View cases - Stewart McKelvey

51equally and fully in employment with CN. This being the case, the onus now shifts to CN todemonstrate that the prima facie discriminatory standard or action it adopted is a bona fideoccupational requirement.(iv) Did CN provide accommodation to the Complainant?[186] To evaluate whether there has been discrimination on a prohibited ground in anemployment context, and whether an employer has accommodated an employee up to the point ofundue hardship, the applicable test is the one set forth by the Supreme Court of Canada inMeiorin. In that decision, the Supreme Court of Canada standardized the test applicable todiscrimination and rejected the old distinction between direct and indirect discrimination.2010 CHRT 22 (CanLII)[187] Once the Complainant has established a prima facie case of discrimination, the onus shiftsto the employer to demonstrate that the prima facie discriminatory standard or action is a bonafide occupational requirement (“BFOR”). In this regard, the Supreme Court of Canada has statedat paragraphs 54 and 55 of the Meiorin :An employer may justify the impugned standard by establishing on the balance ofprobabilities:(1) that the employer adopted the standard for a purpose rationally connected tothe performance of the job;(2) that the employer adopted the particular standard in an honest and good faithbelief that it was necessary to the fulfillment of that legitimate work-relatedpurpose; and(3) that the standard is reasonably necessary to the accomplishment of thatlegitimate work-related purpose. To show that the standard is reasonablynecessary, it must be demonstrated that it is impossible to accommodate individualemployees sharing the characteristics of the claimant without imposing unduehardship upon the employer.This approach is premised on the need to develop standards that accommodate thepotential contributions of all employees in so far as this can be done without unduehardship to the employer. Standards may adversely affect members of a particulargroup, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at p.518, "[i]f a reasonable alternative exists to burdening members of a group with a