Hoyt v. Canadian National Railway

Hoyt v. Canadian National Railway
Collection
Canadian Human Rights Tribunal
Date
2006-08-18
Neutral citation
2006 CHRT 33
File number(s)
T1036/1705
Decision-maker(s)
Lloyd, Julie C.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
CATHERINE HOYT
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADIAN NATIONAL RAILWAY
Respondent
- and -
UNITED TRANSPORTATION UNION
Interested Party
REASONS FOR DECISION
2006 CHRT 33 2006/08/18
MEMBER: Julie C. Loyd
I. INTRODUCTION
II. BACKGROUND
A. The Complainant
B. The Respondent
(i) The Walker Yard
(ii) The Beltpack
(iii) CN's Seniority System - The Spare Board
(iv) CN's Accommodation Policy
III. THE FACTS GIVING RISE TO THE COMPLAINT
A. CN's First Offer of Accommodation
B. CN's Second Offer of Accommodation
C. CN's Third Offer - The Crew Van Position and Child Care
IV. ANALYSIS
A. Has the Complainant Demonstrated a Prima Facie Case of Discrimination on the Basis of Sex?
(i) Refusal to Employ or to Continue to Employ
(ii) Differentiating Adversely
B. CN's Justification
C. Was CN's Conduct Justified? Was it a BFOR?
(i) Rational Connection
(ii) Honest and Good Faith Belief
(iii) Reasonable Necessity
D. Did the Union Obstruct CN's Attempts to Accommodate Ms. Hoyt?
E. Has the Complainant Demonstrated a Prima Facie Case of Discrimination on the Basis of Family Status?
F. CN's Justification
G. Was CN's Conduct Justified? Was the Conduct a BFOR?
H. Finding of Discrimination
V. WHAT REMEDIES ARE SOUGHT?
A. By the Complainant
(i) An Order that CN Review its Accommodation Policy
(ii) Compensation for Lost Wages and Benefits
(iii) Compensation for Pain and Suffering
(iv) Special Compensation
(v) Legal Costs
(vi) Interest
(vii) Retention of Jurisdiction by the Tribunal
B. Relief Requested by the Interested Party
(i) Legal Costs
(ii) Declaration
I. INTRODUCTION [1] The complainant, Catherine Hoyt, alleges that her employer, the Canadian National Railway Company (CN) failed to accommodate her pregnancy and also failed to accommodate her parental obligations. She contends that CN thereby discriminated against her on the basis of her sex and her family status, in breach of section 7 of the Canadian Human Rights Act (the Act or CHRA.).
[2] The complainant's union, the United Transportation Union (the Union), sought and received Interested Party status in the proceedings. In its statement of particulars, CN alleges that the Union did not act cooperatively or reasonably with respect to Ms. Hoyt's accommodation. The case managing member ruled that, in light of these allegations, the reputational interests of the Union might be affected by the within proceedings and that, accordingly, it was appropriate to grant the Union the status it sought and to direct that the Union would be allowed to introduce evidence, examine and cross-examine witnesses and present argument on issues where its interests might be affected and on its involvement in the accommodation efforts.
[3] The hearing extended 10 days in April of 2006 and included a site visit to the Walker Yard of the CN Edmonton Terminal. Both the complainant and the respondent participated at the hearing and were represented by legal counsel. The Union participated in the hearing and was represented by counsel. The Canadian Human Rights Commission did not participate.
[4] For the reasons set out below, I have determined that CN did discriminate against Ms. Hoyt by failing to accommodate her pregnancy, and further that CN failed to accommodate her parental obligations. Ms. Hoyt's complaint has therefore been substantiated.
II. BACKGROUND A. The Complainant [5] Ms. Hoyt is a third generation railroader. Both of her grandfathers, her father, two uncles and her brother enjoyed careers with CN. She is also married to a railroader.
[6] In July of 1991, Ms. Hoyt was hired by CN. She worked first as a welder's helper in different regions of Ontario and in the spring of 1995 applied for and won a position at CN's Edmonton Terminal. Her family history had taught her that this would be a good career that would provide her and her family a good living, as it had other of her relatives.
[7] A few months after Ms. Hoyt relocated she earned the position of a yard conductor in the Walker Yard of the Edmonton operation. Ms. Hoyt was a yard conductor at the time this complaint was filed.
B. The Respondent [8] The respondent, CN, operates a railroad and is in the business of transporting goods across the country by rail.
[9] The events relevant to the within complaint took place at CN's Edmonton Terminal. The Edmonton Terminal is comprised of the Walker Yard and three satellite yards, being the Bissell Yard, Cloverbar and the Scotford Yard. Approximately 100 employees work in the yards. Additionally, some of the administration of the Terminal was conducted at the time from the CN building in downtown Edmonton. Approximately 200 employees worked in the downtown administration building.
[10] A brief description of the nature of this facility and some of CN's operations will be helpful to an understanding of the issues relevant to the within complaint.
(i) The Walker Yard [11] At various points across the country the respondent has facilities that allow trains to be assembled and re-assembled as necessary. The Walker Yard is one such facility. The conductors in the Walker Yard marshal cars. Trains enter the Yard with cars on route to different locations. Perhaps 20 cars on a particular train must continue to the west coast, and another 30 to northern Alberta and so on. Trains must be disassembled and then reassembled so the cars can continue to their ultimate destination.
[12] The procedure used to marshal cars is quite ingenious. The Walker Yard has a hump. The Hump is a hill with a very modest inclination. Trains are pushed up to the crest of this hill and the cars are disengaged either singly or in clusters as they are about to descend down the incline. At the bottom of the Hump are over forty separate tracks. The setting of rail switches allows each car or cluster of cars to be directed on to one or another track.
[13] Once the cars have come to a stop on the track to which they have been directed the cars are then reassembled in advance of their departure. The reassembly is accomplished by yard conductors using yard locomotives to push the cars along the rails until the cars have been strung together in a proper order. Once the cars have been properly assembled they are ready to depart for the next leg of their journey.
[14] The size of the operation in the Walker Yard is remarkable; the Yard and its tracks extend for several miles. The cars entering and then leaving the Yard weigh 30 tons when empty and can weigh 120 to 130 tons when full. Strings of rail cars entering or being made ready to leave the Yard are often a mile long. Every hour of the year cars are pushed along the many tracks of the Yard as they are marshaled into trains.
[15] Safety is a paramount concern at CN, as was evidenced during our site visit. We were issued safety equipment and shepherded very carefully about the site on the tour. Safety is a part of the very design of railroad equipment. As an example, the braking system on trains employs air pressure. The air pressure is not, however, used to apply the brakes; it is used to release them. This design ensures that if air pressure is lost through a failure of the equipment, the train will stop. CN employees describe this as a `fail safe;' equipment is designed so that a failure will result in a safe rather than a dangerous situation.
(ii) The Beltpack [16] One of the technical advances to be introduced at the Edmonton Yard is the beltpack or Locomotive Control Unit (L.C.U.). A beltpack allows a yard conductor to operate a locomotive like a remote control car. The unit, weighing about 6 pounds, is worn strapped to the body by a harness. It has switches, dials and toggles that allow the yard conductor to start, stop and control both the speed and direction of the locomotive. The beltpack is also equipped with a safety feature. If the beltpack is tipped beyond a 45 degree angle, the beltpack will stop the locomotive after a few seconds unless the unit is reset by the conductor. This is an emergency function designed to prevent injury, or further injury, should a conductor fall or become incapacitated while operating a locomotive. The beltpack is another example of fail safe design.
[17] Prior to the implementation of beltpacks in or around 1995, crews of three people were used to marshal trains. One person, locomotive engineer, was placed in the locomotive itself while the other two would be on the ground at either end of the locomotive. The three communicated by radio. Three man crews were still used in the Walker Yard on occasion at the time relevant to this complaint. When the beltpacks were implemented, CN's general operating instructions directed that each of the two yard conductors would carry a pack and further that the conductor at the `leading end of the movement' was to be controlling the train. The leading end of the movement is the `front' of the train. When the train changes direction, the leading end switches from one end to the other. As the trains often change direction during the marshaling process, the conductors must alternate control between them as direction changes. This procedure is called `pitch and catch.' Upon the train changing direction, one yard conductor `pitches' control of the train to the other.
[18] At the time relevant to this complaint, there was a disagreement at CN over whether it was safe for a two person yard conductor team to be deployed with only one conductor using a beltpack and the other using a two-way radio. The Union believed this would be unsafe. Management disagreed. Minutes of CN's Health and Safety Committee demonstrate that this disagreement was a live issue. CN's general operating instructions at the time required that on a two conductor crew, both conductors were to use beltpacks. The operating instructions also directed that, should one beltpack malfunction, the crew was to retrieve a new pack as soon as reasonably possible.
(iii) CN's Seniority System - The Spare Board [19] The Respondent runs its operations around the clock. Trains are marshaled twenty-four hours per day, each day of the year. Shift work is a fact of life for a railroader and so is the unpredictability of one's schedule from day to day and from week to week.
[20] The work schedules of yard employees at CN are determined by seniority. Employees with sufficient seniority may receive a regular assignment. These employees are advised each Friday of their schedules for the whole of the upcoming week. Even after receiving a regular assignment, however, an employee might be advised on short notice that his or her services are required in a position senior, or higher in CN's job hierarchy, to that of their regular assignment. These more senior positions, once offered, must be accepted by the employee.
[21] Employees with less seniority have their schedules determined by the spare board. The spare board is a tool that allows the employer to appoint employees to required shifts and assignments. Employees are listed on this board in order of seniority and shifts are assigned in that order. More senior employees on the spare board receive more regular shifts at more favored times of the day and days of the week, while less senior employees receive less regular assignments at less favored times of the day and days of the week.
[22] To secure a particular shift for an employee, or to allow an employee to avoid a particular shift, it will usually be necessary to exempt them from the unpredictable realities of the spare board. This status is called `super seniority.' The Union's consent is required before an employee can receive this status.
(iv) CN's Accommodation Policy [23] CN has a policy in place for dealing with employees who require accommodation. Its Accommodation Guide for Managers and Supervisors identifies that (c)ourt decisions have required employers to provide accommodation to the extent that this does not create undue hardship and further, that (t)he costs incurred must be extremely high before the refusal to accommodate can be justified.
[24] A document entitled Accommodation Checklist for Managers and Supervisors outlines the accommodation process to be engaged when accommodation is sought. The checklist directs the Manager or Supervisor to first meet with the employee in respect of the accommodation requirement; to identify the essential requirements of the employee's regular position; to consult with other representatives of CN as necessary and to consult with the Union; to then decide whether the employee's existing job function might be adjusted to accommodate or whether the employee might be assigned different job duties to accommodate his or her requirements or restrictions. Managers and Supervisors are directed to inform the employee of their decisions, to give reasons for those decisions, and to keep careful records of the steps taken in the accommodation process.
III. THE FACTS GIVING RISE TO THE COMPLAINT [25] In February of 2002, after 11 years of service with the respondent, Ms. Hoyt learned that she was pregnant. She began to experience some pain and discomfort on the job. She was examined by her doctor and the doctor wrote a letter to CN explaining that, as a result of her pregnancy, Ms. Hoyt required some modifications to her job. Ms. Hoyt, the doctor directed, must avoid hazards, avoid particularly strenuous activities and work regular hours. The doctor also directed that she was not to use a beltpack.
[26] On February 18, 2002, Ms. Hoyt gave the doctor's letter to a CN Superintendent who advised her that she should go home on an unpaid leave of absence status until CN had time to consider the matter.
A. CN's First Offer of Accommodation [27] On February 25, 2002 an Assistant Superintendent provided Ms. Hoyt with a letter detailing the accommodation that CN had designed. CN had proposed that she be placed on an afternoon shift as a yard conductor on the Walker Hump. This position would require Ms. Hoyt to wear a beltpack. In the letter CN asked for further clarification of her medical restrictions and concluded:
At this time are no modify (sic) duties where L.C.S. equipment is not involved. Based on all testing and technical reports the Company's position is that the L.C.S. equipment falls within all regulatory guidelines and does not pose health related problems.
If you feel you can not operated (sic) the L.C.S. equipment the Company will grant you a leave of absence without pay. At this time it is not reasonable practicable (sic) to modify your job function where the L.C.S. equipment is not used.
The reference to L.C.S. equipment is a reference to the beltpack.
[28] Ms. Hoyt was distressed by this offer of accommodation. The Hump position, in her experience, was more rigorous than her regular yard conductor job. In that position a single yard conductor worked alone to disengage cars, singly or in clusters, before the cars began to descend down the track. The position was, in her view, difficult and relentless. The position also required the use of the beltpack. Her doctor had directed that she must not use the beltpack. She called her union. The Union had no knowledge of CN's accommodation proposal.
[29] Ms. Hoyt re-attended at her doctor's office the next day. The doctor provided a more detailed letter explaining why the beltpack was not to be used:
The wearing of a beltpack will cause abdominal pressure and weight on the developing fetus. It will also contribute to backache as the pregnancy progresses. It is best then that the beltpack not be employed for the remainder of the pregnancy.
Ms. Hoyt provided this second letter to CN.
B. CN's Second Offer of Accommodation [30] After receiving this second doctor's note, CN developed a second plan for accommodation and communicated this second proposal to the Union. CN proposed that Ms. Hoyt work in her former position of yard conductor, but that she would not wear a beltpack and would instead be supplied with a radio. Her co-worker would control the train in both directions. CN also proposed that she would work a regular afternoon shift, and so Ms. Hoyt would require super seniority status. The Union's consent would be required.
[31] The Union reviewed this second proposal and expressed two concerns. The first concern was safety. As mentioned, the Union had long taken the position that it was dangerous to employ only one beltpack in a two conductor crew. The Union also expressed a concern about the super seniority status. It asked CN for an assurance that any employee who lost a shift as a result of this status being conferred on Ms. Hoyt be compensated. CN refused to give this assurance. The Union rejected this proposal primarily on the ground of safety and secondarily on the ground of seniority.
[32] Ms. Hoyt shared the concerns expressed by the Union. She too felt that working as a yard conductor without a beltpack was unsafe. She was also concerned that, should CN place her in a position on the Yard outside her seniority status, she might suffer harassment on the work site. Ms. Hoyt testified that a female colleague of hers had received such an accommodation in the recent past. Ms. Hoyt heard and was required to defend her colleague from the disparaging comments of other workers as they complained that special treatment was being given to the women. Her colleague's car was vandalized during this time period. Ms. Hoyt was concerned that she now would be the target of these comments.
[33] The Union proposed some other positions that might be used to accommodate Ms. Hoyt, including the following:
placing her in a `utility' position, being a general helper, on the Yard; placing her in a `utility' position on the Hump; having her drive a crew van on the Yard; assigning her to sedentary work in one of CN's administrative offices; assigning her to a three-man crew, which crews did not use beltpacks.
Each of these proposals were rejected by CN.
[34] On March 1, 2002, C.N. wrote to Ms. Hoyt:
The Company undertook an investigation of alternate duties or modifications to your existing duties due to your maternity related circumstances. The result of such investigation concluded that at this time the Company is unable to offer you accommodation.
Your physical restrictions do fall within the parameters of the Assistant Conductor position at Walker yard west tower afternoon assignment, however your seniority does not allow you to hold same within your own right. In order to assign you to one of these positions, the company requires the agreement of the CCROU UTU.
The company discussed the accommodation with the union however they were not willing to enter an agreement that would override the seniority provisions of the collective agreement.
The company will continue looking for available opportunities that fall within your restrictions and advise you accordingly.
If you have any questions or require further information please contact the undersigned at . . .
The reference to the CCROU UTU is a reference to the Union.
[35] Ms. Hoyt remained off work on unpaid leave. She did receive some sick benefits during the relevant time period.
[36] Ms. Hoyt wrote to her employer by letter dated March 4, 2002 requesting information. She wanted to be advised of what positions CN had considered for her and who her contact person would be at the Company. She received no response to this request. Ms. Hoyt also filed a complaint with Human Resources Development Canada, alleging her employer violated its accommodation obligations under the Canada Labour Code, filed a complaint with the Canadian Human Rights Commission and participated in the grievance process with her Union.
C. CN's Third Offer - The Crew Van Position and Child Care [37] On May 25, 2002, after being on unpaid leave for three and a half months, the complainant was advised by CN that it had a position for her driving a crew van on the Walker Yard. She would work the afternoon shift from Tuesday through Saturday each week commencing Tuesday, May 28, 2002. Ms. Hoyt accepted the job immediately.
[38] The Hoyts had a two-year old child at home. Before her pregnancy gave rise to her need for accommodation, Ms. Hoyt described that her schedule was quite variable. She worked off the spare board and received two-hour notice of her assignment to day, afternoon or midnight shifts. If her husband was at work, she would call friends and neighborhood teenagers to look after her daughter. The caregiver would attend at the Hoyt's home. Her daughter was never cared for outside her own home.
[39] When she learned of her new schedule, Ms. Hoyt knew that she would have to arrange child care for her daughter. She also knew that she would require care for her daughter every Saturday as her husband's position at CN and his seniority status meant that he was required to work almost every Saturday.
[40] Back in February of 2002, when she first learned she was pregnant and was advised by her doctor that she required accommodation, Ms. Hoyt assumed that she would receive a regular shift and would need to arrange child care. She contacted a woman in a nearby town who ran a home day care. This woman, married to a railroader, was familiar with the lives of families in that industry and was willing to accommodate their rather unusual child care needs, accepting children day or night, seven days a week. Ms. Hoyt secured a spot for her daughter at this facility. She was not accommodated promptly as she had expected. When she called this same facility in late May, she learned that they were no longer able to accept her daughter.
[41] Ms. Hoyt contacted other people, mostly neighborhood teenagers, who had provided service to her in the past. She was, in the short period of time between May 25 and 28, able to secure child care for her daughter, except for three Saturdays in June.
[42] When she returned to work on May 28, 2002, Ms. Hoyt advised CN of her child care problem. She asked as an accommodation that her schedule be altered so that she would not be required to work Saturdays for those three weeks. Assistant Supervisor, Rick Sherbo, advised her that he would see what he could do.
[43] On June 4, 2002, Ms. Hoyt went back to Mr. Sherbo's office to see what arrangement had been put in place. She was advised that CN would accommodate her by allowing her to take unpaid leave for those days.
[44] Ms. Hoyt became upset. She had a verbal altercation with Mr. Sherbo before her shift was scheduled to start. Upon leaving his office she realized that she was unfit to work. She was very upset and felt unable to safely drive the crew van. She left work and while driving home started experiencing shortness of breath and some physical pain in her abdomen. She was worried about her own health and the health of her fetus. She had experienced medical difficulties during her first pregnancy. She drove directly to the hospital. She was observed, undertook some tests and was discharged the same day. The next day she attended at her doctor and was advised that the stress she was continuing to experience around the accommodation of her pregnancy was endangering her health and might harm her fetus. She was directed to stay off work for a month.
[45] Ms. Hoyt remained at home as directed. Her application for Worker's Compensation Benefits was contested by CN and was unsuccessful. She received some sick benefits.
[46] In early July of 2002, Ms. Hoyt returned to work driving the utility van and continued to carry out that function until she left on maternity leave. Her second child was born in the fall of that year.
IV. ANALYSIS [47] Section 7 of the CHRA identifies that it is a discriminatory practice to refuse to employ or to continue to employ an individual, and to differentiate adversely in relation to any individual on a prohibited ground of discrimination.
[48] The onus is first on the complainant to establish a prima facie case of discrimination. Upon the complainant discharging this onus, the evidentiary burden shifts to the respondent to establish that the measure adopted or decision made was based on a bona fide occupational requirement and that accommodation would impose undue hardship (section 15(1)(a) and 15(2), CHRA).
A. Has the Complainant Demonstrated a Prima Facie Case of Discrimination on the Basis of Sex? [49] A prima facie case of discrimination is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favor, in the absence of an answer from the respondent-employer.(O'Malley v. Simpson-Sears Ltd. [1985], 2 S.C.R. 536 at para 28).
[50] Discrimination on the basis of pregnancy is discrimination on the basis of sex (see section 3(2) of the CHRA and Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219).
[51] I find on the evidence of the complainant that a prima facie case of discrimination on the basis of sex has been made out. In particular, the complainant's evidence demonstrates that CN refused to continue to employ her and that CN differentiated adversely in relation to her on a prohibited ground of discrimination.
(i) Refusal to Employ or to Continue to Employ [52] Ms. Hoyt became pregnant. She began experiencing some pain and discomfort at work. She went to her doctor. Her doctor examined her and in a letter made four clear and simple directions. She brought the letter to CN. She was told to go home and was placed on unpaid leave status.
[53] CN made two offers of accommodation to Ms. Hoyt in February of 2002. Ms. Hoyt rejected the first proposal and the Union, with her support, rejected the second.
[54] The accommodation proposals made by CN engage the Supreme Court of Canada's analysis in Renaud [1992] 2 S.C.R. 970 at para. 39 and reminds us that where an employer has communicated a proposal that would fully accommodate an employee's needs or restrictions and that is reasonable in the circumstances, the employer's duty is satisfied. It then becomes the duty of the employee and, in a collective bargaining environment, the duty of the Union, to accept and to facilitate the implementation of the proposal. If an employee's need for accommodation is fully and properly satisfied, the employer will not be required to demonstrate that the accommodation amounted to undue hardship.
[55] The Federal Court of Appeal has also considered this issue. Pelletier JA writing per curiam in Hutchinson v. Canada (Minister of Environment), [2003] 4 F.C. 580 at para. 75, noted that where the conduct of an employer can be demonstrated to have taken reasonable steps and to have made reasonable proposals that would meet an employee's limitations, the employee has not been adversely treated and a prima facie case will not be made out.
[56] I find that neither of CN's proposals accommodated Ms. Hoyt's requirements.
[57] CN's first accommodation proposal was directly contrary to at least one of the medical restrictions identified by her doctor. She was told by her doctor not to use a belt pack. The position required the use of the beltpack. Ms. Hoyt also believed that the position would be unduly strenuous and so in violation of a second of her doctor's directions. This offer was not of a nature contemplated by Renaud; it did not accommodate the restrictions identified by her doctor.
[58] CN's second accommodation proposal also failed to accommodate Ms. Hoyt. While this proposal, if implemented, would have met each of the restrictions identified by Ms. Hoyt's doctor, the proposal gave rise to other significant concerns: safety and seniority.
[59] The Union took the position that this proposal would make Ms. Hoyt unsafe on the Yard. Ms. Hoyt, an experienced yard conductor, shared that concern. CN's general operating instructions required both conductors wear a beltpack when employed on a two conductor crew. CN's proposal would exempt Ms. Hoyt alone from this workplace direction. As mentioned previously, safety is a priority at CN. Safety measures are a part of the equipment and part of the culture of this industry. The safety concern was reasonable in the circumstances and represented another of Ms. Hoyt's needs for accommodation. The position offered did not meet this need and so did not fully meet Ms. Hoyt's requirement for accommodation.
[60] Discrimination can arise from both conduct that creates practical disadvantage and from the messages that such conduct can convey (Vriend v. Alberta [1998] 1 S.C.R. 493 at para. 100). The message conveyed by this proposal is palpable. If implemented, the proposal would mean that Ms. Hoyt - only Ms. Hoyt - only the pregnant woman - would be navigating the Walker Yard, among its 40 tracks, the moving rail cars weighing 30 to 130 tons and stretching as much as a mile long, without the equipment, the protection, that the general operating instructions afford every other employee on a two conductor crew. The message that the implementation of this proposal would send is prima facie discriminatory.
[61] This proposal also created for Ms. Hoyt a reasonable apprehension that she would be exposed to further discrimination should she be given super seniority status. This concern was based on the recent experience of a colleague, who suffered inappropriate comments from co-workers and other mischief. This concern of Ms. Hoyt's was another element of her need for accommodation and CN's second proposal did not meet this need.
[62] Having rejected the offers of accommodation, Ms. Hoyt remained on unpaid leave for three and a half months. Ms. Hoyt was not sick. She was not injured. She was a healthy woman in the early stages of pregnancy. I find that the prima facie case is made out. Between mid February and late May of 2002 the complainant was a victim of discrimination because her pregnancy was not properly accommodated.
(ii) Differentiating Adversely [63] There is also evidence that Ms. Hoyt was treated differently and adversely compared to other employees not sharing her personal characteristic of pregnancy.
[64] Marvin Sawatzky gave evidence at the hearing. Mr. Sawatzky, a CN conductor and locomotive engineer, injured his ankle three days before Ms. Hoyt made her request for accommodation. Mr. Sawatzky got a note from his doctor, took it to CN and was told to come in the next day. He first worked in the administration office and was later given a position driving a crew van. His shift was Monday to Friday commencing at 7:30 a.m. While Mr. Sawatzky was paid for the full shift, he left the work site after lunch each day to attend physiotherapy. He went home after his appointment. Mr. Sawatzky returned to his regular assignment in early May.
[65] Ms. Hoyt's husband, who worked as a conductor at CN among other positions he performed for this employer, became unable to use the beltpack nine days after Ms. Hoyt's need for accommodation arose. A problem with the pack's harness was causing Mr. Hoyt to experience back pain. Like Mr. Sawatzky, Mr. Hoyt delivered a doctor's note to CN outlining his requirement for accommodation. He was told to come in the next morning. Mr. Hoyt joined Mr. Swatzky in an administration office on the yard doing administrative work. He was later re-assigned to a point protection position that entailed his operating a locomotive on a three-person crew. Three-person crews do not use beltpacks. He returned to his regular assignment in early April 2002 after CN had successfully made adjustments to his harness. Mr. Hoyt was not assigned to a two- conductor crew with a radio instead of a beltpack.
[66] CN could not, however, find accommodation for Ms. Hoyt beyond the proposals made. She sat at home.
[67] This differential treatment itself makes out a prima facie case of discrimination (Saskatchewan (Human Rights Commission) v. Canadian Odeon Theatres Ltd. (1985), 6 C.H.R.R. D/2682 at D/2689). CN's failure to afford reasonable accommodation to Ms. Hoyt between mid-February and late May, 2002, particularly when other employees were accommodated seamlessly, is sufficient evidence to make out a prima facie case of discrimination. The onus now shifts to CN to justify its conduct on a balance of probabilities.
B. CN's Justification [68] CN's justification is that it had made a reasonable proposal of accommodation that met its legal duty to accommodate and that Ms. Hoyt and the Union failed to discharge their duty to accept the reasonable accommodation. The Union was further at fault because it did not communicate its rejection of the proposal until late April, 2002. Finally, there were no other positions at CN that could be offered to Ms. Hoyt until the crew van driver position became available. CN's evidence on the issue of justification is as follows.
[69] CN's objectives when it attended to Ms. Hoyt's request for accommodation were twofold. First, they preferred to keep employees engaged in their craft as much as that was possible. Second, they preferred to engage employees only in viable accommodative positions, meaning positions valuable to CN's operations.
[70] When the complainant's request for accommodation and doctor's note were first received, CN assistant supervisor, Rick Sherbo, made some inquiries of other CN departments to see if they had anything available for `a pregnant woman.' He found nothing. CN was downsizing its administrative positions at the time and CN had recently eliminated some positions created to accommodate employees as the positions had been found to be of no value to the company.
[71] Mr. Sherbo shared the doctor's note with his superior, Mr. Valliere. They were of the opinion that beltpack use posed no medical concerns to a pregnant woman. The two were also unclear about the restrictions regarding hazards and overly arduous activities. They decided to offer Ms. Hoyt a beltpack position on the Walker Hump. They felt this position to be less strenuous than a position on the yard. They also decided to ask for clarification from Ms. Hoyt's doctor regarding her restrictions. This position would satisfy CN's objectives in accommodation.
[72] Upon receiving the second doctor's note, Mr. Sherbo and Mr. Valliere discussed the matter again. The second position, that Ms. Hoyt would work on a two-conductor crew without a beltpack, was settled on as it would meet CN's accommodation objectives and satisfy the restrictions identified by the doctor. `This is basically what we came up with as viable accommodation,' testified Mr. Sherbo. CN took this proposal to the Union. The Union, as we know, rejected the proposal.
[73] Mr. Sherbo then wrote the March 1, 2002, letter to Ms. Hoyt advising her that the Union had rejected their proposal of accommodation and that there were no other positions available at CN to accommodate Ms. Hoyt's pregnancy.
[74] The alternative solutions proposed by the Union were dismissed because in CN's view they were `not viable.'
[75] Mr. Sherbo said that he continued, from time to time, to make inquiries about available positions. He found none. He also advised that after March 1, 2002, the matter `went upstairs.' He was unaware of decisions made or CN's reasoning behind decisions made after that date.
[76] In mid-March, 2002, a month after Ms. Hoyt made her first request for accommodation and a month after she had been sent home on unpaid leave, Susan Blackmore, a CN human resources officer, became involved in the file. CN asked Ms. Blackmore to try to convince the Union to change its mind and to consent to the second proposal of accommodation. CN felt the accommodation was a `good and viable' solution. She spoke to a union representative and followed up with correspondence asking for a response. Ms. Blackmore testified that she was hopeful that the Union would change its position and that while she awaited a response she made a few informal inquiries of other departments to see if there were any positions available. She found no position for Ms. Hoyt. Ms. Blackmore described that `at CN there are limited opportunities to accommodate.' At the end of April, the Union presented a formal policy grievance on Ms. Hoyt's behalf. It was only then, she testified, that she realized that the Union would not change its position.
[77] At the end of May 2002, Ms. Hoyt was offered the crew van position. CN's witnesses did not know when and how the crew van position became available. That decision was made by Mr. Valliere. He was not called as a witness.
C. Was CN's Conduct Justified? Was it a BFOR? [78] Section 15 of the CHRA directs that where an employer's conduct is based on a bona fide occupational requirement (BFOR), the conduct will not be a discriminatory practice.
[79] To meet its evidentiary burden, an employer must demonstrate that it discharged its duty of reasonable accommodation short of undue hardship (Ontario v. Simpson Sears [1985] 2 S.C.R. 536, see also Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (1990) 12 C.H.R.R. D/417).
[80] The Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance) [1999] 3 S.C.R. 3 (Meiorin), sets out the content of an employer's duty to accommodate and the analysis by which an employer's efforts must be assessed.
[81] To establish this justification, that is, a BFOR, the employer must prove:
that the standard was adopted or a decision made for a purpose rationally connected to a legitimate work related purpose (Meiorin, supra at para. 58); that the standard adopted or the decision was made in an honest and good faith belief it was necessary to fulfill this work related-purpose (Meiorin, supra at para. 60); that the standard adopted or decision made was on the evidence reasonably necessary to accomplish this work related purpose (Meiorin, supra at para. 62).
(i) Rational Connection [82] To satisfy the first arm of the test in Meiorin, the employer must demonstrate that a decision made is rationally connected to a work-related purpose. The focus in this first step is not the validity of the particular decisions made, but rather the validity of the more general purpose.
[83] The decisions made by CN in its attempts to accommodate Ms. Hoyt were, first, to send her home on unpaid leave until they considered the doctor's note; next to offer her a position on the Walker Hump; and next to offer her a position as a conductor on the yard without wearing a beltpack. CN could find no other positions to accommodate Ms. Hoyt until late May, 2002.
[84] CN gave two reasons for the decisions made regarding Ms. Hoyt's accommodation. CN preferred to keep employees working in their craft where that was reasonably possible. CN also preferred to have employees working in jobs that were viable, meaning valuable to its operations.
[85] I find these general overall purposes, being a desire to maintain employees in their craft, and that of economic viability, to be reasonable, and the decisions rationally connected to CN's stated objectives.
(ii) Honest and Good Faith Belief [86] Step two of the Meiorin test is the subjective element of the test. The employer must demonstrate that it adopted a particular standard with an honest and good faith belief that the decision was necessary to accomplish its objective. The employer must also demonstrate that it had no intention of discriminating against the claimant.' (Meiorin, supra, at para. 60).
[87] I find that CN has not discharged its onus at this second step of the analysis.
[88] CN is a large and sophisticated employer. CN has both a Risk Management and a Human Resources Department with many employees engaged on a daily basis with matter