View cases - Stewart McKelvey

63was severally put to test at the hearing by the Complainant’s counsel. But beside themethodological problems, the Tribunal concludes that this very partial evidence falls well short ofthe evidence that CN would need to produce to justify discrimination on a balance of probabilitiesusing the tripartite Meiorin BFOR test.[221] If the Tribunal was to accept CN’s argument that because a vast majority of its employeesare parents, accommodating the Complainant would cause it undue hardship, that would meanthat any workplace with a large number of persons falling into a group with one or the other of thepersonal characteristics set forth in section 3 of the CHRA would automatically be precluded fromthe application of the law. For example, it would mean that women working in a workplacewhere the vast majority of employees are women would be precluded from making a complaint ofdiscrimination based upon gender. Accepting CN’s argument would have the effect of making itimpossible for an individual to make a complaint on the ground of family status – at least, familystatus matters that involve parental obligations and responsibilities – because most of theemployees in the workforce are parents and could also potentially follow the same route.2010 CHRT 24 (CanLII)[222] CN did not produce any evidence that it was overwhelmed with requests foraccommodation from people in the Complainant’s situation. In Grismer, supra, at para. 41, theSupreme Court of Canada stated quite clearly that in the context of accommodation“impressionistic evidence of increased expense will not generally suffice.” In Lane, supra, atparagraph 117, the Ontario Divisional Court added:Undue hardship cannot be established by relying on impressionistic or anecdotalevidence, or after-the-fact justifications. Anticipated hardships caused by proposedaccommodations should not be sustained if based only on speculative orunsubstantiated concern that certain adverse consequences “might” or “could”result if the claimant is accommodated.[223] Regardless of the particular basis for CN’s claim that it will suffer undue hardship, it iswell established that the undue hardship analysis must be applied in the context of the individualaccommodation being requested. As the Supreme Court stated in Grismer, supra,at paragraph 19, accommodation must be incorporated into the standard itself to ensure that each