View cases - Stewart McKelvey

42868 (Grismer), at para. 31). Employers must also be innovative yet practical when consideringaccommodation options in particular circumstances.[142] 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 SCC. The Tribunal does not accept this interpretation of thatdecision. On the contrary, the Tribunal finds this decision to be consistent with the previousdecisions of the Supreme Court on the issue of “undue hardship”. In Hydro Québec, the Courtstated that although the employer does not have a duty to change the working conditions in“a fundamental way”, it does have the duty, if it can do so without undue hardship, to arrange theemployee’s workplace or duties to enable the employee to do his or her work. (par. 16). TheCourt also stated that “[b]ecause of the individualized nature of the duty to accommodate and thevariety of circumstances that may arise, rigid rules must be avoided. If a business can, without,undue hardship, offer the employee a variable work schedule or lighten his or her duties – or evenauthorize staff transfers – to ensure that the employee can do his or her work, it must do so toaccommodate the employee.” (para. 17.) (See also Jonhstone v. Canada Border Services, supra,at para. 218.)2010 CHRT 23 (CanLII)[143] CN argues that if accommodation was required under the CHRA, reasonableaccommodation was provided by it granting the Complainant more than four (4) months to reportto Vancouver, rather than the minimum fifteen (15) days set out in the Collective Agreement. CNfurther states that granting the relief sought by the Complainant would constitute undue hardshipbecause it would effectively grant all employees who are parents an equivalent to “superseniority” under the Collective Agreement solely on the basis of their status as parents.[144] I will address first the claim that “reasonable accommodation” was provided.[145] CN argues that providing extra time to the Complainant to report to Vancouver was all theaccommodation that it was required to provide. However, the evidence clearly shows that suchaccommodation was not in any way a meaningful response to the Complainant’s request and to