Supreme Court Rules on Undue Hardship
The Supreme Court of Canada ruled that the Quebec Court of Appeal erred in a decision on undue hardship.
In this case the grievor was an employee of Hydro-Québec, who had numerous physical and mental problems, including tendinitis, epicondylitis and bursitis. She had undergone a number of surgical procedures for various problems, took medication for hypothyroidism and hypertension, and had episodes of reactive depression and a mixed personality disorder. During the last seven and a half years that she was employed by Hydro-Québec, between January 1994 and July 2001, she missed 960 days of work. One of the main problems was that her personality disorder resulted in deficient coping mechanisms and, as a result, her relationships with supervisors and co-workers were difficult.
Over the years, the employer adjusted her working conditions, gave her light duties, and assigned her to different positions. In July 2001 she was dismissed. She had been absent from work...
Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) (2008), 63 C.H.R.R. D/301, 2008 SCC 43
Termination After Three Years Absence Not Discriminatory
The majority of the Supreme Court of Canada ruled that the McGill University Health Centre (Montreal General Hospital) did not discriminate against Alice Brady when it terminated her employment after three years' absence due to disability.
Alice Brady worked for the Montreal General Hospital as a medical secretary, a position she held since 1985. In 2000, she had a nervous breakdown and she was off work almost continuously until 2002. She attempted to return to work on a part-time basis at one point, but the Hospital sent her home because she was disorganized and behaved inappropriately. She was scheduled for a return to full-time work in September 2002, but she was in a car accident in July 2002, which made her unable to work for an indefinite period. The Hospital decided to terminate Ms. Brady's employment as of April 3, 2003, when she was still unable to return to work.
The collective agreement between the Hospital and the Syndicat des employés de...
McGill University Health Centre v. Syndicat des employés de l'Hôpital général de Montréal (2007), 59 C.H.R.R. D/259, 2007 SCC 4
New Test for Reasonable Accommodation
The Supreme Court of Canada holds that the Government of British Columbia's aerobic standard used to test the fitness of forest firefighters discriminates on the basis of sex, and further that the Government failed to show that the discriminatory standard is justified as a bona fide occupational requirement ("BFOR").
This case arose as a grievance before a labour arbitrator. Tawney Meiorin was employed for three years as a member of the Initial Attack Forest Firefighting crew. Although she did her work well, she lost her job when the Government adopted a new series of fitness tests for forest firefighters. She passed three of the tests but failed a fourth one, a 2.5 km run designed to assess whether she met the Government's aerobic standards, by taking 49.4 seconds longer than required.
The arbitrator found that the aerobic standard constituted adverse effect discrimination based on sex because men as a group have a higher aerobic capacity than women, and...
British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 (S.C.C.)
Ruling that Drug-Testing Policy Discriminatory Upheld
This is an appeal by Imperial Oil Limited from a number of decisions issued by an Ontario Board of Inquiry in the case of Martin Entrop. The Board of Inquiry ruled that Imperial Oil's alcohol and drug policy violated ss. 5 and 17 of the Ontario Human Rights Code which protects Ontario residents from discrimination based on disability. It also ruled that Martin Entrop had been discriminated against by Imperial Oil. The policy required employees in safety-sensitive positions to disclose any "substance abuse problems," whether current or past. Employees who disclosed such problems were reassigned to positions that were not safety-sensitive and would not be reinstated to their original positions for a minimum of seven years. Employees were also required to undergo random testing.
After this policy was put in place, Martin Entrop disclosed that he had had an alcohol abuse problem in the past, but that he no longer used alcohol. He was removed from his position,...
Imperial Oil Ltd. v. Entrop (1998), 30 C.H.R.R. D/433 (Ont.Ct. (Gen.Div.))
Drug-Testing Policy to be Reconsidered
This is an application for judicial review, in which the Canadian Human Rights Commission seeks an order quashing a decision of the Human Rights Tribunal made August 16, 1994. In the decision below, the Tribunal dismissed a complaint brought by the Canadian Civil Liberties Association alleging that employee drug-testing by the Toronto Dominion Bank constitutes discrimination based on disability. The disability in issue was described as perceived drug-dependence.
The Tribunal decided there was no discrimination because termination of employment under the policy applied to both drug-dependent employees, who are protected by the Act, and to persistent casual users, who are not protected by the Canadian Human Rights Act. The Tribunal concluded that any termination as a result of the policy was not based on discrimination, but rather resulted from an employee's breach of the policy which the Tribunal described as a condition of employment.
Canada (Human Rights Comm.) v. Toronto Dominion Bank (1996), 25 C.H.R.R. D/373 (F.C.T.D.)
Drug-Testing Policy Discriminatory
The Board of Inquiry finds that Imperial Oil Limited discriminated against Martin Entrop, a senior operator at the Sarnia Refinery, because of a handicap or a perceived handicap.
There is little disagreement in this case about the facts. The Board of Inquiry finds that under a new Alcohol and Drug Policy introduced in 1992, Imperial Oil employees in "safety-sensitive" positions were required to notify management if they currently had or had previously had a substance abuse problem. Knowing that this Policy would shortly come into effect, Mr. Entrop informed his employer in late 1991 that he had had an alcohol problem about ten years earlier, that he had attended Alcoholics Anonymous, and that he had abstained from using alcohol since 1984.
Though Mr. Entrop had been an employee for seventeen years and there had been no problems with Mr. Entrop's work that were related to substance abuse, the policy required that Mr. Entrop be immediately removed from his...
Entrop v. Imperial Oil Ltd. (No. 6) (1995), 23 C.H.R.R. D/196 (Ont. Bd.Inq.)
S.C.C. Finds Union Has Duty to Accommodate Religious Beliefs
In a unanimous decision, the Supreme Court of Canada restores the decision of the B.C. Council of Human Rights, which found that Larry Renaud was discriminated against by both his employer and his union because of his religious beliefs.
Mr. Renaud, a school custodian, is a Seventh Day Adventist. His religious beliefs prevented him from working from sundown Friday to sundown Saturday. The work schedule, which required him to work a Friday shift from 3 p.m. to 11 p.m. was set out in the collective agreement between the Okanagan School Board and C.U.P.E., Local 523. Accommodating Mr. Renaud's religious beliefs would have required allowing him to work hours different than those specified. The respondent school board and union could not agree on a means of accommodating Mr. Renaud and as a result he was dismissed from his job. The B.C. Council of Human Rights found that though it was a bona fide requirement that a custodian be present in the schools, it was not a...
Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.)
Mandatory Retirement Upheld by S.C.C.
English: By a majority, the Supreme Court of Canada rules that mandatory retirement at age 65 is a reasonable limit on the s. 15 right to be protected from discrimination because of age. In five different judgments, the Supreme Court hands down a split 5-2 decision.
This is an appeal from a decision of the Ontario Court of Appeal which dismissed the applications of eight professors and a librarian at four Ontario universities for declarations that the policies of the universities requiring them to retire at age 65 violate s. 15, and that s. 9(a) of the Ontario Human Rights Code, by failing to protect those over age 65, also violates s. 15.
The issues before the Court are:
whether the Canadian Charter of Rights and Freedoms applies to universities;
if the Charter does apply to universities, whether mandatory retirement policies violate s. 15;
whether the limitation of the...
McKinney v. University of Guelph (1990), 13 C.H.R.R. D/171 (S.C.C.)
Employers Liable for Sexual Harassment of Employee
The Supreme Court of Canada unanimously finds that employers are liable for the discriminatory acts of their employees in the course of their employment.
This is an appeal by Bonnie Robichaud and the Canadian Human Rights Commission from a decision of the Federal Court of Appeal which ruled that, although Ms. Robichaud was sexually harassed by her supervisor while she was employed by the Department of National Defence, the Department of National Defence was not liable for the contravention of her rights.
The Supreme Court of Canada in overturning this decision finds that the purpose of human rights legislation is to remove discrimination. The legislative emphasis is not on finding fault, but on remedying discrimination. The purpose of the Canadian Human Rights Act which is to prevent discrimination and eliminate the effects of discriminatory acts would be thwarted by an interpretation which deemed employers not liable for the conduct of their employees...
Canada (Treasury Board) v. Robichaud (1987), 8 C.H.R.R. D/4326 (S.C.C.)
S.C.C. Rules on Test for Bona Fide Occupational Qualification
In a unanimous decision, the Supreme Court of Canada rules that the retirement of firefighters at age 60 by the Borough of Etobicoke constitutes a violation of the Ontario Human Rights Code because the employer in the case did not discharge the onus of proof necessary to establish that the early mandatory retirement age was justified by a bona fide occupational requirement.
This appeal is from a decision of the Ontario Court of Appeal which, along with the Divisional Court, reversed the original Board of Inquiry ruling that the firefighters were discriminated against because of their age. The Board of Inquiry found that the Borough of Etobicoke failed to discharge the burden of proof upon them to show that the discrimination was based on a bona fide occupational requirement. The Board found that the evidence provided was "impressionistic" and noted the insufficiency of general assertions by witnesses that firefighting is a "young man's game"....
Ontario (Human Rights Comm.) v. Etobicoke (Borough) (1982), 3 C.H.R.R. D/781 (S.C.C.)