View cases - Stewart McKelvey

53[185] In his closing arguments, CN’s counsel suggested that the Supreme Court of Canada hadrestated the principles applying to the notion of “undue hardship” in its decision in Hydro Québecv. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, sectionlocale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561. The Tribunal does not accept this interpretationof the decision in Hydro-Québec. On the contrary, the Tribunal finds this decision to beconsistent with previous decisions of the Supreme Court on the issue of accommodation.In Hydro Québec, the Court stated that although the employer does not have a duty to change theworking conditions in “a fundamental way”, it does have the duty, if it can do so without unduehardship, to arrange the employee’s workplace or duties to enable the employee to do his or herwork. (par. 16). The Court also stated that “[b]ecause of the individualized nature of the duty toaccommodate and the variety of circumstances that may arise, rigid rules must be avoided. If abusiness can, without, undue hardship, offer the employee a variable work schedule or lighten hisor her duties – or even authorize staff transfers – to ensure that the employee can do his or herwork, it must do so to accommodate the employee.” (par. 17.) (See also Jonhstone v. CanadaBorder Services, supra, at para. 218.)2010 CHRT 24 (CanLII)[186] CN argues that if accommodation was required under the CHRA, “reasonableaccommodation” was provided when they granted the Complainant more than four (4) months toreport to Vancouver, rather than the minimum fifteen (15) days set out in the CollectiveAgreement. CN further states that granting the relief sought by the Complainant would constituteundue hardship because it would effectively grant all employees who are parents an equivalent to“super seniority” under the Collective Agreement solely on the basis of their status as parents.[187] I will address first the claim that “reasonable accommodation” was provided.[188] CN argues that providing extra time to the Complainant to report to Vancouver was all thatit was required to do. However, the evidence clearly shows that this was not in any way ameaningful response to the Complainant’s request and to the factual underpinnings of hersituation which she had communicated to the employer through her various letters. The evidencealso shows that the decision was made without anybody from CN discussing it with theComplainant.