View cases - Stewart McKelvey

39accommodate 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.[134] At the hearing, CN did not spend much time on the first two criteria in Meiorin, except toassert in its closing arguments that the evidence had clearly showed that the standard under reviewwas enacted for a purpose rationally connected to the performance of CN’s business interest andthat CN and the Union had enacted them in an honest and good faith belief that it was necessary tothe operation of CN’s railway network. CN did not indicate on what “evidence” it was relying tomake this affirmation and the reference to the “Union” is unsupported by the evidence, as nobodyfrom the Union was called as a witness and I have no recollection of any evidence on this point byany other witnesses. Regardless, I will proceed to analyse the two first steps in assessing whetherCN has successfully established a BFOR defence.2010 CHRT 23 (CanLII)[135] The first step is to identify the general purpose of the impugned standard and determinewhether it is rationally connected to the performance of the job. The task is to determine what theimpugned standard is generally designed to achieve. The focus at the first step is not on thevalidity of the particular standard that is at issue, but rather on the validity of its more generalpurpose. In this case, the particular standard at issue is the “forcing” of employees to cover ashortage. According to section 148.11 of the Collective Agreement, employees hired subsequentto June 29 th , 1990 can be “forced” to cover work at another terminal in the Western region and areobligated to report at that terminal within at most thirty (30) days unless they present a“satisfactory reason” justifying their failure to do so. These employees are commonly referred toas “category D” employees. They are also referred to as “non-protected” employees, insofar asthey are obligated to respond to a recall outside of their terminal. If they do not respond to a recalltheir employment with CN can be terminated.[136] Other categories of employees include those who were hired prior to June 29, 1990.These are referred to as “protected” employees. In this group of “protected employees” we havethose who were hired prior to 1982 and who are referred to as “Category A” and “Category B”employees, respectively. These employees cannot be assigned for work outside of their local