View cases - Stewart McKelvey

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.