View cases - Stewart McKelvey

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.