View cases - Stewart McKelvey

63[224] To meet the procedural component of the duty to accommodate, CN had a duty to showthat it had considered and reasonably rejected any accommodation that would haveaccommodated the needs of the Complainant.[225] The only evidence that an assessment of other forms of accommodation might haveoccurred is the evidence that the Union had suggested canvassing the employees in Jasper to see ifanybody would volunteer to cover the shortage instead of the Complainant, Cindy Richards andDenise Seeley. But, since nobody came forward, the canvassing stopped. There is no evidencethat CN did an individualized assessment of the Complainant’s situation or investigated anyalternative forms of accommodation.2010 CHRT 22 (CanLII)[226] I will now deal with CN’s position to the effect that it would be undue hardship to grantthe relief sought by the Complainant because she would then be granted “super seniority” basedon the simple fact of her status as a parent.[227] According to Stephanie Ziemer, CN does not capture the information regarding how manyof its employees are parents. She added that the only way to have this information would be toreview each employee’s file to see who they designate as dependants. Ms. Ziemer further addedthat from CN’s employees “group insurance” benefit plan “we can assume that approximately69% of [CN’s] workforce are parents.” The methodology used by CN to produce this evidencewas severally put to test at the hearing by the Complainant’s counsel. But beside themethodological problems, the Tribunal concludes that this very partial evidence falls well short ofthe evidence that CN would need to produce to justify discrimination on a balance of probabilitiesusing the tripartite Meiorin BFOR test.[228] If the Tribunal was to accept CN’s argument that because a vast majority of its employeesare parents, accommodating the Complainant would cause it undue hardship, that would meanthat any workplace with a large number of persons falling into a group with one or the other of thepersonal characteristics set forth in section 3 of the CHRA would automatically be precluded fromthe application of the law. For example, it would mean that women working in a workplacewhere the vast majority of employees are women would be precluded from making a complaint of