Docket:
A-90-13
Citation: 2014 FCA 111
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CORAM:
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PELLETIER J.A.
MAINVILLE J.A.
SCOTT J.A.
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BETWEEN:
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CANADIAN NATIONAL RAILWAY COMPANY
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Appellant
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and
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DENISE SEELEY AND CANADIAN HUMAN RIGHTS COMMISSION
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Respondents
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and
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FEDERALLY REGULATED EMPLOYERS - TRANSPORTATION AND COMMUNICATION
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Intervener
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ONTARIO HUMAN
RIGHTS COMMISSION
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Intervener
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REASONS FOR
JUDGMENT
MAINVILLE J.A.
[1]
This is an appeal from a judgment reported as 2013 FC 117 of
Mandamin J. of the Federal Court (Federal Court Judge) dismissing the judicial
review application of the Canadian National Railway Company (CN) challenging a
decision reported as 2010 CHRT 23 of the Canadian Human Rights Tribunal
(Tribunal).
[2]
The Tribunal found that CN had discriminated within the meaning
of sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c.
H-6 against the respondent Denise Seeley on the ground of family status by
refusing to accommodate her childcare needs following her assignment from Jasper
to Vancouver to protect a labour shortage.
[3]
For the reasons set out below, I would dismiss this appeal.
[4]
This appeal was heard immediately after an appeal involving
similar legal issues between the Attorney General of Canada, representing the
Canadian Border Services Agency, and Ms. Fiona Johnstone. The reasons for the
judgment of this Court in Canada (Attorney General) v. Johnstone et
al., 2014 FCA 110 (“Johnstone”) are released concurrently
with these reasons. For the purposes of clarity and brevity, extensive
references to Johnstone will be made throughout these reasons.
Background and context
[5]
The full background is extensively set out in the Tribunal’s decision
and need not be repeated. For the purposes of this appeal, the salient facts
may be summarized as follows.
[6]
CN has more than 15,000 employees in Canada, of which over 4,000
are operating employees, also known as “running trade” employees, consisting of
conductors and locomotive engineers. Running trade employees work either “road”
or “yard”. Road work requires employees to get on a train at a terminal and
take the train to another terminal. They then layover and come back to their
home terminal. A yard employee typically works in a rail yard, switching box
cars and making up trains. The yard employees do not leave the terminal. A
little over 3% of CN’S running trade employees are women.
[7]
Due to the nature of CN’s operations, running trade employees must be
able to work where and when required. As a result, elaborate recall and
mobility rules based largely on senority rights apply at CN. Of particular
relevance for this appeal is section 148.11 of the applicable collective
agreement, which provides that employees hired after June 29, 1990 can be
forced to cover work at another terminal in the Western Region (i.e.
from Vancouver to Thunder Bay) and are obligated to report for work at that
terminal within 30 days unless they can submit satisfactory reasons justifying
their failure to report.
[8]
Running trade employees who are laid off remain on a recall list indefinitely,
and continue to accumulate seniority while laid off. Section 115 of the
applicable collective agreement provides that employees who are laid off will
be given preference for re-employment when staff is increased in their
seniority district, and will be returned to work in order of seniority. The
provision adds that if an employee is employed elsewhere at the time of recall,
he may be allowed 30 days in which to report. If he fails to report for duty or
to give satisfactory reasons for not reporting, he will forfeit all his
seniority rights.
[9]
Ms. Seeley was hired by CN on July 2, 1991, and she qualified as a
conductor in 1993. Her home terminal was Jasper, Alberta. Her husband is also
employed by CN as a locomotive engineer with well over 30 years of service. Ms.
Seeley worked from 1991 to 1997, when she was laid off. She however remained on
the seniority list during lay-off and performed a few hours of work on
emergency calls between 1997 and 2001.
[10]
Ms. Seeley and her husband had a first child in January 1999, and they
then moved from Jasper to Brule, Alberta, a small community located
approximately 98 kilometers from Jasper. Their second child was born in 2003.
[11]
In 2005, CN was experiencing a severe shortage of running trade
employees at its Vancouver terminal. In February of 2005, CN decided to recall
conductors from the Western Region to protect the shortage in Vancouver. For
this purpose, 47 conductors were recalled on a seniority basis. Of these, 12
reported for work in Vancouver and are still employed by CN, 30 were
administratively terminated by CN in accordance with the terms of the
collective agreement or chose to resign their position, and 5 were relieved
from their obligation to report to Vancouver and remained in the employ of CN,
including some who were accommodated due to attending to ill parents.
[12]
In the case of Ms. Seeley, she was recalled from lay off at the end of
February, 2005 pursuant to section 115 of the collective agreement and assigned
to cover the shortage in Vancouver pursuant to article 148.11 of that
agreement. Various letters were then sent by Ms. Seeley to CN seeking an
accommodation with respect to her childcare needs. She noted that it would be
difficult to take her children with her to Vancouver, and that because of childcare
responsibilities, it was not feasible to leave them with her husband whose own
work obligations with CN would cause the same difficulties with childcare. She
requested that her situation be considered on a compassionate basis and that
she be allowed to wait out until Vancouver no longer required her services or
there was work available at the Jasper terminal or at the adjacent terminal of
Edson. She noted that CN running trade employees with medical conditions had
been accommodated in the past, and she sought similar consideration with
respect to her childcare situation.
[13]
CN authorized extensions of her recall date to Vancouver until June 30,
2005. Ms. Seeley continued to seek an accommodation that would address her
childcare needs, but CN refused to deal with Ms. Seeley’s requests. On July 4,
2005, CN informed Ms. Seeley that her seniority rights had been forfeited and
her employment terminated because she had failed to cover the shortage in Vancouver.
[14]
Ms. Seeley subsequently submitted a complaint pursuant to the Canadian
Human Rights Act alleging that the CN had discriminated against her on the
prohibited ground of family status.
[15]
The provisions of the Canadian Human
Rights Act that are particularly pertinent to the complaint are subsection
3(1) and sections 7 and 10, which read as follows:
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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 an offence for which a pardon has been granted or in respect
of which a record suspension has been ordered.
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3. (1) Pour l’application de la présente loi,
les motifs de distinction illicite sont ceux qui sont fondés sur la race,
l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe,
l’orientation sexuelle, l’état matrimonial, la situation de famille,
l’état de personne graciée ou la déficience.
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[Emphasis added]
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[Je souligne]
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7. It is a discriminatory practice, directly or indirectly,
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7. Constitue un acte discriminatoire, s’il est
fondé sur un motif de distinction illicite, le fait, par des moyens directs
ou indirects :
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(a) to refuse to employ or continue to employ any
individual, or
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a) de
refuser d’employer ou de continuer d’employer un individu;
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(b) in the course of employment, to differentiate adversely
in relation to an employee,
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b) de le
défavoriser en cours d’emploi.
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on a prohibited
ground of discrimination.
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10. It is a discriminatory practice for an employer, employee
organization or employer organization
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10. Constitue un acte discriminatoire, s’il est
fondé sur un motif de distinction illicite et s’il est susceptible
d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une
catégorie d’individus, le fait, pour l’employeur, l’association patronale ou
l’organisation syndicale :
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(a) to establish or pursue a policy or practice, or
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a) de
fixer ou d’appliquer des lignes de conduite;
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(b) to enter into an agreement affecting recruitment,
referral, hiring, promotion, training, apprenticeship, transfer or any other
matter relating to employment or prospective employment,
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b) de
conclure des ententes touchant le recrutement, les mises en rapport,
l’engagement, les promotions, la formation, l’apprentissage, les mutations ou
tout autre aspect d’un emploi présent ou éventuel.
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that deprives or
tends to deprive an individual or class of individuals of any employment
opportunities on a prohibited ground of discrimination.
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The
decision of the Tribunal
[16]
Relying on a previous decision of the Tribunal in Brown v. Canada (Department of National Revenue), 1993 CanLII 683, the Tribunal found that the
prohibited ground of discrimination of family status in the Canadian Human
Rights Act includes the childcare obligations of a parent.
[17]
With respect to the test for finding a prima facie case of
discrimination on this ground, the Tribunal rejected the approach proposed by
the British Columbia Court of Appeal in Health Sciences Association of
British Columbia v. Campbell River and North Island Transition Society,
2004 BCCA 260, 240 D.L.R. (4th) 479 (“Campbell River”). Under
the Campbell River test, “a prima facie case of
discrimination is made out when a change in a term or condition of employment
imposed by an employer results in a serious interference with a substantial
parental or other family duty or obligation of the employee”: Campbell River
at para. 39.
[18]
The Tribunal instead followed the approach set out in its previous
decisions of Hoyt v. Canadian National Railway, 2006 CHRT 33 (“Hoyt”)
and of Johnstone v. Canada Border Services, 2010 CHRT 20, as well as in
the reasons of Barnes J. of the Federal Court in Johnstone v. Canada
(Attorney General), 2007 FC 36, 306 F.T.R. 271. Under that approach, in
order to make out a prima facie case on the prohibited ground of family
status, an individual should not have to tolerate some amount of discrimination
to a certain unknown level before being afforded the protection of the Canadian
Human Rights Act.
[19]
The Tribunal found that Ms. Seeley had made out a case of prima facie
discrimination since she had demonstrated that she was the parent of two
children, she could not rely on her husband for the childcare needs of these
children as a result of his own work schedule for CN, that she was told to
temporarily move to Vancouver “with no information with regard to how long she
would have to stay there or about housing arrangements once she arrived there”,
and that this temporary move “would disrupt her children’s care and that it
would be impossible for her to make arrangements for appropriate child care”:
Tribunal’s decision at para. 123.
[20]
The Tribunal further found that CN had not demonstrated that the
accommodation sought by Ms. Seeley would cause it undue hardship under the
third element of the three-step test set out in British Columbia (Public
Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”)
at paras. 54 and 55. The Tribunal concluded from the evidence “that CN was not
sensitive to the Complainant’s situation” and “did not answer her many requests
for some form of accommodation and did not even meet or contact her to discuss
her situation…”: Tribunal’s decision at para. 150.
[21]
The Tribunal further concluded that CN did not consider family status
matters that involve parental obligations and responsibilities as a protected ground
of discrimination that necessitated accommodation, and thus also found that CN
had refused to seriously consider Ms. Seeley’s situation, thus failing to meet
the procedural component of the duty to accommodate: Tribunal’s decision at
paras. 151 to 165.
[22]
The Tribunal also rejected CN’s submission that accommodating Ms. Seeley
would result in undue hardship since she would in effect be provided with a
“super seniority” based on the simple fact of her status as a parent. The
Tribunal found that CN did not produce evidence that it would have faced undue
operational hardship by accommodating Ms. Seeley, that it was overwhelmed with
requests for accommodation from individuals in a comparable situation to Ms.
Seeley, or that accommodating her would cause undue hardship in terms of costs:
Tribunal’s decision at paras. 116 to 173.
[23]
The Tribunal consequently concluded that CN
had breached sections 7 and 10 of the Canadian Human Rights Act. It
ordered CN (a) to work with the Canadian Human Rights Commission to ensure that
such discriminatory practice and behaviour does not continue; (b) to reinstate
Ms. Seeley as of March 2007 without loss of seniority, that being the date she
would have returned to work at the Jasper terminal had she remained on the
recall and seniority list, (c) to compensate Ms. Seeley for loss wages and
benefits from March 1st, 2007, with a 30% reduction based on an
assessment of Ms. Seeley’s ability to mitigate her damages, and (d) to pay Ms.
Seeley $15,000 for pain and suffering.
[24]
The Tribunal also ordered CN to pay Ms. Seeley $20,000 for special
compensation under subsection 53(3) of the Canadian Human Rights Act on
the ground that CN’s conduct had been reckless. This award principally resulted
from the Tribunal’s finding that CN managers had ignored CN’s accommodation
policy that identified family status as a ground of discrimination, and from
its further finding that CN managers “didn’t make any efforts to try to
understand the Complainant’s situations, ignored her letters, decided to treat
her case as just a ‘child care issue’ and to cherry-pick which ground of
discrimination should give way to accommodation and which should not”:
Tribunal’s decision at para. 191.
The judgment of the Federal Court Judge
[25]
CN pursued the matter in the Federal Court through a judicial review
application challenging the Tribunal’s decision on various grounds. The Federal
Court judge dismissed the application.
[26]
The Judge applied the reasonableness standard of review to all of the
issues raised before him, including the scope of the prohibited ground of
discrimination on the basis of family status and the legal test for finding a prima
facie case of discrimination on that ground.
[27]
The Judge rejected CN’s submission that the Tribunal had erred in
adopting an overly broad interpretation of family status. He rather found that
the Tribunal’s conclusion that family status included childcare obligations was
reasonable since “[i]t is within the scope of the ordinary meaning of the
words; it is in accord with the objects of the [Canadian Human Rights] Act
which express Parliament’s intent; it is interpreted liberally giving the right
enunciated full recognition and effect, and it is in keeping with previous
decisions in related human rights and labour forums as well as relevant
jurisprudence”: Federal Court Judge’s reasons at para. 70.
[28]
The Federal Court Judge also found that the test
used by the Tribunal for finding a prima facie case of discrimination
was reasonable, as well as the application of that test to the circumstances of
Ms. Seeley. In so doing, he specifically discarded the “serious interference”
test used in Campbell River.
[29]
Turning to CN’s submissions concerning its duty to accommodate, the
Judge concluded that the Tribunal’s finding that CN had failed to meet the
third part of the Meiorin test was reasonable. The Federal Court Judge
noted that CN never responded to Ms. Seeley’s requests for accommodation, did
not consider family status involving childcare obligations as requiring
accommodation, and failed to meet the procedural component of the duty to
accommodate: Federal Court Judge’s reasons at para. 106.
[30]
With respect to CN’s submissions on the issue of “super seniority” and
the terms of the collective agreement, the Federal Court Judge found these to
be valid questions, but that they were not engaged in this case since CN had
never raised the question with the Union before terminating the employment of
Ms. Seeley: Federal Court Judge’s reasons at paras. 108 and 109.
[31]
Furthermore, the Federal Court Judge also found that the Tribunal
had a sufficient basis to reasonably conclude that CN’s conduct in this case
was reckless, and consequently he upheld the Tribunal’s award of special
damages.
Issues raised in appeal
[32]
The issues raised in this appeal may be set out as follows:
1.
What is the applicable standard of review?
2.
Did the Tribunal commit a reviewable error in finding that family status
includes childcare obligations and in identifying the legal test for finding a prima
facie case of discrimination on the ground of family status?
3.
Applying the proper meaning and scope to family status, and using the
proper legal test, did the Tribunal commit a reviewable error in finding that a
prima facie case of discrimination on the ground of family status had
been made out in this case?
4.
Did the Tribunal commit a reviewable error in finding that CN had not
met the Meiorin test in this case?
5.
Did the Tribunal commit a reviewable error in ordering special
compensation under subsection 53(3) of the Canadian Human Rights Act?
[33]
The first two issues identified above have been extensively dealt with
in the reasons for judgment released concurrently in Johnstone.
The standard of review
[34]
As noted in Johnstone, in an appeal from a judgment concerning a
judicial review application, the role of this Court is to determine whether the
application judge identified and applied the correct standard of review, and in
the event he or she has not, to assess the decision under review in light of
the correct standard. In effect, this means that an appellate court’s focus is
on the administrative decision, in this case, the decision of the Tribunal. The
application judge’s selection of the appropriate standard of review is itself a
question of law subject to review on the standard of correctness.
[35]
There is no dispute that the findings of the Tribunal with
respect to questions of fact and of mixed fact and law are to be reviewed on a
standard of reasonableness. However, there is disagreement as to the standard
of review that applies to findings of law made by the Tribunal with respect to
(a) the meaning and scope of family status as a prohibited ground of
discrimination and (b) the applicable legal test under which a finding of
discrimination may be made under this prohibited ground.
[36]
For the reasons extensively set out in Johnstone, the presumption
of reasonableness that applies to the decisions of the Tribunal is rebutted and
a standard of correctness is to be applied with respect to these two legal
issues. This results notably from the following:
(a)
the Supreme Court of Canada has consistently held that fundamental
rights set out in human rights legislation are quasi-constitutional rights, and
the principle that constitutional issues are subject to a correctness review
extends as well to quasi-constitutional issues involving the fundamental human
rights set out in the Canadian Human Rights Act;
(b)
a multiplicity of courts and tribunals are called upon to interpret and
apply the rights set out in human rights legislation, including the Canadian
Human Rights Act, and it would be inconsistent to review the legal
questions at issue here on judicial review of a decision of the Tribunal on a
deferential standard, but adopt a correctness standard on an appeal from a
decision of a court of first instance on the same legal question;
(c)
since most provinces have adopted human rights legislation that prohibit
discrimination on the basis of family status, for the sake of consistency
between these statutes, the meaning and scope of family status and the legal
test to find discrimination on that prohibited ground are issues of central
importance to the legal system;
(d)
the Supreme Court of Canada has determined in the past that a
correctness standard applies to the meaning and scope of family status under
the Canadian Human Rights Act, and it should be left to the Supreme
Court of Canada itself to determine if this approach has been implicitly
overruled by its more recent decisions dealing with the standard of review.
The meaning and scope of family status
and the test for prima facie discrimination
[37]
Contrary to the appellant in Johnstone, in this appeal CN
does not dispute that the scope of the prohibited ground of family status is
wide enough to encompass parental obligations such as childcare obligations.
[38]
CN rather submits that the “issue raised by the instant appeal is when a
parental obligation gives rise to a prima facie discrimination and
requires accommodation”, and the “resolution of this issue requires an
appreciation of the nature of parental obligations”: CN’s memorandum at para.
40. In CN’s view, “non-mandatory aspects of child-rearing do not fall within
the scope of a parental obligation and are not protected by human rights law”: ibid.
at para. 41.
[39]
CN further adds that there are a number of ways parents can meet both
their professional obligations to their employer and their parental
obligations, including care of the children by one of the spouses, by other
family members, by daycare services, by nannies and by other appropriate
options. As a result, CN submits that family status discrimination on the basis
of childcare obligations does not occur unless no reasonable childcare option
is available without accommodation in the workplace: CN’s memorandum at para.
48.
[40]
CN thus submits that the test to establish a prima facie case of
discrimination on the basis of family status involving childcare obligations
requires the claimant to establish (1) that a parental obligation is at issue,
as opposed to a preferred option for meeting that obligation; (2) that a causal
connection exists between the parental obligation and any adverse employment
consequences; (3) that the claimant has made all reasonable efforts to meet the
parental obligation, but is unable to meet it without some form of accommodation
in the workplace; and (4) that the facts of the case demonstrate arbitrariness
or the perpetuation of prejudice or stereotyping: CN’s memorandum at para. 57.
[41]
As found by this Court in Johnstone, the prohibited ground of
discrimination of family status encompasses the parental obligations whose
non-fulfillment engages the parent’s legal responsibility to the child. The
childcare obligations contemplated by the expression family status are thus
those that have immutable or constructively immutable characteristics, such as
those that form an integral component of the legal relationship between a
parent and a child. As a result, the childcare obligations at issue are those
which a parent cannot neglect without engaging his or her legal liability. This
approach avoids trivializing human rights by extending human rights protection
to personal choices.
[42]
As further found in Johnstone, in order to make out a prima
facie case where an alleged workplace discrimination on the prohibited
ground of family status resulting from a childcare obligation is alleged, the
individual advancing the claim must show (i) that a child is under his or her
care and supervision; (ii) that the childcare obligation at issue engages the individual’s
legal responsibility for that child, as opposed to a personal choice; (iii)
that he or she has made reasonable efforts to meet that childcare obligation
through reasonable alternative solutions, and that no such alternative solution
is reasonably accessible; and (iv) that the impugned workplace rule interferes
in a manner that is more than trivial or insubstantial with the fulfillment of
the childcare obligation.
[43]
These factors are all further explained in Johnstone and need not
be reviewed again here.
Application to the circumstances of Ms.
Seeley
[44]
There is no fundamental dispute that Ms. Seeley meets the two first
factors of the test for a prima facie case of discrimination. She was
the mother of two young children at the time she was called to Vancouver, and these children were under her care and supervision and that of her husband.
She and her husband had a legal responsibility to ensure that their children
would be cared for and supervised while they were away at work.
[45]
The dispute in this case concerns the two last factors, namely whether
Ms. Seeley made reasonable efforts to meet her childcare obligations through
reasonable alternative solutions, and that no such alternative was reasonably
accessible, and whether her recall to cover the shortage in Vancouver
interfered in a manner that was more than trivial or insubstantial with the
fulfillment of her childcare obligations.
[46]
CN submits that by moving to the hamlet of Brule, Alberta, Ms. Seeley
placed herself in a situation where no childcare services could be accessed so
as to meet her obligations to her employer. This, in CN’s view, was a personal
family choice. CN further submits that Ms. Seeley decided that she would not
bring her children to Vancouver during her work assignment there. As a result,
according to CN, Ms. Seeley “did not discern between childcare options, but
rather sought to enforce her preferred option: an outright exemption from her
Collective Agreement obligation to protect shortages”: CN’s memorandum au para.
60.
[47]
CN further submits that “[a]s [Ms.] Seeley made no effort to explore
childcare options in Vancouver or in Brule (or nearby Jasper or Hinton, Alberta), she failed to establish a causal connection between her failure to
report to Vancouver (and consequent termination) and her parental obligations”:
ibid. at para. 62. As a result, “[h]ad the Tribunal undertaken the
proper analysis mandated by the case law, it would have recognized the complete
lack of evidence of any effort by [Ms.] Seeley to meet her parental obligations
in a way that would allow her professional obligations to be met”: ibid.
at para. 63.
[48]
CN also submits that the evidence before the Tribunal was not capable of
supporting a finding of arbitrariness, prejudice or stereotyping since the only
disadvantage suffered by Ms. Seeley was the termination of an exceptional
benefit in the form of continued access to recall opportunities eight years
after being laid off, when the condition of this benefit, accepting such
opportunities when offered, was no longer satisfied: CN’s memorandum at paras.
69 to 72.
[49]
It adds that the Tribunal erred in placing considerable weight on the
finding that CN did not believe that Ms. Seeley’s situation required
accommodation and did not attempt to accommodate her. In CN’s view, this
reasoning is problematic in that human rights law does not recognize a
freestanding duty to accommodate before a prima facie case of
discrimination has been established: CN’s memorandum at paras. 74 to 76.
[50]
The fundamental problem with CN’s submissions is that none of its
managers provided any useful information to Ms. Seeley about her work
assignment in Vancouver that would have allowed her to assess her childcare
needs. In fact, CN did not respond in a substantive way to any of her numerous
inquiries. Indeed, on February 25, 2005, a CN representative left a message
with Ms. Seeley’s husband stating that she was being forced to cover a shortage
in Vancouver and to report for duty in Vancouver within two weeks. This was
the only information CN ever provided to Ms. Seeley: Tribunal’s decision at
paras. 44-45, 60 to 62 and 123.
[51]
CN never provided Ms. Seeley information about the estimated duration of
her recall to Vancouver, about the location in Vancouver to which she would be
assigned, about her shifts once assigned to Vancouver, about the housing
accommodation that would be made available to her in Vancouver, or any other
pertinent information that would have assisted her in reasonably assessing whether
her required childcare needs could be fulfilled while responding to the recall.
As a result, taking Ms. Seeley’s children with her to Vancouver became an
unrealistic option because she had no idea where, when or for how long she
would be working in Vancouver.
[52]
In these circumstances, the Tribunal found that a prima facie case
of discrimination had been made out, and the Federal Court Judge concluded that
this finding was reasonable. In this regard, I agree with the assessment of the
Federal Court Judge set out at paragraph 90 of his reasons:
[90] I would agree that by any standard, Ms. Seeley
has provided evidence of a prima facie case of discrimination based on
family status. She is the primary caregiver for two children of tender age. Her
husband works full time and is the family breadwinner. The choice of residence
in Brule was not an issue previously and Ms. Seeley’s evidence indicates she
considered whether childcare was available in nearby Hinton. CN never provided
information necessary to explore whether childcare options were available or
feasible in Vancouver. A realistic assessment of Ms. Seeley’s familial
circumstances does disclose she would have significant difficulty in fulfilling
her childcare responsibilities in responding to an indefinite recall assignment
to cover the Vancouver shortage.
[53]
As for the fourth factor, it seems obvious that requesting Ms. Seeley to
move from Alberta to British Columbia to meet a work shortage is a work related
situation that interferes in a manner that is more than trivial or
insubstantial with the fulfillment of Ms. Seeley’s childcare obligations.
[54]
In these circumstances, like the Federal Court Judge, I would not
disturb the Tribunal’s finding that Ms. Seeley met her burden of establishing a
prima facie case of discrimination. This may well have been a different
conclusion had CN actually provided Ms. Seeley with pertinent information about
her new work arrangements in Vancouver, but it did not.
Duty to accommodate
[55]
Once a prima facie case of discrimination has been made out, the
burden shifts to the employer to demonstrate that the impugned standard or
action is a bona fide occupational requirement (BFOR). The Supreme Court
of Canada provided the following test for this purpose at paras. 54 and 55 of Meiorin:
[53] Having considered the various alternatives, I propose
the following three-step test for determining whether a prima facie
discriminatory standard is a BFOR. An employer may justify the impugned
standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose
rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in
an honest and good faith belief that it was necessary to the fulfilment of that
legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the
accomplishment of that legitimate work-related purpose. To show that the
standard is reasonably necessary, it must be demonstrated that it is impossible
to accommodate individual employees sharing the characteristics of the claimant
without imposing undue hardship upon the employer.
[55] This approach is premised on the need to develop
standards that accommodate the potential contributions of all employees in so
far as this can be done without undue hardship to the employer. Standards may
adversely affect members of a particular group, to be sure. But as Wilson J.
noted in Central Alberta Dairy Pool, supra, at p. 518, "[i]f
a reasonable alternative exists to burdening members of a group with a given
rule, that rule will not be [a BFOR]". It follows that a rule or standard
must accommodate individual differences to the point of undue hardship if it is
to be found reasonably necessary. Unless no further accommodation is possible
without imposing undue hardship, the standard is not a BFOR in its existing
form and the prima facie case of discrimination stands.
[56]
In this case, the Tribunal found that CN had met the first two parts of
the Meiorin test. However, it also found that CN had not met the third
part since it concluded that CN had failed to demonstrate that accommodating
Ms. Seeley would cause undue hardship.
[57]
CN submitted to the Tribunal, and it reiterates in this appeal, three
distinct arguments to support its argument with respect to having met its duty
to accommodate.
[58]
First, in CN’s view, extending the date that Ms. Seeley was
required to report to Vancouver by a few months to June 30, 2005 was a
sufficient and reasonable accommodation in the circumstances. The Tribunal
rejected this submission on the ground that this “was not in any way a
meaningful response to the Complainant’s request and to the factual
underpinnings of her situation which she had communicated to the employer
through her correspondence”: Tribunal’s reasons at para. 145. I agree.
[59]
As the Tribunal found, at paras. 150 and following of its decision, CN
was not sensitive to Ms. Seeley’s situation, did not answer her requests, and
did not consider family status matters that involve parental obligations as a
ground of discrimination that necessitated any form of accommodation
whatsoever.
[60]
Second, CN adds that, in any event, the duty to accommodate does
not extend to a complete exemption from Ms. Seeley’s obligation to report to
work under the terms of the collective agreement. Though I recognize that the
duty to accommodate usually results in an accommodation allowing the employee
to actually participate in work related activities, each case must be
considered in light of its particular circumstances.
[61]
CN had accommodated other running trade employees who had been recalled
to Vancouver with Ms. Seeley. As an example, an employee identified as AB was
“set up” at the Sioux Lookout terminal. By being “set up” at his home terminal,
he was no longer required to cover the shortage in Vancouver: Tribunal’s
decision at para. 49. Similarly, an employee identified as U was accommodated
in various manners (extension of time to report, leave of absence, and “set up”
at his home terminal) so as to attend to his father who was terminally ill:
Tribunal’s decision at paras. 50 to 57 and 130.
[62]
It is abundantly clear from these examples that various forms of
accommodation were provided by CN to other employees that were not offered to
Ms. Seeley nor even contemplated in her case. In light of these circumstances,
CN’s submissions on this point are rather hollow.
[63]
Third, CN submits that seniority rights under the collective
agreement were ignored by the Tribunal, a submission that was identified as the
“super seniority” argument by both the Tribunal and the Federal Court Judge.
The Tribunal rejected this submission on the basis that CN had failed to submit
evidence that an accommodation for Ms. Seeley would have caused any undue
hardship for CN or its employees with more seniority: Tribunal’s decision at
paras. 166 to 173. The Federal Court Judge added that CN never raised this
question with the Union before dismissing Ms. Seeley, and it was therefore
precluded to raise this issue after the fact: Federal Court Judge’s reasons at
para. 109.
[64]
In this matter, I agree with both the Tribunal and the Federal Court
Judge. I add that seniority and other collective labour agreement provisions do
not normally constitute an impediment to an accommodation required under human
rights legislation: Commission scolaire régionale de Chambly v. Bergevin,
[1994] 2 S.C.R. 525 at p. 551; McGill University Health Centre (Montreal
General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal,
2007 SCC 4, [2007] 1 S.C.R. 161 at paras. 11 to 28.
Special Compensation
[65]
In this appeal, CN is not challenging any of the remedies granted by the
Tribunal except with respect to the amount of $20,000 for special compensation
under subsection 53(3) of the Canadian Human Rights Act, which reads as
follows:
|
53. (3) In addition to any order
under subsection (2), the member or panel may order the person to pay such
compensation not exceeding twenty thousand dollars to the victim as the
member or panel may determine if the member or panel finds that the person is
engaging or has engaged in the discriminatory practice wilfully or
recklessly.
|
53. (3) Outre les pouvoirs que lui confère le
paragraphe (2), le membre instructeur peut ordonner à l’auteur d’un acte
discriminatoire de payer à la victime une indemnité maximale de 20 000 $,
s’il en vient à la conclusion que l’acte a été délibéré ou inconsidéré.
|
[66]
CN submits that the Tribunal’s finding of reckless conduct in this case
was not supported by the evidence. CN argues that at the time it made its
decisions concerning Ms. Seeley, Campbell River was the only appellate
decision concerning the scope of the prohibited ground of discrimination of
family status, and that the cases on which the Tribunal relied to support a
broader interpretation of family status had not been rendered by the time Ms.
Seeley was terminated on July 4, 2005. In CN’s view the “failure to abide by a
jurisprudential current that did not yet exist is not representative of
reckless behaviour”: CN’s memorandum at para. 117.
[67]
CN adds that the Tribunal’s conclusion of recklessness was based on its
finding that CN had not applied its internal accommodation guidelines to Ms.
Seeley. In CN’s view, it “is difficult to imagine why CN would have done so,
when the state of the law at the relevant time provided no indication that
[Ms.] Seeley’s circumstances might have amounted to prima facie
discrimination”: CN’s memorandum at para. 118.
[68]
The Federal Court Judge rejected these submissions on the basis that CN
“steadfastly ignored the basis for Ms. Seeley’s request for accommodation
despite [that] available jurisprudence recognized childcare as within the scope
of human rights based on family status.”: Federal Court Judge’s reasons at
para. 113. I agree with the Federal Court Judge on this matter, and add that
the failure by CN to provide any significant information to Ms. Seeley
concerning her assignment to Vancouver that could have assisted her in
determining her childcare needs was, in any event, a form of reckless conduct.
Conclusion
[69]
I would therefore dismiss this appeal, with costs to be paid by CN in
favour of Ms. Seeley. There should be no award of costs for or against the
respondent Canadian Human Rights Commission or any of the interveners.
"Robert M. Mainville"
“I agree
J.D. Denis Pelletier J.A.”
“I agree
A.F. Scott J.A.”
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