View cases - Stewart McKelvey

50complaint of discrimination based on gender. Accepting CN’s argument would have the effect ofmaking it impossible for an individual to make a complaint on the ground of family status – atleast, family status matters that involve parental obligations and responsibilities – because most ofthe employees in the workforce are parents and could also potentially follow the same route.[170] CN did not produce any evidence that it was overwhelmed with requests foraccommodation from people in the Complainant’s situation. Only two other complaints, those ofCR and KW, were produced. In Grismer, supra, at para. 41, the Supreme Court of Canada statedquite clearly that in the context of accommodation “impressionistic evidence of increased expensewill not generally suffice.” In Lane, supra, at paragraph 117, the Ontario Divisional Court added:2010 CHRT 23 (CanLII)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.[171] 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 paragraph19, accommodation must be incorporated into the standard itself to ensure that each person isassessed according to her or his own personal abilities, instead of being judged against presumedgroup characteristics which are frequently based on bias and historical prejudice. Accordingly, anemployee’s individual assessment is an essential step in the accommodation process unless it is initself an undue hardship for the respondent (See Grismer, at paragraphs 22, 30, 32 and 38;Meiorin, at paragraph 65; Audet v. National Railway, 2006 CHRT 25, at paragraph 61 and Knightv. Société des transports de l’Outaouais, 2007 CHRT 15, at paragraph 72). Again, this individualassessment was not done in the case of the Complainant.[172] Arguments that the acceptance of the need to accommodate in one instance will open the“floodgates” to claims by other employees are, in my view, unacceptable. As the Human Rightsand Citizenship Commission of Alberta noted in Rawleigh v. Canada Safeway Ltd, unreported