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TABLE OF CONTENTSPageI. INTRODUCTION ....................................................................................................................... 1A. THE FACTS ....................................................................................................................... 2(i) The Canadian National Railway.................................................................................... 2a) General information.......................................................................................... 2b) Running trade employees.................................................................................. 4c) The changes made in 1992 and the creation of the furlough boards ................ 6(ii) The Complainant ........................................................................................................... 9(iii) The Vancouver shortage................................................................................................ 12(iv) The Conductors recalled to cover the Vancouver shortage........................................... 15(v) The Complainant’s recall to work ................................................................................. 23B. ISSUES ............................................................................................................................... 35C. THE LAW AND THEORY OF THE CASE...................................................................... 35(i) The relevant provisions of the CHRA........................................................................... 35(ii) The Law......................................................................................................................... 36a) The prima facie case ......................................................................................... 36b) What approach is to be applied to determine whether there has beendiscrimination on the ground of family status? ................................................ 37(iii) Has a prima facie case of discrimination on the basis of family status been made out? 48(iv) Did CN provide accommodation to the Complainant? ................................................. 51(v) Conclusion..................................................................................................................... 65D. REMEDIES ........................................................................................................................ 66(i) An Order that CN Review its Accommodation Policy ................................................. 66(ii) Reinstatement ............................................................................................................... 67(iii) Compensation for lost wages......................................................................................... 69(iv) Pain and suffering.......................................................................................................... 70(v) Willful or Reckless Conduct ......................................................................................... 70(vi) Costs and Interest. ......................................................................................................... 71(vii) Interest ........................................................................................................................... 722010 CHRT 22 (CanLII)
I. INTRODUCTION[1] This is an employment discrimination case on the basis of section 7 of the CanadianHuman Rights Act (the “CHRA”). Kasha A. Whyte (the “Complainant”) filed a complaintalleging that the Respondent, the Canadian National Railway (“CN”) has discriminated againsther on the basis of her family status by failing to accommodate her and by terminating heremployment.[2] CN denies the complainant’s allegations.2010 CHRT 22 (CanLII)[3] All the parties, including the Canadian Human Rights Commission (“CHRC”), werepresent at the hearing and were represented by counsel.[4] There are two other similar complaints filed against CN. By agreement of the parties, thematter in Denise Seeley v. CN was treated in a different hearing which was heard prior to this one.Although heard together, it was agreed during a case management conference that the complaintsof Cindy Richards and Kasha A. Whyte would be rendered in two different decisions.[5] Although the facts in the Seeley case and in the Richards and Whyte cases are very similarand that the witnesses for CN were the same, except for Cathy Smolynek who only testified in thetwo latter cases, the evidence submitted in the Seeley case and in the Richards and Whyte cases is,in many regards, different. The witnesses of CN, who had testified previously in the Seeleymatter, did not, without necessarily contradicting themselves, repeat exactly the same evidence inthe Richards and Whyte cases. Also, documents which had not been presented at the Seeleyhearing were filed as evidence in the Richards and Whyte cases. These differences will explainany discrepancies that may exist in the facts of the Richards and Whyte matter when they arecompared to the Seeley decision.
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Federal CourtCour fédéraleOttawa,
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TABLE OF CONTENTSPARA.I. Introducti
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G. Accommodation in the Post-Novemb
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Page: 2[5] Also at issue in Air Can
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Page: 4[13] Based upon his years of
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Page: 6[22] Both complaints were re
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Page: 8Tribunal’s decision as it
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Page: 10[37] The Tribunal observed
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Page: 12VII.Standard of Review[45]
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Page: 14[53] There is also no dispu
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Page: 16the Charter. By failing to
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Page: 18impaired the relevant right
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Page: 20workers were compensated fo
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Page: 22The Supreme Court found tha
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Page: 24[93] With this in mind, Jus
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Page: 26[100] Our legal system oper
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Page: 28observed in her dissenting
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Page: 30[116] Further, as I observe
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Page: 32[124] There is a further co
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Page: 34[132] However, as the Ontar
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Page: 36[139] Where earlier Supreme
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Page: 38[148] There have been devel
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Page: 40[156] These circumstances f
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Page: 42have abolished mandatory re
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Page: 44[170] The arbitrator’s se
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Page: 46[178] As noted earlier, the
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Page: 48i) The Section 1 Analytical
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Page: 50requires a consideration of
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Page: 52[198] The Tribunal further
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Page: 54[206] At this stage of the
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Page: 56retirement to be imposed up
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Page: 58[221] As the Supreme Court
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Page: 60legislatures have struck a
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Page: 62[236] Air Canada’s expert
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Page: 64question the assumption und
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Page: 66[251] Dr. Kesselman confirm
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Page: 68choose to continue working.
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Page: 70[267] However, Dr. Kesselma
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Page: 72need the money. Those who w
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Page: 74[283] While Chief Justice M
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Page: 76for the accommodation of th
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Page: 78requirements. As a conseque
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Page: 80Gunderson and Pesando entit
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Page: 82employment arrangements inv
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Page: 84assisted employers in manag
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Page: 8615(1)(c) of the CHRA and th
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Page: 88[334] The Tribunal rejected
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Page: 90[343] Indeed, the majority
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Page: 92[351] For the reasons given
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Page: 94[358] As to the scope of th
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Page: 962006. Six Sigma is a busine
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Page: 98[376] The Tribunal also fou
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Page: 100agreement would affect oth
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Page: 102[392] It is true that the
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Page: 104[400] That is, while the q
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Page: 106ICAO standards. Air Canada
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Page: 108ii)The Accommodation of Mr
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Page: 110[424] The evidence before
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Page: 112company about three months
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Page: 114[441] The major focus of C
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Page: 116[450] For example, Captain
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Page: 118Duke explained why a sched
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Page: 120ii)The Tribunal’s Findin
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Page: 122[474] Messrs. Vilven and K
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Page: 124[482] I have concluded tha
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Page: 126memorandum of fact and law
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Page: 128JUDGMENTTHIS COURT ORDERS
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Page: 2agreement relate to the indi
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FEDERAL COURTSOLICITORS OF RECORDDO
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COURT OF APPEAL FOR BRITISH COLUMBI
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Health Sciences Assoc. of B.C. v. C
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Date: July 9, 2004File: 348Indexed
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[7] Myert contracts with provincial
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- Proportional client case manageme
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scrutinizing closely, the contract
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[29] Two New Moons fell on work day
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and based on the last paragraph of
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I understand that I am still in my
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terminate his employment due to his
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searches in December 2002, which wa
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[65] I find that Mr. Derksen has es
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[71] Finally, I cannot find that My
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complainant as a result of contrave
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Other Orders[84] Mr. Derksen seeks
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Canadian HumanRights TribunalTribun
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I. COMPLAINT[1] This complaint aros
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3[12] Previous to the hearing, the
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5[22] Jason also worked regularly s
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7III.RESPONDENT’S OPERATIONS[33]
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9building on the air field where sm
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11consideration of the nature of
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13been described by her then superi
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15c) The bulk of employees in the C
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17b) “In addition to programming
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19V. COMPLAINANT’S CASEA. Evidenc
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21Hence, while the Respondent is pr
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23Ms. Gerstl, and would not allow h
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25[109] Under cross-examination, Ms
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27[120] Mr. Star also testified to
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29[129] Mr. Star confirmed that at
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31shifts as of right when her circu
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33[149] There has been a phenomenal
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35- workers are less engaged with l
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37worker’s sense of control and h
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39[178] Complainant’s counsel cha
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41have also increased for families.
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43referral, hiring, promotion, trai
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45[210] The interpretation that ‘
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47[219] This Tribunal does not find
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49[230] Both parties rely on their
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51not discrimination found in any g
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53VI.RESPONDENT’S CASEA. Evidence
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55approximately 14 weeks. There is
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57[270] When asked under cross-exam
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59[281] However, Mr. Sheridan ackno
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61[293] Mr. Sheridan responded that
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63[299] There was no one called as
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6515 people at any given time, or 4
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67[324] CBSA’s approach upon rece
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69[335] The one question relied upo
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71the U.S. So, whereas in the U.S.
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73could accommodate Ms. Johnstone
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75b) Ms. Johnstone has demonstrated
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77contributions as a full-time empl
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79[385] However, by a decision rend
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CANADIAN HUMAN RIGHTS TRIBUNALPARTI
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INTRODUCTION[1] Raymond Jones is on
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eligious requirements by scheduling
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[18] In the last couple of years, t
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Bible-trained conscience would be i
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Did the Respondents refuse to conti
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further, there is nothing to sugges
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[47] Section 37(2)(d)(ii) of the Co
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first year at Menzies he received n
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• That the Respondents Cornelius
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INTRODUCTION[1] Darshan Pannu works
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[9] For their part, Skeena and the
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elevated hydrogen sulfide concentra
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[27] As a result of complaints by a
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[37] However, his back condition di
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[45] Mr. Pannu alleges that Skeena
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(2) Protective respiratory equipmen
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condition can drive safely. That is
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emergency procedure that the Compla
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[75] I can see no justification for
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tacitly approved a less than accept
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would impose some cost on Skeena. I
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time and because those people are l
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[104] The evidence before me establ
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[110] Since Skeena has established
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TABLE OF CONTENTSPageI. INTRODUCTIO
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2A. The Facts(i)The Canadian Nation
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4CMC. Ms. Storms occupied that posi
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6[26] The work schedule of a Conduc
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8It is this provision that allows C
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10[44] Because she was hired after
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12[54] Ms. Storms also testified th
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14[64] She also testified that CN c
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16not have to cover the shortage in
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18November 13 th , he started train
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20Tribunal to identify any legislat
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22accurate” and she added that
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24[101] There was no response from
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26supervisor the result would have
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28[116] On cross-examination, Ms. S
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30[125] On February 16 th , 2006, M
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32A railway is, by its nature, a tw
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34[132] Section 7 states :7. It is
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36(ii)The Lawa) The prima facie cas
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38strike that balance coupled with
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40duty or obligation” and that th
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42apply the Hoyt approach. In Chant
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44the Complainant’s “parental p
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46January at the latest.” (para.
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48c) Has a prima facie case of disc
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50CN’s other witnesses could not
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52Has CN established that it could
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54[189] The evidence establishes th
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56[196] The evidence also indicates
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58[202] Once the door is opened, th
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60about the policy and that if she
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62iii. Is it necessary to have all
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64person is assessed according to h
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66At the most, according to Cathy S
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68(iii)Compensation for lost wages[
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70“child care issue”. They felt
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TABLE OF CONTENTSPageI. INTRODUCTIO
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2A. The Facts(i)The Canadian Nation
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4[15] When an employee is working o
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6eventually disappear altogether. T
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8an employee of CN until her employ
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10(iv)The Conductors recalled to co
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12evidence confirming that this was
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14(v)The Complainant’s recall to
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16the same difficulties with childc
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18during a meeting where various to
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20[81] Mr. Broshko was not called a
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22[87] Section 10 of the Act provid
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24[1999] 3 S.C.R. 3 (“Meiorin”)
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26118 This Tribunal has considered
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28wrong in law.” (Johnstone, supr
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30[106] In Falardeau v. Ferguson Mo
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32Employees, (2006) 88 C.L.A.S. 212
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34[118] The Tribunal also disagrees
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36[125] The Tribunal concludes that
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38[131] CN’s justification for de
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40terminals. Employees hired after
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42868 (Grismer), at para. 31). Empl
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44[150] The evidence clearly establ
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46vi. Have other parties who are ob
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48followed in this case and that
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50complaint of discrimination based
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52that she be reinstated in her emp
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54reasonable to conclude therefore
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56involved in this case decided tha
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- 2 -Evangelical Fellowship of Cana
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- 4 -demolition. The application wa
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- 6 -Here, the impugned stipulation
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- 8 -Whether one can waive a consti
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- 10 -in relation to one another wh
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- 12 -The obligation imposed on the
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- 14 -By Iacobucci J.Referred to: R
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- 16 -Canadian Charter of Rights an
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- 18 -1 An important feature of our
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- 20 -festival, which begins in lat
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- 22 -Co-owners may not decorate, p
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- 24 -16 Each of the appellants non
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- 26 -also satisfied that, contrary
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- 28 -concluded that the accommodat
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- 30 -of succahs on the balconies o
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- 32 -Quebec Charter or under the C
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- 34 -purpose of s. 2(a) is to ensu
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- 36 -commands of their common fait
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- 38 -determining, either explicitl
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- 40 -55 This approach to freedom o
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- 42 -60 At this stage, as a genera
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- 44 -B. Application to the Facts(1
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- 46 -mandated “obligation” to
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- 48 -the significance of a strict
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- 50 -77 Similarly, a communal succ
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- 52 -82 Against the appellants’
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- 54 -maximize human rights invaria
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- 56 -persuaded that the purported
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- 58 -“did not read these provisi
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- 60 -Succot, subject to the undert
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- 62 -6.16 EXTERIOR DECORATIONS PRO
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- 64 -[TRANSLATION] . . . practisin
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- 66 -reserved for exclusive use to
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- 68 -the building’s style and it
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- 70 -129 Regarding the third step
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- 72 -The essence of the concept of
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- 74 -137 In light of the foregoing
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- 76 -(M. Tancelin, “L’acte uni
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- 78 -142 Although any analysis of
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- 80 -of Quebec (C.C.Q., preliminar
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- 82 -in enacting s. 9.1, as eviden
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- 84 -Charter involves finding a ba
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- 86 -159 The appellants submit tha
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- 88 -as it does not bar the appell
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- 90 -emergency routes will be comp
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- 92 -access routes too much if cer
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- 94 -would amount to an impairment
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- 96 -178 The appellants contend th
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- 98 -erection on the communally ow
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- 100 -Charter of Rights and Freedo
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- 102 -(Journal des débats: Commis
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- 104 -Can one waive his or her rig
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- 106 -198 In my view, the “reaso
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- 108 -[TRANSLATION]Q. You said ear
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- 110 -denial of construction of th
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- 112 -11. A succah in the garden h
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CITATION: VILVEN V. AIR CANADA, 200
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the shared meaning of the English a
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451, (1990), 52 B.C.L.R. (2d) 105,
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(i) Mandatory retirement at Air Can
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[7] It should also be noted at the
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[25] In contrast, Mr. Kelly’s hum
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first officers. While noting that c
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3. Was there a “normal age of ret
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at the very heart of a free and dem
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situation of pilots working in Cana
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[114] The fact that other Canadian
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[132] Firstly, as Air Canada has no
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[151] In contrast, the French versi
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of relevant positions. As the Tribu
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[189] Before turning to discuss the
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and Harrison, and paragraph 15(1)(c
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working beside them is paid more th
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Rather, it is the permissive provis
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treatment is as between workers und
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(ii) The degree of correspondence b
Page 667 and 668: [296] In Lavoie, Justice Bastarache
Page 669 and 670: the law to university professors ov
Page 671 and 672: constitutionally protected right, t
Page 673 and 674: colour, religion, age, sex, sexual
Page 675 and 676: Canadian HumanRights TribunalTribun
Page 677 and 678: 2D. Conclusion on Seniority .......
Page 679 and 680: 2II.Cease and Desist Order[3] The c
Page 681 and 682: 4defence to any other outstanding o
Page 683 and 684: 6A. Vilven[22] For the purpose of d
Page 685 and 686: 8seniority to transfer to Toronto a
Page 687 and 688: 10knowing that they will be frozen
Page 689 and 690: 12[54] Kelly provided two calculati
Page 691 and 692: 14earned about $5,000 a month. Sinc
Page 693 and 694: 16[77] Kelly said he also made some
Page 695 and 696: 18VI.Pain and SufferingA. Vilven[88
Page 697 and 698: 20complainants continued with Air C
Page 699 and 700: 22retired at some point in the near
Page 701 and 702: 24(ii)Kelly[117] As to Kelly’s se
Page 703 and 704: 26[127] Air Canada seeks to support
Page 705 and 706: 28[138] In Martin, the Supreme Cour
Page 707 and 708: 30[150] For the Supreme Court in Hy
Page 709 and 710: 32[161] Thus the respondents argue,
Page 711 and 712: 34F. Conclusion on Previous Financi
Page 713 and 714: 369) Air Canada is to pay fifty per
Page 715 and 716: APPENDIX II2010 CHRT 27 (CaPay Rate
Page 717: Canadian HumanRights TribunalTribun
Page 721 and 722: 3described by the Complainant’s c
Page 723 and 724: 5The training takes from four (4) t
Page 725 and 726: 7available for work, but if he or s
Page 727 and 728: 9back to their home residence at re
Page 729 and 730: 11nature of the father’s work mak
Page 731 and 732: 13[57] Due to its location, the Van
Page 733 and 734: 15(iv)The Conductors recalled to co
Page 735 and 736: 17August 12 th . He works from that
Page 737 and 738: 19When asked by CN counsel why he h
Page 739 and 740: 21[88] Employee QR was covering a s
Page 741 and 742: 23[96] In CN’s Amended Statement
Page 743 and 744: 25[105] On cross-examination, the C
Page 745 and 746: 27Vancouver. On cross-examination h
Page 747 and 748: 29[121] The Complainant also testif
Page 749 and 750: 31at the end of May or in the first
Page 751 and 752: 33schedule. She was asking, in effe
Page 753 and 754: 35B. ISSUES[139] The issue raised i
Page 755 and 756: 37differential manner and was termi
Page 757 and 758: 39117 Discrimination on this ground
Page 759 and 760: 41[154] In Johnstone, the Federal C
Page 761 and 762: 43approach in Campbell River. For e
Page 763 and 764: 45discrimination set out in the CHR
Page 765 and 766: 47the complaint and that no jurispr
Page 767 and 768: 49[178] In February 2005, the Compl
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51equally and fully in employment w
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53[191] The use of the term “undu
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55[198] The evidence clearly establ
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57[205] CN “Accommodation Guideli
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59had trained its managers well eno
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61[219] She further testified that
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63[224] To meet the procedural comp
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65the situation in the present case
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67[238] The Tribunal has referred i
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69(iii)Compensation for lost wages[
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71speaking to the Complainant, what
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