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View cases - Stewart McKelvey

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had not canvassed this possibility. It concluded that the respondent had not established unduehardship.[100] In the present case, the impact on the Utilityman who is assigned to Mr. Pannu’s shiftwill be substantial. Although the likelihood of a major gas leak is not high, I have found that it isa real rather than a remote risk. Further, the magnitude of the risk, should an emergency occur,is very high. The gases that could leak in the recaust area are extremely dangerous. Equipmentmay malfunction so that it takes longer to shut down the equipment than under optimalconditions. Moreover, remaining in the gas-contaminated environment in an emergency, evenwith a buddy and an SCBA, is far more risky than evacuating the area. The Utilityman whoreplaces Mr. Pannu will experience significantly increased risk to his or her safety as comparedwith Utilitymen on other shifts who can evacuate the area in an emergency.[101] In Renaud evidence that other employees would not voluntarily alter their shifts mighthave established that accommodating the complainant was undue hardship. What follows forthis case, where the burden on the Utilityman of accommodating Mr. Pannu is not merely a shiftschedule change, but the assumption of a significantly greater risk to personal safety?[102] Grismer and Meiorin place a high evidentiary burden on respondents to prove unduehardship and justify their requirements as BFORs. However, as MacLachlin J. stated in Grismer,the respondent need only establish its justification “according to the relaxed standard of proof ona balance of probabilities.” Further, “common sense and intuitive reasoning” have a role to playin the process. However, “there must be some evidence to link the outright refusal of even thepossibility of accommodation with an undue safety risk” (at para. 43).[103] Bearing this standard of proof in mind, I must consider whether the evidence before meestablishes that Skeena fulfilled its duty to accommodate. That it could have presented betterevidence does not mean it has not fulfilled the duty to accommodate as long as the evidence ithas presented is sufficient to meet the test for undue hardship on a balance of probabilities. Imust assess the factors of cost, impact on the collective agreement, and risk and determinewhether they collectively establish undue hardship on a balance of probabilities.26

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