Meeting 17: Contemporary Human Rights Cases

French v. Selkin Logging, 2015 BCHRT 101 (CanLII)

Mr. French has worked in the logging industry since 1990, for a variety of employers. In 2009, Mr. French was diagnosed with cancer. Mr. French underwent surgery, chemotherapy and radiation as part of his cancer treatment. In 2013, Mr. French began working for Selkin Logging. After surgery related to his cancer treatment Mr. French began smoking marijuana. Mr. French was smoking marijuana for the treatment of pain. Throughout his employment with Selkin, Mr. French smoked marijuana.  Mr. French admitted that he would smoke marijuana while at work. It is important to note that Mr. French was not medically prescribed marijuana, nor was he legally entitled to possess marijuana. In this case Mr. French alleges that he missed medical appointments related to his cancer, on October 24th and December 4th, due to Selkin Logging. Mr French argued that Selkin was negligent in denying his requests for leaves related to medical appointments. In addition, Mr. French alleges that Selkin Logging had a duty to accommodate his need to smoke Marijuana while at work and therefore that his termination was a form of discrimination based physical disability contrary to the Code. In response to this allegation Selkin Logging indicated that they could not accommodate Mr. French when safety was at stake. In this case it was found that Selkin did not deny Mr. French leave to attend any medical appointments and that Selkin’s refusal to permit Mr. French to continue smoking marijuana at the workplace was a bona fide occupational requirement and that the termination of Mr. French’s employment was not a contravention of the Code.

Question(s) to be Determined:

1. Was the complainant, John French, discriminated against in the area of employment on the ground of physical disability, contrary to s. 13 of Human Rights Code?

Findings:

1. Was the complainant, John French, discriminated against in the area of employment on the ground of physical disability, contrary to s. 13 of Human Rights Code?
   NO

Reasoning:

In this case it was found that Selkin did not cause Mr. French to miss medical appointments on October 24th and December 4, 2013. The credibility of Mr. French’s testimony in relation to these missed medical appointments was called into question during the proceedings. According to Mr. French he felt compelled to work on the above listed dates because he was not informed who would be replacing him for those days.

In addressing this issue it was stated, “Selkin may not be a sophisticated employer, and may not have expressly reported to Mr. French which person would be replacing him, but that is not discrimination. Indeed Mr. French blames himself, attributing his dedication to the job as the reason he would not leave the Company without someone to replace him. However, this would be his decision, not a decision by Selkin to deny him leave; this is rationally improbable when considering the competing interests at stake; and, it is highly improbable that Mr. French would not have known which employees could replace him, even if he thought they were less capable than him” (para 104). In relation to this part of Mr. French’s complaint he did not establish that Selkin discriminated against him on the ground of physical disability.

In this case Mr. French also alleged that Selkin discriminated against him on the ground of physical disability in relation to the smoking of marijuana for his chronic generalized joint pain. Important to note in this case is the fact that Mr. French was not advised by his doctors to smoke marijuana, nor was he prescribed it.  Mr. French also did not possess a “marijuana card” permitting him to legally possess marijuana. In addition, it is important to point out that Selkin Logging has zero tolerance for drugs on the work site, as part of its safety plan.Ultimately it was concluded that Selkin’s refusal to permit Mr. French to continue smoking marijuana at the workplace was a bona fide occupational requirement (BFOR). In making this decision some important caveats were provided.

“Firstly, I would not conclude that a general rule prohibiting consumption of substances such as marijuana, narcotics or alcohol at the workplace would be outside the scope of an employer’s legitimate management rights. As a workplace rule at a logging operation, I find a zero tolerance policy for marijuana would satisfy the first two steps of the Meiorin test. However strict application of the zero tolerance rule, without consideration of accommodation, may offend the Code in circumstances where the individual may be legitimately using marijuana for medical purposes. The problem in this case is that Mr. French was not legitimately in possession and use of marijuana, and, he did not inform his employer he was using an impairing or potentially impairing substance at the workplace” (para 125 and 126).

In conclusion it was found that “Mr. French’s smoking of marijuana at work, without legal authorization and without medical authorization confirming that it was safe for him to do so, was an accommodation which his employer could not properly abet in the circumstances. It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship. Mr. French was the party best placed to propose an accommodation. However, at the time, and after his termination, Mr. French did not, and could not, provide Selkin with the information it would have required. That is not Selkin’s fault (para 132 and 133).

Gibson v. Ridgeview Restaurant Limited o/a Gator Ted’s & Grill and Ted Kindos, 2013 HRTO 1163 (CanLII)

In this case, the complainant, Steve Gibson has authorization from Health Canada to possess medical marijuana (an ATP). The complainant has a severe spinal cord injury for which he uses medical marijuana to deal with the symptoms of his injury. In this case it was determined that the complainant’s medical condition constitutes a disability within the meaning of the Code. Mr. Gibson was a frequent patron at the respondent restaurant “Gator Ted’s”. The owner of Gator Ted’s, Mr. Kindos was aware of Mr. Gibson’s ATP and asked that Mr. Gibson not smoke marijuana in the restaurant. This request was made out of concern for other customers and the legality surrounding the smoking of marijuana in a licensed establishment. In addition, Mr. Kindos requested that Mr. Gibson not consume marijuana within one to six feet of the restaurant’s entrance or on the licensed patio of the restaurant. Mr. Gibson was instructed to take his medication in the parking lot of the restaurant. In this case three incidents were described where it was asserted that Mr. Gibson had violated the parameters outlined by Mr. Kindos in relation to the smoking of marijuana on the premise of the restaurant.  Ultimately, Mr. Gibson was asked not to return to the restaurant as a result of smoking marijuana in close proximity to the restaurant’s entrance after being told not to. In this case it was found that the “complainant had not established that he has any disability-related need to smoke marijuana in close proximity to the restaurant’s entrance, or that the respondents’ requirement that he not do so created any disadvantage for him in relation to disability” (para 93). The respondents’ requirement that marijuana not be smoked in close proximity to the restaurant’s entrance is reasonable and bona fide. Based on these findings the case was dismissed.

Question(s) to be Determined:

1. Was the complainant, Steve Gibson, discriminated against on the basis of disability in services, contrary to sections 1 and 9 of the Human Rights Code?

Findings:

1. Was the complainant, Steve Gibson, discriminated against on the basis of disability in services, contrary to sections 1 and 9 of the Human Rights Code?
   NO

Reasoning:

1. In this case it was found that the complainant was not discriminated against on the basis of disability contrary to the Code. It was stated that the “complainant simply did not argue, nor did he present any evidence, that he was disadvantaged in any way by the respondents’ requirement that he not smoke marijuana in close proximity to the restaurant’s entrance. Rather, he denied that he did so. However, I have found that the complainant did smoke marijuana in close proximity to the restaurant’s entrance, after being asked not to do so, and that this is why he was ultimately asked not to return to the restaurant. In the particular circumstances of this case, I am not satisfied that the complainant has established a prima facie case of discrimination within the meaning of the Code” (para 93).

Further reiterating this point it was stated that “the respondents’ requirement that marijuana not be smoked in close proximity to the restaurant’s entrance is reasonable and bona fide. It appears from the evidence that the respondents adopted the requirement in light of legitimate concerns for their patrons, including health-related concerns, that are “rationally connected” to running a licensed bar/restaurant. It also appears that the respondents adopted the requirement in good faith, in the belief that it was necessary in light of their legitimate concerns. Lastly, having regard to all of the circumstances, and not excluding “common sense”, it appears that permitting the complainant to smoke marijuana in close proximity to the restaurant’s entrance would have given rise to undue hardship” (para 100).

H.T. and J.T. v. ES Holdings Inc. o/a Country Herbs, 2015 HRTO 1067 (CanLII)

In this case J.T. and H.T. worked full-time for the respondent. The respondent is a herb grower ad importer. J.T. and H.T.’s bosses were Mr. Esmile and Ms. Singh. The applicants are Christian Mennonites who celebrate a religious holiday called Himmilfaurt. Prior to the holiday (approx. three weeks) H.T. accompanied by J.T. and told Ms. Singh that they were not able to work on the holiday. Approximately a week prior to the holiday the applicants again informed Ms. Singh that they would be unable to work on the holiday.  Important to note is the fact that only H.T. was scheduled to work on the holiday (May 29, 2014). Mr. Esmile and Ms. Singh told H.T. that she would either have to come in on the holiday during the day or at midnight. Two days before the holiday, H.T. texted Mr. Esmile informing him he would not be into work on the holiday and that her parents wouldn’t be dropping her off at midnight.  When neither, H.T. or J.T. showed up to work on May 29, 2014 the respondent fired them.  The respondent claimed that H.T. and J.T. were fired in accordance with the respondent’s attendance policy. In this case the respondents also tried to showcase why providing the holiday off to employees would have caused undue hardship for the company. Although oral evidence was provided regarding the hardship the company suffered, they failed to provide documentary evidence to support their case (monthly statements, balance sheets or even emails from customers who complained). In this case it was ultimately found that the respondent discriminated against J.T. and H.T on the basis of creed. In addition it was found that H.T. was subject to reprisal from the respondent for not attending work on the holiday.

Question(s) to be Determined:

1. Were the applicants, J.T. and H.T. discriminated against with respect to employment on the basis of creed and association contrary to the Human Right Code?
    
2. Were the applicants, J.T. and H.T. subject to reprisal from the respondent for not attending work on the holiday?

Findings:

1. Were the applicants, J.T. and H.T. discriminated against with respect to employment on the basis of creed and association contrary to the Human Right Code?
   YES
    
2. Were the applicants, J.T. and H.T. subject to reprisal from the respondent for not attending work on the holiday?
   YES (but only H.T.)

Reasoning:

1. In this case it was determined that the applicants were discriminated against with respect to employment  on the basis of creed (H.T.) and association (J.T.) contrary to the Code. It was stated, “I find that the expectation that H.T. would work on the holiday in accordance with the attendance policy or be fired was discriminatory on the basis of her creed, because the applicant’s creed prevented her from working on the holiday. The respondent argues H.T. had the option of working at midnight, but I will discuss below, why this was not a reasonable option. In my view, because the policy meant H.T. had to work on the holiday or risk being fired (and was in fact fired from her position with the respondent), she has established a prima facie case of adverse treatment” (para 56).
   
   Further commenting on the alternative offered to H.T. it was decided that coming in to work at midnight was not a reasonable attempt at accommodation. It was stated,
   
   “with respect to the substantive duty to accommodate, the only alternative offered was for H.T. to work at midnight. Given her particular circumstances and the agreement of the respondent with S.T. that H.T. would not work past 10 p.m. because of her age, this was not a reasonable attempt to accommodate her. She had concerns about working late at night in a rural setting. In addition, she did not have a means of transportation to get to work at midnight. While the applicants were clear that they were not claiming discrimination on the basis of age, H.T.’s age certainly is an appropriate factor to consider when assessing the accommodation offered. In my view, the alternative offered, particularly in light of the uncontroverted evidence that Ms. Singh agreed with S.T. that H.T. would not work past 10 p.m., was not a reasonable alternative, and no other options were available to H.T. Whether or not she was expected to work the following day shift, the expectation that a 16 year old would work at midnight was an unreasonable one” (para 62).
   
   Because J.T. was found not to have been scheduled to work on the holiday, it was decided that J.T. was fired because of his association with his sister who had asserted her right not to work on the holiday, and with whom he shares the same religion.
    
2. In this case it was determined that only H.T. was subject to reprisal from her employer. Because J.T. was not scheduled to work on the holiday, he did not assert his right not to work on his holiday and his firing was not a reprisal for doing so.

In the case of H.T. “it is clear that the respondent intended to punish her for asserting her Code right not to work on the holiday given that she was terminated on the day of the holiday” (para 73).
“My finding that the respondent reprised against H.T. is supported by Ms. Singh’s evidence that she discussed with the employees, including the applicants, that if they did not come in on the holiday, they could be fired. In addition, the respondent’s evidence was that the applicants were terminated because if they were not, others would feel they did not have to follow the attendance policy in the future. It is clear that H.T.’s termination was a reprisal” (para 74).

Remedy:

In this case the remedies ordered for H.T. and J.T. were monetarily different. The different amount reflect the finding of reprisal against only H.T. and the different lengths of time that H.T. and J.T. were unemployed after being terminated from the respondent’s business. Both H.T. and J.T. were awarded monetary compensation for lost wages and injury to dignity feelings and self-respectIn addition to these monetary awards, the respondent was ordered to undertake “Human Rights 101” training and post Code cards in central locations throughout the respondent’s place of business.

The respondent shall pay to H.T.:

• $10,000.00 for injury to dignity, feelings and self-respect and reprisal;
• the sum of $1927.00 for wage loss from May 29 to June 29, 2014;
• pre-judgment interest of 1.3% on the amounts awarded for injury to dignity, feelings and self-respect from June 14, 2014 to the date of this Decision;
• pre-judgment interest of 1.3% on the amounts awarded for wage loss from June 14, 2014 to the date of this Decision; and,
• Pay to the applicant post-judgment interest of 2% on the amounts awarded for injury to dignity, feelings and self-respect and wage loss, commencing 30 days after the date of this Decision (para 102).

The respondent shall pay to J.T.:

• $7,500.00 for injury to dignity, feelings and self-respect;
• the sum of $6690.00 for wage loss from May 29 to October 30, 2014;
• pre-judgment interest of 1.3% on the amounts awarded for injury to dignity, feelings and self-respect from August 14, 2014 to the date of this Decision;
• pre-judgment interest of 1.3% on the amounts awarded for wage loss from August 14, 2014 to the date of this Decision; and,
• post-judgment interest of 2% on the amounts awarded for injury to dignity, feelings and self-respect and wage loss, commencing 30 days after the date of this Decision (para 103).

The respondent shall:

• Ensure that Ms. Singh and Mr. Esmile take the Ontario Human Rights Commission’s on-line training “Human Rights 101” within 60 days of this Decision, and provide the applicant with written confirmation that they have done so upon completion of the course; and,
• Within 30 days of the date of this Decision post Code cards in central locations throughout the respondent’s place of business, particularly in the lobby and in areas where the staff takes breaks or has meetings (para 104).

Christie v. Trent University, 2015 HRTO 937 (CanLII)

In 2011, the History department at Trent University posted a job advertisement for an Assistant Professor with a specialization or focus on “the history of French Canada and Quebec.” The applicant in this case, Dr. Christie, applied for this position but was not offered an interview. Dr. Christie believed that she was qualified for the position and was discriminated against, contrary to the Human Rights Code, in relation to place of origin, ethnic origin and age. Dr. Christie is a bilingual Anglophone and she alleges that she was not interviewed because she is not French Canadian or Quebecoise and because her first language was not French. In addition, Dr. Christie alleged that those who were interviewed were chosen because they were or were perceived to be from Quebec and Francophone. Dr. Christie further alleges that the individuals who were chosen for interview were or were perceived to be significantly younger. In this case, it was found that six members of the selection committee (Drs. Andriewsky, Struthers, Anastakis, Palmer, Sangster and Miron) decided not to include Dr. Christie on their interview short lists because of a perceived lack of expertise in the area French Canadian and Quebec history. While members of the selection committee did feel that Dr. Christie was a strong “Canadianist” or Canadian scholar, they did not feel that she possessed an expertise in the area of French Canadian and Quebec History. This decision was made based on a review of Dr. Christie’s CV and the publications listed within the CV. In this case, it was found that three other members of the selection committee, Drs. Wright, Stapelton and Walden used criteria in addition to Dr. Christie’s  publications that were listed in her CV, to determine that the applicant was not an expert in French Canada and Quebec history. In relation to both Drs. Wright and Stapelton it was found that this additional criteria did not create a distinction based on any of the alleged grounds cited in the application. With respect to Dr. Walden, it was found that his criteria created a distinction based on place of origin and ancestry, but that this criteria was never articulated to the other members of the committee, nor applied by them, and had no influence on the majority’s decision not to offer the applicant an interview. In this case it was found that none of the selection committee members discriminated against the applicant in relation to age. Based on these findings, the case was dismissed.

Question(s) to be Determined:

Was the applicant, Dr. Christie, discriminated against in relation to place or origin and ethnic origin, when she was not offered an interview for a tenure-track position in the History department at Trent University?

Was the applicant, Dr. Christie, discriminated against in relation to age, when she was not offered an interview for a tenure-track position in the History department at Trent University?

Findings:

1. Was the applicant, Dr. Christie, discriminated against in relation to place or origin and ethnic origin, when she was not offered an interview for a tenure-track position in the History department at Trent University?
   NO
    
2. Was the applicant, Dr. Christie, discriminated against in relation to age, when she was not offered an interview for a tenure-track position in the History department at Trent University?
   NO

Reasoning:

1. In this case it was found that the majority of selection committee members (six faculty) “excluded the applicant for the reason that she did not demonstrate in her application the required expertise. I find that these members of the committee essentially formulated their opinions that the applicant was not an expert on French Canada and Quebec history on the basis of her application for the position, particularly her cv which indicated that her publications did not focus on French Canada and Quebec” (para 56).
   
   Only in the case of Dr. Walden was it found that the applicant was discriminated on grounds contrary to the Code. In this case it was found that Dr. Walden’s criteria were not bona fide, or reasonably necessary for the position. “While Dr. Walden testified that he did not believe that he discriminated against candidates contrary to the Code, I find that he applied criteria that created a distinction on the basis of Code grounds. Dr. Walden’s preference for candidates whose first or dominant language is French, and who grew up or lived a substantial time in Quebec, creates a distinction with respect to people whose place of origin is Ontario, where English is the dominant language, like the applicant’s, and with respect to people whose ancestry is not French like the applicant’s is not” (para 135).
   
   In dismissing this case it was stated; “while the applicant’s ancestry and place of origin were factors in Dr. Walden’s decision, and while I allow for the possibility that he may have included the applicant on his personal list had he not applied those factors, I find that the respondent University did not discriminate against the applicant. I say this because Dr. Walden was only one of nine members on the committee representing the respondent, and the other eight members clearly decided not to recommend that the applicant be offered an interview, let alone the position, for reasons which were not related to alleged Code grounds. The disadvantage to the applicant occurred, but it did so for reasons unrelated to the Code. The applicant has therefore not established on a balance of probabilities that the respondent discriminated against her” (para 141).
    
2. After interviewing each of the selection committee members, it was determined that age was not a factor used in deciding not to interview Dr. Christie.

Dr. Sangster - “with respect to the age of the candidates, Dr. Sangster testified that she knew when they obtained their degrees, but did not know what ages they were. She stated that people get their PhD’s at all ages, and go to school at all ages, so that she has observed that there appears to be a large range of ages of students doing graduate work. When questioned by the applicant’s counsel, Dr. Sangster testified that she looked at the full body of work of a candidate, including the applicant’s recent work, to determine the focus of research” (para 35).

Dr. Palmer – “testified that he did not know the ages of the candidates, and saw no point in trying to guess on the basis of when they obtained degrees. He did not make any assumptions about their ages. He was looking for a historian of Quebec and French Canada, someone with a demonstrated expertise in the field, and he “didn’t pay attention to those other issues” (para 42).

Dr. Anastakis – “testified that he did not think of how old the applicant or the other candidates were when reviewing their applications to decide who to put on his personal list, and he did not even consider when the candidates obtained their PhD’s. He said that he was simply reviewing who was a specialist in Quebec or French Canada history” (para 51).

In this case further insight was provided in relation to seemingly neutral factors which might have adversely impacted the applicant because of age.

“For example, while Dr. Miron was not examined on whether she considered a candidate’s age in making her selections of candidates to interview, she did testify, like some of the other professors, that the position was an entry-level position. She testified that she was looking for a candidate’s potential to be a successful academic. Similarly, Dr. Sangster testified that she was looking for the pace of publication more than the quantity of publications. This was a theme discussed by a few of the professors in their evidence. They felt that it was appropriate to factor in how many years candidates had to write and publish since obtaining their doctorates, and to measure their publication records in that context. I find that such a method of assessment was appropriate given that the competition was for a junior entry-level position. Such a method does not adversely affect old candidates on the basis of age, and it assures that young candidates are not adversely affected either” (para 67).

Lalwani v. ClaimsPro Inc., 2016 AHRC 2 (CanLII)

Mr. Kishor Lalwani was employed by ClaimsPro Inc. as an adjuster in its Fort McMurray office from September 2008 till his termination on March 16, 2010. In this case Mr. Lalwani, alleges that he was subjected to discrimination in the workplace by his supervisor, Mr. Dalton Purdy, on the basis of race, religious beliefs, colour, ancestry and place of origin, contrary to section 7 of the Alberta Human Rights Act. In addition, Mr. Lalwani alleges that he was ultimately terminated in a discriminatory manner on the basis of race, religious beliefs, colour, ancestry and place of origin, contrary to section 7 of the Alberta Human Rights Act.  In this case Mr. Lalwani recounted a number of incidents that contributed to what he considered to be a poisoned work environment (see para 21 a-k). In this case it was decided that Mr. Lalwani’s testimony was credible and consistent. It was further decided that Mr. Lalwani had made his claims of discrimination known to Mr. Murphy, the District Manager for ClaimsPro and that these claims were not investigated with any diligence. It was found that the negative comments and treatment by Mr. Purdy towards Mr. Lalwani because of his race, religious beliefs, colour, ancestry and place of origin created a poisoned work environment. In relation to the second issue of termination, it was ultimately determined that Mr. Lalwani’s employment was terminated for reasons unrelated to Mr. Purdy’s treatment of the complainant.

Question(s) to be Determined:

1. Has the complainant met his onus to establish, on a balance of probabilities, that the respondent discriminated against him with respect to a term or condition of employment, in that Mr. Lalwani’ s work environment was poisoned, either in whole or in part because of Mr. Lalwani’s race, religious beliefs, colour, ancestry, or place of origin?
    
2. Has the complainant met his onus to establish, on a balance of probabilities, that the termination of his employment was, either in whole or in part, because of the complainant’s race, religious beliefs, colour, ancestry, or place of origin?

Findings:

1. Has the complainant met his onus to establish, on a balance of probabilities, that the respondent discriminated against him with respect to a term or condition of employment, in that Mr. Lalwani’ s work environment was poisoned, either in whole or in part because of Mr. Lalwani’s race, religious beliefs, colour, ancestry, or place of origin?
   YES
    
2. Has the complainant met his onus to establish, on a balance of probabilities, that the termination of his employment was, either in whole or in part, because of the complainant’s race, religious beliefs, colour, ancestry, or place of origin?
   NO

Reasoning:

In this case, the rationale set out in Peel, supra guided the tribunal chair in making their findings:

1. the prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
2. there is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
3. the prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
4. there need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
5. racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

1. In this case it was determined that the respondent discriminated against Mr. Lalwani on the basis of race, religious beliefs, colour, ancestry, and place of origin, therefore creating a poisoned work environment.
   
   “The series of negative comments and treatment by Mr. Purdy towards Mr. Lalwani because of his race, religious beliefs, colour, ancestry and place of origin created a poisoned work environment which Mr. Lalwani was forced to endure as a term or condition of employment. That Mr. Purdy was Mr. Lalwani’s superior in the workplace, and the respondent knew about the allegations regarding discrimination yet took no effective action, further supports my view that a poisoned work environment existed contravening the Act” (para 133).
    
2. In this case it was not found that Mr. Lalwani was terminated, either in whole or in part, because of the complainant’s race, religious beliefs, colour, ancestry, or place of origin. In making this finding it was stated that, “Mr. Lalwani’s position was that nobody except Mr. Purdy treated him in a discriminatory manner. The further evidence is that Mr. Lalwani distanced Mr. Watson (in a site visit), levied unfounded allegations of wrongdoing against Mr. Vey, and was generally unwilling to consider his own behaviour in such non-discriminatory interactions. Considering all of the evidence, quite distinct from Mr. Purdy’s treatment towards Mr. Lalwani, there was evidence that the respondent terminated Mr. Lalwani’s employment for reasons unrelated to Mr. Purdy’s treatment” (para 138).

The evidence considered in making this finding includes:

(a) Mr. Phillips authorized the hiring of Mr. Lalwani. I infer Mr. Phillips would have had full knowledge of many of Mr. Lalwani’s personal characteristics that fall within protected grounds. Mr. Phillips also authorized the termination of Mr. Lalwani;

(b) Mr. Purdy was not involved in any way in the termination decision;

(c) The testimony of Mr. Vey and Mr. Murphy regarding Mr. Lalwani’s defensive response to constructive feedback from them. This is particularly relevant given Mr. Lalwani’s testimony that neither Mr. Vey or Mr. Murphy behaved in a discriminatory fashion towards Mr. Lalwani;

(d) The evidence of other witnesses (not Mr. Purdy) that Mr. Lalwani did not accept constructive feedback but would become very defensive and blame others without taking responsibility for any part in conflicts;

(e) The decision to terminate Mr. Lalwani was taken primarily by Mr. Louis, who considered Mr. Lalwani the weakest adjuster in the office based on his file review. At the time of termination, Mr. Louis had been the District Manager for less than three months and had not attended in Fort McMurray;

(f) The testimony of Mr. Watson regarding his attendance at a site visit with Mr. Lalwani where he was made to feel bad by Mr. Lalwani for speaking during the visit such that he did not attend a site visit with Mr. Lalwani again;

(g) The significance the respondent attributed to the fact that Mr. Lalwani made allegations (in the six-page complaint around March 3, 2010) against Mr. Vey of impropriety; and

(h) The Branch Review conducted by Mr. Harrity noting Mr. Lalwani’s lack of proactivity on files (para 138).

Remedy:

In this case, Mr. Lalwani was subjected to a poisoned work environment that the respondent allowed to continue. The impact on Mr. Lalwani was significant both while he remained employed and after his employment was terminated. While still employed, he took a stress leave due to the treatment by Mr. Purdy. Mr. Lalwani testified that the experience with ClaimsPro has ruined his life: he was suicidal following the termination of his employment and has suffered from depression.

In light of this finding and impact, Mr. Lalwani was awarded $25,000 for injury to dignity and self-respect.

Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570 (CanLII)

In this case, the applicant, Susan Kovios, has a scent and fragrance sensitivity. In January of 2010 the applicant responded to a job ad from the respondent, Inteleservices Canada Inc. During the interview process, Ms. Kovios disclosed her scent sensitivity and asked if it would be a problem in the workplace. At the time, the respondent assured Ms. Kovios that it would not be a problem, referencing the company’s fragrance-free policy.  After being hired, the applicant commenced a three day training session with the respondent.  During the course of this three day training session the applicant encountered a number of problems related to scent. In each case, once notified, the respondent took measures to alleviate Ms. Kovios’ discomfort and/or concern. On day two, once notified, the respondent directed a fan at Ms. Kovios in an effort to displace and diffuse scent in the room. On the third day of training Ms. Kovios noticed a strong smell of cologne in the training room. After reporting this smell, it was suggested that Ms. Kovios could complete the rest of the training by shadowing one of the workers on the call centre floor. After moving to shadow one of the workers on the call centre floor, Ms. Kovios indicated that this particular worker was wearing cologne. At this point, Ms. Kovios felt like she was on the verge of a panic attack and stated that she could not remain in the environment without accommodation. After this third day of training Ms. Kovios did not return to work. In making its decision that the respondent did not discriminate against the respondent on the basis of disability, the Tribunal stated that the medical documentation provided by the applicant provided very little detail about the nature and extent of the applicant’s scent sensitivity. In addition, the Tribunal commented on the fact that Ms. Kovios was not clear regarding her need for accommodation (i.e. that she could not be exposed to scents that are not detectable by others). In its decision the Tribunal stated “an employer cannot provide accommodation for a problem that it does not know about” (para 65).

Question(s) to be Determined:

1. Did the respondent, discriminate against the applicant on the basis of disability therefore failing to accommodate the applicant’s disability (i.e. her sensitivity to scents)?

Findings:

1. Did the respondent, discriminate against the applicant on the basis of disability therefore failing to accommodate the applicant’s disability (i.e. her sensitivity to scents)?
   NO

Reasoning:

1. In this case it was decided that the respondent did not discriminate against the applicant on the basis of disability. Therefore, it was further decided that the respondent had not failed to accommodate the applicant’s disability (i.e. her sensitivity to scents). In making this finding the Tribunal stated, “It is apparent, based on her evidence, that the applicant’s experience is that she is affected by scents that are not detectable by others. If the accommodation that she required was that she could not be exposed to scents that are not detectable by others, she should have been clear that was the case. She did not make this clear and instead indicated that her needs could be met by having the fragrance-free policy enforced. However, the fragrance-free policy, in any of its iterations, requests that employees not use scented products and in particular refrain from using strongly scented products” (para 68).

Further reiterating this point, the Tribunal stated, “in the circumstances of this case, it appears to me that from the outset, the applicant had a positive obligation to accurately identify to the respondent what her accommodation needs were and to clearly explain to the respondent why the solutions that had been attempted were not adequate” (para 72).

In this case the grievor is a full professor at Laurentian University. The grievor came to work at the university in July 2003 after teaching at other universities for several years. Since February 2005 the grievor has had several medical leaves of absence from work. At the time of the hearing the grievor was on his fourth period of sick leave. The grievor was on sick leave due to bi-polar disorder. During the above mentioned medical leaves of absence, there had been several attempts to return to work that were not successful. The Union argued that the prior unsuccessful returns to work failed because the employer did not make appropriate accommodations for the grievor and his condition.  From the employer’s position the four previous failed accommodation/return to work attempts suggested that the grievor remained unfit to return to work. The University also argued that a further unsuccessful return to work would be unfair to students enrolled in the grievor’s course(s). In this case it was found that Laurentian University has an obligation under the Code to accommodate the grievor in accordance with the Return to Work Plan (RTWP) proposed by the union and the grievor’s doctor.

Question(s) to be Determined:

1. Does the employer, Laurentian University have an obligation under the Human Rights Code to accommodate the grievor in accordance with the Return to Work Plan (RTWP) proposed by the union and the grievor’s doctors.

Findings:

1. Does the employer, Laurentian University have an obligation under the Human Rights Code to accommodate the grievor in accordance with the Return to Work Plan (RTWP) proposed by the union and the grievor’s doctors.
   YES

Reasoning:

1. In this case it was found that the Employer does have a duty to accommodate the grievor in accordance with the RTWP proposed by the union and the grievor’s doctors. It was decided that that accommodation plan would not result in undue hardship for the employer and that the RTWP constituted reasonable accommodation as required by the Code.
   
   “In my view the Employer has failed to demonstrate that the proposal of Dr. D. and Dr. B. for a gradual return to work by the Grievor would result in undue hardship. I accept the submissions of the Union that assigning the Grievor to an online course in one of the subject areas that he is familiar with teaching and restricting class enrolment in that course for his second term back in the workplace will result in only a minimal increase in costs (less than $200.00). Nor does such an assignment result in the Employer creating a job for the Grievor when it is clear that the Employer pays others to teach these online courses. I also do not accept the suggestion that giving such an assignment to the Grievor for one term on a transitional basis constitutes an accommodation that requires the Employer to create a job if the limiting of enrolment for the Grievor causes them to have two instructors for that course where one person could have done the entire course. In my view that would only be a legitimate objection to the proposed accommodation if such an assignment were to be made on a permanent basis. Here the plan proposed by the Grievor's doctors is clearly transitional, requiring such limitations on course assignment for only the first term of the Grievor's return to active teaching. In addition, the fact that the increase in costs is so minimal and only exists for one term means that it is not in any way similar to the creation of an extra job or extra position to accommodate the Grievor's disability. However, I agree with the Employer submission that under existing arbitral principles recognized in cases such as Canada Post, supra and Nestle Purina, supra, such an accommodation is only reasonable on a temporary basis and would constitute undue hardship if done on a permanent basis” (para 141).
   
   Further emphasizing the fact that the RTWP did not constitute undue hardship for the employer it was stated, “I acknowledge the Employer's legitimate concerns that the gradual ramping up of regular duties means that if all goes according to plan the Grievor will not return to full regular duties, including full research and governance, until his fifth term, or fourth term of active teaching. While this may seem to be a more lengthy work hardening program than is the norm in dealing with the accommodation of disability, the underlying test for whether it represents a reasonable accommodation that is consistent with the Employer's obligations under the Human Rights Code is whether it will cause undue hardship. Given that the plan only requires the Employer to provide payment for regular duties that are actually performed by the Grievor, and given that the gradual nature of the plan also constitutes a measure to lessen negative consequences for students in the event of a relapse, the length of the work hardening measures would appear to decrease the risk of undue hardship rather than augment it” (para 147).
   
   In this case it was determined that no damages would be awarded to the grievor for violation of the Human Rights Code. In making this decision a number of factors were considered including:

• Changes to the RTWP by the Union and the Grievor’s doctor during the time in question, ultimately leading to a withdrawal of the RTWP in Fall of 2012 (para 149).
• Changes to the RTWP during the hearing which serve the interests of both the Employer and the Grievor (para150).
• Responses during the hearing related to Grievor’s steps to get back into scholarly activity, indicated he may have benefitted from the delay (para 151).
• The employer took reasonable steps to accommodate the Grievor from 2005-2013 (para 152).

Flatt v. Treasury Board (Department of Industry), 2014 PSLREB 2 (CanLII)

In this case, the applicant, Laura Flatt, worked as a full-time supervisor in the Spectrum Management Branch of Industry Canada. At the completion of her third maternity leave, Ms. Flatt wished to continue breastfeeding her child and therefore sought accommodation from her employer in an effort to continue breastfeeding. No medical reasons were provided for the request. In her two previous maternity leaves, Ms. Flatt and her employer were able to reach amicable agreements which allowed the applicant to continue breast feeding beyond her maternity leave. These previous agreements involved allowing the applicant to perform part of her work from home via a teleworking arrangement. In relation to this particular request, Ms. Flatt and her employer exchanged a number of different requests. In these requests the applicant explored the possibility of finding a daycare close to her work, therefore being able to continue to breastfeed her child while also being physically in the office. Ms. Flatt proposed a schedule where she would telework two days per week and on the other days she would attend the daycare near her work on two 45 minute breaks. Ms. Flatt wanted the breastfeeding time to be included in her paid hours, not wanting to forfeit her lunch breaks and only willing to count her two 15 minute paid coffee breaks towards her breastfeeding time. In relation to this proposal the employer disagreed and suggested alternatives. Ultimately the employee, Ms. Flatt, disagreed with the employer’s proposals and suggested that in order to accommodate the breastfeeding of her child she would need to telework five days per week. In the end, the applicant and the employer reached an impasse and a grievance was filed. In this case, it was decided that Ms. Flatt did not establish a prima facie case of discrimination on the basis of family status. This decision was made using the four elements of the test set out in FCA-Johnstone. In this case, Ms. Flatt failed to meet the second and third requirements outlined in the FCA-Johnstone test (see rationale below). In this case the concept of “ personal choice” in relation to breastfeeding was a driving factor in the decision rendered.

Question(s) to be Determined:

1. Is discrimination on the basis of breastfeeding discrimination on the basis of sex or family status or both?
2. What is necessary to establish a prima facie case of discrimination on the basis of breastfeeding, and did the grievor meet it in this case?
3. If the grievor did establish a prima facie case of discrimination, did the employer accommodate her to the point of undue hardship?

Findings:

1. Is discrimination on the basis of breastfeeding discrimination on the basis of sex or family status or both?
   
   see below
    
2. What is necessary to establish a prima facie case of discrimination on the basis of breastfeeding, and did the grievor meet it in this case?
   
   see below
    
3. If the grievor did establish a prima face case of discrimination, did the employer accommodate her to the point of undue hardship?
   
   see below

Reasoning:

1. In this case it was determined that discrimination based on breastfeeding was discrimination based on family status. This decision was made after reviewing a number of relevant cases (Poirier, Carewest, Cole and Coast Mountains).
   
   In making this determination it was stated, “I acknowledge that the ability to breastfeed — to lactate — is a physical condition that is “an immutable characteristic, or incident of gender” (as noted in Brooks) in the same way that pregnancy is. But breastfeeding is different. It is a subset of and an expression of a larger complex of factors stemming from the relationship between a parent and an infant” (para 150).
   
   Reaffirming the belief that discrimination on the basis of breastfeeding was discrimination on the basis of family status, it was stated “All of this is to suggest that breastfeeding is as much, if not more, an expression of “family status” — that is, the relationship between a parent and a child — as it is of gender. It recognizes that breastfeeding — that is, the decision to nourish an infant and bond with it by way of breastfeeding — is not “immutable.” It is instead a choice — a choice mediated by a variety of physical, personal and social factors. It may be a choice heavily weighted in favour of breastfeeding (particularly in the early weeks or months of an infant’s life), but it is nevertheless a choice about how that relationship is to be mediated” (para 152).
    
2. As stated above the test set out in FCA-Johnstone was used in determining whether or not a case of prima facie discrimination on the basis of family status was substantiated. In this case, Ms. Flatt failed to meet the second and third requirements outlined in the FCA-Johnstone test (see below).
   
   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 effort to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible
   
   In relation to the second requirement it was stated, “Dealing with the second condition, a parent’s legal responsibility is to nourish his or her child. How a parent fulfills that responsibility is a question of choice. Breastfeeding is one such choice, but it is not the only one. Sometimes the range of choices may shrink to one — for example, when the physical needs or illnesses of the child, as in Cole or Carewest, dictate that nourishment be supplied by way of breastfeeding. In such cases, the choice is no longer a choice, it is a legal responsibility. But in the case before me, there was no evidence to suggest that the grievor’s choices were so restricted. Her child was one year old. There was no evidence of any physical condition or illness that made breastfeeding a necessity. Indeed, on the grievor’s own evidence, the child was — or at least was to be — in daycare. Such evidence goes no further than establish that the grievor wanted — chose — to continue breastfeeding her child after he reached the age of one. It does not establish that her choice amounted to a legal responsibility” (para 181).
   
   Regarding the third requirement it was stated, “Again, the evidence falls short. There was at least one “reasonable alternative” solution to teleworking five days per week that would have enabled the grievor to maintain the breastfeeding schedule she said she wanted to protect. The grievor’s evidence was that she had located an available daycare spot that was close to the Burlington office. The fact that, as the grievor said, she “would be working to just cover the cost of daycare” does not alone establish that it was not a reasonable alternative. Life — whether alone or with family dependents — and the choices associated with it always entail certain costs that one works to cover. Moreover, such choices are generally the result of a cost-benefit analysis that includes but is not always restricted to their economic costs. The fact then that one might have to work to cover the cost associated with a particular choice is not in and of itself sufficient to make that choice unreasonable. The situation might have been different in this case had the cost of the daycare been so disproportionate that it would have adversely affected the ability of the grievor and her spouse to provide the other necessities of life. But there was no evidence to that effect” (para 183).
    
3. In this case it was decided that the grievor did not establish a prima face case of discrimination. It was also decided that the employer in this case had taken steps to accommodate the grievor to the point of undue hardship.

“The limitations on requests to telework were imposed as a result of difficulties the employer had experienced with it, caused in part by reductions in its staff. While some telework was still possible, it was established on the evidence that telework for five days a week for a year would exacerbate the difficulties the employer had experienced. The restriction was adopted in good faith. It was not directed at the grievor personally, nor at breast-feeding mothers in general. It applied to all employees, and was adopted in response to changes in the number of the employer’s employees – but not in the amount and nature of the work that had to be performed. Notwithstanding the employer’s inability to grant the grievor’s request to telework from home for a year, it did try within the restraints under which it was operating to accommodate her request. The employer did discuss other possible accommodations with the grievor, but she ultimately refused to yield from her original request. Both parties have a role to play in the accommodation process, and the grievor did not explain why she needed a year (or a year and a half) of telework, or why (other than the cost) she could not use a daycare closer to work” (para 187).

*In this matter Laura Flatt applied for judicial review (Flatt v. Attorney General of Canada, 2015 FCA 250 CanLII). In this case, the application for judicial review was dismissed. The rationale provided for this dismissal was “I have not been persuaded that the Board committed legal errors or any other errors warranting our intervention” (para 4).

Ontario Public Service Employees Union, Local 560 v. Seneca College, 2014 ONLA 39592 (CanLII) RE' Grievance of Harvey Kaduri

Harvey Kaduri has been a full-time teacher in the Seneca College IT department since 2000. When Mr. Kaduri initially started working, he informed the College that he also taught computer classes at a Jewish high school known as CHAT. These classes at CHAT were taught in the morning and Mr. Kaduri asked the College to accommodate this morning teaching schedule by only scheduling his classes at the College after 1:00pm. As a member of the Jewish faith, Mr. Kaduri believed he was required to give back to his community and that his chosen way of giving back was through teaching at CHAT. Up until this grievance, the College agreed to these accommodations. In 2012 the College informed its teachers that it was implementing a new automated scheduling system. Under this new automated scheduling system the College could no longer commit to accommodating the grievor’s request to only be scheduled in the afternoon. The college indicated that in the academic year 2014-2015 that Mr. Kaduri’s request would not be accommodated. In this arbitration, it was decided that the College was not obligated to accommodate Mr. Kaduri’s “choice” in relation to how he chose to give back to his community. It was decided that Mr. Kaduri was not being prevented from pursuing other avenues in relation to giving back to his community. Emphasizing this point, it was stated that “in this case it is not the requirement to give back that is being infringed but the particular choice of how to fulfill it.”  In addition, it was stated that the scheduling process was designed to apply to all teachers, therefore not specifically targeting Mr. Kaduri.

Question(s) to be Determined:

1. Did Seneca College discriminate against the grievor, Harvey Kaduri on the basis of creed contrary to s. 5 of the Ontario Human Rights Code (the HRC) and contrary to article 4.01 of the collective agreement between the parties?

Findings:

1. Did Seneca College discriminate against the grievor, Harvey Kaduri on the basis of creed contrary to s. 5 of the Ontario Human Rights Code (the HRC) and contrary to article 4.01 of the collective agreement between the parties?
   NO

Reasoning:

1. In this case the issue was not whether or not Mr. Kaduri has a “sincerely held belief” that he is required by faith “to give back to his community,” this assertion was accepted by the arbitrator. What was an issue, is the position that Mr. Kaduri’s sincerely held belief required him to teach at CHAT.
   
   Referring to previous case law it was stated, “From a subjective view, it is clear that if the grievor has a sincere religious belief that he must give back to his community, then that belief must be recognized as worthy of protection. But as was stated in Commission Scolaire, the question of whether that belief has been infringed must be assessed on the basis of an objective analysis. We cannot see from the statement of particulars how the scheduling process at issue, applied to all employees by the College can objectively be considered as an infringement of the grievor’s requirement to give back to his community.”
   
   Further emphasizing this point, the arbitrator drew distinctions between this case and Amselem. “This is not at all a case like Amselem. In Amselem, the claimants asserted that they were required by their religious belief to build the Succah on their balconies. It was not sufficient to have a common succah built in the courtyard of the building because according to their belief the succah had to be built within the boundaries of their own dwelling. In other words, they were not choosing as between two viable options – building their own succah on their balcony – or building a common succah on the courtyard. Their belief required them to build a succah within their dwelling and it was this requirement that was being infringed.”