View cases - Stewart McKelvey

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