77] According to the documents produced by CN, while he was in Vancouver, this employeestarted off by doing four (4) shifts of training. After he had completed his training on June 3 rd ,he only starts working on June 9 th . Ms. Storms specified that it could well be that during that timehe was still in training, although she did not know for sure. After June 9 th , he is shown as“available” from June 17 th to June 26 th and then he is off work for “miles”. That means that hehad been at the shortage location for a specified amount of time and he could go home for a fewdays. He did not work in Vancouver from June16 th to July 6 th and from July 23 rd to August 8 th .He has another break on September 1 st . His next working date is September 25 th .On October 29 th , as I’ve stated earlier, he is “set up” in Fort-Francis, but does not actually workthere before December 22 nd , 2005. When asked by the Complainant’s counsel why an employeewould be set up for almost two months and not work, Ms. Storms replied: “I can’t answer that.”[78] Employee P was laid off at North Battleford on February 25 th . On March 19 th , he took aweek vacation and then he was “set up” at his home terminal on March 26 th . As alreadymentioned, when an employee is set up at his home terminal, he or she is no longer under anobligation to cover a shortage. Ms. Storms did emphasize though that being “set up” does notmean that the employee is working every day. In the case of employee P, for example, from

18March 26 th to the end of April, he only worked 7 days at his home terminal, but Ms. Storms addedthat we must be careful when looking at this information as those tours can last two (2) or three(3) days each, although no evidence confirming that this was the case for this employee wassubmitted. The employee was again laid off on April 24 th , 2005. From that date to the rest of theyear, this employee moved around within the Saskatchewan zone “taking a clearance” at otherterminals.[79] The expression “taking a clearance” refers to the situation where a laid off employee withseniority in the Western region elects to go to another terminal where a position he can hold isavailable. When a position becomes available at his home terminal, the employee will returnthere. If an employee is exercising his seniority and “takes a clearance”, he or she is said to beworking and will not have to report to cover a shortage.2010 CHRT 22 (CanLII)[80] Employee Y was also called to protect the shortage in Vancouver on February 25 th , 2005.On that day he was on a “leave of absence”, but according to Ms. Storms, CMC would havecontacted him within the next few days. Ms. Storms added that she had checked into thisemployee’s work record and that it indicated that he was “Absent without Leave” on March 4 th ,2005. This employee was eventually “set up” at his home terminal on March 15 th , 2005.On April 9 th , he was laid off again and then on April 30 th , he was given a leave of absence by histrainmaster. That leave of absence lasted until May 13 th when he was again laid off. On June 5 th ,he was again given a leave of absence until June 19 th . On June 20 th , he was “set up” in Saskatoonand worked there until July 1 st and was laid off again on July 2 nd . On July 9 th , he was “set up”again in Saskatoon. On November 4 th , he took a leave of absence and then on November 13 th ,he started training as a yardmaster. He trained as a yardmaster until Christmas and then he stayedon the working board until the end of the year.[81] Ms. Storms testified that this employee was “dodgy” and “making himself unavailable”.She added that when he was “set up” at this home terminal, he didn’t have to report to cover theshortage, but when he was laid off in early April he should have reported, but did not.

19When asked by CN counsel why he had not been discharged for failing to report, she answered:“I can’t speak to that. His manager … could have done something. I don’t know exactly why, likeI said, I think it just fell through the cracks. Because he was working, we didn’t obviously keepvery good tabs on him.” Finally, on December 25 th , 2005, this employee was “set up” inSaskatoon. On cross-examination, Ms. Storms added that his supervisor thought that he mightneed this employee, so “he was not releasing him”.[82] Employee U was called to cover the shortage in Vancouver at the same time as everyoneelse. Ms. Storms testified that she had personally talked to this employee and had been informedby him that his father was terminally ill. She added that she had then taken it upon herself to2010 CHRT 22 (CanLII)extend his time to report. This employee stayed on the laid off board until June 26 th 2005, atwhich time he was given a leave of absence by the trainmaster at his terminal. On July 24 th ,he was “set up” at his home terminal. His father passed away in October and he booked off onbereavement leave. After that, he stayed at his home terminal for the remainder of the year.[83] Employee E was on laid off status when the recalled procedure started. Initially, when theystarted contacting employees for the shortage, the staff at CMC would just write notes in theirwork records as they were making the calls. But, because the shortage was so large, things weregetting a little awkward and Ms. Storms instructed her staff to put charts together so that theycould see where things were and how many people would cover the shortage. The information wefind on these charts were gathered and recorded by different employees at CMC. The first chartwas produced on March 7 th , 2005. The last entry was for May 19 th , 2005. After that, the list wasdiscontinued. By that time Ms. Storms explained that “most of the 47 recalled employees hadresponded or been dealt with.”[84] The entry on these charts for March 16 th , 2005, indicates that employee E had “15 days toreport, 30 requested. G. Spanos pls advise or arrange travel.” On April 20 th 2005, the entryshows “Per Manitoba Zone [E] has been given a compassionate LOA until further notice – perRon Smith – due to personal issue.” [The emphasis is mine.] Ms. Storms explained thatRon Smith was the manager of the running trade employees for the Manitoba zone. Ms. Storms

20indicated that she knew a bit more about this employee’s situation, because she had talked withhis supervisor after the Seeley hearing. In response to questions put to her by CN’s counsel, sheexplained that Employee E’s situation was very similar to employee U. He also had a terminallyill parent and that would explain the entry of May 19 th , 2005, which indicates “Per Manitoba zonethis individual has been given a compassionate [leave of absence] until further notice per A.Nashman and K. Carroll” Mr. Carroll was the general manager of the Vancouver, south division,at that time and Mr. Nashman was the general manager of the Western Operation Centre.Employee E was on a leave of absence until July 30 th , 2005 and afterwards absent without leavefrom July 31 st to September 8 th . On September 10 th , he is transferred to another terminal2010 CHRT 22 (CanLII)(Brandon, Manitoba) and, finally, he resigns on October 19 th .[85] When asked on cross-examination why this employee had never reported to Vancouver,Ms. Storms testified that his supervisor had indicated that the employee had not reported toVancouver because “he was training him to be a supervisor, but that ultimately he resigned.”This answer is not consistent with the answer she had given previously to CN’s counsel, when shehad stated that the situation of this employee was similar to that of Employee U.[86] Employee FG was shown on CN’s Amended Statement of Particulars as having resigned,but at the hearing Ms. Storms testified that this was a mistake. This employee had been recalledto the Vancouver shortage and he reported there on March 22 nd , 2005. But from that date untilSeptember 21 st , 2005, the employee was on “sick leave”. He was granted what is described as“a leave of Absence under the Family Leave Act”. When asked to explain what the“Family Leave Act” was, Ms. Storms answered that she did not know. A quick research, did notallow the Tribunal to identify any legislation bearing the name “Family Leave Act.”This employee resigned his position with CN on May 6 th , 2006.[87] Employee O is showed in CN’s Amended Statement of Particulars as having reported toVancouver and to be still employed by CN. But, the documents produced at the hearing indicatethat this employee did not report to Vancouver. He stayed in his home province, which accordingto Ms. Storms “was using all of the employees that were there.”

21[88] Employee QR was covering a shortage at Hornepayne when the recalled procedurestarted, so he did not have to report to Vancouver right away. After he finished covering theHornepayne shortage, he did report to Vancouver but during the period of November 8 th , 2005 toDecember 20 th , 2005, he only worked three days. Before November 8 th , he seemed to have beenworking pretty steadily. Ms. Storms testified that she could not speak for the period starting onNovember 8 th , but she did add that there was still a shortage in Vancouver at that time.[89] Another employee, employee M, reported to Vancouver on March 25 th , 2005, but betweenthat date and the end of 2005, the documents indicate that he only worked thirty four (34) shifts.2010 CHRT 22 (CanLII)More specifically, between September 17 th and December 31 st , he only worked ten (10) shifts.The documents show that this employee was absent a significant amount of time. The documentsalso indicate that between November 30 th and December 31 st , 2005, this employee was absentwithout leave. Ms. Storms testified that she had no idea of the reason for this absence. She addedthat only his supervisor could give a reason. This employee was not dismissed.[90] Employee A went to Vancouver for approximately two (2) months. On May 14 th , 2005,he was transferred to Kenora. Ms. Storms testified that the supervisor who made the decision toset him up in Kenora “expected or projected” that there would be work for this employee at theterminal. But again, the documents indicate that from May 17 th , 2005 to August 4 th , 2005, thisemployee worked three (3) shifts in Kenora and that from November 1 st to the end of December,he worked only seven (7) shifts. Ms. Storms testified that she could not speak for the reason whythe supervisor at Kenora had decided to set this employee up, but she agreed that this “person wasnot working very much.”[91] Employee “C” reported to Vancouver on March 15 th , 2005. He did work in Vancouver butwas also marked as “available” on many occasions. On May 16 th , 2005, he also is set up inKenora. From May 17 th to July 9 th , 2005, he worked three (3) days at that terminal and fromOctober 20 th to December 12 th , 2005, the documents indicate that he did not work at all.Ms. Storms confirmed this information in her testimony.

22[92] Employee DE was also recalled to Vancouver on March 15 th , 2005. He had a fairlyregular pattern of work while in Vancouver. On June 18 th 2005, he is transferred and set up inTerrace, but while there he does not work until September 23 rd , date at which he is againtransferred to Vancouver.[93] Another employee IJ was called to cover the shortage at Vancouver but did not have toreport because he was then covering a shortage at another location. From March 17 th to May 16 th ,while covering that shortage, the documents indicate that he only worked one (1) day(April 26 th , 2005). From May 20 th to May 27 th , he was set up at his home terminal in Thunder2010 CHRT 22 (CanLII)Bay. From June 3 rd to June 24 th , he reported to Vancouver, but again the documents show that heis not working for several days. From July 16 th to September 1 st , he has a fairly steady pattern ofwork. On September 7 th , he leaves Vancouver for Sioux Lookout, where he only works four (4)days up until October 27 th , 2005. After that he is set up first at Brandon and then at Fort Francis.[94] Employee O did not report to Vancouver for various unexplained reasons. He is set up athis home terminal but the document show that during the period up to December his pattern ofwork at the terminal is very unsteady. Ms. Storms testified that this information “soundedaccurate” and she added that “it would be up to the terminal to release this employee and lay himoff. If the terminal set him up and he is not working, there is not much CMC can do about it.”[95] Employee W reported to Vancouver on April 14 th , 2005. From that date until July 29 th ,he worked eighteen (18) days. July 29 th , 2005, was his last day in Vancouver. On July 30 th , thisemployee is transferred to his home terminal. He gets set up there but does not work fromAugust 13 th to September 19 th . He works on September 20 th , but then does not work again beforeNovember 12 th , when he is transferred to another terminal for seven (7) days. He returns to hishome terminal on November 19 th , where he does not work until the end of the year. Ms Stormstestified that she does not know why this employee was not working.

23[96] In CN’s Amended Statement of Particulars, employee BC is indicated as having resigned.But according to the documents submitted at the hearing it is indicated that this employee “will beon Great West Life – long term insurance benefits.” According to Ms. Storms, the dispatcher atCMC probably talked to this employee’s supervisor. The employee was excused from reportingto Vancouver.[97] What the Tribunal concludes from this evidence is that many of the employees recalled tocover the shortage in Vancouver either did not report and were not terminated or if they did reportthey were shown as being “available” for work on various days, but did not work.2010 CHRT 22 (CanLII)(v)The Complainant’s recall to work[98] Before addressing the facts regarding the Complainant’s recall to cover the shortage inVancouver, the Tribunal notes that, in her cross-examination, Ms. Storms indicated that she didnot personally keep a file specific to the Complainant’s situation. She added that Joe Lyon, CN’sManager Operations, Crew Management Centre, Western Operations, and also the manager of theBoard Adjustment Group, who reported directly to her, would most likely have kept thecorrespondence in a “Vancouver shortage file” and that the Complainant’s letters would havebeen filed in her Personal Record files at CN. Mr. Lyon was not called as a witness, so it wasimpossible for the Tribunal to verify this information.[99] Questioned by the Complainant’s counsel as to why the letters written by the Complainantwere not disclosed with her Personal Record files, Ms. Storms answered that the files had beensent to scanning and that the letters were probably removed from the file and not replaced.But she added that these letters were left in the shortage file in Mr. Lyon’s office. Asked why this“shortage file” had not been disclosed, she answered that she wasn’t involved in the preparationfor the hearing and that she did not know where that shortage file would be. She further added thatshe had not seen the file.

24[100] The Complainant testified that at the beginning of 2005, she had begun to watch theboards in CN’s Jasper terminal, because she was the senior laid off Conductor in the terminal andas a result, she was next in line to be called back to work.[101] The Complainant also explained that, having made arrangements for the care of her son,she had begun to book “OK” with CMC for emergency trips. Her first trip was onFebruary 27 th , 2005.[102] On February 23 rd or 24 th , 2005, she received a call from CMC. The CMC employee wasasking her how long it would take her to go to work if she were to be set up to a working board.She replied that she was ready. With this call, she felt that she was now very close to getting backto her career on the railroad. She added that she had also spoken to the Superintendant in Jasperand that he had told her that things were getting busier and that she should have her qualificationsready.2010 CHRT 22 (CanLII)[103] On February 26 th , 2005, she received a telephone call from Joe Lyon advising her that shehad fifteen (15) days to report to cover a yard shortage in Vancouver. The Complainant testifiedthat she was totally shocked and dismayed by this phone call. She added that she had askedMr. Lyons how long the shortage would be and that he had replied that it would be a while.[104] The Complainant testified about how the call to report to the Vancouver shortage hadmade her feel. She explained that she had tried to evaluate the options for herself and her son. Shealso added that, given the negative impact of her separation from her son while she was inSt. Louis, she did not consider as a viable option leaving him in Jasper while she went toVancouver. She also explained that she had worked a shortage in Vancouver in the past and shedid not see that there was any reasonable opportunity to bring the child to live with her where thecrews were being housed. Furthermore, there was no nearby school for her son who was finishingkindergarten and who would be starting Grade one in the fall. She didn’t know if there were anychild care options as she had no family in Vancouver to assist her.

25[105] On cross-examination, the Complainant testified that she had had many discussions withher son’s father about various possibilities, although she did not recall whether they had discussedthe possibility of him providing the primary residence during the duration of the shortage.She added though that she did not feel that this was a viable solution considering the nature of thefather’s business.[106] The Complainant also testified that her first choice would have been to stay in Jasper andwork the emergency board until a position opened up there. Alternatively, she would haveaccepted a leave of absence in Jasper. She also added that she would have been willing to sitdown with CN to look at other viable options, but this never materialized.2010 CHRT 22 (CanLII)[107] The Complainant was also particularly concerned about her son’s health. She explainedthat the search for a diagnosis for his illness had begun in 2004 with her family doctor. She hadbeen able to book a series of specialist appointments for him over the spring and the summer of2005.[108] The Complainant sought some advice from her union and as a result she wrote toColin Pizziol, the Trainmaster in Jasper, on March 9 th , 2005, requesting a 30 day extension toreport pursuant to Article 115 of the collective agreement. She added that apparently this requestwas granted but that nobody had called to inform her. This extended her time to report toMarch 26 th , 2005.[109] On March 14 th , 2005, she wrote to Rob Thompson, who was Local Chairman of the Unionat the time, providing details of the specialist appointment she had set up for her son in the monthof April 2005. The Complainant explained that she expected that the Union would pass on thisinformation to CN, but Joe Torchia, CN’s Senior Manager Labour Relations, testified that heknew nothing about this.[110] The Complainant then considered whether she would be able to report to Vancouver.She testified in detail as to the nature of her analysis. She explained how much she had enjoyed

26covering shortages in the past and her eagerness to get back to her railroad career. She alsoexplained how her son had been affected by her absence when she covered the shortage inSt. Louis and how it continued to affect him to this day. She outlined all the factors she took intoaccount, including the fact that her son’s father would not entertain her taking his son away fromJasper and how, given his seasonal work, he was not in a position to come with her to Vancouverto care for him. She added that she would have “loved” to go to Vancouver, but that her situation,because of her son, did not allow for this. The Complainant also testified as to her son’s medicalcondition and the steps she had taken in trying to get a proper diagnosis and appropriate treatmentfor him.2010 CHRT 22 (CanLII)[111] On March 18 th , 2005, on the advice of her Union, the Complainant wrote a letter toJoe Torchia. In this letter she set out her family and work history. She explained that in Jaspershe had support and had made arrangements so that she could fulfill all her parental obligationsand also work as a Conductor. She said: “…going to work in Vancouver on my own would beunacceptable. Taking my son with me is not an option either.” She also explained: “I am gettingextremely close to being set up here in Jasper, in fact I made an emergency trip here onFeb. 27, 2005. I am the senior person laid off.” She concluded by saying: “I am appealing toyour sense of compassion and understanding in asking you to excuse me from being forced toVancouver. Please allow me to keep my promise to my son, please allow me to remain in Jasper.”[112] Mr. Torchia testified that he had read this letter and had contacted Ms. Storms at CMCabout it. He was then informed that there was more than one request of this nature. He instructedCMC to allow the Complainant an extension of time to report based on the fact that she had“certain issues” and needed more time to “attend to her affairs.” He further added that on readingthis letter, he felt that this was the right thing to do.[113] Mr. Torchia added that he advised Ms. Storms to also grant an extension of time to reportto Cindy Richards and Denise Seeley, since their situations were very similar to that of theComplainant. Mr. Torchia further testified that he did not reply to the letter or spoken directly tothe Complainant because he had given her what she needed: additional time to report to

27Vancouver. On cross-examination he added that he understood that CMC would let the threeemployees know that they had been granted an extension.[114] He added that at about the same time he received a call from Bryan Boechler,the General Chairperson of the Union, about these three employees. He said that Mr. Boechlerhad indicated that these employees were having “child care issues” and he requested that they begranted more time to report to Vancouver. Mr. Torchia testified that he believes that, at that point,an extension had already been granted.[115] The spreadsheets prepared by the CMC regarding the recall do not support Mr. Torchia’sevidence. On the sheet dated “March 18/05 as of 13:00” a notation in the row for the2010 CHRT 22 (CanLII)Complainant states: “15 days to report, 30 requested – OK to April 6 th per A. Nashman.”The Tribunal also notes that the notation marked for D. Seeley reads “16 days to report.30 requested – OK to March 29 th per A. Nashman” and in the row for C. Richards, the notationstates “Message at residence to get medical done – wants 15 days.” So it seems from theseentries that the extension of time to report was granted by Mr. Nashman and not Mr. Torchia. Forher part, Ms. Storms testified that she had spoken to Mr. Torchia on a few occasions, but she didnot recall specifically what was said.[116] The Complainant testified that on April 30 th , 2005, she received a letter dated April 25 th ,signed by Mr. Lyon. In this letter Mr. Lyon states: “The Company has accommodated your needfor additional time to consider your options and make the necessary child-care arrangements…The Company cannot grant any further time for you to report. You must provide your response asto whether you will be reporting for work in Vancouver or not by May 6, 2005.” Upon receipt ofthis letter, the Complainant said that she called Mr. Lyon to ask if he had been in contact withMr. Torchia. Mr. Lyon told her that he had not.[117] Ms. Storms testified that she did not have a direct involvement in the drafting of theApril 25 th letter, which she described as a “standard letter”, but she is sure that Mr. Lyon wouldhave discussed its content with her. She added that she had talked to Mr. Torchia at that time and

28that he had instructed her to “put it on hold for a little bit and we’ll just give them a little bit moretime.”[118] The Complainant testified that she thought that there was “a communication breakdown”so, she decided to again write to Mr. Torchia on April 30 th , 2005. In this letter, she referred to atelephone conversation she had on that same day with her supervisor, Colin Pizziol. According toher, he told her that he had spoken with Kirk Carroll, CN’s general manager in Vancouver, andwith Mr. Torchia. He further added that that although they were “sensitive” to her situation, theywere requesting that she provide a reasonable time frame of when she would report to Vancouver.He also added that the “matter was out of his hands.” She also informed Mr. Torchia of themedical appointments that were set up for her son and said: “It has been a harrowing week,Mr. Torchia. I won’t even go into the three hours we spent in the emergency room at the HintonGeneral Hospital...” She ended the letter by stating “I would like to request a meeting with youwhen I travel to Edmonton in May. There is more I would like to discuss with you but prefer not toput it on paper.”2010 CHRT 22 (CanLII)[119] Mr. Torchia testified that he did receive the Complainant’s letter of April 30 th . He addedthat he did not recall the conversations with Mr. Pizziol and Mr. Carroll, although he does notdispute the fact that these conversations occurred. He said that after reading the letter, he came tothe conclusion that she needed more time to make arrangements and that he called Ms. Storms toask her to give her more time. He did not reply to the letter.[120] Mr. Torchia’s evidence in regard to speaking to Ms. Storms at this time is consistent withthe information on the CMC spreadsheets. In his evidence, he said that he had given theComplainant and the two other women a 30 day extension. The notations on the spreadsheets for“May 2/05 at 17:00”, “May 19/05 at 10:30” and May 19/05 at 17:00” all indicate for the threewomen “Child care – temporarily on hold per Joe Torchia.” Ms. Storms had no specificrecollection of the content of her discussions with Mr. Torchia.

29[121] The Complainant also testified that at one point in the spring of 2005, she telephonedMr. Torchia and had left a message asking to meet with him. He did not respond to this message.Mr. Torchia has no recollection of this call, although he does not deny it. In his crossexamination,he also stated that he did not normally meet with employees and that his dealingswere with the Union.[122] According to Mr. Torchia, it is unusual that these types of questions would go directly tohim. He added that employees making these kinds of request would normally address them totheir supervisor. The employee’s supervisor would handle these demands directly and they wouldrarely rise to “his level”. But, on cross-examination, he testified that even if the Complainant hadgone to her supervisor, the result would have been the same, because the supervisor would havehad to come to either Mr. Morris or himself for approval.2010 CHRT 22 (CanLII)[123] Since she had heard nothing further from Mr. Torchia and since CMC was calling her totake emergency trip, the Complainant assumed that her suggestion of staying in Jasper and doingemergency work had been accepted.[124] Mr. Torchia testified that in the last week of May or the beginning of June of 2005, he wasat a meeting with Albert Nashman and Bryan Boechler, General Chairperson for the UTU.Although the meeting was about different issues, at one point Mr. Boechler requested anotherextension for the Complainant and the other two employees. According to Mr. Torchia, he andMr. Nashman granted a further extension until July 2 nd , 2005. From Mr. Torchia’s understanding,it was clear that this was the last extension that would be granted. On cross-examination, hetestified that he was not aware if this decision had been conveyed to the Complainant. He furtheradded that CN had “accommodated” the Complainant by granting her more time to report.He said that the possibility of granting a “compassionate leave of absence” never crossed his mindand from his perspective this was not what the Complainant was asking, although he admitted thathe had never talked to her.[125] Mr. Torchia further explained that a “leave of absence” was normally granted for reasonswhich were “appropriate to the operational requirements of CN”. He added however that he was

30not aware that some employees recalled to Vancouver had been granted leave of absence by theirsupervisors.[126] On June 22 nd , 2005, the Complainant received a telephone call from Ms. Storms.Ms.Storms advised her that she had to report to work in Vancouver on July 2 nd or she would befired. The Complainant testified that she had asked Ms. Storms if she was familiar with hercircumstances, to which the latter answered “no”.[127] On June 22 nd or 23 rd , 2005, in an email in response to Ms. Storms’ email recapping hertelephone conversations with the Complainant, Mr. Torchia wrote: “As far as I am concerned they[the Complainant and the two other women] have been given enough time to sort out theirpersonal affairs. If they wish to extend any further they will have to arrange with theirsupervisor.” Brian Kalin, who was Mr. Pizziol’s supervisor, wrote on the same day: “There are nofurther extensions. I agree with Joe - they’ve had several months to get their affairs in order. It’sdecision time for them now.” Brian Kalin was not called as a witness, so we have no details ofwhat he knew about the Complainant’s circumstances. There is also no evidence that anybodyfrom CN informed the Complainant that she should be dealing with her immediate supervisor,Mr. Pizziol, about her request to be excused from reporting to Vancouver.2010 CHRT 22 (CanLII)[128] Also of interest in the email chain that CN produced at the hearing is an email whichMr. Torchia testified as being from Albert Nashman. Mr. Torchia added that it had perhaps beenpasted in from another email but he wasn’t sure. He also could not make out the date of this email.This email stated: “I talked to Boechler last night. Told him that we are not going to continue todelay this process. They have an obligation per the collective agreement to protect. I told himwhat are we suppose to tell the next group that says they don’t want to go. If he wants to file agrievance then so be it.”[129] The content of this email seems to be inconsistent with Mr. Torchia’s prior evidence to theeffect that he had made the decision that there would be no further extensions during the meeting

31at the end of May or in the first week of June with Mr. Nashman and Mr. Boechler. Yet the emailseems to suggest that it is Mr. Nashman who had made this decision.[130] The Complainant testified that at this point she was “stressed and very nervous.”She added that she was quickly losing trust. She could not believe that she “was not importantenough that someone could not talk back to her”. On June 23 rd , 2005, the Complainant wroteagain to Mr. Torchia. In this letter she explained both the particular health circumstances of herson and the useful work she had been doing for CN in Jasper. She testified that she was hoping“that this letter would safe her job.” Mr. Torchia did not reply to this letter. He testified that theComplainant had been granted an extension of four (4) months “to get her affairs in order and thatwas as far as we were prepared to go.”2010 CHRT 22 (CanLII)[131] On June 27 th , 2005, the Complainant was informed by a letter from L. Gallegos, ManagerOperations, at CMC, that she must report to Vancouver by July 2 nd , 2005. She was furtheradvised that if she failed to report, her seniority rights would be forfeited and her position withCN terminated. This letter also made reference to a telephone conversation, on June 22 nd , 2005,between the Complainant and Ms. Storms. The Complainant testified that when she got this lettershe cried and “panicked”. She added that she was “shocked and scared”. She could not believethat this was happening.[132] Ms. Storms testified that she did recall the telephone conversation of June 22 nd , but not thespecifics. She said that the Complainant had indicated that she had “child care issues”.Ms. Storms recalls having told her that CN still needed her to report to the shortage in Vancouver.She added that it was her understanding that the Complainant had told her that she could notreport. She doesn’t recall if the Complainant had asked for special arrangements, but, had sheasked, she added that she would have referred her to her supervisor and to her unionrepresentative.[133] On June 30 th , 2005, the Complainant sent a letter to Peter Marshall, Senior Vice-President,Western Region. In this letter, she explained that her understanding was that she had been granted

32“a compassionate stay to remain …in Jasper and protect emergency work.” She forwarded toMr. Marshall all her correspondence with the other managers and added that the letter was“a desperate plea to save my job.” Mr. Marshall did not respond to this letter.[134] On July 4, 2005, CN wrote to the Complainant advising her as follows:This letter will confirm as per Article 115 and 148 of Agreement 4.3 your seniorityrights are forfeited and your services with the Company have been dispensed with.Your employment file is now closed.[135] When she received this letter, the Complainant testified that she was completely“devastated”. She added that she was “deeply offended” that someone would think that hersituation was only a question of “personal choice”.2010 CHRT 22 (CanLII)[136] After her termination, the Complainant asked her Union to pursue a grievance on herbehalf. A grievance was filed and on April 12, 2006, Arbitrator Picher rendered his award whichwas reported in Canadian Railway Office of Arbitration & Dispute Resolution (“CROA”),Case no. 3549. In his award the arbitrator states, inter alia:In this grievance the Union does not plead any obligation of accommodation to thegrievor under the provisions of the Canadian Human Rights Act, nor any otherlegislation. It submits that, in effect, the Company unreasonably failed to providethe grievor with a leave of absence to allow her to avoid the recall to Vancouver byreason of her personal circumstances.[…]After a careful review of the facts, the Arbitrator has considerable difficulty withthe submission of the Union. Firstly, I must agree with the Company that in factthe grievor did not request a leave of absence. What she sought was a form ofsuper-seniority which would allow her, unlike other employees, to remain laid offat Jasper, with no obligation to protect work elsewhere, while continuing to receiveperiodic calls to work from the emergency list at Jasper, as she had previouslydone. A leave of absence connotes a departure from the workplace, virtually forall purposes, whether for an indefinite period or for a period that is fixed. Thoseare not options which were being requested by Ms. Whyte… The grievor in thecase at hand was not asking for an adjustment or accommodation in her work

33schedule. She was asking, in effect, for relief against one of the most fundamentalobligations of the collective agreement, namely the obligation to protect work onher seniority territory in the event of a shortage of employees at any location.[…]I would have some difficulty in concluding that the Company was unreasonable orarbitrary in refusing to effectively grant to the grievor an amendment of hercollective agreement obligations which might extend indefinitely, perhaps as longas ten years, while she would continue to have the special protected status as anemployee who could only be compelled to work in Jasper.[…]2010 CHRT 22 (CanLII)This grievance brings to the fore what must be recognized as a constant in anyemployment relationship, namely the tension between personal and familyobligations and obligations to one's employer. Myriad circumstances mightinfluence an employee's personal or family obligations: care for a child, care foran aged parent or another close relative or care for a spouse with a seriousmedical disability. Other personal circumstances might include parole orcommunity service obligations after sentencing, close involvement with a churchor social group, civic volunteering or competitive sports activities, to name but afew.A railway is, by its nature, a twenty-four hour, seven day a week enterprise.Persons who hire on to work, particularly in the running trades, know orreasonably should know that their hours of work will be irregular and that theywill, on occasion, be compelled to change location to protect work as needed. Inexchange for meeting those onerous obligations railway employees have gainedthe benefit of relatively generous wage and benefit protections.On what basis can a board of arbitration, charged with interpreting and applyingthe terms of the collective agreement, conclude that the conditions of singleparenthood can effectively trump the obligations of employment negotiated by theparties within the terms of their collective agreement? In a world where singleparenthood is not uncommon that is not an inconsiderable question. As a generalmatter, boards of arbitration, including this Office, have confirmed that withrespect to issues such as childcare the onus remains upon the employee, and notthe employer, to ensure that familial obligations do not interfere with the basicobligations of the employment contract.

34It is, of course, open to the parties to negotiate language within their collectiveagreement to provide possible relief from obligations of employment which wouldotherwise be borne by single parents or, for that matter, married parents withspecial needs. Likewise, Parliament or provincial legislatures could promulgateclear legislation to oblige employers to take such factors into account in theadministration of contracts of employment and collective agreements. But asmatters stand, the Arbitrator can find no discriminatory practice in the policy ofthe Company. It essentially requires all parents, whether single or married, torespond to their core employment obligations regardless of their personal orfamily circumstances. It obviously does occur, as in the case of the grievor, thatextensions of time and other accommodations may be considered where hardpersonal circumstances are demonstrated. But in the end, all employees subject tothe obligations of parenthood are treated the same, without discrimination basedon the status of parenthood. In my view it would be highly inappropriate, whenneither the parties nor Parliament have enacted such protection, for an arbitratorto extract from a provision such as article 115.4 and the phrase « satisfactoryreason » for not responding to a recall, an effective annulment of an employee’smost fundamental collective agreement obligation to be at work, in a mannertantamount to granting a form of super-seniority. If neither the parties themselvesnor Parliament has ploughed any such new furrow, it is plainly not for anarbitrator to do so, bound as any board of arbitration is to apply the collectiveagreement as it stands. The conferring of what, in effect, would be indefinite andqualified partial parental leave is for the parties to negotiate or for theappropriate legislators to promulgate, should that be appropriate or desirable.2010 CHRT 22 (CanLII)(The underlining is mine.)[137] In reading arbitrator Picher, the Tribunal cannot but repeat what it wrote in Johnstone v.Canada Border Services, 2010 CHRT 20, regarding this award.[227] In Whyte the onus was put entirely on the employee to bear any burdenassociated with working for a twenty-four hour, seven day a week enterprise suchas a railway. The decision finds that “in exchange for meeting those onerousobligations railway employees have gained the benefit of relatively generous wageand benefit protections.” This suggests that an employer can discriminate as longas it pays well, and without a definition as to what ‘relatively generous’ means orwhat comparative is being used.[138] On March 27 th , 2006, the Complainant filed her complaint with the CHRC.

35B. ISSUES[139] The issue raised in this case is as follows: has CN discriminated against the Complainantin the context of employment contrary to section 7 of the CHRA by failing to accommodate herand by terminating her employment on the ground of family status.C. THE LAW AND THEORY OF THE CASE(i) The relevant provisions of the CHRA2010 CHRT 22 (CanLII)[140] Section 3 of the CHRA states that “family status” is a prohibited ground of discrimination.3. (1) For all purposes of this Act, theprohibited grounds of discrimination arerace, national or ethnic origin, colour,religion, age, sex, sexual orientation, maritalstatus, family status, disability andconviction for which a pardon has beengranted.3. (1) Pour l’application de la présente loi, lesmotifs de distinction illicite sont ceux quisont fondés sur la race, l’origine nationale ouethnique, la couleur, la religion, l’âge, lesexe, l’orientation sexuelle, l’étatmatrimonial, la situation de famille, l’étatde personne graciée ou la déficience.(The emphasis is mine.)[141] For its part, section 7 states:7. It is a discriminatory practice, directly orindirectly,a) to refuse to employ or continue to employany individual, orb) in the course of employment, todifferentiate adversely in relation to anemployee on a prohibited ground ofdiscrimination.7. Constitue un acte discriminatoire, s’il estfondé sur un motif de distinction illicite, lefait, , par des moyens directs ou indirects;(a) de refuser d’employer ou de continuerd’employer un individu;(b) de le défavoriser en cours d’emploi.

36[142] In considering section 7, it is important to highlight the purpose of the CHRA as stated insection 2:2. The purpose of this Act is to extend thelaws in Canada to give effect, within thepurview of matters coming within thelegislative authority of Parliament, to theprinciple that all individuals should have anopportunity equal with other individuals tomake for themselves the lives that they areable and wish to have and to have their needsaccommodated, consistent with their dutiesand obligations as members of society,without being hindered in or prevented fromdoing so by discriminatory practices based onrace, national or ethnic origin, colour,religion, age, sex, sexual orientation, maritalstatus, family status, disability or convictionfor an offence for which a pardon has beengranted.2. La présente loi a pour objet de completer lalégislation canadienne en donnant effet, dansle champ de compétence du Parlement duCanada, au principe suivant : le droit de tousles individus, dans la mesure compatible avecleurs devoirs et obligations au sein de lasociété, à l’égalité des chancesd’épanouissement et à la prise de mesuresvisant à la satisfaction de leurs besoins,indépendamment des considérations fondéessur la race, l’origine nationale ou ethnique, lacouleur, la religion, l’âge, le sexe,l’orientation sexuelle, l’état matrimonial, lasituation de famille, la déficience ou l’état depersonne graciée.2010 CHRT 22 (CanLII)(ii)The Lawa) The prima facie case[143] The initial onus is on the complainant to establish a prima facie case of discrimination onthe basis of family status. A prima facie case is “one which covers the allegations made andwhich, if they are believed, is complete and sufficient to justify a verdict in the complainant’sfavour in the absence of an answer from the respondent.” (See Ontario Human RightsCommission and O’Malley v. Simpsons – Sears, [1985] 2 S.C.R. 536, at p. 558.)[144] Once a complainant establishes a prima facie case of discrimination, he or she is entitledto relief in absence of a justification by the respondent. (Ontario Human Rights Commissionv. Etobicoke, [1982] 1 S.C.R. 202, at p. 208.) In order to prove a prima facie case ofdiscrimination, the Complainant must, in this case, establish that she was treated in an adverse

37differential manner and was terminated because of her family status, contrary to section 7 of theCHRA.b) What approach is to be applied to determine whether there has been discriminationon the ground of family status?[145] The evaluation of whether there is discrimination on the ground of family status is carriedout according to the test set out in Public Service Labour Relations Commission v. BCGSEU,[1999] 3 S.C.R. 3 (“Meiorin”), just as it would be for any other prohibited ground ofdiscrimination. However, in recent years, the interpretation of the notion of “family status” hasled to the creation of two distinct schools of thought. Some cases have adopted a broad approachtowards the scope of “family status”, while other have taken a more narrow approach. In order tobetter understand what is included in the notion of “family status” we will review a certainnumber of these cases.2010 CHRT 22 (CanLII)[146] In Schaap v. Canada (Dept. of National Defence) [1988] C.H.R.D. No. 4, the Tribunal wasconsidering whether relationships formed in a common-law relationship as opposed to those in alegal marriage fell within the protected groups of “marital status” and “family status”. In itsdecision, the Tribunal found the need for a blood or legal relationship to exist and defined familystatus as including both blood relationships between parent and child and the inter-relationshipthat arises from bonds of marriage, consanguinity or legal adoption, including, of course, theancestral relationship, whether legitimate, illegitimate or by adoption, as well as the relationshipsbetween spouses, siblings, in-laws, uncles or aunts and nephews or nieces. In Lang v. Canada(Employment and Immigration Commission, [1990] C.H.R.D. No. 8, the Tribunal stated at page 3:“The Tribunal is of the view that the words “family status” include the relationship of parent andchild.”[147] In Brown v. Department of National Revenue (Customs and Excise), (1993) T.D. 7/93,the Tribunal held at pages 15 and 20:With respect to ground (b) [family status], the evidence must demonstrate thatfamily status includes the status of being a parent and includes the duties and

38obligations as a member of society and further that the Complainant was a parentincurring those duties and obligations. As a consequence of those duties andobligations, combined with an employer rule, the Complainant was unable toparticipate equally and fully in employment with her employer.[…]It is not suggested by counsel for the Complainant that the employer is responsiblefor the care and nurturing of a child. She was advocating however that there was abalance of interest and obligation as set out in s. 2 and 7(b) of the C.H.R.A. whichmust be recognized within the context of “family status”.A parent must therefore carefully weigh and evaluate how they are best able todischarge their obligations as well as their duties and obligations within the family.They are therefore under an obligation to seek accommodation from the employerso that they can best serve those interests.2010 CHRT 22 (CanLII)We can therefore understand the obvious dilemma facing the modern familywherein the present socio-economic trends find both parents in the workenvironment, often with different rules and requirements. More often than not, wefind the natural nurturing demands upon the female parent place her invariably inthe position wherein she is required to strike this fine balance between familyneeds and employment requirements.[148] The Tribunal finally concluded that the purposive interpretation to be affixed to the CHRAwas a clear recognition that within the context of “family status” it is a parent’s right and duty tostrike that balance coupled with a clear duty on the part of the employer to facilitate andaccommodate that balance within the criteria set out by the jurisprudence. The Tribunal addedthat “to consider any lesser approach to the problems facing the modern family within theemployment environment is to render meaningless the concept of “family status” as a ground ofdiscrimination.”[149] The Tribunal also considered “family status” as a ground of discrimination in Hoytv. Canadian National Railway, [2006] C.H.R.D. No. 33. In this decision, the Tribunal referred toa judicial definition of the term “family status”, as well as to prior decisions of the Tribunal whichset forth requirements to establish a prima facie case of discrimination based on that ground.The Tribunal specifically stated :

39117 Discrimination on this ground has been judicially defined as '... practices orattitudes which have the effect of limiting the conditions of employment of, or theemployment opportunities available to, employees on the basis of a characteristicrelating to their ... family.' (Ontario (Human Rights Commission) v. Mr. A et al[2000] O.J. No. 4275 (C.A.); affirmed [2002] S.C.J. No. 67].118 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 the statusof being a parent and includes the duties and obligations as a memberof society and further that the Complainant was a parent incurring thoseduties and obligations. As a consequence of those duties andobligations, combined with an employer rule, the Complainant wasunable to participate equally and fully in employment with heremployer" (Brown v. Canada (Department of National Revenue,Customs and Excise) [1993] C.H.R.D. No. 7, at p. 13. See also Woidenet al v. Dan Lynn, [2002] C.H.R.D. No. 18, T.D. 09/02)2010 CHRT 22 (CanLII)[150] 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, atparagraphs 38 and 39, a decision on which CN put a lot of weight during its closing arguments. Inthat decision the British Columbia Court of Appeal decided that the parameters of family status asa prohibited ground of discrimination in the Human Rights Code of British Columbia should notbe drawn too broadly or it would have the potential to cause “disruption and great mischief' in theworkplace”. The Court directed that a prima facie case is made out “when a change in a term orcondition 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.[151] 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:

40120 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 at p.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, beinappropriate to select out one prohibited ground of discrimination for a morerestrictive definition.121 In my respectful opinion, the concerns identified by the Court of Appeal,being serious workplace disruption and great mischief, might be proper matters forconsideration in the Meiorin analysis and in particular the third branch of theanalysis, being reasonable necessity. When evaluating the magnitude of hardship,an accommodation might give rise to matters such as serious disruption in theworkplace, and serious impact on employee morale are appropriate considerations(see Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990]2 S.C.R. 489 at pp. 520 - 521). Undue hardship is to be proven by the employer ona case by case basis. A mere apprehension that undue hardship would result is nota proper reason, in my respectful opinion, to obviate the analysis. (The underliningis mine.)2010 CHRT 22 (CanLII)[152] In addition to the compelling logic of the Tribunal’s decision in Hoyt for not following theapproach in Campbell River, this Tribunal concludes that the approach suggested in that caseimposes an additional burden on the Complainant by suggesting that the protected ground offamily status includes proof of a “serious interference with a substantial parental or other familyduty or obligation” and that this is inconsistent with the purpose of the CHRA. As the SupremeCourt of Canada made it clear in B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403,at para. 56, it is not appropriate, when interpreting human rights statutes, to impose additionalburdens.[153] The Tribunal’s approach in Hoyt was cited by the Federal Court of Canada in Johnstonev. Canada (Attorney General), [2007] F.C.J. No. 43, at paragraphs 29-30. This was an applicationfor judicial review by Ms. Johnstone of the decision of the CHRC to not refer her complaintalleging family status discrimination to the Tribunal.

41[154] In Johnstone, the Federal Court agreed with the approach of the Tribunal in Hoyt inregards to discrimination on the basis of family status, and stated that “...there is no obviousjustification for relegating this type of discrimination to a secondary or less compelling status.”(Johnstone, supra, at para. 29). The Court also stated that the suggestion of the British ColumbiaCourt of Appeal in the Campbell River case that prima facie discrimination will only arise wherethe employer changes the conditions of employment seems “to be unworkable and, with respect,wrong in law.” (Johnstone, supra, at para. 29). The Court also found that the “serious interferencetest” which the Court viewed as the approach apparently adopted by the CHRC for not sendingthe matter to the Tribunal, “fail[ed] to conform with other binding authorities which have clearlyestablished the test for a finding of prima facie discrimination.” ((Johnstone, supra, at para. 30.)2010 CHRT 22 (CanLII)[155] The Federal Court’s decision in Johnstone was upheld by the Federal Court of Appeal,although the Court of Appeal stated that it was not expressing an opinion on the proper version ofthe test in relation to prima facie discrimination on the ground of family status. Instead theFederal Court of Appeal based its reasoning on the finding that the failure of the CHRC to clearlyidentify the test it applied was “a valid basis for finding the decision of the Commission to beunreasonable. ([2008] F.C.J. No. 427, at para. 2).[156] The Tribunal has recently rendered its decision in the Johnstone matter (see Johnstone v.Canada Border Services, 2010 CHRT 20). In that decision the Tribunal states:[220] This Tribunal agrees that not every tension that arises in the context of worklifebalance can or should be addressed by human rights jurisprudence, but this isnot the argument put forward in the present case. Ms. Johnstone’s argument is thatsuch protection should be given where appropriate and reasonable given thecircumstances as presented.[221] As discussed above, we are addressing here a real parent to young childrenobligation and a substantial impact on that parent’s ability to meet that obligation.It is not before this Tribunal to address any and all family obligations and any andall conflict between an employee’s work and those obligations.[…]

42[230] […] this Tribunal finds nothing in Section 2 that creates a restrictive andnarrow interpretation of ‘family status’.[231] To the contrary, the underlying purpose of the Act as stated is to provide allindividuals a mechanism “to make for themselves the lives that they are able andwish to have and to have their needs accommodated, consistent with their dutiesand obligations as members of society…” It is reasonable that protections soafforded include those naturally arising from one of the most fundamental societalrelationships that exists, that of parent to child. The fact that the language ofSection 2 mentions “lives that they are able and wish to have” carries with it theacknowledgement that individuals do make separate choices, including to havechildren, and that the Act affords protection against discrimination with respect tothose choices.2010 CHRT 22 (CanLII)[…][233] This Tribunal finds that the freedom to choose to become a parent is so vitalthat it should not be constrained by the fear of discriminatory consequences. As asociety, Canada should recognize this fundamental freedom and support thatchoice wherever possible. For the employer, this means assessing situations suchas Ms. Johnstone’s on an individual basis and working together with her to create aworkable solution that balances her parental obligations with her workopportunities, short of undue hardship.[157] Recently the Public Service Staffing Tribunal (the “PSST”) considered whether to followthe approach to family status set out in Hoyt or in Campbell River and determined that it wouldapply the Hoyt approach. In Chantal Rajotte v. The President of the Canada Border ServicesAgency et al, 2009 PSST 0025, the PSST stated that “the proper approach to be followed is theone set out in Hoyt which is also recognized by the Federal Court in Johnstone.” (para. 127.)The PSST further stated:Accordingly, the evidence must demonstrate that the complainant is a parent, thatshe has duties and obligations as a member of society, and further that she was aparent incurring those duties and obligations. As a consequence of those duties andobligations, combined with the respondent’s conduct, the complainant must proveshe was unable to participate equally and fully in employment. (para. 127.)[158] A review of some recent cases out of the British Columbia Human Rights Tribunal(the “BCHRT”) demonstrates that the decisions of that Tribunal are not consistently following the

43approach in Campbell River. For example, it has not been found to be applicable in the case ofprovision of services (Stephenson v. Sooke Lake Modular Home Co-operative Association,2007 BCHRT 341). It has also been distinguished in two BCHRT decisions involving anemployment situation (Haggerty v. Kamloops Society for Community Living, [2008]BCHRT 172, par. 17 and Mahdi v. Hertz Canada Limited, [2008] BCHRT 245, paras. 60 and 61).[159] In Falardeau v. Ferguson Moving (1990) Ltd., dba Ferguson Moving and Storage et al.,2009 BCHRT 272, the BCHRT referred to the Campbell River, Hoyt and Johnstone decisions, andalso to another of its decision in Miller v. BCTF (No. 2), 2009 BCHRT 34. The BCHRT pointedout that in Miller, it had stated that Campbell River applied only in the context from which itarose. It cited the following statement from Miller: “The [Campbell River] formulation of what isnecessary to establish discrimination on the basis of family status in the context of competingemployment and family obligations is not applied mechanically in all cases of allegeddiscrimination on the basis of family status.” (Falardeau, at para. 29.)2010 CHRT 22 (CanLII)[160] The issue in Falardeau concerned whether an employee, who had refused to do overtimebecause of child care responsibilities for his son, had been discriminated against on the ground offamily status. The Tribunal found that the complainant had not established a prima facie case.The Tribunal stated at paras 31 and 32:In the present case, Ferguson sought to maintain a well-established pattern ofovertime hours to meet the needs of its customers. To the extent Mr. Falardeaumade the respondents aware of his child-care needs and arrangements, theythought, correctly on the evidence before me, that he was readily able to obtaincoverage for his son's care if his work hours were extended. Indeed, he had done soon many occasions. The fact that neither the pattern of Mr. Falardeau's work, norhis childcare demands or arrangements had changed, suggests that he may havemade an issue of overtime because of his dislike of work on construction sites,rather than because of his family responsibilities.There was no evidence that his son had any special needs, or that Mr. Falardeauwas uniquely qualified to care for him. Although these factors are not required toestablish a "substantial" parental obligation, the evidence in this case establishedno other factors which would take Mr. Falardeau's case out of the ordinaryobligations of parents who must juggle the demands of their employment, and the

44provision of appropriate care to their children. I am unable on these facts to find a"serious interference with a substantial parental or other family duty orobligation." (The underlining is mine.)[161] The BCHRT in Farlardeau was essentially following the reasoning formulated in theCampbell River case. But even if it had followed the Hoyt approach, its conclusion might not havebeen different. The main difference between the situation in Falardeau and in the present case isthat in Falardeau there had been no changes in Mr. Falardeau pattern of work or in his childcaredemands or arrangements. Furthermore, his employer had been made aware of Mr. Falardeau’schild-care needs and arrangements and it thought, rightly, that Falardeau was readily able toobtain coverage for his son's care if his work hours were extended. Therefore, Mr. Falardeau hadnot been able to make out a prima facie case on the ground of family status, as he had not proventhat he was unable to participate equally and fully in employment as a consequence of his dutiesand obligations as a parent.2010 CHRT 22 (CanLII)[162] In the present case, the Complainant by being forced to cover a shortage in Vancouver wasfacing a serious interference with her parental duties and obligations. The matter might have beendifferent had the Complainant refused to be set up at her home terminal.[163] In his closing arguments CN’s counsel argued that the Complainant’s position was basedon an incorrect premise. He qualified the complaint as a request that the employer accommodatethe Complainant’s “parental preferences and lifestyle choices.” He added that this position wasbased on an exceedingly broad interpretation of the CHRA and that the only characteristic raisedby the Complainant as triggering protection under the Act is the fact that she is a parent and assuch must see to the upbringing of her children. Counsel further submitted that requiring anemployee who is a parent to comply with his or her responsibility to report to work as required bythe collective agreement does not amount to discrimination prima facie. Rather, he argued thatthe refusal by an employee to comply with his or her responsibilities in this regard amounts to achoice which is exclusively personal in nature and which, absent exceptional circumstances, noemployer is obligated to accommodate. Accordingly, he concluded that upholding the complaintin this case would amount to adding “parental preferences” to the list of prohibited grounds of

45discrimination set out in the CHRA under the guise of an expansion of the notion of “familystatus”.[164] In support of his arguments, Counsel referred to numerous cases and awards, including theBritish Columbia’s Court of Appeal decision in Campbell River which he suggested presented amore structured and pragmatic approach than the Tribunal’s decision in Hoyt. He also madereference to an arbitration award in Canadian Staff Union v. Canadian Union of PublicEmployees, (2006) 88 C.L.A.S. 212. In this case, the grievor had refused to relocate to Halifaxafter having applied for a job which indicated that the place of work would be Halifax. Thegrievor resided in St. John’s, Newfoundland, where he had shared custody of his children with hisformer spouse. He also was responsible for the care of his aging mother. The union argued thatthe notion of “family status” was not limited to the status of being a parent per se, but alsoextended to the accommodation of the grievor’s family responsibilities.2010 CHRT 22 (CanLII)[165] According to the award, the grievance raised important issues of human rights law whichwere summarized as follows: “ whether an employer’s designation of a specific geographiclocation in a job posting, and insistence that an employee who wished to hold that job live wherehe or she can report regularly to work at that location prima facie constitutes discrimination on thebasis of marital status or family status, if the employee’s marital and family responsibilitieseffectively preclude him or her from living where he or she can report regularly to work at thespecified location.” (at para. 6.)[166] The arbitrator dismissed the grievance on the ground that “for the purposes of any statuterelevant here, and the Collective Agreement, it was the Grievor’s choice, not his marital andfamily responsibilities, that precluded him from moving to Halifax.” (at para. 9.) The arbitratoradded: “what the Employer did here did not constitute prima facie discrimination on the basis ofmarital status or family status and the Employer was not required by law to accommodate theGrievor to the point of undue hardship.”[167] In his analysis of the relevant cases, the arbitrator adopted the narrower approach ofCampbell River in regards to the interpretation of “family status”. Although interesting, the

46Tribunal notes that the facts relevant to this award are in many regards different from those in thepresent case. In that case, the grievor had applied for a job, knowing full well that the jobdescription indicated that it was to be located in Halifax. The grievor had a choice, he coulddecline to go to Halifax and remain in his position in St. John’s, which is not the case for theComplainant whose choice was either to report to Vancouver for an undetermined amount of timeor see her employment relationship terminated. The facts also indicate that there was nosignificant increase in pay or benefits involved between the job in Halifax and the one inSt. John’s and that the grievor had applied for the job posted because he wanted a change and newchallenges (para. 15). The Tribunal also notes that the grievor’s children were 19 years old,starting university, and 15, starting high school, and, as indicated by the arbitrator, although thegrievor’s sons undoubtedly benefited greatly from his regular presence in St. John’s, they requiredno special care from him, and he could make arrangement for their maintenance in his absence(para. 141.)2010 CHRT 22 (CanLII)[168] CN counsel also made reference to the Ontario Human Rights Tribunal’s decision inWight v. Ontario (No 2), 33 C.H.R.R. D/191, which dealt with an employee who, at the expiry ofher maternity leave, refused to return to work claiming that she was unable to make appropriatedaycare arrangements. Her employment was thereafter terminated on the ground that she hadabandoned her position. In this case the Tribunal found that the Complainant had “steadfastly”refused to acknowledge her employer’s reasonable expectations that she would take whateversteps are necessary to return to work when her maternity leave would expire. In the Tribunalwords: “She had decided she was going to be on a maternity leave until October at the earliest orJanuary at the latest.” (para. 321). The Tribunal added that this was not a case of someone who,despite her best efforts, could not find day care for her child and had to make a choice between herchild and her job. Again a factual situation which is very different from the present one.[169] Counsel also made reference to Smith v. Canadian National Railway, 2008 CHRT 15,a decision rendered in May 2008 by the then Tribunal Chairperson. The Tribunal fails to see howthis decision can be said to be “comparable” to the present situation. In the Smith case, althoughthe complainant did assert, amongst other ground, that he had been discriminated against on thebasis of family status, the Tribunal found that this ground of discrimination had not been raised in

47the complaint and that no jurisprudence was presented as to whether the facts amounted to familystatus discrimination. (para. 289.)[170] CN’s counsel finally referred the Tribunal to a series of awards rendered by theCanadian Railway Office of Arbitration (“CROA”). Although interesting, all the CROAdecisions are founded on their particular facts and do not help us in the determination of theproper test to follow in this case.[171] The Tribunal also disagrees with CN’s argument that an open-ended concept of familystatus would open up the floodgates and that it would have the potential of causing disruption andgreat mischief in the workplace. As the Human Rights and Citizenship Commission of Albertanoted at para. 242 of its decision in Rawleigh v. Canada Safeway Ltd, decision rendered onSeptember 29, 2009, “every case must be weighed on its own merits and unique circumstances.To support the belief that the floodgate may be opened to opportunistic individuals is verydangerous and possibly discriminatory.”2010 CHRT 22 (CanLII)[172] The Supreme Court of Canada and other Courts have consistently held that that humanrights must be interpreted in a large and liberal manner. In CNR v. Canada (Human RightsCommission) (Action Travail des Femmes), [1987] 1 S.C.R. 1114, the Court stated, atparagraph 24 :24. Human rights legislation is intended to give rise, amongst other things, toindividual rights of vital importance, rights capable of enforcement, in the finalanalysis, in a court of law. I recognize that in the construction of such legislationthe words of the Act must be given their plain meaning, but it is equally importantthat the rights enunciated be given their full recognition and effect. We should notsearch for ways and means to minimize those rights and to enfeeble their properimpact. Although it may seem commonplace, it may be wise to remind ourselvesof the statutory guidance given by the federal Interpretation Act which asserts thatstatutes are deemed to be remedial and are thus to be given such fair, large andliberal interpretation as will best ensure that their objects are attained.[173] From the above analysis, the Tribunal concludes that there are two different interpretationsin the case law with regard to a prima facie case of discrimination based on family status: the one

48in Campbell River and the one in Hoyt. The Tribunal is of the opinion that the effect of theapproach in Campbell River is to impose a hierarchy of grounds of discrimination, some grounds,as the ground of family status, being deemed less important than others. This approach is notsupported by the purpose of the CHRA. Furthermore, all the permutations of the approach appliedto the ground of family status in British Columbia subsequent to the Campbell River decision,support the Tribunal’s conclusion that family status should not be singled out for a different andmore onerous or more stringent prima facie standard. The only solution is to apply the same testas for the other grounds enumerated in section 3 of the CHRA. This approach was accepted inHoyt and approved by the Federal Court in Johnstone.2010 CHRT 22 (CanLII)[174] I will therefore follow the approach in Hoyt which is consistent with human rightsprinciples in treating all prohibited grounds of discrimination as equal.[175] Furthermore, taking into account the special nature and status of human rights legislationas a quasi-constitutional legislation, the Tribunal concludes that the interpretation and applicationof family status proposed in Hoyt is the proper one to adopt. As stated earlier, human rightslegislation must be given a liberal and purposive interpretation, in which protected rights receive abroad interpretation, while exceptions and defenses are narrowly construed.(iii)Has a prima facie case of discrimination on the basis of family status been made out?[176] After considering all the evidence, the Tribunal, applying the Hoyt approach, concludesthat the Complainant has made out a prima facie case of discrimination on the basis of familystatus. As a result of her family obligation she lost her employment while other employees didnot.[177] The Complainant is a single parent and the mother of a boy who in July 2005 was fiveyears old. At the relevant time in 2005, the Complainant was laid off. Her son had also beendiagnosed with respiratory difficulties and had been referred to specialists. He had severalappointments scheduled for April 2005 with a Pediatric Respiratory Specialist.

49[178] In February 2005, the Complainant received a telephone call from CN telling her that shehad to report to Vancouver to cover a shortage. After calling her local union representative shewas told to write to CN to request her 30 day extension, as per the collective agreement.[179] On March 18 th , 2005, she wrote to Mr. Torchia explaining her circumstances, her son’shealth problems and potential custody issues that may arise if she was to leave Jasper.She requested to be excused from reporting to Vancouver on compassionate grounds.[180] On April 25 th , 2005, the Complainant received a letter from CN telling her that CN hadaccommodated her need for additional time to make the necessary child care arrangements andinforming her that she had to manage these personal obligations in a manner which would able2010 CHRT 22 (CanLII)her to fulfill her employment obligations. She also received on April 30 th , 2005, a phone callfrom her supervisor, Mr. Pizziol, who informed her that although sensitive to her situation,CN was requesting that she provide a reasonable time frame to report to Vancouver. That sameday she wrote a second letter to Mr. Torchia explaining again her son’s health situation andrequesting a meeting with him. She also received on June 22 nd , 2005, a telephone call fromMs. Storms, who told her to report to Vancouver on July 2 nd , 2005. The Complainant then wrotea third letter to Mr. Torchia, again reiterating her family situation.[181] The evidence does not establish that the Complainant was a parent that preferred to stay athome and not work at all. The evidence establishes that although Conductors have anunpredictable work schedule, the Complainant had made the necessary arrangements to fulfill thefull range of her duties as a Conductor, including being on a 2 hour call 7 days a week, for workout of Jasper. The only issue for her was that she could not leave her son in Jasper at the time ofthe Vancouver shortage.[182] In her various correspondences with CN, the Complainant had explained her familysituation. But, she never received any answer to any of these. CN’s witnesses testified thatparental responsibilities such as child care were not a “satisfactory reason” to not protect ashortage. CN considered that the complainant’s situation did not qualify as requiring

50accommodation on the basis of family status under the CHRA. It also considered theComplainant’s situation as a personal choice not to abide by her professional obligations in orderto prioritize other aspects of her life, a situation it referred to as “work-life” balance.”[183] On cross-examination, Mr. Torchia did recognize that the Complainant concerns werelegitimate and that they did deserve accommodation. But, for him what the Complainant neededwas more time to sort out her affairs and that is what he had granted her. He also added that it was“unfair” to conclude that he had not applied CN’s Accommodation Policy: “They had familyissues and I accommodated them by extending the time they had to report to Vancouver. They [theComplainant, Cindy Richards and Denise Seeley] were accommodated to make arrangements.They didn’t and were terminated.” Interestingly, he also added: “In the case of the twoComplainants [Cindy Richards and Kasha Whyte], I felt that they had “satisfactory reasons” andthat is why I granted them an extension of time when I found out about them.” This was not theposition taken by CN in the arbitration of this matter.2010 CHRT 22 (CanLII)[184] The Tribunal concludes that the law simply does not support CN’s view of family status asnot including the Complainant’s situation. The Complainant situation as a single parent and theramifications, as she explained in her various letters, of ordering her to Vancouver does bring herwithin the ground of family status. She specifically requested accommodation of CN and haddirected her request to CN officials. CN’s witnesses testified that such a request should have beenmade to the employee’s supervisor who in this case was Colin Pizziol, the trainmaster in Jasper.Unfortunately, Mr. Pizziol was not called as a witness and CN’s other witnesses could not testifyto how he had dealt with this situation, if at all. The unchallenged evidence of the Complainantwas that neither her supervisor, nor any other managers of CN, had ever responded to her lettersor taken the time to discuss her situation with her.[185] In regards to the evidence submitted at the hearing, the Tribunal concludes that theComplainant has established a prima facie case of discrimination based on the ground of familystatus. The evidence demonstrates that the Complainant was a parent and that this status includedthe duties and obligations generally incurred by parents. As a consequence of those duties andobligations, the Complainant, because of CN’s rules and practices, was unable to participate

51equally and fully in employment with CN. This being the case, the onus now shifts to CN todemonstrate that the prima facie discriminatory standard or action it adopted is a bona fideoccupational requirement.(iv) Did CN provide accommodation to the Complainant?[186] To evaluate whether there has been discrimination on a prohibited ground in anemployment context, and whether an employer has accommodated an employee up to the point ofundue hardship, the applicable test is the one set forth by the Supreme Court of Canada inMeiorin. In that decision, the Supreme Court of Canada standardized the test applicable todiscrimination and rejected the old distinction between direct and indirect discrimination.2010 CHRT 22 (CanLII)[187] Once the Complainant has established a prima facie case of discrimination, the onus shiftsto the employer to demonstrate that the prima facie discriminatory standard or action is a bonafide occupational requirement (“BFOR”). In this regard, the Supreme Court of Canada has statedat paragraphs 54 and 55 of the Meiorin :An employer may justify the impugned standard by establishing on the balance ofprobabilities:(1) that the employer adopted the standard for a purpose rationally connected tothe performance of the job;(2) that the employer adopted the particular standard in an honest and good faithbelief that it was necessary to the fulfillment of that legitimate work-relatedpurpose; and(3) that the standard is reasonably necessary to the accomplishment of thatlegitimate work-related purpose. To show that the standard is reasonablynecessary, it must be demonstrated that it is impossible to accommodate individualemployees sharing the characteristics of the claimant without imposing unduehardship upon the employer.This approach is premised on the need to develop standards that accommodate thepotential contributions of all employees in so far as this can be done without unduehardship to the employer. Standards may adversely affect members of a particulargroup, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at p.518, "[i]f a reasonable alternative exists to burdening members of a group with a

52given rule, that rule will not be [a BFOR]". It follows that a rule or standard mustaccommodate individual differences to the point of undue hardship if it is to befound reasonably necessary. Unless no further accommodation is possible withoutimposing undue hardship, the standard is not a BFOR in its existing form and theprima facie case of discrimination stands.Was the standard adopted for a purpose rationally connected to the performance of the job?[188] The “neutral rule” in question here is the requirement to report for work in Vancouver tocover the shortage. In her closing argument, Complainant’s counsel stated that she did notchallenge that the ability of CN to require unprotected employees to be forced to cover shortagewas rationally connected to its stated purpose of being able to move workers quickly to thoselocations which were short to allow it to keep its trains moving. She added that the rule itselfincludes the ability of a Conductor to not go when forced, if there is a “satisfactory reason”.2010 CHRT 22 (CanLII)Did the employer adopt the particular standard in an honest and good faith belief that it wasnecessary to the fulfillment of that legitimate work-related purpose?[189] Again the Complainant does not challenge the honest and good faith belief that from anoperational point of view, CN needed the ability to force employees to cover shortages. Theevidence from both the Union representatives and CN was that provisions to this regard werenegotiated as part of the Collective Agreement.Has CN established that it could not accommodate the Complainant without undue hardship?[190] CN’s third and final hurdle is to demonstrate that the impugned standard is reasonablynecessary for the employer to accomplish its purpose. At this stage, CN must establish that itcannot accommodate the Complainant and others adversely affected by the standard withoutexperiencing undue hardship. In other words, since the Complainant was adversely affected onthe ground of her family status by the standard of forcing employees to cover shortages, could CNaccommodate her without experiencing undue hardship?

53[191] The use of the term “undue” infers that some hardship is acceptable. It is only “unduehardship” that satisfies this test. (See Central Okanagan School District No. 23 v. Renaud, [1992]2 S.C.R. 970, at page 984.) It may be ideal for an employer to adopt a practice or standard that isuncompromisingly stringent, but if it is to be justified it must accommodate factors relating to theunique capabilities and inherent worth and dignity of every individual, up to the point of unduehardship. (Meiron, supra, at para. 62.) Furthermore, when an employer is assessing whether it canaccommodate an employee it must do an individualized assessment of the employee’s situation.In this regard, in McGill University Health Centre (Montréal General Hospital) v. Syndicat desemployés de l’Hôpital general de Montréal, [2007] 1 S.C.R. 161, at para. 22, the Supreme Courtof Canada stated: “The importance of the individualized nature of the accommodation processcannot be minimized.”2010 CHRT 22 (CanLII)[192] In Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.489, at pages 520-21, Wilson J. addressed the factors that may be considered when assessing anemployer’s duty to accommodate an employee to the point of undue hardship. Amongst therelevant factors are the financial cost of the possible method of accommodation, the relativeinterchangeability of the workforce and facilities and the prospect of substantial interference withthe rights of other employees. It was also stated that a standard or practice that excludes membersof a particular group on impressionistic assumptions is generally suspect. (British Columbia(Superintendent of Motor Vehicles) v. British Columbia Council of Human Rights, [1999] 3 S.C.R.868 (Grismer), at para. 31). Employers must be innovative yet practical when consideringaccommodation options in particular circumstances.[193] In his closing arguments, CN’s counsel suggested that the Supreme Court of Canada hadrestated the principles applying to the notion of “undue hardship” in its decision in Hydro Québecv. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, sectionlocale 2000 (SCFP-FTQ),[2008] 2 S.C.R. 561. The Tribunal does not accept this interpretation ofthat decision and does not read it as a restatement of the notion of “undue hardship”. On thecontrary, the Tribunal finds that this decision is consistent with the previous decisions of theSupreme Court on the issue of accommodation. In Hydro Québec, the Court stated that althoughthe employer does not have a duty to change the working conditions in “a fundamental way”, it

54does have the duty, if it can do so without undue hardship, to arrange the employee’s workplace orduties to enable the employee to do his or her work. (para. 16). The Court also stated that“[b]ecause of the individualized nature of the duty to accommodate and the variety ofcircumstances that may arise, rigid rules must be avoided. If a business can, without, unduehardship, offer the employee a variable work schedule or lighten his or her duties – or evenauthorize staff transfers – to ensure that the employee can do his or her work, it must do so toaccommodate the employee.” (para. 17.) (See also Jonhstone v. Canada Border Services, supra,at para. 218.)[194] CN argues that if accommodation was required under the CHRA, “reasonableaccommodation” was provided by it granting the Complainant more than four (4) months toreport to Vancouver, rather than the minimum fifteen (15) days set out in the CollectiveAgreement. CN further states that granting the relief sought by the Complainant would constituteundue hardship because it would effectively grant all employees who are parents an equivalent to“super seniority” under the Collective Agreement solely on the basis of their status as parents.2010 CHRT 22 (CanLII)[195] I will address first the claim that “reasonable accommodation” was provided.[196] CN argues that providing extra time to the Complainant to report to Vancouver was all thatit was required to provide. However, the evidence clearly shows that that was not in any way ameaningful response to the Complainant’s request and to the factual underpinnings of hersituation which she had communicated to the employer through her correspondence.The evidence also shows that the decision was made without anybody discussing it with theComplainant.[197] The evidence establishes that the Complainant wrote to Mr. Torchia and to other seniormanagers at CN setting out the details of her family situation, her assessment of why her familyduties and responsibilities prevented her from reporting to the shortage in Vancouver. She hadalso clearly indicated that she was ready and willing to cover all aspects of her job as a Conductorin Jasper where she had the necessary child care and family supports.

55[198] The evidence clearly establishes that CN was not sensitive to the Complainant’s situation.It did not answer her many requests for some form of accommodation and did not even meet orcontact her to discuss her situation, even though its own accommodation policy directs that theemployee be met as a first step in the process. It is also clear from there evidence, that neitherMs. Storms, nor Mr. Torchia felt that they had any responsibility regarding any issue pertaining tothe CHRA. They both testified that the supervisor of the employee and Human Resources werethe ones with whom this issue should have been raised. Unfortunately, Mr. Pizziol, theComplainant supervisor, was not called as a witness and neither was Mary-Jane Morrison, theperson responsible for Human Resources in Edmonton in 2005.2010 CHRT 22 (CanLII)[199] It is clear that CN witnesses did not consider “family status” - at least, family statusmatters that involve parental obligations and responsibilities - as a ground of discrimination thatnecessitated any form of accommodation. In their conception of the various grounds ofdiscrimination set out in the CHRA, they seem to have chosen some grounds as opening a right toaccommodation and others that did not. For example, they testified that CN had not hesitated to“accommodate” some employees who were recalled to cover the shortage in Vancouver becauseof a sick parent. They also acknowledge that CN had in the past accommodated employees formedical reason. But without inquiring into the nature of her request, they decided that theComplainant’s situation did not qualify as one requiring accommodation under the CHRA.[200] The evidence of Mr. Torchia is that he was aware of the Complainant’s situation and thathe had come to the conclusion that what she needed was more time to sort out her affairs. Henever had any discussions with the Complainant, nor did he delegate the matter to anothermanager so that he could discuss the Complainant’s request with her. He felt that he knew whatshe needed and that he had given her what she needed.[201] For her part, Ms. Storms, who was monitoring the CMC spreadsheets, knew that theComplainant’s situation had been labeled “child care issue”. In her evidence she suggested thatmany of the employees recalled had also raised child care issues and that it was becoming ageneral theme. However, no other employees, other than the Complainant, Denise Seeley and

56Cindy Richards, had child care noted on the spreadsheets and Mr. Torchia testified that he knewof no other case but these where “child care issues” had been raised.[202] Since it was her department who was supervising the information concerning theemployees recalled to the shortage, Ms. Storms had the opportunity to initiate CN’sAccommodation Policy in the case of the Complainant, but she did not. Interestingly, Ms. Stormstestified that she had initiated an accommodation in the case of another employee who had alsobeen recalled to cover the shortage in Vancouver. That employee had a terminally ill parent andshe gave him a leave of absence. She was also aware from a review of the CMC spreadsheets thatother employees had been excused from reporting to Vancouver due to disability and for variousother personal reasons which were left unexplained.2010 CHRT 22 (CanLII)[203] In an email correspondence dated June 23 rd , 2005, Ms. Storms summarized her telephonediscussions with the Complainant and with Ms. Richards and Ms. Seeley. She mentioned that theComplainant had a son who was ill and that she had custody issues. She also mentions that theComplainant had written to Mr. Torchia. She further wrote that if the Complainant and the twoother women decided not to protect the shortage in Vancouver, their employment files would beclosed and their seniority forfeited. This email was sent to Ms. Gallegos, and copied toMr. Nashman, Mr. Torchia, Kenneth Sherman and Brian Kallin (Mr. Pizziol’s supervisor). Noneof these managers thought that it might be appropriate, in the face of the Complainant’s situation,to initiate the Accommodation Policy.[204] The evidence also indicates that CN did not apply its own accommodations guidelines andpolicies in the Complainant’s case. CN has a very comprehensive accommodation policy.This policy recognizes all the prohibited grounds enumerated in the CHRA, including “familystatus”, and the policy clearly indicates that, wherever possible, employment policies andpractices are to be adjusted so that “no individual is denied employment opportunities...” It alsospecifies that accommodation “means making every possible effort to meet the reasonable needsof employees.”

57[205] CN “Accommodation Guidelines” explains that the objective of the Policy is “to ensurethat working conditions are not a barrier to employment.” It also makes clear that CN has to showflexibility in eliminating any barriers and that it should make “every effort to ensure that no one isput at a disadvantage because of a special need or requirement.”[206] The policy also defines the process to be followed in case of a request for accommodationwhere one of the enumerated grounds is raised and it provides a checklist to be followed bymanagers and supervisors in case of such a request. The Policy explains:• The first thing to do when an employee reports a problem or special need is tomeet with the individual. Allow the employee to present the problem or need, askquestions to fully understand the request, and together discuss possible solutions.2010 CHRT 22 (CanLII)• If no solutions can be identified in this manner, do not reject the request outright.Ask for advice, seek other solutions to the problem, and evaluate the impact of anypotential accommodation with the appropriate functions, including the Peopledepartment, among other. The employee has the responsibility to participateactively in the process, and to facilitate reasonable accommodation. Unions alsohave a recognized and important role and responsibility in the accommodation ofthe needs of employees.• It is extremely important to keep records of the meeting held, the various solutionsproposed, and the arguments used to accept or reject each option.This information is indispensable in the event of a complaint.• Promptly inform the person in question of the decision taken, explaining thereasons for the decision. In the event that a request for accommodation is denied,employees may have a right to grieve under the appropriate grievance procedureor make a complaint under the CHRA.[207] Ms. Ziemer testified that the Policy is aimed at doing an individualized assessment of theemployee's situation, since every situation is different. In the case of the Complainant it is clearthat no individualized assessment was done.[208] The person responsible for the accommodation policy at CN’s Edmonton office is, asindicated earlier, Mary-Jane Morrison, a Human Resources Officer. It is with her that people who

58have questions about the policy or its procedure consult. Ms. Morrison was not a witness at thehearing. Instead, CN called as a witness Stephanie Ziemer, the Human Resources Officer inVancouver. Ms. Ziemer testified as to her understanding of what “family status” covered as aground of discrimination. She explained that from her perspective as a human resources manager,“family status” means that an employer cannot discriminate against somebody who has a family,either a parent who has children or any individual that is a member of a family. She further added“certainly family status, from my understanding […] would not incorporate any kind of orindividualized parental obligations. These are very individualized and personal preferences thatpeople have, and certainly I never saw it as coming under our policy to being involved in thesetypes of individualized parental preferences.”2010 CHRT 22 (CanLII)[209] On cross-examination, Ms. Ziemer was asked to explain what she meant by“individualized parental preferences.” She stated: “Whether or not you want to be at home to put,you know, your child to bed. Whether or not you want to attend every sporting event with yourchild. I mean, those are all things that we'd like to do as parents, but they would not be sufficientto initiate the accommodation process.” She did add though that taking care of an ill child, havingissues regarding a custody order or being a single parent would be a different thing and that itmight open the door to discussions. She agreed that it was CN's expectation that single parents, ifthey want to be railroaders, have to manage their affairs so that they can perform their workingobligations. But, she also added that if something unusual came along, for example, being askedto go cover a shortage, that might open the door to discussions.[210] Once the door is opened, the process provides that there should be a meeting between theemployee and a supervisor, so that the latter can get a feeling of what is the problem. Ms. Ziemeracknowledged that the simple exchange of letters at this stage would not be as efficient. At thatmeeting the supervisor should ask more information about the reasons for the request and discusspossible solutions.[211] Ms. Ziemer testified that she had no hands on implication or any personal knowledge ofthe Complainant’s situation. She also added that Human Resources is not always involved in thesecases. Whenever possible, these cases are dealt with at the local level. She further stated that CN

59had trained its managers well enough that they have the abilities to make good managementdecision, protecting the operation and making, where necessary, small adaptations or smalladjustments to the working conditions of the employee.[212] Ms. Ziemer gave various examples of situations where CN had accommodated employeeson the basis of “family status”, starting with her own situation. She explained that her husbandhad been severely injured in a skiing accident. For a period of ten weeks, he could not move hisarm or upper body. During this period, she explained that she was allowed not to travel and wasgiven a flexible working schedule. She also testified to the accommodations given to anindividual in Vancouver so he could be available for his son who was involved in illegal activities,including gang-related activities and to a Conductor whose daughter had a significantpsychological breakdown. This employee was allowed to work closer to home for a ratherlengthy period of time. She added that CN had also accommodated a market manager upon herreturn from parental leave because her child had a severe eating disorder. This employee wasgiven additional time off upon completion of her parental leave.2010 CHRT 22 (CanLII)[213] On cross-examination by Counsel for the CHRC, Ms. Ziemer was reminded of two otherexamples that she had referred to in the Seeley hearing. One of these was an accommodation foran employee which allowed him to be absent from the working board every second weekendbecause he only had visitation rights for 48 hours every two weeks. The other was anaccommodation granted to an employee who was involved in a lengthy custody battle in Court.This person was given additional time off for this reason.[214] She further testified that most of these cases had been dealt with at the local level. Shefurther added that supervisors are trained to pick up on that type of request. But, she stated“unfortunately we can't supervise what they're doing out there in the field in terms of putting theactual teachings to use. We would like to think that they are well conversant in our policies, welltrained. But whether or not that Supervisor A at Location B would be able to pick up on the issuecoming forward, I can't say definitively that that would happen.”

60[215] According to Ms. Ziemer, although there are no mechanism to evaluate the application ofthe policy, CN’s expectations is that the front line supervisors are doing the right thing in terms ofthe policy, are living up to the policy and are abiding by the intricacies of the policy. She addedthat when the policy is not followed, Human Resources usually hear about it through variouscorrespondences, or from their counterparts on the labour relations side. As a general rule, shetestified that CN is operating on the notion that its supervisors are following the policy in terms ofwhat they have been taught and what CN’s expectations are.[216] Ms. Ziemer also testified on cross-examination that the process described in theaccommodation policy would start as soon as an employee came forward and reported a problemor special need, although she added that that would not necessarily always lead to a decision thataccommodation is necessary. When asked by Complainant’s counsel why this process had notbeen initiated in the Complainant’s case, she answered that she did not know, because she had notbeen involved in this case. She also added that usually the employee goes to his or her immediatesupervisor as the first step.2010 CHRT 22 (CanLII)[217] Mr. Torchia testified that he had not met with the Complainant, because this wouldordinarily be done by the Complainant’s supervisor. He added that he did not know for “a fact”whether her supervisor had met with her, but he would “assume he did” because he had atelephone conversation with him and that he was aware of the situation.[218] On cross-examination, he testified that he had received training with regard to the duty toaccommodate “many years ago, in the early nineties”. For her part, Ms. Storms testified that shedid not recall receiving any training on CN’s accommodation policy. She added that she knewabout the policy and that if she had some concerns about it, she would talk to somebody inHuman Resources. Ms. Storms further added that she never really used the accommodationpolicy, because CMC does not get many requests for accommodation. She did acknowledgethough that there were times where CMC had accommodated employees because of seriousillnesses in the employee’s family or because somebody needed time off for personal reasons.

61[219] She further testified that although she remembered having read the policy, she was notvery familiar with it and did not have a detailed knowledge of it. She did not know if anybodyelse at CMC had had training on the policy. On cross-examination from counsel for the CHRCshe answered that to her knowledge none of the dispatchers and/or members of the BoardAdjustment Group, who were primarily responsible for contacting the employees recalled tocover the shortage in Vancouver, had any training regarding CN’s accommodation policy. Askedto explain how they would recognize an issue of accommodation if one came up, Ms. Stormsanswered that they knew that CN accommodates people and that sometimes they are aware of anemployee’s situation. The general rule would be for them to refer an employee with specialrequest to his supervisor.2010 CHRT 22 (CanLII)[220] According to the Complainant’s evidence, CN’s accommodation policy was not followedin her case. She added that she never met with her supervisor, the trainmaster in Jasper, nor didshe get any response to the letters she had sent to supervisors or managers of CN explaining hersituation. There was also no evidence that she had met with anybody at Human Resources or thatshe had been referred to them. It is clear from the evidence that CN did not follow the procedureset out in its own policy and that it had decided that “family status”, at least in terms of parentalobligations and responsibilities, was not a ground of discrimination for which accommodationwas required. It is also clear that CN never did an individualized assessment of the Complainant’ssituation as it was required to do.[221] Even if I was to accept the evidence that CN had provided some form of“accommodation” by granting the plaintiff more time to report to Vancouver, CN’s failure to meetthe procedural obligations of the duty to accommodate would in itself still give rise to a violationof the Complainant’s human rights. The Supreme Court of Canada has acknowledged that boththe decision-making process and the final decision have to be taken into consideration inanalyzing a BFOR. In Meiorin, the Court states at para. 66: “It may often be useful as a practicalmatter to consider separately, first, the procedure, if any, which was adopted to assess the issue ofaccommodation and, second, the substantive content of either a more accommodating standardwhich was offered or alternatively the employer’s reasons for not offering any such standard.”

62(See also Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2), 2004BCHRT 225, at paras. 84-86).[222] In Lane v. ADGA Group Consultant Inc., 2007 HRTO 34, at para. 150, (decision upheld bythe Ontario Superior Court of Justice, Divisional Court, at [2008] O.J. No. 3076, 91 O.R.(3d) 649)the Ontario Human Rights Tribunal held that:…[T]he failure to meet the procedural dimensions of the duty to accommodate is aform of discrimination. It denies the affected person the benefit of what the lawrequires: a recognition of the obligation not to discriminate and to act in such away as to ensure that discrimination does not take place.2010 CHRT 22 (CanLII)[223] In Meiorin, the Supreme Court identified the following question as being relevant inanalyzing the procedural part of the accommodation process followed by the employer:i. Has the employer investigated alternative approaches that do nothave a discriminatory effect, such as individual testing against amore individually sensitive standard?ii. If alternative standards were investigated and found to be capable offulfilling the employer's purpose, why were they not implemented?iii. Is it necessary to have all employees meet the single standard for theemployer to accomplish its legitimate purpose or could standardsreflective of group or individual differences and capabilities beestablished?iv. Is there a way to do the job that is less discriminatory while stillaccomplishing the employer's legitimate purpose?v. Is the standard properly designed to ensure that the desiredqualification is met without placing an undue burden on those towhom the standard applies?vi. Have other parties who are obliged to assist in the search forpossible accommodation fulfilled their roles?

63[224] To meet the procedural component of the duty to accommodate, CN had a duty to showthat it had considered and reasonably rejected any accommodation that would haveaccommodated the needs of the Complainant.[225] The only evidence that an assessment of other forms of accommodation might haveoccurred is the evidence that the Union had suggested canvassing the employees in Jasper to see ifanybody would volunteer to cover the shortage instead of the Complainant, Cindy Richards andDenise Seeley. But, since nobody came forward, the canvassing stopped. There is no evidencethat CN did an individualized assessment of the Complainant’s situation or investigated anyalternative forms of accommodation.2010 CHRT 22 (CanLII)[226] I will now deal with CN’s position to the effect that it would be undue hardship to grantthe relief sought by the Complainant because she would then be granted “super seniority” basedon the simple fact of her status as a parent.[227] According to Stephanie Ziemer, CN does not capture the information regarding how manyof its employees are parents. She added that the only way to have this information would be toreview each employee’s file to see who they designate as dependants. Ms. Ziemer further addedthat from CN’s employees “group insurance” benefit plan “we can assume that approximately69% of [CN’s] workforce are parents.” The methodology used by CN to produce this evidencewas severally put to test at the hearing by the Complainant’s counsel. But beside themethodological problems, the Tribunal concludes that this very partial evidence falls well short ofthe evidence that CN would need to produce to justify discrimination on a balance of probabilitiesusing the tripartite Meiorin BFOR test.[228] If the Tribunal was to accept CN’s argument that because a vast majority of its employeesare parents, accommodating the Complainant would cause it undue hardship, that would meanthat any workplace with a large number of persons falling into a group with one or the other of thepersonal characteristics set forth in section 3 of the CHRA would automatically be precluded fromthe application of the law. For example, it would mean that women working in a workplacewhere the vast majority of employees are women would be precluded from making a complaint of

64discrimination based upon gender. Accepting CN’s argument would have the effect of making itimpossible for an individual to make a complaint on the ground of family status – at least, familystatus matters that involve parental obligations and responsibilities – because most of theemployees in the workforce are parents and could also potentially follow the same route.[229] CN did not produce any evidence that it was overwhelmed with requests foraccommodation from people in the Complainant’s situation. In Grismer, supra, at para. 41, theSupreme Court of Canada stated quite clearly that in the context of accommodation“impressionistic evidence of increased expense will not generally suffice.” In Lane, supra,at paragraph 117, the Ontario Divisional Court added:2010 CHRT 22 (CanLII)Undue hardship cannot be established by relying on impressionistic or anecdotalevidence, or after-the-fact justifications. Anticipated hardships caused by proposedaccommodations should not be sustained if based only on speculative orunsubstantiated concern that certain adverse consequences “might” or “could”result if the claimant is accommodated.[230] Regardless of the particular basis for CN’s claim that it will suffer undue hardship, it iswell established that the undue hardship analysis must be applied in the context of the individualaccommodation being requested. As the Supreme Court stated in Grismer, supra, at paragraph19, accommodation must be incorporated into the standard itself to ensure that each person isassessed according to her or his own personal abilities, instead of being judged against presumedgroup characteristics which are frequently based on bias and historical prejudice. Accordingly, anemployee’s individual assessment is an essential step in the accommodation process unless it is initself an undue hardship for the respondent (See Grismer, at paragraphs 22, 30, 32 and 38;Meiorin, at paragraph 65; Audet v. National Railway, 2006 CHRT 25, at paragraph 61 and Knightv. Société des transports de l’Outaouais, 2007 CHRT 15, at paragraph 72). Again, this individualassessment was not done in the case of the Complainant.[231] In the instant case, CN has failed to provide evidence that accommodating theComplainant would cause undue hardship in terms of costs. The only evidence regarding costwas with respect to the training of Conductors and there was no attempt to relate that evidence to

65the situation in the present case. We must remember that in order to be found to be “undue”, thecost of accommodation must be substantial. In Quesnel v. London Educational Health Centre(1995), 28 C.H.R.R. D/474 (Ont. Bs. Inq.), the Ontario Human Rights Tribunal stated, atparagraph 59: ““cost” would amount to undue hardship only if it would alter the essential natureor substantially affect the viability of the enterprise responsible for the accommodation.” This isrecognized in CN’s own Accommodation policy which states: “The costs incurred must beextremely high before the refusal to accommodate can be justified. The burden of justifying therefusal rests with the employer. The cost incurred must be quantifiable and related to theaccommodation. Renovations or special equipment can be expensive but financial aid maysometimes be obtained from various organizations.” No evidence of this nature was submitted atthe hearing.2010 CHRT 22 (CanLII)(v)Conclusion[232] For all of the above reasons, the Tribunal concludes that the evidence has established thatCN has breached section 7 of the CHRA. CN’s practice of requiring the Complainant to protectthe shortage in Vancouver has had an adverse effect on her because of her family status. Theevidence demonstrates that CN acted contrary to section 7 of the CHRA by pursuing a policy andpractice that deprived the Complainant of employment opportunities based upon her familystatus.[233] The evidence also establishes that the Complainant was put at a disadvantage because ofher special needs and requirements. CN’s managers never met with her. They never allowed herthe opportunity to present and explain her needs, nor did they ask any question to fully understandher request. They never sought any advice from their own Human Resources Department. If theyhad, they would certainly have been told to initiate the policy considering Ms. Ziemer’s evidencethat the policy is initiated as soon as a employee comes forward and reports a problem or a specialneed and her evidence that taking care of an ill child, having issues regarding a custody order orbeing a single parent would at least open the door to discussions.

66[234] Finally, CN has not submitted any evidence that accommodating the Complainant wouldcause it undue hardship.D. REMEDIES[235] The remedies sought by the Complainant are compensation for lost wages and benefits,compensation for pain and suffering, special compensation, legal cost and interest and an orderthat she be reinstated in her employment with CN with full seniority, benefits and all otheropportunities or privileges that were denied to her The CHRC also seeks an order ensuring thatCN cease all discriminatory practices and behaviour and that it review its accommodation policy.2010 CHRT 22 (CanLII)(i)An Order that CN Review its Accommodation Policy[236] The CHRC requests an order, pursuant to section 53(2)(a) of the CHRA, that CN takemeasures, in consultation with the CHRC, to redress its failure to properly accommodate itsemployees on the basis of family status, including issues of parental obligations andresponsibilities. It further requests an order that appropriate human rights training for CN’smanagerial, human resources and crew management personal be put in place and that regularinformation sessions on accommodation policies be offered in an effort to eliminatediscriminatory attitudes and assumptions related to family status as a ground of discrimination beheld.[237] Although the Tribunal acknowledges that CN has a good policy on accommodation, it isclear that it has not been applied or implemented properly in the case of family status as a groundof discrimination. Some evidence has also indicated that the policy has not been revised since theTribunal’s decisions in Audet v. Canadian National Railway, [2006] CHRT 25 and Hoyt, supra.At the most, according to the evidence of Cathy Smolynek, CN’s Senior Director of OccupationalHealth Services, some process changes were made in the disability area of the Policy, but nothingelse.

67[238] The Tribunal has referred in this decision to the Accommodation Guidelines and hasdetermined that the managers and supervisors have failed to follow this policy in theComplainant’s case. Having reviewed the evidence, the Tribunal concludes that CHRC’s requestis justified.[239] The Tribunal therefore orders CN to work with the CHRC to ensure that thediscriminatory practice and behaviour does not continue and to make sure:a) that the appropriate policies, practices and procedures are in place, andb) that CN, in consultation with the CHRC, retains appropriate persons to conductworkplace training for managers, human resource staff, CMC employees and anyother employees deemed necessary on issues of discrimination and human rightsand particularly on accommodation on the ground of family status.2010 CHRT 22 (CanLII)(ii) Reinstatement[240] The Complainant seeks an order, pursuant to s. 53(2)(b) of the CHRA, directing CN toreturn her to her employment as a Conductor. Section 53(2)(b) of the CHRA states that where theTribunal finds the complaint is substantiated, it may order a respondent to make available to thevictim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities orprivileges that were denied the victim as a result of the practice.[241] In order to provide this remedy in the present case, the Complainant must therefore bereturned to her job without lost of seniority. The Tribunal therefore orders CN to return theComplainant to her position as Conductor at the Jasper terminal, after she has, if necessary,updated her rules and medical certificates.[242] There are three possible starting dates that the Tribunal could reasonably fix for theComplainant reinstatement. The first date suggested is July 2 nd , 2005, which could be seen as theeffective date for implementation of the Complainant’s request to be accommodated by being“set up” in a full time position in Jasper. The Tribunal does not accept this as an appropriate date

68as there was no evidence that the Complainant could have been set up in a full time position inJasper at that time or that this would have been the appropriate accommodation had CN followedits Accommodation Policy. There was also no evidence of any employees being set up in Jasperat that time.[243] The second date is March 1 st , 2006. According to the evidence, this is the date thatanother laid off employee from Jasper, who had been recalled and had reported to Vancouver, wasset up in Jasper. Since only four employees from Jasper, the Complainant, Denise Seeley, CindyRichards and this other employee, had been recalled and told to report to Vancouver, it might bereasonable to expect that the they would also have been set up in Jasper around March 2006. It isalso important to note that the Complainant was the laid off employee with the most seniority inJasper. Ms. Storms also testified that “because the Complainant’s seniority is very close to [that ofthe employee who was set up] it is safe to say that [she] would have been recalled to Jasper at thattime as well.”2010 CHRT 22 (CanLII)[244] Finally, evidence was produced that in March 2007, CN hired Conductors in Jasper andthat many of these new Conductors have since been set up. It is reasonable to conclude thereforethat, considering the fact that the Complainant had seniority over these new Conductors, that shewould have been set up in Jasper ahead of them.[245] With the admission of Ms. Storms, it is safe to conclude that the Complainant would mostlikely have been set up in March 2006, had she not been terminated and this date is therefore theone retained for her reinstatement.[246] In regards to her seniority, since seniority continues to accumulate even when anemployee is on lay off, it will in this case continue to accumulate as if there had never been abreach in her relationship with CN in July, 2005.

69(iii)Compensation for lost wages[247] The Complainant seeks compensation for all wages and benefits lost pursuant tos. 53(2)(c) of the CHRA. Considering my conclusion as to the date of reinstatement, I order thatthe Complainant be compensated for all lost wages and benefits from March 1 st , 2006 to today.The parties are ordered to calculate the amount of wages owing using the formula provided for inthe Collective Agreement. In regards to extra payments that a road Conductor could receive,since it would be difficult for the Tribunal to set an amount, it is ordered that the parties establishthis amount by looking at the extras that were paid for the period to a Conductor with similarseniority working in the terminal, assuming that that Conductor had no unusual absences. Theparties could, for example, take into consideration the extra payments that were paid to theemployee who was set up in Jasper in March 2006.2010 CHRT 22 (CanLII)[248] According to the Complainant’s income tax reports her income for 2006, was $ 7,580.That year she worked as a waitress in a restaurant in Jasper. In January 2007, the restaurant whereshe worked closed down. On February 2, 2007, she started working at the same lumber yardwhere Cindy Richards was working. For that year, her income was $22,462. In 2008, her salary atthe lumber yard was $27,413. She testified that her income for 2009 will be $14.00 per hour for36-40 hours per week for a total of $28,000. She receives no other benefits at this job.[249] These amounts should therefore be deducted from the amount of her lost wages.[250] As to the claim for lost wages from July 2 nd , 2005 to March 1 st , 2006, there was noevidence that the Complainant would have been working during that period. Even if she wouldhave been allowed to remain on the emergency board, there was no evidence submitted thatwould allow the Tribunal to set this amount, so the Tribunal makes no order for this period.

70(iv)Pain and suffering[251] Section 53(2) of the CHRA provides for compensation for pain and suffering that thevictim experienced as a result of the discriminatory practice, up to a maximum of $20,000.[252] The Complainant testified that during all the period relevant to this matter she feltdesperate and scared. She also testified that she was “stressed and very nervous”. When shereceived the call informing her that she was being forced to Vancouver, she did an evaluation ofher family situation and came to the conclusion that is was not possible for her to go to Vancouverat this point in her life. When she got the letter informing her that her employment with CN wasterminated she said that “she cried and panicked”. She added that she was shocked and could notbelieve that this was happening to her. She further testified that the lost of her career affected herdeeply.2010 CHRT 22 (CanLII)[253] Although no medical evidence was produced, the Tribunal concludes that CN’s conductand nonchalant attitude towards her situation was disturbing for the Complainant. Taking thisinto consideration, the Tribunal orders CN to pay to the complainant $15,000 in compensation forher pain and suffering.(v)Willful or Reckless Conduct[254] Section 53(3) of the CHRA provides for additional compensation where the Respondenthas engaged in the discriminatory practice willfully or recklessly up to a maximum of $20,000.[255] I agree that CN’s conduct in this case was reckless. CN had adopted an accommodationpolicy, which set out the procedures to be followed with respect to any employees who reported aproblem or a special need. This policy clearly identified “family status” as one of the ground fordiscrimination. Yet, CN and the senior managers involved in this case decided that they neededbe concerned with family status and ignored their responsibilities under the policy. They didn’tmake any efforts to try to understand the Complainant’s situations. They ignored her letters anddecided to treat her case as just a “child care issue”. They felt that they knew, without ever

71speaking to the Complainant, what was better for her and what she needed. This course of actionwas, in my view, reckless.[256] In the circumstances, I order CN to pay to the Complainant the sum of $20,000, inadditional compensation under section 53(3) of the Act.(vi) Costs and Interest.[257] In her closing arguments, counsel for the Complainant sought an award for legal cost.The question whether the Tribunal has the authority to award costs and whether that authoritycould be found in paragraph 53(2)(c) of the Act, which authorizes the Tribunal to compensate acomplainant for any expenses incurred as a result of the discriminatory practice, was dealt with bythe Federal Court of Appeal in Canada (Attorney General) v. Mowat, 2009 FCA 309.2010 CHRT 22 (CanLII)[258] After an analysis of Human Rights Code in various provinces that allowed an award forcost and after analysing the purported intent of Parliament, the Federal Court of Appeal concludedat paragraph 95:The quest is to determine whether Parliament intended to endow the Tribunal withthe authority to award costs to a successful complainant. For the reasons given, Iconclude that Parliament did not intend to grant, and did not grant, to the Tribunalthe power to award costs. To conclude that the Tribunal may award legal costsunder the guise of “expenses incurred by the victim as a result of thediscriminatory practice” would be to introduce indirectly into the Act a powerwhich Parliament did not intend it to have.[259] Taking into consideration the decision of the Federal Court of Appeal, the Tribunal cannotaccede to the Complainant’s request that CN be ordered to pay her legal cost.[260] The Complainant and Cindy Richards have submitted at the hearing out of pocketexpenses which amount to $336.68, each being accountable for half this amount. This amountwas not challenged by CN. Under the provision of paragraph 53(2)(c) of the Act, CN is ordered toreimburse half this amount to the Complainant.

72(vii)Interest[261] In regards to interest, interest is payable in respect of all the awards in this decision(s. 53(4) of the CHRA). The interest shall be simple interest calculated on a yearly basis, at a rateequivalent to the Bank Rate (Monthly series) set by the Bank of Canada. With respect to thecompensation for pain and suffering (s. 53 (2)(e) of the CHRA) and the special compensation(s. 53(3)), the interest shall run from the date of the complaint and for the lost of earning it willrun from the date of reinstatement.“Signed by”Michel Doucet2010 CHRT 22 (CanLII)OTTAWA, OntarioSeptember 29, 2010

CANADIAN HUMAN RIGHTS TRIBUNALPARTIES OF RECORDTRIBUNAL FILE: T1354/8408STYLE OF CAUSE:Kasha A. Whyte v. Canadian National RailwayDATE AND PLACE OF HEARING: September 22 to 24, 2009October 8 and 9, 2009Jasper, Alberta2010 CHRT 22 (CanLII)October 22, 2009Ottawa, OntarioOctober 26 to 30, 2009November 12 and 13, 2009Jasper, AlbertaDECISION OF THE TRIBUNAL DATED: September 29, 2010APPEARANCES:Leanne ChahleyFor the ComplainantSheila Osborne-BrownSamar MusallamFor the Canadian Human Rights CommissionSimon-Pierre PaquetteJohanne CavéFor the Respondent