Richmond v. Canada (Attorney General), docket A-197-96

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docket A-197-96

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Federal Court Reports
Richmond v. Canada (Attorney General) (C.A.) [1997] 2 F.C. 946

OTTAWA, ONTARIO, WEDNESDAY, MARCH 26, 1997

IN THE MATTER OF an application to review and set aside, pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended

AND IN THE MATTER OF a decision of the Public Service Staff Relations Board, rendered by Thomas W. Brown, Board Member, on May 15, 1995, respecting 27 grievances referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, (Public Service Staff Relations Board Files Nos. 166-2-23653, 23862, 166-2-24140 to 24151, 166-2-26000 to 26012)

CORAM: THE CHIEF JUSTICE

DESJARDINS J.A.

ROBERTSON J.A.

BETWEEN:

SHELDON S. RICHMOND ET AL.

Appellants

(Applicants)

- and -

ATTORNEY GENERAL OF CANADA

(Public Service Commission of Canada, Department of

National Defence, Revenue Canada, Customs & Excise)

Respondent

(Respondent)

JUDGMENT

This appeal is dismissed with costs.

"Julius A. Isaac"

C.J.

A-197-96

CORAM: THE CHIEF JUSTICE

DESJARDINS J.A.

ROBERTSON J.A.

IN THE MATTER OF an application to review and set aside, pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended

BETWEEN:

SHELDON S. RICHMOND ET AL.

Appellants

(Applicants)

- and -

ATTORNEY GENERAL OF CANADA

(Public Service Commission of Canada, Department of

National Defence, Revenue Canada, Customs & Excise)

Respondent

(Respondent)

Heard at Ottawa, Ontario, on Wednesday, December 11, 1996

Judgment rendered at Ottawa, Ontario, on Wednesday, March 26, 1997

REASONS FOR JUDGMENT BY DESJARDINS J.A.

CONCURRED IN BY THE CHIEF JUSTICE

DISSENTING REASONS FOR JUDGMENT BY ROBERTSON J.A.

A-197-96

CORAM: THE CHIEF JUSTICE

DESJARDINS J.A.

ROBERTSON J.A.

IN THE MATTER OF an application to review and set aside, pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended

BETWEEN:

SHELDON S. RICHMOND ET AL.

Appellants

(Applicants)

- and -

ATTORNEY GENERAL OF CANADA

(Public Service Commission of Canada, Department of

National Defence, Revenue Canada, Customs & Excise)

Respondent

(Respondent)

REASONS FOR JUDGMENT

DESJARDINS J.A.

I have had the advantage of reading in draft the reasons for judgment of my colleague Robertson J.A. While I accept his description of the facts and most of his propositions in law, I disagree with his statement that the onus of the employer under the doctrine of undue hardship has not been met.

My position is the following. The collective agreements provide for mandatory leave with pay for a number of days which include in effect two Christian religious holy days enjoyed by all employees as holidays. The doctrine of undue hardship does not, however, in view of the collective agreements as they stand, extend so as to compel the employer to use the discretionary provisions of those collective agreements in such a way as to make it mandatory for the employer to grant leave with pay to the appellants for religious purposes. The doctrine, in my view, stops short of this.

The appellants filed grievances under their respective collective agreements claiming they were discriminated against by their employer on the basis of their religion, since they were refused leave with pay to observe the Jewish High Holy Days of Rosh Hashana, observed over a period of two days, and Yom Kippur, a one-day religious holiday. The appellants base their claim on the "no discrimination" clause of their respective collective agreements, which states:¹

43.01 There shall be no discrimination... by reason of... religious affiliation...

They claim that this "no discrimination" clause is reflective of subsection 3(1) of the Canadian Human Rights Act.² Paragraph 2(a) and subsection 15(1) of the Canadian Charter of Rights and Freedoms³ were also mentioned before the adjudicator as a possible source of inspiration for the clause.

The employer, consistent with the Treasury Board policy entitled "Leave with Pay for Religious Observance", offered the grievors various options to permit their respective absences without loss of pay, which included use of annual leave, compensatory leave and working extra hours (make-up time). This policy, in its relevant parts, reads thus:⁴

LEAVE WITH PAY

Policy objective

To provide certain authorized paid absences.

Policy statement

To allow for paid absences from work where such absences are occasioned by legal or societal obligations, or are deemed by the employer to be situations where the employee should not suffer a loss of income.

...

Policy requirements

Leave with pay must be authorized in accordance with the relevant authority, that is, the collective agreement or the appropriate terms and conditions of employment.

For the following leave situations:

" time for voting;

" time for recreational, personal and other special reasons;

" medical and dental appointments;

" adverse climatic or environmental conditions;

" international sporting events;

" Reserve Forces training;

departments are to adhere to the standards and procedures set in Appendix A of this policy.

...

APPENDIX A

PROCEDURES

Time for voting

All employees, including employees in casual status, must be given leave with pay to vote (including proxy voting) in federal, provincial and municipal elections, and referenda or plebiscites. The standards are as follows.

Federal elections, referenda or plebiscites

Four consecutive hours during the period the polls are open.

Provincial elections, referenda or plebiscites

The number of consecutive hours specified in the legislation of the province or territory in which the employee resides.

Municipal elections, referenda or plebiscites

The number of consecutive hours specified in the statutes governing municipal elections, referenda or plebiscites of the province or territory in which the municipality is located; where there is no such provision, the time as established for elections in the province or territory in which the employee resides.

Time for recreational, personal and other special reasons

It is common practice in the Public Service to grant leave, for example, to participate in departmental social activities. Leave may be granted for these and similar purposes, but is to be charged against an employee's vacation leave credits; in the event of relatively brief leave periods, such as extended lunch hours, hours of work may be scheduled to maintain normal overall weekly hours.

Medical and dental appointments

It is the practice of the employer to grant leave for up to half a day for medical and dental appointments without charge to the employee's leave credits. This, however, applies only in the case of routine, periodic check-ups or an appointment related to a particular complaint.

Where a series of continuing appointments are necessary for treatment of a particular condition, absences are to be charged to sick leave.

Adverse climatic or environmental conditions

Paid leave granted on a discretionary basis usually covers those situations that could affect an employee's capability to remain on or report for duty.

Adverse environmental conditions at the work place, such as a lack of heat, and emergency conditions affecting the community, such as a serious flood or snowstorm, are situations that may occur which could require management to exercise discretion with respect to granting leave with pay. In such cases, the deputy head or delegated management authority must be satisfied that paid leave is warranted.

International sporting events

An employee may be granted leave with pay for the purpose of training for or participating in international sporting events in an amount not exceeding three calendar months per year if the leave is taken in one period, or 66 working days per year if the leave is taken in broken periods; such leave (which includes any unused vacation leave to which the employee is entitled) is to be granted only to an employee on whose behalf a national sport-governing body has made a recommendation for participation in the event. The recommendation must be validated by the appropriate governmental sport organization, i.e. Sport Canada. The employee's unused vacation leave is to be liquidated before any additional leave is granted.

Training and/or participation by an employee includes involvement as an athlete, an official referee, a judge, a coach or other official.

Leave with Pay for Religious observance

In response to requests for time off to meet religious obligations, management should examine each case on an individual basis and make every effort to allow an employee to be absent from work without suffering loss of income within the appropriate confines of the collective agreement. Such efforts would include the use of annual or compensatory leave, shift exchanges in the case of shift workers, variable hours of work (compressed work week) or individual arrangements for make-up time, if operationally feasible.

Reserve Forces training

Departments are encouraged to grant reservists the necessary time for Reserve Forces activities. Such leave should conform to the provisions of the Reserve Forces Training Leave Regulations made pursuant to the National Defence Act.

(Emphasis added)

This policy was adopted by the employer pursuant to the collective agreements which provide the employer with discretion to grant leave, with or without pay, for purposes other than those specified in the collective agreements.

The collective agreements provide the following:

At its discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement. [Article 17.13, CS Collective Agreement].⁵

. . .

At its discretion, the Employer may grant leave with pay for purposes other than those specified in this Agreement, including military or civil defence training, emergencies affecting the community or place of work, and when circumstances not directly attributable to the employee prevent his reporting for duty. [Article 17.14, PIPSC Master Agreement].⁶

. . .

At its discretion, the Employer may grant:

(a) leave with pay when circumstances not directly attributable to the employee prevent his reporting for duty. Such leave shall not be unreasonably withheld;

(b) leave with or without pay for purposes other than those specified in this Agreement. [Article 21.13, AU Collective Agreement].⁷

Besides, the three collective agreements provide for mandatory designated paid holidays:⁸

Article 12

DESIGNATED PAID HOLIDAYS

12.01 Subject to clause 12.02, the following days shall be designated paid holidays for employees:

(a) New Year's Day,

(b) Good Friday,

(d) the day fixed by proclamation of the Governor in Council for celebration of the Sovereign's birthday,

(e) Canada Day,

(f) Labour Day,

(g) the day fixed by proclamation of the Governor in Council as a general day of Thanksgiving,

(h) Remembrance Day,

(i) Christmas Day

(j) Boxing Day

(k) one additional day in each year that, in the opinion of the Employer, is recognized to be a provincial or civic holiday in the area in which the employee is employed or in any area where, in the opinion of the Employer, no such day is recognized as a provincial or civic holiday, the first Monday in August,

and

(l) one additional day when proclaimed by an Act of Parliament as a National Holiday.

The appellants claim that Treasury Board employees, who for the most part belong to Christian religions, do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided as holidays. Yet, members of the Jewish religion must take up to three days off work in order to celebrate their High Holy days. This, in their view, violates the "no discrimination" clause of the collective agreements.

A calendar of holidays similar to the one above was considered by the Supreme Court of Canada in C.S.R. de Chambly⁹ where Cory J., for the Court, stated that such a calendar, although neutral on its face, had the effect of discriminating against members of an identifiable group because of their religious beliefs. It was thus discriminatory in effect.¹⁰ I, therefore, also conclude that the present "Designated Paid Holidays" calendar is discriminatory in effect.

Absent this conclusion in C.S.R. de Chambly, one might, however, have been tempted to consider the calendar as creating a situation of direct discrimination as a result of which these two days might have been struck out from the calendar. It has indeed recently been established in Central Okanagan School District No. 23 v. Renaud¹¹ that private arrangements, by contract or collective agreement, must give way to the requirements of the Canadian Human Rights Act. But, besides the fact that contrary to Renaud, the various unions are not parties to these proceedings, the Canada Labour Code¹² establishes mandatorily that employees are to be granted a holiday with pay on general holidays which means New Year's Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day and any day substituted for them.

This case is, therefore, one of indirect discrimination. The question to be asked is thus whether the trial judge erred in concluding that the employer has taken reasonable steps, short of undue hardship, to accommodate the appellants so that they might fulfil their religious obligations according to the tenets of their religion,¹³ thereby confirming the adjudicator's view that the Treasury Board policy was in conformity with the obligations of the employer.

The burden of proof is on the employer who pleads that the adjudicator and the trial judge were correct in deciding that reasonable offers had been made by the employer, through the Treasury Board policy, where each case is examined on an individual basis and every effort is made to allow an employee to be absent from work without suffering loss of income. The employer contends that in C.S.R. de Chambly, there was no possibility of make-up time in any way, with the result that the teachers would have lost pay, a situation not encountered here. Moreover, the employer contends that the grievors' complaints, if determined to be well founded, would render mandatory what is discretionary under the collective agreements. It finally submits that the employees also had a duty, under the law as established in Renaud, to accept reasonable accommodation.

The scope of the doctrine of reasonable accommodation and undue hardship, which are two alternate methods of expressing the same concept, is well laid out by Cory J. in the C.S.R. de Chambly case:¹⁴

Reasonable Accommodation and the Basis for Such a Requirement

It may be appropriate to begin with a question. Why should there be reasonable accommodation in those situations where there exist apparently neutral employment rules, standards or procedures which nonetheless adversely affect an identifiable individual or group of employees?

The response to that question must flow from the very aim and purpose of human rights legislation. Those enactments seek, to the extent that it is reasonable, to provide equity or fairness in the workplace to persons of all religions, races and nationalities. To the vast majority of Canadians their work and place of work are matters of fundamental importance. Fairness in the workplace is the desire of all. It is a magnificent goal that is worth striving to attain. Once it has been established that there is adverse effect discrimination flowing from employment rules, procedures or standards then there must be a reasonable attempt on the part of the employer to accommodate the employees adversely affected. Almost invariably, those adversely affected will be members of a minority group. If there is to be true equality and fairness in the workplace without regard to religious beliefs, then it follows as the night the day that there must be a duty resting upon an employer to take reasonable steps to accommodate those employees that are adversely affected by the employment rules. This is essential if the aim of human rights legislation is to be fulfilled. Anything less defeats the purpose of such legislation and makes it a hollow enactment of little value in the workplace.

This principle is so important that McIntyre J. speaking for a unanimous Court in O'Malley, supra, indicated that a reasonable accommodation was an integral aspect of equality. It thus can be taken that the duty to accommodate is a fundamentally important aspect of human rights legislation and an integral part of the right to equality in the workplace. It then becomes necessary to determine precisely what constitutes reasonable accommodation.

It was pointed out in Renaud, supra, at p. 989, that historically the duty to accommodate developed as a means of limiting the liability of an employer who was found to have discriminated by the bona fide adoption of a work rule without any intention to discriminate. By providing reasonable accommodation to the affected workers, the employer could justify the adverse effect discrimination and thereby avoid liability for the unintended consequences of the rules of employment.

The extent of the duty to accommodate in cases of adverse effect discrimination was put in this manner in the O'Malley case at p. 555:

The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship; in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer. [Emphasis added].

The factors to be considered in determining what may constitute reasonable accommodation were set out in Central Alberta Dairy Pool, supra. Wilson J. writing for the majority described the factors in this way at pp. 520-21:

I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar - financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.

With regard to the factor of the morale of other employees, Sopinka J. in Renaud, supra, reworded it to require a consideration of the effect of the reasonable accommodation on other employees. (See pp. 984-85 and 991-92).

These factors are not engraved in stone. They should be applied with common sense and flexibility in the context of the factual situation presented in each case. The situations presented will vary endlessly. For example, in a large concern, it may be a relatively easy matter to replace one employee with another. In a small operation replacement may place an unreasonable or unacceptable burden on the employer. The financial consequences of accommodation will also vary infinitely. What may be eminently reasonable in prosperous times may impose an unreasonable financial burden on an employer in times of economic restraint or recession. However, the listed factors can provide a basis for considering what may constitute reasonable accommodation.

It is important to remember that the duty to accommodate is limited by the words "reasonable" and "short of undue hardship". Those words do not constitute independent criteria. Rather they are alternate methods of expressing the same concept. (See Renaud, supra, at p. 984).

In the earlier case of Renaud,¹⁵ Sopinka J., for the Court, made it clear that while the words "short of undue hardship" limit this duty, the use of the term "undue" infers that some hardship is acceptable and that more than a mere negligible effort is required to meet the test. He went on to add¹⁶ that the effect of the collective agreement is relevant in assessing the degree of hardship caused by interference with its terms and that substantial departure from the normal operation of its conditions and terms of employment may constitute undue interference in the employer's business. The cost of defending threatened grievances, however, did not constitute undue hardship justifying a refusal to accommodate a complaint. He also said¹⁷ that, while employee morale was a factor to be taken into consideration, it was to be applied with caution. The objection of employees based on well-grounded concerns that their rights will be affected must be considered. Objections based on attitudes inconsistent with human rights were, however, an irrelevant consideration.

The scope and limits of the doctrine of reasonable accommodation is still in its infancy. It is clear so far, however, that the employer must demonstrate that real efforts have been made, short of the "undue" hardship, so as to eliminate the adverse effect discrimination suffered by its employees.

In Renaud,¹⁸ a Seventh-Day Adventist, who was engaged as a custodian in an elementary school, was forbidden by his religion from working on the Church's sabbath which ran from sundown Friday until sundown Saturday. He could not, therefore, work on Friday evening, as was required of him, if he were to hold a new job gained by seniority. The School Board representative was agreeable to changing his work shift, but indicated that the School Board would require the consent of the union if any accommodation involved an exception to the collective agreement. The School Board proposed the creation of a Sunday to Thursday shift, requiring the consent of the union. However, the union refused and threatened to file a policy grievance to prevent the implementation of the proposal. After a number of unsuccessful attempts to find viable accommodation, the School Board eventually terminated the employee's contract as a result of his refusal to complete his regular Friday night shift. The employee then filed a complaint against the employer and the union pursuant to the British Columbia Human Rights Act.¹⁹ The Supreme Court of Canada approved the decision of the member designate who had concluded that the collective agreement did not relieve the employer of its duty to accommodate. The sole impact of the threatened grievance, which would have sought to enforce the collective agreement, was the cost of defending it. This, it was held, did not constitute undue hardship.²⁰

In the case at bar, the respondent could not have sought any testing of or amendments to the collective agreements so as to modify the designated pay holidays, since Christmas and Good Friday are prescribed as paid holidays under the Canada Labour Code. Could the respondent have done more with the collective agreements as they stand?

The collective agreements are flexible in the sense that they give discretion to the employer to grant leave with pay for purposes other than those specified in the collective agreements. The Treasury Board policy already provides for leave with pay in situations such as time for voting, time for recreational, personal and other special reasons, medical and dental appointments, adverse climatic or environmental conditions, international sporting events and Reserved Forces training, provided certain standards and procedures are met. These leave situations, which apply to all, irrespective of their religion, are said to be "authorized in accordance with the relevant authority, that is, the collective agreement or the appropriate terms and conditions of employment." They are subject to important restrictions. The time for voting is governed by legislation and except for federal elections, referenda or plebiscites,²¹ the Treasury Board policy specifically refers to them. On the other hand, leave "for recreational, personal and other special reasons" may be granted, "but is to be charged against an employee's vacation leave credits..." Routine medical and dental appointments are limited to half a day, a series of continuing appointments are to be charged to sick leave. Adverse climatic or environmental conditions are monitored. Participation at international sporting events is limited in time, certification must be furnished, and the employee's unused vacation leave is to be liquidated before any additional leave is granted. Reserved Forces training should conform to existing legislation.

Was the employer, under the doctrine of undue hardship, compelled to use the discretionary provisions of the collective agreements in such a way as to add automatically the three days of leave with pay for religious observance of the Jewish faith, without requiring from the employees the supplementary sacrifices on which the grievances are based?

My view is that the employer could not, with the collective agreements as they stand, have used the discretionary provisions in such a way. The risk is not just a possible grievance, as in Renaud. The employer could not unilaterally render mandatory what is discretionary without risking a serious disruption of the balance of the collective agreements. The number of days provided for mandatory leave with pay would then not have applied to all in the same manner. Besides enjoying, as holidays, the religious days of the majority, those of the Jewish faith would have had three more days of mandatory leave with pay for religious purposes. Christmas and Good Friday do not represent the full panoply of "holy" or "feast" days of religious observance in Christians religions, and certainly not of the Roman Catholic faith, as evidenced in the case of Birks v. City of Montreal²² where Epiphany, All Saints and Conception were listed as days of religious observance. Nothing would then prevent Christians from claiming they are also entitled to more days of religious observance as leave with pay days. Would the employer be in a position to distinguish between important days and less important days of religious observance? Besides, where would the limit lie, vis-à-vis all other religions? It would hardly be an answer to say that each case would need to be appreciated according to its circumstances.

This is a far cry from the C.S.R. de Chambly case where, prior to 1983, the School Board had granted Jewish teachers leave with pay for Yom Kippur and afterwards withdrew this availability without giving reasons, not even financial ones.

The decision of the Ontario Crown Employees Grievance Settlement Board in Re The Crown in right of Ontario (Ministry of Government Services) and Ontario Public Service Employees Union (Kimmel/Leaf)²³ is also different from the case at bar. There, the collective agreement, which contained a non-discrimination clause, provided in its section 55.1 that special and compassionate leave of absence with pay may be granted by the employer on a discretionary basis for not more than three days in a year. The employer had, however, a rule that special leave with pay was not normally granted for religious purposes under that section, and refused to apply section 55.1 to those wishing to take these allocated days so as to attend to their religious obligations. The grievors, in that case represented by their union, had either to take these days off without pay or use their vacation credit.

The Board accepted that the employer had not, in the words of Gohm v. Domtar Inc.,²⁴ taken "substantial or meaningful steps" to accommodate the requirements of the complainants. It further noted that the employee who sought and obtained special leave to fulfil religious obligations was not in an advantageous position relative to other employees. If anything, the opposite was true, because once that employee had extinguished his or her special leave with pay, there was no longer any for other purposes.²⁵

The result in Kimmel/Leaf was to give everyone the right to claim up to three days for special or compassionate reasons, including for religious activities. The accommodation could be done without disrupting the balance of the collective agreement.

It may very well be that observants of the Jewish faith may prefer to work during the two days of Christmas Day and Good Friday, and enjoy two days of leave with pay to attend festivities related to their own faith. But it would be a breach of the collective agreements and the Canada Labour Code to expect the employer to open its offices on Christmas and Good Friday for a number of employees of the Jewish faith, since these paid holidays apply to all and all are entitled to them. Make-up time, as offered by the employer to the grievors, is accumulated by working extra hours during the day or working on Saturdays. Generally speaking, working longer hours to make up time is common in many trades and professions. However, making up time so as to attend religious observances, while being obliged to take statutory holidays for religious days one is indifferent to, may become a difficult and frustrating experience.

In due course, with amendments to the Canada Labour Code, new collective agreements might be drafted, excluding Christmas and Good Friday as paid holidays. They would then become the responsibility of individual employees. Or, without changes being made to the Canada Labour Code, new collective agreements might allow for a number of days available to all for religious holidays. Other formulae might perhaps be even more appropriate so as to meet the legitimate concerns of the appellants and be equal for all. But the doctrine of undue hardship under the Canadian Human Rights Act does not go as far as it is claimed in the case at bar.

I would dismiss this appeal with costs.

"Alice Desjardins"

J.A.

"I agree

Julius A. Isaac, C.J."

A-197-96

CORAM: THE CHIEF JUSTICE

DESJARDINS J.A.

ROBERTSON J.A.

IN THE MATTER OF an Application to review and set aside, pursuant to section 18 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended

AND IN THE MATTER OF a decision of the Public Service Staff Relations Board, rendered by Thomas W. Brown, Board Member, on May 15, 1995, respecting 27 grievances referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, (Public Service Staff Relations Board File Nos. 166-2-23653, 23862, 166-2-24140 to 24151, 166-2-26000 to 26012)

BETWEEN:

SHELDON S. RICHMOND ET AL.

Appellants

(Applicants)

- and -

ATTORNEY GENERAL OF CANADA

(Public Service Commission of Canada, Department of

National Defence, Revenue Canada, Customs & Excise)

Respondent

(Respondent)

DISSENTING REASONS FOR JUDGMENT

ROBERTSON J.A.

This appeal concerns several grievances filed by the appellants after their employer refused to grant them a paid leave of absence to observe the Jewish High Holidays. Before the Adjudicator, the appellants argued that they were discriminated against on the basis of religious affiliation and that their employer had failed to fulfil its obligation to "accommodate" as required by law. The employer responded by pointing out that each of the grievors was granted the required leave of absence and offered several options to redress the loss of pay arising from that absence, including use of annual leave. All of the appellants rejected the offer of accommodation. In turn the Adjudicator rejected all of the grievances on the basis that the employer had met its duty to accommodate. The subsequent application for judicial review was dismissed by the Trial Judge.

In my respectful view, all of the appellants are entitled to paid leaves of absence. I accept that there is no general rule or principle of law requiring employers to grant employees paid leaves so that they may practise their religious beliefs. But it does not follow that simply because an employer grants the required leave and the employee is able to make up for a day of lost pay, an employer has satisfied its duty to accommodate. As is explained below, this is not a case in which the employer has established that it will suffer undue hardship if required to permit time off, with pay, for the observance of religious holy days. Specifically there is no evidence of financial hardship, nor is there any evidence that the granting of paid leaves will somehow undermine the integrity of the collective agreements or employee morale. On the other hand, there is evidence to support the view that the employer presently grants paid leaves to employees in circumstances less compelling than those arising in this appeal.

I. THE FACTS

A total of twenty-seven grievances filed by sixteen employees of the federal public service were referred to adjudication on the issue of accommodation of religious beliefs. Of these, fourteen related to requests made in 1992 for leave with pay under a provision of a collective agreement. The remaining thirteen requests related to similar applications made in 1993. At the relevant time, Sheldon Richmond was employed by the Public Service Commission. With one exception, the other appellants were employed by the Department of National Revenue. The remaining appellant was employed by the Department of National Defence.

All of the appellants were covered by one of three collective agreements. Each of the collective agreements had a "No Discrimination" clause which reads as follows:

There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation or membership or activity in the [union].

As well, each of the collective agreements had a provision relating to " leave with pay for other reasons" ("special leave"). Those provisions read as follows:

At its discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement. [Article 17.13, CS Collective Agreement].

. . .

At its discretion, the Employer may grant:

(a) leave with pay when circumstances not directly attributable to the employee prevent his reporting for duty. Such leave shall not be unreasonably withheld;

(b) leave with or without pay for purposes other than those specified in this Agreement. [Article 21.13, AU Collective Agreement].

In 1992, the appellants applied for special leave in order to observe the most significant of the Jewish religious holidays, namely, Rosh Hashana (September 28 and 29, 1992) and Yom Kippur (October 7, 1992). Those three days were scheduled work days. In 1993, special leave was sought again as two of the three days of observance fell on a scheduled work day. The appellants were denied special leave in both years. But in accordance with Treasury Board's policy on "Leave with Pay for Religious observance," each appellant was offered three options which would allow for the absence requested without loss of pay, viz. use of annual or compensatory leave or working make-up hours. The relevant Treasury Board policy reads as follows:

Leave with Pay for Religious observance

The appellants' applications for special leave with pay having been rejected, they elected to submit applications for annual leave for the days in question. Those applications were approved. However, the appellants pursued the matter of special leave, this time before the Adjudicator. Relying on the "No Discrimination" article found in each of the collective agreements, the appellants asserted that they had been discriminated against on the basis of their religious affiliation by the employer's refusal to grant them special leave.

II. DECISIONS BELOW

Before the Adjudicator, the appellants argued that the "No Discrimination" clause represents an intention on the part of the parties to incorporate by reference the prohibited grounds of discrimination as set down in subsection 3(1) of the Canadian Human Rights Act. In addition, note was made of subsections 15(1) and 2(a) of the Charter of Rights and Freedoms, which provisions enshrine, respectively, equality and freedom of religion. For convenience, I reproduce here the relevant legislative texts:

3(1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. [Canadian Human Rights Act].

. . .

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Canadian Charter of Rights and Freedoms].

. . .

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

[Canadian Charter of Rights and Freedoms].

The appellants argued that the refusal to grant special leave constitutes adverse effect discrimination arising from application of the employer's policy regarding "Leave with Pay for Religious observance". It was submitted that that policy imposes obligations on Jewish employees which it does not impose on employees who are adherents of the Christian faith. Jewish employees must use vacation or compensatory leave or make other arrangements with their employer to avoid the loss of pay following from their observance of the High Holidays. That concession, the appellants argued, was not required of the majority of their colleagues whose holy days are recognized as statutory holidays. The appellants reasoned that if under the Treasury Board policy their employer was to make every effort within the confines of a collective agreement to accomplish the objective of the policy, then resort to the special leave provisions would be an obvious and necessary option.

In light of the adverse effect discrimination, the appellants argued that their employer was under a legal duty to accommodate up to the point of undue hardship. In their view that duty was not discharged. It was pointed out that the employer had led no evidence to establish that the relief requested by its employees would cause undue hardship in financial terms or in terms of operational requirements. Accordingly, the appellants requested the Adjudicator to make a declaration to the effect that they had been discriminated against because of their religious affiliation. They further requested an order requiring the restoration of annual leave previously used to cover their absences, as well as a grant of special leave in substitution for the annual leave used.

In response to the appellants' submissions, the employer argued that the duty imposed on it is one of "reasonable" accommodation. Moreover, the employer could find no support for the legal proposition that the duty of accommodation requires employees to be granted paid leave. With respect to the Treasury Board policy, it was noted that it allowed employees the opportunity to observe their religious holidays without loss of income. The employer maintained that the options set out in the policy are extensive, flexible and constitute reasonable accommodation. With respect to the special leave provisions, the employer noted that those clauses are discretionary in nature and that the effect of the employees' argument, if accepted, would be to render those clauses mandatory; that is to say, it would be mandatory to provide religious accommodation by means of paid leave in all circumstances. Yet, under the collective agreements in question, paid leave is not mandatory and if the parties had wished to provide for such they would have expressly agreed to such a term when negotiating the contract of employment. Finally, the employer submitted that its offer of accommodation was reasonable while the appellants' insistence on special leave constituted an unreasonable request.

The Adjudicator concluded that the relevant jurisprudence did not reveal an obligation to accommodate up to the point of undue hardship, unless there are no other less onerous arrangements available to the employer to accommodate an employee. On the Adjudicator's understanding of the decision in Commission Scolaire Régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, the Supreme Court's most recent pronouncement on the issue of religious accommodation, the duty to accommodate requires the employer to provide for time off without loss of pay, but does not establish a need for an employer to suffer hardship in order to accommodate an employee wishing to observe his or her religious holy days. In light of the employer's offer of accommodation consonant with Treasury Board's policy, the Adjudicator held that it would violate the collective agreement to order that discretionary leave be granted pursuant to the special leave provisions. To grant the order requested by the appellants would render mandatory the discretionary authority to grant special leave and violate subsection 96(2) of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35. That provision provides that no adjudicator shall render a decision which has the effect of requiring the amendment of a collective agreement. A more extensive discussion of the Adjudicator's reasoning is found at pages 33-34 of his decision:

Having considered the relevant jurisprudence, I am satisfied that a need to accommodate has been established by the Supreme Court of Canada but that there is no need to accommodate "up to the point of undue hardship" if there is another means of accommodation available. In the instant cases, the employer had in place a policy with regard to leave for religious observances; there could be "the use of annual or compensatory leave, shift exchanges in the case of shift workers, variable hours of work (compressed work week) or individual arrangements for make-up time, if operationally feasible". However, none of the grievors asked for accommodation other than through leave with pay "for other reasons".

A careful reading of the Chambly (supra) decision does not reveal any need for an employer to suffer hardship in order to accommodate an employee in fulfilling his or her religious obligations. There was identified, however, a need to accommodate an employee in such circumstances and this accommodation must provide for time off without loss of pay. Loss of pay, I believe, formed the very foundation for the Court's decision in Chambly (supra) to restore the award of the majority of the arbitration board granting the teachers in question leave with pay in that the Court was of the opinion that the employer refused to reasonably accommodate them when it only allowed them to take time off without pay.

In the instant grievances, there was no loss of pay for the grievors. They were all granted the leave they ultimately requested, namely vacation leave, when they were refused their first request, that is, leave with pay "for other reasons" under a clause in the collective agreement allowing for such leave at the employer's discretion. As counsel for the employer has suggested, there may be circumstances where the employer might grant such leave to accommodate an employee in fulfilling his or her religious obligations, but when there are other arrangements made available to an employee to take the necessary leave without loss of pay, I believe that it would violate the collective agreement for me to order that discretionary leave be granted in light of the employer's scheme in place to accommodate an employee by other arrangements such as those provided for in the employer's "policy". In this regard, I refer to subsection 96(2) of the Public Service Staff Relations Act. There is no absolute right to "leave with pay for other reasons" for employees who wish to take time off to observe their religious obligations. The courts have recognized only that an employer must accommodate such an employee by allowing him time off without loss of pay. The requirement that the accommodation must be up to the point of undue hardship comes into play only if there are no other arrangements less onerous to the employer available to accommodate an employee -- then the employer must burden itself up to the point of undue hardship.

The Adjudicator's reasons end with two major conclusions. First, the employer did not violate the "No Discrimination" provision in the collective agreements. Second, the appellants failed to establish that the employer acted arbitrarily, discriminatorily, unreasonably or in bad faith in denying their request for special leave.

On the judicial review application, the question of the appropriate standard of review was argued briefly before the Trial Judge. He noted that the issue put to the Adjudicator revolved around the interpretation of the "No Discrimination" provisions, hence, the decision below related as much to human rights law as it did the interpretation of collective agreements per se and labour legislation. In the end, however, the Trial Judge found it unnecessary to rule on the matter of curial deference as he was of the opinion that the Adjudicator's decision was correct.

The Trial Judge concluded that where an offer of accommodation from an employer is not reasonable an adjudicator might be obliged to read the special leave provisions as mandatory in order to ensure compliance with the non-discrimination articles. However, the Trial Judge held that the Adjudicator was correct in concluding that a reasonable offer of accommodation had been made by the employer and, therefore, there was no need to consider the special leave provisions. In the opinion of the Trial Judge, the following passage from Chambly established that an offer of accommodation need only be reasonable to satisfy the duty to accommodate (at 546):

III. ANALYSIS

This appeal raises six issues. First, to what extent is the Adjudicator's decision owed curial deference? In legal terms, what is the proper standard of judicial review? Second, is it open to the appellants to argue that the employer exercised its discretion unreasonably in refusing to grant leave with pay pursuant to the special leave provisions? Third, what is the scope of the duty to provide reasonable accommodation? Specifically, does the discharge of that duty require accommodation up to, but not including, the point of undue hardship? Or is it simply necessary, as contended below, for the employer to make a "reasonable" offer? Fourth, is it of critical significance to the outcome of this appeal that in Chambly the employees were not able to make up for lost time and pay while on the facts of the present case the appellants are not subject to the same impediment? Fifth, does the fact that the appellants will be entitled to one to three days of extra paid holidays if the grievances are allowed amount to reverse discrimination? If so, should that be viewed as a sufficient basis for denying the grievances? Sixth, to what extent is the potential or perceived impact of this decision on the accommodation claims of other religious groups relevant to the outcome of this appeal? I shall label this issue the floodgates argument.

A) Curial Deference

As I am of the opinion that the Adjudicator's decision cannot stand, I must address the issue of curial deference. In my view, the extent to which curial deference is owed an adjudicator's decision is dependent on whether the reviewing court is being asked to rule on the interpretation of the collective agreement adopted by an adjudicator or, alternatively, whether the issue is one involving human rights principles to be applied by an adjudicator in a labour law context. Curial deference is owed in the former circumstance, but not the latter. Let me explain.

It is well established in law that deference is owed to decisions of adjudicators, made under section 92 of the Public Service Staff Relations Act, involving the interpretation of a collective agreement. Normally, a privative clause such as that found at section 101 of that Act is sufficient for purposes of discouraging judicial intervention. Interestingly enough, that provision was repealed by the Public Service Reform Act, S.C. 1992, c. 54, s. 73, effective June 1, 1993. [The clause has not, to my knowledge, been replaced. At a time when the courts are embracing the doctrine of curial deference, it is puzzling that Parliament is apparently taking a contrary position].

For purposes of deciding this appeal I must presume that all of the grievances were brought at a time when the privative clause was in force. That being the case, it is accepted law that an adjudicator's decision must stand unless it is patently unreasonable so as to be clearly irrational: see Chambly, supra at 537; see also Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 ("PSAC No. 2") at 955 et seq.; [1979] 2 S.C.R. 277">Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 277; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; and [1984] 2 S.C.R. 412">Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412.

The above proposition must, however, be restricted to matters which typically fall within the realm of labour law adjudication. In my opinion, no deference is owed an adjudicator's decision on the issue of reasonable accommodation. I shall state my position as succinctly as possible before turning to the Supreme Court's non-determinative treatment of curial deference in Chambly.

I share the respectful view held by the Trial Judge that we are dealing with a human rights issue and, therefore, as a general proposition no deference in respect of such questions is owed a tribunal whose expertise is confined to labour law matters. As will be explained more fully below, the Adjudicator did not reach his decision by first interpreting the special leave with pay provisions so as to determine whether they should afford relief to the appellants, irrespective of any existing duty to accommodate. Nor did the Adjudicator seek to construe the special leave provisions in light of the "No Discrimination" clause. Rather, he skipped the exercise of interpreting the collective agreements and instead settled the case by applying his understanding of the human rights principles incorporated in the duty to accommodate. In doing so, the Adjudicator stepped outside the "protected" sphere of labour law, in which the doctrine of curial deference has application to his decisions, and entered into the "unprotected" field of human rights. In my view, no curial deference is owed with respect to determinations involving the proper application of human rights principles. I offer the following reasons in support thereof.

The development of the law relating to religious discrimination and the duty of accommodation is at an embryonic stage and largely dependent on the Supreme Court having the opportunity to establish the analytical framework required in order for lower courts and tribunals, including those responsible for the interpretation of collective agreements, to apply the law in a consistent and non-discriminatory manner. Inasmuch as the Supreme Court has refused to accord deference to the decisions of human rights tribunals on questions of law, it seems to follow that no deference should be accorded decisions rendered by those who do not hold themselves out to be experts in human rights: see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; see also Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 at 599-600; Bell v. Canada (Canadian Human Rights Commission), [1996] S.C.J. No. 115 (Q.L.) at para. 61. To hold otherwise would lead to the anomalous result that labour arbitrators and adjudicators would be accorded considerably more deference than is presently accorded human rights tribunals which are specifically charged with the responsibility of determining the ambit of the reasonable accommodation doctrine.

Finally, I am of the view that to accord deference to an adjudicator's decision is to invite the development of a patchwork of differing, and opposing, arbitration decisions concerning the application of human rights principles: see M.A. Green, "Reasonable Accommodation of Religious Beliefs" (1994) 6 E.L.J. 105 at 111. This reasoning is particularly apt in light of the opposing outcomes in this case and Chambly, despite the factual similarities between the two cases. This is a convenient place to outline the facts in Chambly and the manner in which the issue of curial deference was handled by the Supreme Court.

The Chambly school board granted three Jewish teachers leaves of absence, but without pay, in order to observe Yom Kippur. Under the terms of their collective agreement a teacher could be absent from work with pay for up to a maximum of three days because of circumstances beyond the control of the employee (a force majeure clause): see Article 5-14.02(g), reproduced below. As well, the collective agreement bestowed on the school board a discretion to grant leaves of absence with pay for reasons the school board considered to be valid: see Article 5-14.05, reproduced below. For purposes of comparison, the relevant provisions read as follows:

5-14.00 SPECIAL LEAVE

5-14.01 Incumbent teachers shall be entitled to certain special leave without loss of salary, supplementary pay or regional disparity bonuses. The duration of such leave and the events which will trigger a right thereto are those specified in clause 5-14.02.

5-14.02 (a) in the event of the death of a spouse, child or the child of a spouse living under the same roof: seven (7) consecutive calendar days including the day of the funeral;

(b) in the event of the death of a father, mother, brother or sister: five (5) consecutive calendar days including the day of the funeral;

(c) in the event of the death of parents-in-law, a grandfather, grandmother, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandson or granddaughter: three (3) consecutive calendar days including the day of the funeral;

(d) the wedding of a father, mother, brother, sister or child: the day of the wedding;

(e) a change of residence other than that specified in article 5-3.00: the day of the move; however, a teacher shall not be entitled on this account to more than one (1) day's leave per year;

(f) the teacher's wedding: a maximum of seven (7) consecutive calendar days, including the day of the wedding;

(g) an annual maximum of three (3) working days to cover: any other event of force majeure (disaster, fire, flood and so on) requiring a teacher to be absent from work; any other reason requiring the teacher to be absent from work and as to which the board and the union agree to grant permission for absence without loss of salary, supplementary pay or regional disparity bonuses.

. . .

5-14.05 The board may also allow a teacher to be absent without loss of salary, supplementary pay or regional disparity bonuses for any other reason not provided for in this article which it considers to be valid.

The teachers' union grieved the refusal to grant leave with pay. The majority of the Arbitration Board held that the school calendar requiring the Jewish teachers to work on Yom Kippur had the effect of being discriminatory, contrary to certain provisions of Quebec's Charter of Human Rights and Freedoms, R.S.Q., c. C-12, which had been incorporated into the collective agreement. Moreover, the Board held that the school board had failed to take reasonable steps to accommodate the Jewish teachers in the observance of their religious holy day, having determined that the school board could pay the teachers for the day in question pursuant to the provisions of the collective agreement.

[It is unclear from the Supreme Court's synopsis of the Board's decision whether the majority of the Board simply interpreted the provisions of the collective agreement or interpreted the provisions having regard to the provisions of Quebec's Charter and the law involving the duty to accommodate. There are certain references in Chambly which suggest that the Board's interpretation was influenced by the human rights legislation].

The majority decision of the Arbitration Board was affirmed by the Superior Court of Quebec, but on appeal a majority of the Quebec Court of Appeal reversed that judgment and set aside the Board's award on the ground that it was unreasonable. The Supreme Court of Canada did not agree. Justice Cory, writing for the majority, held that the school board had failed to meet the burden resting on it to demonstrate that it took reasonable steps to accommodate the Jewish teachers, short of undue hardship. No evidence was presented to establish that granting paid leaves would place an unreasonable financial burden on the school board. Further, Justice Cory held that it is not necessary that a collective agreement specifically provide for the observance of a holy day of a religious minority. Rather the provisions of a collective agreement "are simply a factor to be considered in determining whether the employer can reasonably accommodate the religious observances of the minority" (at 549). In the circumstances of Chambly, it was held that the collective agreement provided the flexibility which demonstrated that reasonable accommodation could be provided pursuant to either the force majeure or the discretionary leave provisions. Either of the two provisions of the collective agreement could reasonably be interpreted to provide for such an accommodation.

One of the issues touched on in Chambly was whether deference was owed to the Arbitration Board's decision in light of the privative clause found within Quebec's Labour Code. Justice Cory observed that as the majority decision of the Arbitration Board was correct it was unnecessary to consider in detail either the fact that the collective agreement incorporated certain provisions of the Quebec Charter within its terms or the Board's references to that legislation. Specifically, Justice Cory declined the invitation to determine whether the Board's interpretation of the Quebec Charter must be correct in order to be exempt from judicial review (at 550).

In a minority opinion concurring in the result, Justices Gonthier and L'Heureux-Dubé noted that the Board was not called on to interpret the provisions of the Quebec Charter but rather to decide whether in the circumstances it was possible to accommodate the Jewish teachers under the provisions of the collective agreement in order to comply with the anti-discrimination provisions of Quebec's Charter. In the opinion of Justices Gonthier and L'Heureux-Dubé the Board was acting within its jurisdiction and its decision was not so unreasonable as to be irrational such as would justify interference by the courts.

As is obvious Chambly does not tell us what is the proper standard of judicial review and, therefore, the position I have outlined above stands or falls on its merits. That being said, I want to draw attention to the fact that neither party has sought to establish that it was necessary for the Adjudicator to interpret the "No Discrimination" clauses of the collective agreements. It is common ground that those clauses were intended to reflect or incorporate subsection 3(1) of the Canadian Human Rights Act into the respective collective agreements. With respect to that provision the parties are also agreed that it imposes an obligation on employers to offer reasonable accommodation in light of adverse effect discrimination suffered by Jewish employees. At no time has it been suggested that it was necessary to interpret subsection 3(1) to arrive at that conclusion.

In my view, and I say this with the greatest of respect, today the issue of religious accommodation does not turn so much on the interpretation of human rights legislation as it does on the meaning and scope of the accommodation doctrine as understood by the Supreme Court: see Chambly, supra and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; compare with Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 and Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561. I take it to be a matter of accepted law that any statute which prohibits discrimination on religious grounds will be interpreted to include adverse effect discrimination in the employment context.

B) Unreasonable Exercise of Discretion

Did the employer exercise its discretion unreasonably in refusing to grant leave with pay pursuant to the special leave provisions? This question was raised by the appellants in their written submissions and, to a limited extent, in oral argument: see Appellants' Memorandum of Fact and Law at paragraph 29. I take this question to be of fundamental significance because it restricts the analysis to whether the appellants are entitled to paid leaves under the terms of their respective collective agreements, irrespective of any obligation imposed on their employer to accommodate their religious beliefs pursuant to the anti-discrimination provisions of the Canadian Human Rights Act.

In my opinion, it is simply too late for the appellants to raise this issue. I say this because the matter was never pursued before the Adjudicator. From my reading of the Adjudicator's extensive outline of the arguments advanced by the appellants before him, it is apparent that they focused their attention on the right to accommodation under the extant law and not on the reasonableness of the employer's refusal to exercise its discretion in favour of the appellants. Admittedly, the Adjudicator concluded that the employer did not act arbitrarily, unreasonably or in bad faith in denying the appellants' request for special leave. But that conclusion was based on the finding that the employer's offer of accommodation under Treasury Board policy was a reasonable one. Nowhere in his reasons, does the Adjudicator examine each of the special leave provisions or discuss the arbitral jurisprudence which has developed around the interpretation of those or similarly worded provisions.

The reason underlying the Adjudicator's failure to undertake an analysis of the reasonableness of the employer's refusal to grant paid leaves, or to interpret the special leave provisions as was done in Chambly, can also be traced to the Adjudicator's acceptance of an argument advanced by the employer:

As counsel for the employer has suggested, there may be circumstances where the employer might grant such leave to accommodate an employee in fulfilling his or her religious obligations, but when there are other arrangements made available to an employee to take the necessary leave without loss of pay, I believe that it would violate the collective agreement to order that discretionary leave be granted in light of the employer's scheme in place to accommodate an employee by other arrangements such as those provided for in the employer's "policy".

As I understand the above passage, the Adjudicator is effectively saying that once the employer came forward with a reasonable offer of accommodation, as reflected in Treasury Board policy dealing with religious observances, it was simply unnecessary to turn to the special leave provisions. In other words, to order the granting of paid leaves in circumstances where the employer had already made a reasonable offer of accommodation would violate the collective agreements. The Adjudicator thus appears to be of the view that each of the special leave provisions vests the employer with the unfettered discretion to decide whether paid leaves will be granted. With respect, I do not agree.

As a starting point of analysis, the Adjudicator should have determined whether the appellants were entitled to paid leave under the terms of the respective collective agreements before resorting to the accommodation doctrine outlined in the jurisprudence of the Supreme Court. I need go no further than the facts in Chambly to find support for that proposition. In that case, the Arbitration Board determined that the employers were entitled to paid leave under the terms of the collective agreement. In the Supreme Court, the majority pursued the issue in terms of the principles of accommodation. Neither the Board nor the Court approached the case on the basis that it would be unnecessary to interpret the provisions of the collective agreement if the employer had made a reasonable offer of accommodation.

Had the Adjudicator in the present case determined that the employer's refusal to grant paid leaves was justified under the terms of the respective collective agreements, it would have been necessary to determine whether paid leaves were required under the accommodation doctrine. On the other hand, had the Adjudicator reached the opposite conclusion then, technically speaking, it would not have been necessary to determine whether relief was available under the accommodation principle.

I shall not cite legal authority for the proposition that the failure to construe each of the special leave provisions, or to assess the unreasonableness of the employer's refusal to grant special leave, constitutes an error of law. In this instance, however, I am not prepared to remit the grievances to the Adjudicator for reconsideration on this basis. I decline to do so for two reasons. First, the parties have neither identified nor pursued this error of law. Second, there is in my view a more compelling reason for granting the appeal, namely, the Adjudicator's understanding and application of the Supreme Court jurisprudence on the accommodation doctrine, for which no curial deference is owed.

Before turning to that part of my analysis, I wish to draw attention to the similarities between the relevant provisions of the collective agreement in Chambly and those presently under consideration. Had the Adjudicator addressed this matter first, I am confident that he would have had great difficulty in ignoring the interpretation placed on Articles 5-14.02(g) and 5-14.05 of the collective agreement in Chambly, when construing the provisions of the three collective agreements before us.

In Chambly, Article 5-14.05 of the collective agreement, reproduced above at page 14, empowered the employer school board to grant paid leaves for any reasons which it considered valid. In the Supreme Court, Justice Cory held that such a clause could reasonably be interpreted to provide for the type of accommodation being sought by the school teachers. If in Chambly the Arbitration Board and the Supreme Court interpreted what I regard as a discretionary leave provision so as to allow for accommodation, then surely such an interpretation could have been placed either on Article 17.13 of the CS Collective Agreement or Article 17.14 of the PIPSC Collective Agreement, reproduced above at page 3.

Turning to the force majeure clause found at Article 21.13 of the AU Collective Agreement, it expressly states that the employer may, at its discretion, grant leave with pay in circumstances where the absence is "not directly attributable to the employee". The clause, however, goes on to provide that "[s]uch leave shall not be unreasonably withheld". Interestingly enough, in Chambly, the collective agreement also contained a force majeure clause -- Article 5-14.02(g) (supra at page 14). In that case it was held that that provision could reasonably be construed, as it was by the Arbitration Board, so as to provide for paid leaves of absence for the observance of a Jewish High Holiday. At page 548, Justice Cory writing for the Supreme Court stated: "Obviously the date fixed for a holy day is beyond the control of an individual Jewish teacher. Yet the observance of that day must be of paramount importance."

C) Reasonable Accommodation

The duty to accommodate arises when an employee is the victim of indirect or adverse effect discrimination. Unlike direct discrimination which occurs when an employer's practice or rule on its face discriminates on a prohibited ground (eg. "No Catholics need apply"), indirect discrimination arises when a facially neutral standard has a discriminatory effect on one or more employees: see O'Malley, supra at 551. Adverse effect discrimination is therefore established when an individual or a group of employees is subjected to some sort of restriction or obligation because of a protected characteristic such as religion, and as a result of an employer practice applicable to all and neutral in other respects than its effect.

To remedy adverse effect discrimination, the employer is obliged to take reasonable steps to accommodate the employee(s) affected. In the present case, the effect of the work calendar is that each year Jewish employees, in contrast to their Christian colleagues, must take at least one if not three days off work in order to celebrate their High Holidays. To accommodate Jewish employees adversely affected by the work calendar, the employer granted them all leaves of absence and offered them a series of options outlined above to address the matters of lost time and pay. I turn now to an analysis of the scope of the duty to provide reasonable accommodation.

The central position of the Adjudicator and Trial Judge is that once it is determined that the employer's offer of accommodation is reasonable it is simply unnecessary to have recourse to the special leave provisions of a collective agreement. With respect, I cannot agree for three reasons. First, as I have already discussed, construction of the special leave provisions should be the starting point of the analysis. I shall say no more about this issue. Second, and most importantly, the duty as formulated below is not in accord with the jurisprudence. Third, its validity is premised on the assumption that the granting of paid leaves to the appellants is an unreasonable form of accommodation. I shall deal with my last concern first.

It seems to me that the question as to what is or is not reasonable is to be answered by reference to surrounding circumstances and not by abstract reasoning: see Renaud, supra at 984, per Sopinka J. ["What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case"]. For the sake of argument assume that in the present case the employer's offer of accommodation is a reasonable one. I do not think it follows from that premise that the possibility of granting the appellants paid leaves of absence is necessarily unreasonable. Yet that is the very inference we are being asked to draw. Were it otherwise, the Adjudicator would have had to decide whether the employer's offer of accommodation was as reasonable, or more so, than the relief being sought by the appellants.

I would agree that there is no general rule or principle of law requiring employers to grant employees paid leaves so that they may practise their religious beliefs. But neither am I prepared to hold as a general rule that as long as an employee is permitted a leave of absence together with the opportunity to make up for a day of lost pay, an employer has satisfied its duty to accommodate. The relief being sought by the appellants may not only be reasonable but in fact and law more reasonable than the accommodation being offered by their employer.

The question of reasonableness is to be resolved in a contextual manner and not merely by recourse to broad propositions of law. For example, in a situation where the employment involves shift work, varying considerations will come into play in determining what constitutes reasonable accommodation. In certain instances the opportunity to exchange a shift with another employee may be all that is necessary to accommodate an individual's religious beliefs. In other cases accommodation may require different arrangements. More likely than not the issue will be dealt with fairly in a collective agreement. A more extreme example, but one which illustrates my point, stems from my presumption that Jewish members of the judiciary would never be asked to take annual leave or work extra hours for time spent observing the High Holidays. In the end, if I were to accept the accommodation duty as formulated by the decision makers below, I suspect that the law would reflect differing ideological dispositions rather than consistency in decision making. The better and proper approach is found in the Supreme Court jurisprudence.

Once it has been established that there has been adverse effect discrimination flowing from the application of a facially neutral employment rule, such as a work schedule based on the Christian calendar, then it is settled law that there must be a reasonable attempt on the part of the employer to accommodate the employees adversely affected. That reasonable accommodation is an integral aspect of equality is firmly entrenched in the jurisprudence. The extent of the duty to accommodate in cases of adverse effect discrimination was outlined in O'Malley, supra at 555:

The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer.

The above passage makes it clear that accommodation up to the point of undue hardship is what is required of an employer. In Renaud, supra, the Supreme Court addressed the scope of the duty in the context of the de minimis argument. That argument can be traced to a decision of the United States Supreme Court which had held that to require an employer to bear more than a de minimis cost would amount to undue hardship: see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

In Renaud, the Supreme Court rejected the de minimis standard. Writing for a unanimous bench, Justice Sopinka held that to equate undue hardship with trivial costs or minor inconvenience would be inconsistent with a purposive approach to accommodation in Canada. Once again, however, the limitations on the duty of accommodation were to be determined by application of reasonable measures short of undue hardship. At page 984 Justice Sopinka stated:

The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words "reasonable" and "short of undue hardship". These are not independent criteria but are alternate ways of expressing the same concept. [Emphasis added].

It seems clear to me that under the existing law reasonable accommodation on the part of the employer can result in the employer being subjected to a degree of hardship as long as it does not amount to undue hardship: see Re Kimmel/Leaf (1991), 21 L.A.C. (4th) 129. Reasonable accommodation is therefore synonymous with accommodation up to the point of undue hardship. Thus, the question to be addressed in this case is not whether the employer's offer of accommodation is reasonable in the circumstances. The proper question is whether the granting of leave with pay will expose the employer to undue hardship. If it does then the granting of leave without pay is all that is required of the employer.

It follows from what I have said that the Adjudicator and Trial Judge erred in their understanding and application of the law regarding reasonable accommodation. Both failed to address the proper legal question. Both erred in concluding that there is no need to accommodate up to the point of undue hardship if another less onerous means of accommodation is available. Moreover, the employer elected not to lead any evidence to establish that the relief sought by the appellants would cause it unreasonable financial hardship or impair operational requirements. That being so the appellants are entitled to the relief sought by default. In arriving at this conclusion I am cognizant of the fact that the thought of the federal government opening its books in an effort to dispel the mistaken notion that governments have access to unlimited sources of revenue is at the very least problematic if not naive. In the circumstances, I am prepared to explain why I am of the opinion that what the appellants seek in this case is reasonable to the extent that it could not possibly result in undue hardship to this federal employer.

Applying the analytical framework outlined by Justice Cory in Chambly, I am entitled to take note of the fact that each of the collective agreements contains a special leave provision. Those provisions indicate a degree of flexibility on the part of the employer and suggest that the type of accommodation sought by the appellants is not unreasonable. I cannot forget that in Chambly there were similarly worded special leave provisions and both the Arbitration Board and the Supreme Court found that those provisions could reasonably be interpreted to provide for paid leaves: see discussion, supra. I also take note of the fact that the appellants seek a maximum of three days of paid leave each year (eg. in 1997 only two of the three holy days will fall on a weekday).

Moreover, the arbitral awards cited by the appellants, albeit of limited significance because they deal exclusively with a force majeure clause, reflect a predisposition to paid leave in cases where the reason for an employee's absence from work is attributable to matters of a pressing personal nature. Surely, the spiritual needs of an employee are as compelling as those of the secular kind. I note that the cases referred to by counsel for the appellants held that leave with pay had to be granted for absences attributable to defective plumbing, inclement weather, absence of a babysitter and burglary of the employee's home: see respectively Hoy v. Treasury Board (14 May 1991), No. 166-2-19912 (P.S.S.R.B.); Thomas v. Treasury Board (16 April 1992), No. 166-2-21965 (P.S.S.R.B.); Madden v. Treasury Board (7 November 1988), No. 166-2-17164 (P.S.S.R.B.); and Gilbert v. Treasury Board (6 July 1989), No. 166-2-18208 (P.S.S.R.B.).

In a similar vein, I note that under another Treasury Board policy paid leave of short duration is available in the case of dental and medical appointments. As well, those involved in international sporting events may obtain up to three months of paid leave per year. I recognize that those involved in such sporting activities are engaged in pursuits whose outcome may be said to reflect upon the nation as a whole. However, I am also cognizant of the reality that freedom of conscience and religion is a fundamental freedom under the Canadian Charter. In short, I fail to see why Jewish employees should be denied leave with pay when employees generally are being accommodated in less compelling circumstances.

Perhaps the best analogy to the present case is the granting of leave with pay for the purpose of voting in federal, provincial and municipal elections. For example, Treasury Board policy requires that all employees be given four consecutive hours of leave with pay when federal election polls are open. Leaving aside any statutory obligations to provide time for voting, I presume that the Treasury Board policy was formulated because the right to vote in an election of members of a legislative assembly is a fundamental right in a free and democratic society, as evidenced by the fact that that right is enshrined in section 3 of the Charter. Just as employees are accorded a reasonable amount of leave with pay to exercise their basic democratic rights so, too, should the appellants be given a reasonable amount of paid leave, in the circumstances of this case, to fulfill similarly fundamental religious obligations.

One final note with respect to an argument raised below [and raised inferentially in the Respondent's Memorandum of Fact and Law at paragraph 12], which in my opinion must be laid to rest. It was accepted by the Adjudicator that the form of accommodation sought by the appellants would render the discretionary or special leave provisions mandatory. In turn, that result would have the effect of amending each of the collective agreements, contrary to subsection 96(2) of the Public Service Staff Relations Act. It is true that in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 at 520-21, Justice Wilson stated that accommodation which had the effect of making changes to a collective agreement could constitute undue hardship. It is equally true that in Renaud the Supreme Court held that a collective agreement cannot displace human rights obligations (supra at 986-87). Having regard to these principles, I shall dispose of the amendment argument on two bases.

First, the effect of this decision is to give precedence to the "No-Discrimination" clauses and the Canadian Human Rights Act over the special leave provisions to the extent that they are thought to conflict. Second, it cannot be forgotten that the precedential value of this decision does not extend beyond the facts and the religious minority concerned. Accordingly, in other cases giving rise to an allegation of adverse effect discrimination a different legal result might be reached even though identical provisions of a collective agreement are in issue. In such circumstances, it cannot be said that had the Adjudicator found in favour of the appellants his decision would have had the effect of amending the collective agreement.

D) Chambly Distinguished?

As noted earlier the one factual difference between this case and Chambly is that in the latter the employees were unable to make up for the lost time and pay, while the converse is true for the present appellants. The question to be addressed is whether that distinction is a valid basis for denying the appellants the accommodation they seek, namely, paid leave with restoration of annual leave credits used when their employer refused to invoke the special leave provisions. The essence of the argument is that had the teachers in Chambly been able to make up for the lost time and pay the Supreme Court would have decided the case differently. With respect, I cannot agree. I return to Justice Cory's analysis in Chambly in support of my position.

In Chambly, the loss of pay issue arose in the context of the school board's assertion that the adverse effect suffered by the Jewish teachers was so minimal that it did not constitute discrimination or that no accommodation was necessary (at 541-42). During the course of his analysis, Justice Cory noted that it was impossible for Jewish teachers to make up for a lost day by working, for example, on Saturday, Sunday, Christmas or Easter (at 542). The loss of 1/200 of one's yearly salary was of significance to the teachers and their families and, therefore, the de minimis test should not apply to the evaluation of either the existence or the extent of the duty to accommodate. [In Renaud the de minimis test was raised in the context of discussion of the threshold of hardship to be suffered by the employer before negating or diminishing the duty to accommodate. In Chambly the test was considered in relation to the permissible level of hardship to be suffered by the employees before the duty to accommodate became applicable].

The question I must answer is whether Chambly would have been decided differently if the employees in that case could have made up for the lost day of wages. I think not. As I understand the law, the critical question is not whether an employee will suffer hardship if the relief sought by him or her is denied. Rather, the proper question is whether the employer will suffer undue hardship. While I recognize that Justice Cory addressed the de minimis argument raised by the employer in Chambly, I do not regard his analysis on that point as an implicit acceptance of the notion that employees who have been subjected to adverse effect discrimination must also establish that they will suffer hardship if the relief they seek from their employer is not granted. To hold otherwise would result in a fundamental reformulation of the accommodation doctrine. In effect, the employer's duty to accommodate would become preconditioned on the employee establishing some sort of hardship. I do not read Justice Cory's reasons as departing from basic accommodation precepts previously established.

Having decided that the key factual difference between this case and Chambly does not affect the outcome of the present appeal, I must address two related matters discussed in oral argument: the question of reverse discrimination and, for lack of a better term, the floodgates argument. Once again, Chambly is my starting point.

E) Reverse Discrimination

In his reasons, Justice Cory dealt with the argument, accepted by the Quebec Court of Appeal, that to grant the Jewish teachers more than the required leave of absence would amount to reverse discrimination by favouring Jewish teachers over those of the Catholic faith (at 547). In other words, Jewish employees would receive an extra paid holiday -- something not available to those of the Christian faiths. Justice Cory disposed of this argument by noting that the teachers were reasonably seeking no more than to use a day of paid absence under either the force majeure provision or the discretionary leave clause of the collective agreement.

The reverse discrimination issue exists in the circumstances of the present case just as it did in Chambly, although the matter cannot be dealt with in identical fashion here because the Adjudicator did not construe the paid leave provisions in the collective agreements. Nevertheless, the argument also lacks merit in the circumstances of this case. The gist of the reverse discrimination idea is that a group of employees should not receive what is perceived as a "perk" accorded on the basis of membership in a certain religion. Stated even more bluntly, the argument is that Jewish employees of the federal public service should not receive an extra one to three days off with pay over the course of a year to observe their most significant religious holidays. However, to conclude that such an arrangement causes Christian employees to suffer an unacceptable inequity on the basis of their religion is to understand equality in merely formal terms -- a conception which has been rejected by the Supreme Court in its Charter jurisprudence on equality rights.

As counsel for the appellants noted in oral argument, the purpose of accommodation is not to equalize the number of paid religious holidays among employees of different faiths. Rather, the purpose of accommodation is to protect and further, insofar as is reasonably possible, the fundamental freedom of conscience and religion. On a purposive or substantive approach to the duty of reasonable accommodation, employee morale remains relevant to an assessment of whether a given means of accommodation would generate undue hardship for an employer. But to the extent that others' concerns are unreasonable, as in the case of the advocates of the reverse discrimination argument in Chambly, those concerns must remain irrelevant. Likewise, in the circumstances of this case, it would be unreasonable to allow a formal definition of equality to prevail over the substance of religious equality. This is so because, as the preceding analysis has demonstrated, it is not unreasonable for this federal employer to grant paid leave to the appellants.

I do not deny that there may be employees who think that their Jewish co-workers are receiving a "bonus" as a result of this decision. But in my view, care should be taken to separate the legal concept of discrimination, reverse or otherwise, from the politics of resentment. I take it for granted that no one would begrudge a colleague one or two days of paid leave to mourn the death of a close relative. Correlatively, why would one begrudge a Jewish employee paid leave to observe his or her holy days? To deny the force of this analogy is to suggest that there exists a hierarchy of needs and values in which religion has neither primacy nor prominence. Yet the latter position flies in the face of the Charter, in which religious freedom is enshrined.

Put a different way, the legal concept of employee morale cannot be invoked to support a reverse discrimination argument when the true foundation of that argument is based on the politics of resentment. It must be remembered that this is not a case in which Jewish employees are receiving extra holidays in the usual sense of that word. I say this because paid leave is not being granted under the pretext of religious observance. The appellants are not seeking paid leaves for the purpose of enabling them to pursue secular interests or endeavours, as one might do during vacation time. Quite the contrary, the appellants are being given time off with pay to observe a day of atonement (Yom Kippur) and the Jewish New Year (Rosh Hashana). One who does otherwise on his or her day(s) off is not acting bona fide. I turn now to the final matter I intend to address: the limits of religious freedom or at least one aspect thereof that I have labelled the floodgates argument.

F) Managing the Floodgates

Returning one last time to Chambly, I note that the majority judgment of the Quebec Court of Appeal in that case reasoned, in part, that the arbitral award of paid leave to Jewish teachers to observe Yom Kippur was unreasonable and could give rise to an untenable situation for the school board because the logic of the arbitrator's decision could be extended to Muslim teachers who celebrate their religion each Friday and on the days just before and after the month of Ramadan. In his analysis, Justice Cory dealt with that issue, that is the floodgates argument, as follows (at 551):

I recognize that other cases may demonstrate circumstances which would make reasonable accommodation impossible. For example, if the religious beliefs of a teacher required his or her absence every Friday throughout the year, then it might well be impossible for the employer to reasonably accommodate that teacher's religious beliefs and requirements. However, that is far from the situation presented in this case.

Hence, it is clear that the Chambly case cannot properly be invoked as authority for the proposition that members of any and all religions shall be necessarily entitled to perfect accommodation of their beliefs. In short, the accommodation requested must be reasonable as determined by surrounding circumstances.

In oral argument, counsel for the respondent suggested that other religious groups could be affected by the outcome of this case. I agree. However, it does not follow from that suggestion that employers will necessarily be legally required to satisfy perfectly the demands for accommodation in any and all circumstances. On the contrary, the jurisprudence plainly indicates that there is a corollary to the employer's duty of reasonable accommodation, namely, the reciprocal obligation borne by all religious groups and their individual members to accommodate legitimate secular concerns. Put differently, demands for unreasonable accommodation which will cause undue hardship for the employer will not be sanctioned by the courts. For this reason alone, the floodgates argument must fail.

IV. CONCLUSION

For the foregoing reasons, I would: (1) allow the appeal with costs; (2) set aside the order of the Trial Judge dated 13 February 1996; (3) allow the judicial review application; (4) set aside the decision of the Adjudicator dated 15 May 1995; and (5) remit the matter to him for reconsideration on the basis that the appellants' grievances be allowed.

"J.T. Robertson" J.A.

A-197-96

BETWEEN:

SHELDON S. RICHMOND ET AL.

Appellants

(Applicants)

- and -

ATTORNEY GENERAL OF CANADA

(Public Service Commission of Canada, Department of

National Defence, Revenue Canada, Customs & Excise)

Respondent

(Respondent)

REASONS FOR JUDGMENT

__________________

¹ A.B. at 56.

² R.S.C. 1985, c. H-6.

³ Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.

⁴ Treasury Board Manual, c. 1-4 at 1 and A-3 (A.B. at 50 and 55).

⁵ A.B. at 59.

⁶ A.B. at 60.

⁷ A.B. at 61.

⁸ "Computer Systems Administration", (Ottawa: Treasury Board of Canada, 1988) at 15-16.

⁹ Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525.

¹⁰ C.S.R. de Chambly, supra, at 541.

¹¹ [1992] 2 S.C.R. 970.

¹² R.S.C. 1985, c. L-2, sections 166 and 192.

¹³ C.S.R. de Chambly, supra, at 543-44.

¹⁴ C.S.R. de Chambly, supra, at 544-46.

¹⁵ Renaud, supra, at 972.

¹⁶ Renaud, supra, at 972.

¹⁷ Renaud, supra, at 988.

¹⁸ Renaud, supra.

¹⁹ S.B.C. 1984, c. 22.

²⁰ Renaud, supra, at 987.

²¹ See, however, the Canada Elections Act, R.S.C. 1985, c. E-2, s. 148.

²² [1955] S.C.R. 799">[1955] S.C.R. 799.

²³ 21 L.A.C. (4th) 129.

²⁴ (1990) 12 C.H.R.R. D/161 (Pentney) at para. 96, cited in 21 L.A.C. (4th) 129 at 158.

²⁵ (1990) 12 C.H.R.R. D/161 (Pentney) at para. 96, cited in 21 L.A.C. (4th) 129 at 162.

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