View cases - Stewart McKelvey

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.