View cases - Stewart McKelvey

51(3) that the standard is reasonably necessary to the accomplishment of thatlegitimate work-related purpose. To show that the standard is reasonablynecessary, it must be demonstrated that it is impossible to accommodate individualemployees sharing the characteristics of the claimant without imposing unduehardship upon the employer.This approach is premised on the need to develop standards that accommodate thepotential contributions of all employees in so far as this can be done without unduehardship to the employer. Standards may adversely affect members of a particulargroup, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at p.518, "[i]f a reasonable alternative exists to burdening members of a group with agiven rule, that rule will not be [a BFOR]". It follows that a rule or standard mustaccommodate individual differences to the point of undue hardship if it is to befound reasonably necessary. Unless no further accommodation is possible withoutimposing undue hardship, the standard is not a BFOR in its existing form and theprima facie case of discrimination stands.2010 CHRT 24 (CanLII)Was the standard adopted for a purpose rationally connected to the performance of the job?[180] The “neutral rule” in question here is the requirement to report for work in Vancouver tocover the shortage. In her closing argument, Complainant’s counsel stated that she did notchallenge that the ability of CN to require unprotected employees to be forced to cover shortagewas rationally connected to its stated purpose of being able to move workers quickly to thoselocations which were short to allow it to keep its trains moving. She added that the rule itselfincludes the ability of a Conductor to not go when forced if there is a “satisfactory reason”.Did the employer adopt the particular standard in an honest and good faith belief that it was necessaryto the fulfillment of that legitimate work-related purpose?[181] Again the Complainant does not challenge the honest and good faith belief that from anoperational point of view CN needed the ability to force unprotected employees to covershortages. The evidence from both the Union representatives and CN was that these provisionswere negotiated as part of the Collective Agreement. CN witnesses also testified that once theFurlough Boards were established, it did not expect to get many volunteers to cover shortages andthat is why it negotiated the ability to force unprotected employees on lay off to address thatproblem.