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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
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Federal CourtCour fédéraleOttawa,
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TABLE OF CONTENTSPARA.I. Introducti
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G. Accommodation in the Post-Novemb
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Page: 2[5] Also at issue in Air Can
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Page: 4[13] Based upon his years of
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Page: 6[22] Both complaints were re
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Page: 8Tribunal’s decision as it
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Page: 10[37] The Tribunal observed
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Page: 12VII.Standard of Review[45]
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Page: 14[53] There is also no dispu
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Page: 16the Charter. By failing to
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Page: 18impaired the relevant right
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Page: 20workers were compensated fo
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Page: 22The Supreme Court found tha
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Page: 24[93] With this in mind, Jus
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Page: 26[100] Our legal system oper
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Page: 28observed in her dissenting
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Page: 30[116] Further, as I observe
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Page: 32[124] There is a further co
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Page: 34[132] However, as the Ontar
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Page: 36[139] Where earlier Supreme
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Page: 38[148] There have been devel
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Page: 40[156] These circumstances f
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Page: 42have abolished mandatory re
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Page: 44[170] The arbitrator’s se
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Page: 46[178] As noted earlier, the
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Page: 48i) The Section 1 Analytical
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Page: 50requires a consideration of
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Page: 52[198] The Tribunal further
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Page: 54[206] At this stage of the
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Page: 56retirement to be imposed up
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Page: 58[221] As the Supreme Court
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Page: 60legislatures have struck a
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Page: 62[236] Air Canada’s expert
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Page: 64question the assumption und
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Page: 66[251] Dr. Kesselman confirm
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Page: 68choose to continue working.
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Page: 70[267] However, Dr. Kesselma
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Page: 72need the money. Those who w
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Page: 74[283] While Chief Justice M
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Page: 76for the accommodation of th
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Page: 78requirements. As a conseque
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Page: 80Gunderson and Pesando entit
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Page: 82employment arrangements inv
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Page: 84assisted employers in manag
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Page: 8615(1)(c) of the CHRA and th
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Page: 88[334] The Tribunal rejected
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Page: 90[343] Indeed, the majority
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Page: 92[351] For the reasons given
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Page: 94[358] As to the scope of th
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Page: 962006. Six Sigma is a busine
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Page: 98[376] The Tribunal also fou
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Page: 100agreement would affect oth
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Page: 102[392] It is true that the
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Page: 104[400] That is, while the q
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Page: 106ICAO standards. Air Canada
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Page: 108ii)The Accommodation of Mr
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Page: 110[424] The evidence before
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Page: 112company about three months
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Page: 114[441] The major focus of C
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Page: 116[450] For example, Captain
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Page: 118Duke explained why a sched
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Page: 120ii)The Tribunal’s Findin
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Page: 122[474] Messrs. Vilven and K
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Page: 124[482] I have concluded tha
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Page: 126memorandum of fact and law
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Page: 128JUDGMENTTHIS COURT ORDERS
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Page: 2agreement relate to the indi
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FEDERAL COURTSOLICITORS OF RECORDDO
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COURT OF APPEAL FOR BRITISH COLUMBI
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Health Sciences Assoc. of B.C. v. C
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Date: July 9, 2004File: 348Indexed
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[7] Myert contracts with provincial
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- Proportional client case manageme
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scrutinizing closely, the contract
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[29] Two New Moons fell on work day
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and based on the last paragraph of
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I understand that I am still in my
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terminate his employment due to his
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searches in December 2002, which wa
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[65] I find that Mr. Derksen has es
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[71] Finally, I cannot find that My
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complainant as a result of contrave
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Other Orders[84] Mr. Derksen seeks
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Canadian HumanRights TribunalTribun
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I. COMPLAINT[1] This complaint aros
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3[12] Previous to the hearing, the
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5[22] Jason also worked regularly s
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7III.RESPONDENT’S OPERATIONS[33]
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9building on the air field where sm
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11consideration of the nature of
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13been described by her then superi
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15c) The bulk of employees in the C
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17b) “In addition to programming
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19V. COMPLAINANT’S CASEA. Evidenc
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21Hence, while the Respondent is pr
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23Ms. Gerstl, and would not allow h
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25[109] Under cross-examination, Ms
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27[120] Mr. Star also testified to
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29[129] Mr. Star confirmed that at
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31shifts as of right when her circu
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33[149] There has been a phenomenal
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35- workers are less engaged with l
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37worker’s sense of control and h
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39[178] Complainant’s counsel cha
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41have also increased for families.
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43referral, hiring, promotion, trai
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45[210] The interpretation that ‘
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47[219] This Tribunal does not find
Page 239 and 240: 49[230] Both parties rely on their
Page 241 and 242: 51not discrimination found in any g
Page 243 and 244: 53VI.RESPONDENT’S CASEA. Evidence
Page 245 and 246: 55approximately 14 weeks. There is
Page 247 and 248: 57[270] When asked under cross-exam
Page 249 and 250: 59[281] However, Mr. Sheridan ackno
Page 251 and 252: 61[293] Mr. Sheridan responded that
Page 253 and 254: 63[299] There was no one called as
Page 255 and 256: 6515 people at any given time, or 4
Page 257 and 258: 67[324] CBSA’s approach upon rece
Page 259 and 260: 69[335] The one question relied upo
Page 261 and 262: 71the U.S. So, whereas in the U.S.
Page 263 and 264: 73could accommodate Ms. Johnstone
Page 265 and 266: 75b) Ms. Johnstone has demonstrated
Page 267 and 268: 77contributions as a full-time empl
Page 269 and 270: 79[385] However, by a decision rend
Page 271 and 272: CANADIAN HUMAN RIGHTS TRIBUNALPARTI
Page 273 and 274: INTRODUCTION[1] Raymond Jones is on
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Page 277 and 278: [18] In the last couple of years, t
Page 279 and 280: Bible-trained conscience would be i
Page 281 and 282: Did the Respondents refuse to conti
Page 283 and 284: further, there is nothing to sugges
Page 285 and 286: [47] Section 37(2)(d)(ii) of the Co
Page 287 and 288: first year at Menzies he received n
Page 289: • That the Respondents Cornelius
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[9] For their part, Skeena and the
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elevated hydrogen sulfide concentra
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[27] As a result of complaints by a
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[37] However, his back condition di
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[45] Mr. Pannu alleges that Skeena
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(2) Protective respiratory equipmen
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condition can drive safely. That is
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emergency procedure that the Compla
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[75] I can see no justification for
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tacitly approved a less than accept
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would impose some cost on Skeena. I
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time and because those people are l
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[104] The evidence before me establ
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[110] Since Skeena has established
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TABLE OF CONTENTSPageI. INTRODUCTIO
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2A. The Facts(i)The Canadian Nation
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4CMC. Ms. Storms occupied that posi
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6[26] The work schedule of a Conduc
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8It is this provision that allows C
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10[44] Because she was hired after
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12[54] Ms. Storms also testified th
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14[64] She also testified that CN c
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16not have to cover the shortage in
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18November 13 th , he started train
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20Tribunal to identify any legislat
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22accurate” and she added that
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24[101] There was no response from
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26supervisor the result would have
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28[116] On cross-examination, Ms. S
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30[125] On February 16 th , 2006, M
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32A railway is, by its nature, a tw
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34[132] Section 7 states :7. It is
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36(ii)The Lawa) The prima facie cas
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38strike that balance coupled with
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40duty or obligation” and that th
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42apply the Hoyt approach. In Chant
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44the Complainant’s “parental p
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46January at the latest.” (para.
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48c) Has a prima facie case of disc
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50CN’s other witnesses could not
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52Has CN established that it could
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54[189] The evidence establishes th
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56[196] The evidence also indicates
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58[202] Once the door is opened, th
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60about the policy and that if she
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62iii. Is it necessary to have all
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64person is assessed according to h
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66At the most, according to Cathy S
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68(iii)Compensation for lost wages[
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70“child care issue”. They felt
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CANADIAN HUMAN RIGHTS TRIBUNALPARTI
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TABLE OF CONTENTSPageI. INTRODUCTIO
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2A. The Facts(i)The Canadian Nation
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4[15] When an employee is working o
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6eventually disappear altogether. T
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8an employee of CN until her employ
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10(iv)The Conductors recalled to co
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12evidence confirming that this was
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14(v)The Complainant’s recall to
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16the same difficulties with childc
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18during a meeting where various to
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20[81] Mr. Broshko was not called a
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22[87] Section 10 of the Act provid
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24[1999] 3 S.C.R. 3 (“Meiorin”)
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26118 This Tribunal has considered
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28wrong in law.” (Johnstone, supr
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30[106] In Falardeau v. Ferguson Mo
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32Employees, (2006) 88 C.L.A.S. 212
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34[118] The Tribunal also disagrees
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36[125] The Tribunal concludes that
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38[131] CN’s justification for de
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40terminals. Employees hired after
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42868 (Grismer), at para. 31). Empl
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44[150] The evidence clearly establ
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46vi. Have other parties who are ob
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48followed in this case and that
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50complaint of discrimination based
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52that she be reinstated in her emp
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54reasonable to conclude therefore
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56involved in this case decided tha
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- 2 -Evangelical Fellowship of Cana
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- 4 -demolition. The application wa
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- 6 -Here, the impugned stipulation
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- 8 -Whether one can waive a consti
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- 10 -in relation to one another wh
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- 12 -The obligation imposed on the
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- 14 -By Iacobucci J.Referred to: R
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- 16 -Canadian Charter of Rights an
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- 18 -1 An important feature of our
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- 20 -festival, which begins in lat
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- 22 -Co-owners may not decorate, p
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- 24 -16 Each of the appellants non
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- 26 -also satisfied that, contrary
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- 28 -concluded that the accommodat
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- 30 -of succahs on the balconies o
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- 32 -Quebec Charter or under the C
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- 34 -purpose of s. 2(a) is to ensu
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- 36 -commands of their common fait
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- 38 -determining, either explicitl
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- 40 -55 This approach to freedom o
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- 42 -60 At this stage, as a genera
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- 44 -B. Application to the Facts(1
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- 46 -mandated “obligation” to
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- 48 -the significance of a strict
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- 50 -77 Similarly, a communal succ
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- 52 -82 Against the appellants’
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- 54 -maximize human rights invaria
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- 56 -persuaded that the purported
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- 58 -“did not read these provisi
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- 60 -Succot, subject to the undert
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- 62 -6.16 EXTERIOR DECORATIONS PRO
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- 64 -[TRANSLATION] . . . practisin
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- 66 -reserved for exclusive use to
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- 68 -the building’s style and it
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- 70 -129 Regarding the third step
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- 72 -The essence of the concept of
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- 74 -137 In light of the foregoing
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- 76 -(M. Tancelin, “L’acte uni
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- 78 -142 Although any analysis of
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- 80 -of Quebec (C.C.Q., preliminar
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- 82 -in enacting s. 9.1, as eviden
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- 84 -Charter involves finding a ba
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- 86 -159 The appellants submit tha
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- 88 -as it does not bar the appell
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- 90 -emergency routes will be comp
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- 92 -access routes too much if cer
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- 94 -would amount to an impairment
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- 96 -178 The appellants contend th
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- 98 -erection on the communally ow
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- 100 -Charter of Rights and Freedo
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- 102 -(Journal des débats: Commis
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- 104 -Can one waive his or her rig
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- 106 -198 In my view, the “reaso
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- 108 -[TRANSLATION]Q. You said ear
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- 110 -denial of construction of th
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- 112 -11. A succah in the garden h
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CITATION: VILVEN V. AIR CANADA, 200
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the shared meaning of the English a
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451, (1990), 52 B.C.L.R. (2d) 105,
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(i) Mandatory retirement at Air Can
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[7] It should also be noted at the
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[25] In contrast, Mr. Kelly’s hum
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first officers. While noting that c
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3. Was there a “normal age of ret
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at the very heart of a free and dem
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situation of pilots working in Cana
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[114] The fact that other Canadian
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[132] Firstly, as Air Canada has no
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[151] In contrast, the French versi
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of relevant positions. As the Tribu
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[189] Before turning to discuss the
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and Harrison, and paragraph 15(1)(c
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working beside them is paid more th
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Rather, it is the permissive provis
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treatment is as between workers und
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(ii) The degree of correspondence b
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[296] In Lavoie, Justice Bastarache
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the law to university professors ov
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constitutionally protected right, t
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colour, religion, age, sex, sexual
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2D. Conclusion on Seniority .......
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2II.Cease and Desist Order[3] The c
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4defence to any other outstanding o
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6A. Vilven[22] For the purpose of d
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8seniority to transfer to Toronto a
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10knowing that they will be frozen
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12[54] Kelly provided two calculati
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14earned about $5,000 a month. Sinc
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16[77] Kelly said he also made some
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18VI.Pain and SufferingA. Vilven[88
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20complainants continued with Air C
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22retired at some point in the near
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24(ii)Kelly[117] As to Kelly’s se
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26[127] Air Canada seeks to support
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28[138] In Martin, the Supreme Cour
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30[150] For the Supreme Court in Hy
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32[161] Thus the respondents argue,
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34F. Conclusion on Previous Financi
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369) Air Canada is to pay fifty per
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APPENDIX II2010 CHRT 27 (CaPay Rate
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I. INTRODUCTION[1] This is an emplo
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3described by the Complainant’s c
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5The training takes from four (4) t
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7available for work, but if he or s
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9back to their home residence at re
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11nature of the father’s work mak
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13[57] Due to its location, the Van
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15(iv)The Conductors recalled to co
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17August 12 th . He works from that
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19When asked by CN counsel why he h
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21[88] Employee QR was covering a s
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23[96] In CN’s Amended Statement
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25[105] On cross-examination, the C
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27Vancouver. On cross-examination h
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29[121] The Complainant also testif
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31at the end of May or in the first
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33schedule. She was asking, in effe
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35B. ISSUES[139] The issue raised i
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37differential manner and was termi
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39117 Discrimination on this ground
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41[154] In Johnstone, the Federal C
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43approach in Campbell River. For e
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45discrimination set out in the CHR
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47the complaint and that no jurispr
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49[178] In February 2005, the Compl
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51equally and fully in employment w
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53[191] The use of the term “undu
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55[198] The evidence clearly establ
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57[205] CN “Accommodation Guideli
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59had trained its managers well eno
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61[219] She further testified that
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63[224] To meet the procedural comp
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65the situation in the present case
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67[238] The Tribunal has referred i
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69(iii)Compensation for lost wages[
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71speaking to the Complainant, what
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