View cases - Stewart McKelvey

61[219] She further testified that although she remembered having read the policy, she was notvery familiar with it and did not have a detailed knowledge of it. She did not know if anybodyelse at CMC had had training on the policy. On cross-examination from counsel for the CHRCshe answered that to her knowledge none of the dispatchers and/or members of the BoardAdjustment Group, who were primarily responsible for contacting the employees recalled tocover the shortage in Vancouver, had any training regarding CN’s accommodation policy. Askedto explain how they would recognize an issue of accommodation if one came up, Ms. Stormsanswered that they knew that CN accommodates people and that sometimes they are aware of anemployee’s situation. The general rule would be for them to refer an employee with specialrequest to his supervisor.2010 CHRT 22 (CanLII)[220] According to the Complainant’s evidence, CN’s accommodation policy was not followedin her case. She added that she never met with her supervisor, the trainmaster in Jasper, nor didshe get any response to the letters she had sent to supervisors or managers of CN explaining hersituation. There was also no evidence that she had met with anybody at Human Resources or thatshe had been referred to them. It is clear from the evidence that CN did not follow the procedureset out in its own policy and that it had decided that “family status”, at least in terms of parentalobligations and responsibilities, was not a ground of discrimination for which accommodationwas required. It is also clear that CN never did an individualized assessment of the Complainant’ssituation as it was required to do.[221] Even if I was to accept the evidence that CN had provided some form of“accommodation” by granting the plaintiff more time to report to Vancouver, CN’s failure to meetthe procedural obligations of the duty to accommodate would in itself still give rise to a violationof the Complainant’s human rights. The Supreme Court of Canada has acknowledged that boththe decision-making process and the final decision have to be taken into consideration inanalyzing a BFOR. In Meiorin, the Court states at para. 66: “It may often be useful as a practicalmatter to consider separately, first, the procedure, if any, which was adopted to assess the issue ofaccommodation and, second, the substantive content of either a more accommodating standardwhich was offered or alternatively the employer’s reasons for not offering any such standard.”