Kelsh v. Canadian Pacific Railway

Kelsh v. Canadian Pacific Railway
Collection
Canadian Human Rights Tribunal
Date
2019-12-27
Neutral citation
2019 CHRT 51
File number(s)
T1956/3613
Decision-maker(s)
Luftig, Olga
Decision type
Decision
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
51
Date:
December 27, 2019
File No.:
T1956/3613
Between:
Ken Kelsh
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian Pacific Railway
Respondent
Decision
Member:
Olga Luftig
Table of Contents
I. Overview 1
II. Issues 2
III. Decision 2
IV. Background 3
A. Engineering Services, Group 1 Machines, and the Rules Cards 3
B. Taking Track Protection on the Rails 5
C. Mr. Kelsh’s background and career with the Railway 7
D. The Railway’s approach to Rules Card testing 11
V. Law: Discrimination under the Canadian Human Rights Act 15
VI. Reasons 18
A. Was requiring Mr. Kelsh to take the D Card test in writing discriminatory? 18
(i) The test for discrimination 18
(ii) The Test for Justification 20
B. Was the Railway’s policy of classifying Machines discriminatory? 22
C. Was the decision to bar Mr. Kelsh from driving the Stake Truck because he did not have a D Card discriminatory? 24
(i) The test for discrimination 24
(ii) The Test for Justification 27
D. Was the imposition of a Computer-based bidding process discriminatory? 30
E. Did the Railway retaliate against Mr. Kelsh for filing his Complaint? 31
(i) The test for retaliation 32
VII. Remedies 34
A. Restoration of Rights, Opportunities or Privileges (s. 53(2)(b)) 35
B. Lost Wages and Overtime and “Forced Expenses” 35
(i) Expenses 40
C. Compensation for Pain and Suffering (s. 53(2)(e)) 42
D. Compensation for Willful and Reckless Discrimination (s. 53(3)) 43
E. Interest 44
F. Systemic Remedy 44
VIII. Outstanding Rulings 45
A. Should the Railway intervene regarding witness payments? 45
B. Confidentiality issues 46
IX. ORDER 48
X. Retention of Jurisdiction 49
I. Overview
[1] The Complainant, Ken Kelsh, filed a complaint against his employer, Canadian Pacific Railway (the Railway or the Respondent), with the Canadian Human Rights Commission on August 3, 2011. The Complaint, as amended, alleges:
discrimination in employment on account of disability, resulting in adverse differential treatment, contrary to section 7 of the Canadian Human Rights Act (Act);
discrimination in the Respondent’s testing, bidding practices, and machine classification procedures, contrary to section 10 of the Act; and
retaliation, contrary to section 14.1 of the Act.
[2] Mr. Kelsh works for the Railway in its Engineering Services division. He and his colleagues are responsible for laying track, and for track maintenance. The work involves numerous pieces of self-propelled heavy machinery (Machines), and the Railway has devised a system of classification whereby certain testing and qualification is required to operate different Machines. In particular, anyone operating a machine that could be in a position of having to take on the responsibility of directing or protecting others from train movements, is required to pass a test to obtain what is known as a “D Rules Card” (D Card).
[3] Mr. Kelsh is an individual of very low literacy and he says that the Railway was wrong in requiring that the testing for the D Card be in writing. He further alleges that the Railway has classified too many machines as requiring the D Card (including in particular one machine called a Stake Truck), and that he was discriminated against when the Railway instituted a computer-based system for bidding for jobs. Finally, he claims that the Railway denied him certain jobs in retaliation for having filed a human rights Complaint.
[4] The Railway’s position is that the need to be sufficiently literate to take a written examination is a genuine requirement for all Machines requiring the D Card. It further argues that accommodating Mr. Kelsh by waiving the reading and writing requirements or by allowing him to operate D Card-classed Machines without this certification would represent undue hardship to the Railway based on safety and cost. They deny any overbroadness in their classification of Machines, and say Mr. Kelsh did not experience any negative consequences from computer-based bidding. Finally, they submit there was no retaliation against Mr. Kelsh.
II. Issues
[5] The Tribunal must determine the following issues in this Decision:
[6] First, has Mr. Kelsh met his burden of establishing a prima facie case of discrimination in accordance with section 7 or section 10 of the Act, or both?
[7] If so, has the Railway established any valid justification for its otherwise discriminatory actions?
[8] Has Mr. Kelsh established that the Railway retaliated against him for having filed a Complaint, contrary to s. 14.1 of the Act?
[9] If the Complaint is substantiated in full or in part, what are the appropriate remedies to be granted pursuant to s. 53 of the Act?
[10] And finally, regardless of the outcome of the above questions, the following motions are addressed:
Should the Railway be ordered to compensate its employees who appeared at the Tribunal hearing as witnesses for the Complainant?
Should the Tribunal grant certain confidentiality measures requested?
III. Decision
[11] For the reasons that follow, the Complaint is partially substantiated.
[12] The Tribunal finds that Mr. Kelsh met his burden of establishing that requiring him to take his D Card exam in writing constituted a prima facie case of discrimination. However, the Railway justified the discriminatory practice on the basis that the ability to read and write is a bona fide occupational requirement (BFOR), and that accommodation, by giving Mr. Kelsh an oral D Card test, would constitute undue hardship as outlined in sections 15(1)(a) and 15(2) of the Act.
[13] Mr. Kelsh also established a prima facie case of discrimination with regards to being barred from operating a Stake Truck because he held only an E Card. In this inquiry, the Railway did not justify the discriminatory practice. While there was insufficient evidence to analyze the Railway’s requirements for the operation of every Machine and determine if they are reasonable, the Tribunal finds that Mr. Kelsh could have been accommodated in the specific role of Stake Truck operator without placing undue hardship on the Railway. As such, Mr. Kelsh is entitled to remedies.
[14] The Tribunal dismisses Mr. Kelsh’s allegation that the Railway’s bidding practices are systemically discriminatory.
[15] The Tribunal does not find that the Railway retaliated against Mr. Kelsh within the meaning of s. 14.1 of the Act after he made his human rights Complaint.
IV. Background
A. Engineering Services, Group 1 Machines, and the Rules Cards
[16] The Complainant Ken Kelsh has worked for the Railway in its Engineering Services division (ES) since 1998. Engineering Services maintains, repairs, and replaces track, switches, ties, signals and other physical equipment of the Railway.
[17] He and his colleagues operate in accordance with: the Collective Agreement between the Railway and the Teamsters Union (Collective Agreement or Wage Agreement); the Railway Safety Act, R.S.C. 1985, c. 32 and regulations thereunder, Transport Canada’s “Canadian Railroad Operating Rules” (CROR), and the Railway’s own Rules, which Transport Canada enforces. While the Railway must adhere at minimum to the CROR’s, witnesses at the hearing were clear that it is free to introduce higher standards of its own, as well.
[18] The Railway divides the province of Ontario into various subdivisions (Subdivisions), which are in turn divided into Sections.
[19] The work of Engineering Services (ES) is seasonal: For about 8 or 9 months during the spring, summer and fall, ES employees work in what are called Gangs or Crews. These Gangs contain various Machines, operated by Machine operators; usually at least one Foreman; skilled hand-machine operators; signal maintainers, and labourers, all doing the different tasks required in repairing, replacing and laying down track and the Railway’s other physical plant and equipment which is integral to the movement of trains. These lines of Machines are together called a “Consist”. They work on or right beside the tracks, sometimes quite a distance apart, and they are always moving along the track. The “front” of the Consist is moving in the direction of the work, with the next Machine following, and so on.
[20] For about 3 or 4 months over the winter, which can be from the beginning or the middle of December to the middle or end of March the following calendar year, depending on the snowfall, some of the ES employees work on snow removal from tracks and switches and related winter tasks. The Railway’s witness Dan Berek testified that at the time of the hearing, there were approximately 50 winter jobs available, whereas in prior years there were only about 15 or 20. His evidence was that only employees with very high seniority would obtain the available Group 1 Machine Operator jobs in the winter.
[21] The evidence established that several times a year, ES employees have to bid on positions in the Gangs and for winter work. The Railway’s Bulletins list the positions required to be filled and the Crews and location in which the Crews will work. The Railway is required to award the positions based on a combination of 1) seniority in accordance with the Collective Agreement; and 2) the qualifications of the bidder to operate the specific Machine.
[22] Witnesses testified that there are different types of Machines, classified into different groups (Groups) – Group 1, 2, 3 and 4 and Special Machines - requiring different qualifications, and in particular, requiring different Rules Card qualifications. To obtain the qualifications, employees must take a course and pass a test. The Group 1 Machines usually require the Operator to have either an E Card (a lower level Card) or a D Card (higher than an E Card).
[23] The evidence established that a significant difference (although not the only difference) between an E Card and a D Card is that with a D Card, the holder is capable of taking out what is called “Track Protection” and “Sub-foreman Protection”, which will be explained in detail later in this Decision. Put simply, the Railway’s evidence established that the E Card course and test is about knowledge of the CROR and the Railway’s Rules; the D Card course and test is about knowing those same Rules but also being able to interpret and apply them on the job, which would necessarily include the act of taking Track Protection.
B. Taking Track Protection on the Rails
[24] The purpose and logistics of taking Track Protection were central to this inquiry, and an understanding of what it entails is required to decide whether literacy is a bona fide occupational requirement. During the hearing, there was extensive evidence provided by many of the Complainant’s and the Respondent’s witnesses regarding Track Protection. Testimony was given by, among others:
Richard Alward, longtime trainer for the Railway who taught the E and D Card courses and marked the tests,
Foremen John Montgomery, Kevin Hutchings, Gilbert Ouellette, and Foreman B (whose name has been anonymized due to reliance on highly personal information about his earnings), who all took out Track Protection throughout their careers,
Mr. Kelsh’s former supervisor Kenneth McCormack,
the Railway’s General Manager of Regulatory and Operating Practices Keith Shearer, and
Mr. Kelsh himself.
[25] The evidence on this matter was largely uncontroverted and I have summarized it here.
[26] ES Crews work on or next to live tracks on which trains run throughout the day. Therefore, when a Crew is working on or near a live track, that Crew must be protected from being hit by a moving train, which could cause injury or death to individuals on the Crew or on the train, or both, damage to Machines and the train, damage to property, to the public or to the environment.
[27] To protect the Crew, that portion of the track or area near the track on which the Crew is working on any given day must be blocked off from trains travelling on the same track. One Foreman of a Crew usually takes out a Track Occupancy Permit (TOP) to secure the area where the Crew works. He communicates with the Rail Traffic Control (RTC), which is akin to Air Traffic Control in airports, but with respect to railways, and which controls the movements of trains. The Railway’s RTC is in Calgary. By radio, the Foreman tells the RTC the location and length of track which the Crew needs the RTC to block off, designating the limits of that length by either mile markers – for example, from Mile 2 to Mile 12, or designating the area by describing it as being from signal X to signal Y, or by using other identifiable markers.
[28] The RTC then tells the Foreman the parameters of the TOP, which the Foreman must write down on a specific form. The Foreman must then repeat to the RTC both the TOP limits and the pre-printed words on the form, word for word. If the Foreman’s repetition is correct, the RTC grants the Foreman the TOP within the parameters previously repeated. If the Foreman’s repetition is incorrect, he must repeat it again and as many times as necessary until the RTC confirms that the Foreman has it correct.
[29] If the work protected by a TOP is completed and there is time left in the working day to do more, or if for some other reason, the Crew requires another TOP, the Foreman will radio the RTC, cancel the existing TOP once he is certain that no one would be in danger on account of the cancellation (see below), and request another TOP to protect another block of track, and the TOP process is repeated.
[30] At one time, only the Foreman would take out Track Protection. Then the Railway instituted a requirement that the Foreman give the first and last Machines in the Consist what is called Sub-Foreman Protection or Sub-foreman. The evidence was not clear as to when the Railway started to require the Sub-foreman system, but it seems to have been some time after 2003. The Railway’s witness Keith Shearer testified that the purpose of Sub-foreman Protection is to ensure that the Consist is bracketed by operators in the first and last Machines who specifically know the TOP limits and will not go beyond them.
[31] The procedure for Sub-Foreman Protection is that once the Foreman has obtained a TOP, he repeats the TOP parameters to the Machine operators in the first and last Machines in the Consist; those Machine operators then write the information on a specific form, repeat both the parameters and the pre-printed portion of the form back to the Foreman word for word – any errors in repetition mean that the TOP must be repeated again until correct. Before a Foreman can cancel a TOP, he must ensure that he tells each Machine Operator to whom he has given Sub-Foreman Protection that he is going to cancel the TOP, in order to make sure that each Sub-Foreman is in the clear and not still on the track either by themselves or with any other part of the Crew. Sub-Foremen do not communicate with the RTC – they only communicate with the Foreman giving out the Protection. Only the Foreman communicates with the RTC.
C. Mr. Kelsh’s background and career with the Railway
[32] Mr. Kelsh testified that he has had problems with reading words and sentences his whole life. He can read and write numbers pretty well and stated that he loved math in school. He is two credits shy of a high school diploma – he quit high school before he finished it because he felt a high school diploma would not mean anything because he could not read or write properly.
[33] He learned the rules of the road by having his brother read the rules to him and then repeating them back to him, and obtained his driver’s licence at 16 or 17 by doing an oral test. He successfully trained racehorses for many years. He obtained his A Trainer’s licence from the Ontario Racing Commission by taking and passing an oral test after studying the book for about two years. Eventually he left the horse business to go to work for the Railway.
[34] Mr. Kelsh has worked for the Railway in its Engineering Services Division since mid-1998. The evidence established that in 1998, the Railway doctor who examined him for his pre-employment medical exam helped him fill out the necessary medical form and noted on it that Mr. Kelsh “has difficulty reading”.
[35] Mr. Kelsh started at the Railway as a Labourer on a Gauging Crew on the tracks for about six months, then became a Group 2 Machine Operator.
[36] In early March, 1999, he began operating other Machines, including self-propelled Machines. In 1999, he bid for and was awarded the Spiker, then classified as a Group 2 Machine which did not require a D Card. He operated the Spiker for a couple of weeks, when a more senior employee “bumped” him from the position, in accordance with the Collective Agreement.
[37] There was no dispute about the positions Mr. Kelsh held from March 19, 1999 to the end of 2004, starting with Extra Gang Labourer and including Machine Operator Helper, Groups 1, 2, 3 and 4 Machines Operator and Assistant Machine Operator. He received the basic training given by the Railway when he was hired, but afterward, he learned to operate the Machines on the job. He was taught by his coworkers.
[38] There was contradictory testimony and some disputed documentary evidence about which specific Machines Mr. Kelsh operated and when, particularly from 2006 to the end of 2010. The Position Histories from the Respondent are Exhibits C4-1, C4-2 and C4-3. They set out whether the position was a Group 1, 2 or 3 Machine Operator, a Trackman or other position, but do not name the actual Machine.
[39] I find that whether Mr. Kelsh operated the Stake Truck is relevant to the issues in the Complaint. Therefore, I have reviewed relevant testimony and exhibits and made the following findings of fact on when Mr. Kelsh operated the Stake Truck.
[40] The evidence was clear that Mr. Kelsh operated the Stake Truck for multiple, significant periods of time between the years of 2007 and 2010, with the Railway’s knowledge and informal accommodation in place. Although there were some dispute as to the exact dates and, in some cases, the manner of his obtaining the roles (for example, by bid versus via the “45 day provision”, discussed later), no one argued that he had not operated this Machine. Below are the periods where I find the preponderance of evidence established that Mr. Kelsh was operating a Stake Truck:
June 25, 2007 to December 16, 2007: The Complainant’s witnesses John Montgomery, who has been Mr. Kelsh’s Foreman with him in the Stake Truck; Foreman B., and Kenneth McCormack, his Supervisor, all testified that Mr. Kelsh operated the Stake Truck in 2007.The Respondent’s 2005-2008 Award Summary and Bulletin 07-02 Awards Corrector #1 showed the award of the position to him.
September 9, 2009 to January 4, 2010:I accept the testimony of both Mr. Kelsh and Nicolas Rehel, who has been a Supervisor and a Foreman, on this point, and also take intoaccount Position History #3 to find that Mr. Kelsh obtained the Stake Truck position by bid and operated it during this period.
September 1, 2010, for approximately one and a half months in Havelock. Based on the testimony of Mr. Kelsh, Mr. Unyi and Mr. Berek, and the Collective Agreement, I find that if a position is required for less than 45 calendar days, the Collective Agreement states that the position does not have to be put up for bid; rather, it can be filled by seniority or movement within a Crew (45-day provision). The evidence established that this occurred in 2010 and Mr. Kelsh obtained a Stake Truck role in this fashion.
Notwithstanding that Position History #3 shows Mr. Kelsh as operating the Tie Crane until January 6, 2011, I accept his testimony, and that of Mr. Gilbert Ouellette and Mr. Andreas Unyi that around September 1, 2010, the Gangs were split and Mr. Kelsh operated the Stake Truck.
Late October/early November 2010 – December 17, 2010: I also find that the 45-day provision factored into the Stake Truck position Mr. Kelsh had in Bolton in 2010. He testified that he was on the Stake Truck from August 2010 to December 17, 2010. He obtained a Stake Truck position in Bolton around the end of October or beginning of November by exercising his seniority and bumping someone from the Stake Truck. I accept the testimony of Mr. Kelsh, Mr. Unyi and Mr.Ouellette, Mr. Kelsh’s Foreman in Bolton, on this point.
According to Mr. Ouellette, Mr. Kelsh took on extra duties in Bolton for approximately 2 to 3 weeks, and Mr. Ouellette arranged to have him paid at Assistant Foreman rates.
[41] The evidence also established that Mr. Kelsh operated the Stake Truck on a swing bridge in Peterborough for a period of two and a half months in the spring/summer of 2015. When the Foreman went on holidays, he was concerned about Mr. Kelsh operating the Stake Truck by himself, so Mr. Kelsh was placed on the Section Crew doing labourer’s work.
Mr. Kelsh and the Rules Cards
[42] In August 2002, Mr. Kelsh took the 4-day initial D Card course. He testified that he told the Respondent’s Instructor, Richard Alward, that he needed an oral test in order to pass. However, Mr. Alward administered the D Card course tests in writing and required written answers, including for the final test. There was no dispute that Mr. Kelsh failed the final D Card test. Mr. Alward testified that immediately after Mr. Kelsh failed, Mr. Alward asked him questions about the CROR to see if Mr. Kelsh knew enough for CP to issue him an E Card. He did and obtained an E Card.
[43] On April 13, 2005, Mr. Kelsh took the written E Card test because his 2002 E Card was going to expire. He failed on this occasion and on two subsequent attempts on the written test in 2006, with the result that from April 13, 2005 to October 22,
2008, a period of three and a half years, Mr. Kelsh had no Cards at all. He testified that throughout this period, he asked various people in management for verbal E and D Card tests instead of written tests. Although he held no cards, he was accommodated by the Railway during this period – they allowed him to operate Group 1 Machines in the middle of the Consist and he continued to earn his regular rate of pay.
[44] In 2007, after consultations among the Railway’s Employee Relations department and other management and departments, the Railway decided it needed a better understanding of Mr. Kelsh’s limits in reading and writing, and arranged, at its expense, for a psychologist to assess Mr. Kelsh. Under “Reason for Referral”, Dr. Feak, the psychologist, wrote that he was to conduct a psychoeducational assessment of Mr. Kelsh, at his employer’s request, to “rule out a learning disability”, explore his “cognitive functioning and academic skills” and assess “social and emotional factors influencing his current difficulties”.
[45] In his report, which I have designated confidential as set out later, Dr. Feak concluded that a written test would not determine Mr. Kelsh’s knowledge of the Rules and that, generally speaking, asking Mr. Kelsh to respond to verbal questions as opposed to written ones would give him a better opportunity to demonstrate his knowledge and comprehension. Dr. Feak testified that he did not have any knowledge of the particular Cards or Rules of the Railway, and that his was a general assessment.
[46] In my analysis later, I rely on the Feak report solely with respect to his assessment of Mr. Kelsh’s ability to complete a written test, having attributed very little weight to the remainder of its conclusions and Dr. Feak’s testimony on other matters, for reasons which were first outlined in Kelsh v. Canadian Pacific Railway, 2016 CHRT 9.
[47] Following receipt of Dr. Feak’s analysis and further internal corporate consultations and discussions between various departments and managers, as well as Mr. Berek’s and Mr. Alward’s assessments of Mr. Kelsh on the job in the field, the Railway allowed Mr. Kelsh to take the test orally for the E Card. On October 22, 2008, Mr. Kelsh obtained his E Card by taking a verbal rather than a written test. Out of forty questions, he had only one wrong answer.
[48] The evidence established that Mr. Kelsh went on to attempt the D card certification again in 2011, but without accommodation, and did not pass the D Card test.
[49] At the time of the hearing, he had renewed his E Card in 2011 and 2014 by passing oral E Card tests.
D. The Railway’s approach to Rules Card testing
[50] Mr. Kelsh’s history, as outlined above, raises the question of why the Railway did its testing this specific way, and what governed its decision-making on this issue. The evidence established that the Railway Safety Act does not prescribe the method in which a railway must test its employees to determine whether they meet the CROR requirements. For instance, the testing for the E and D Cards were established by the Railway itself.
[51] In June of 2013, Transport Canada wrote to the Railway’s Director of Regulatory Affairs in response to a query regarding the possibility of alternate methods of examining prospective D Card holders. The response included the following:
As the CROR has many rules that require the copying of clearances and instructions between foremen, CP Rail would need to clearly demonstrate how an employee who is unable to pass the written exam would be able to fulfill such requirements. If CP determined that an oral rules exam would be administered, Transport Canada would then require CP Rail to demonstrate how such employee would be able to meet the written requirements of the CROR for example CROR Rule 136(a), Rules 840.3(b), 842(a) and (b), 843(a), 854, 855, 864, and 865.
Transport Canada is unaware of other methods of testing that would demonstrate an employee's ability to read and understand the CROR.
[Exhibit C-1 Tab 153]
[52] The Railway’s witness Kari Giddings, Employee Relations Advisor, testified that in the course of dealing with the Complaint, she asked the Railway’s Rules Department why the D Card test had to be in writing. Exhibit R4-126, the September 5, 2012 email answer from Jim Kienzler, included two attached documents, one of which was the Railway’s 1991 Regulatory Qualification Standards Manual (1991 RQS Manual).
[53] I find that the 1991 RQS Manual covers, among other things, the Railway’s standards for employees to qualify for certification in the CROR and the manner of testing for Rules Cards. It also sets out the Card requirements for all the different types of Machines and vehicles “equipped with hi-rail equipment”, for Group 1 and Special Group Machines and for outside contractors operating equipment, trains and Machines (pp.10-12).
[54] Mr. Kienzler wrote, in part of his email:
“The requirement that all rules qualification exams for D card be in writing has always been a CP requirement going back as far as we can find. In the 1991 version (still the official approved version) there was an exception for E card qualification where the test could be oral for literacy reasons, but never for D card.”
[55] The Respondent’s witness Keith Shearer testified that what was meant by “the official approved version” was not legislative approval of the 1991 RQS Manual, but rather internal Railway corporate approval.
[56] It is difficult to establish whether the 1991 RQS Manual was in force at the relevant times in this Complaint and indeed whether it was enforceable or an informal policy, what it meant and how it intersected with the Railway Safety Act and Regulations, the CROR and CP’s own Rules. In her closing submissions, the Respondent’s counsel candidly stated that the evidence was confusing.
[57] I find that the relevant part of the 1991 RQS Manual is the following:
“In order to comply with CROR General Rule A(vii), Minimum Qualification Standards Regulations (CTC 1987-3 Rail) … the following instructions apply:
(a) No railway company shall permit any person to work in any of the positions listed herein which is subject to Operating Rules without first having passed the required written examination at prescribed intervals.
Exception: The incumbent of a Maintenance of Way position subject to minimum E level of examination on the Operating Rules, who cannot pass the required written examination due to literacy problems, must pass an oral examination at prescribed intervals.”
[58] The Railway’s witness Richard Alward retired November 1, 2014 after working for CP for 31 years. He started on a Gauging Crew and worked up to Section Foreman. In February 1998 he became a Canadian Rail Operating Rules (CROR) Trainer, instructing Engineering Services Crews, in Southern and Northern Ontario, for all departments, including Track Programs, Maintenance of Way, Signals and Communications and Bridge and Building. He was in that role from 1998 to November 1, 2014. He was the Rules Instructor who taught the D and E Card courses and administered and marked the tests for those Cards when Mr. Kelsh took the courses and did the tests. He continued in that position until his 2014 retirement.
[59] Mr. Alward testified that in 2005, the Railway no longer permitted any oral testing on any Rules Card. He testified that even though the proposed revised Administrative Guidelines for testing in Exhibit R1-32 referred to September 30, 2005 as being the effective date of this change in policy, he and the other Trainers were told earlier in 2005 that this would become policy and they had started administering only written tests before September 30. I find that this was why when Mr. Kelsh tried to renew his E Card on April 15, 2005, he was given a written E Card test, which he failed.
[60] Mr. Alward concurred that the Draft Administrative Guidelines for testing (2005) brought some changes to the 1991 RQS Manual. The change meant that there would be no further grandfathering, and only written tests – there were no oral tests anymore. The Trainers also had to follow the new grading guidelines.
[61] The documentary evidence confirmed that in 2007 the Railway drafted proposed revisions to the RQS Manual which were still being followed as of 2012 though never formally approved, (Exhibit R4-126, pp. 15-21). I find that the portion of the Draft 2007 RQS Policy relevant to the availability of oral testing is on page 21, and states:
“All final examinations are in writing.
EXCEPTION: Those that have had rules qualifications previous to this policy are permitted to conduct a [sic] “E” level test orally. Such employees must additionally demonstrate competency during field observation.”
[62] I also find that the 2007 proposed Exception is materially different than that in the 1991 RQS Manual, as it does not refer at all to “literacy problems” and requires the employee to have been previously Rules-qualified – a form of “grandfathering”. It also adds the requirement for a demonstration of competency in the field.
[63] Mr. Kelsh testified that he was not aware of the 1991 RQS Manual or the exception for oral testing therein until December 2015, when he was preparing for the hearing with his lawyer, who read it to him. Many of the Railway’s and Complainant’s witnesses also testified that they did not know the Manual existed until it was produced to them at the hearing, including the Respondent’s witness Dan Berek and the Complainant’s witness Kenneth McCormack, who had been Mr. Kelsh’s Supervisor on many Crews. Mr. Kelsh also testified that when he took his first written D Card test in 2002, Mr. Alward did not tell him about the 1991 RQS Manual.
[64] I conclude from the above documentary evidence and testimony that the Railway’s general approach to oral Rules Card testing was and is as follows:
Except in a very rare instance, oral testing was only available for the E Card;
Between December 1, 1991 and some time in 2005, in accordance with the 1991 RQS Manual, it only permitted such oral testing if an employee could not pass the “required written examination due to literacy problems”.
From 2005 until sometime in 2006, a Draft revised RQS Policy (2006 Draft of Revised RQS Manual) was being followed, which ruled out oral testing for any reason for any employee, grandfathered or otherwise.
From sometime in 2007 until the time of the hearing, a later draft (2007 Draft of Revised RQS Manual) was being followed. This document permitted oral testing for the E Card, on the conditions that the employee had obtained rules qualifications before the Draft 2007 RQS Policy was composed, and that the employee demonstrated competency in the field.
V. Law: Discrimination under the Canadian Human Rights Act
[65] A discrimination complaint based on a disability in employment is brought pursuant to sections 7(b) and 10(a) of the Act which state, respectively:
7 “It is a discriminatory practice, directly or indirectly…
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.”
10 It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice …
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[66] To prove a prima facie case of discrimination, the Complainant is required to show:
that he had a characteristic protected from discrimination under the Act,
that he experienced an adverse impact with respect to employment,
and that the protected characteristic was a factor in the adverse impact (Moore v. B.C. (Education), 2012 SCC 61 (Moore), para. 33.
[67] This must be established on a balance of probabilities (Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39 (Bombardier), at paras. 59, 65).
[68] In this case, the Respondent relies on a test laid out in Shakes v. Rex Pak Ltd. (1981), 3 C.H.R.R. D/1001 (Shakes) at para. 8918 (Ont. Bd. Inq.) in its arguments about whether or not Mr. Kelsh has discharged his burden. The Tribunal notes that the Federal Court of Appeal, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2005 FCA 154, made it abundantly clear that Shakes is not to be automatically applied in a rigid or arbitrary fashion in every hiring case:
[24] Counsel for the Attorney General argued that, as a matter of law, a prima facie case of discrimination can normally only be established in employment cases if the Commission adduces comparative evidence in the form of information about the successful candidates. While there can be exceptions (as, for instance, where there were no other candidates or comparative information is not available), a Tribunal must apply Shakes. It is a question of law whether Shakes is applicable to the adjudication of any given employment discrimination complaint. Therefore, counsel said, because comparative information was available in this case, the Tribunal erred in law by not applying Shakes.
[25] I do not agree. The definition of a prima facie case in the adjudication of human rights complaints was considered in Lincoln v. Bay Ferries Ltd., which was decided after the decision under appeal in the present case was rendered. Writing for the Court, Stone J.A. said (at para. 18):
The decisions in Etobicoke, supra, and O'Malley, supra, provide the basic guidance for what is required of a complainant to establish a prima facie case of discrimination under the Canadian Human Rights Act. ... The tribunals' decisions in Shakes, supra, and Israeli, supra, are but illustrations of the application of that guidance. ... As was recently pointed out by the tribunal in Premakumar v. Air Canada, [2002] C.H.R.D. No. 3, at paragraph 77:
While both the Shakes and the Israeli tests serve as useful guides, neither test should be automatically applied in a rigid or arbitrary fashion in every hiring case: rather the circumstances of each case should be considered to determine if the application of either of the tests, in whole or in part, is appropriate. Ultimately, the question will be whether Mr. Premakumar has satisfied the O'Malley test, that is: if believed, is the evidence before me complete and sufficient to justify a verdict in Mr. Premakumar's favour, in the absence of an answer from the respondent?
[26] In my opinion, Lincoln is dispositive: O'Malley provides the legal test of a prima facie case of discrimination under the Canadian Human Rights Act. Shakes and Israeli merely illustrate what evidence, if believed and not satisfactorily explained by the respondent, will suffice for the complainant to succeed in some employment contexts.
[27] In other words, the legal definition of a prima facie case does not require the Commission to adduce any particular type of evidence to prove the facts necessary to establish that the complainant was the victim of a discriminatory practice as defined in the Act. Paragraph 7(b) requires only that a person was differentiated adversely on a prohibited ground in the course of employment. It is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse differentiation on a prohibited ground, if believed and not satisfactorily explained by the respondent.
[69] The leading test for establishing a case of prima facie discrimination remains Moore, supra, and this is the test I have applied.
[70] A Respondent has three options in responding to an allegation of prima facie discrimination. The Respondent may refute the evidence of discrimination presented by the Complainant; it may establish a statutory defence that justifies the discrimination (a bona fide occupational requirement); or it may do both (see Bombardier, supra, para. 64).
[71] In this case the Railway relies on section 15 of the Act, which is interpreted in light of the three-step test set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (Meiorin) at paragraph 54, to establish that an occupational requirement is bona fide:
[...]
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job.
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work related purpose, and;
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
VI. Reasons
[72] In this case, Mr. Kelsh has made complaints of discrimination pertaining to his specific case regarding written D Card testing, as well as broader complaints about the Railway’s policies and procedures. They will be addressed in turn for each step of the test below.
[73] The Railway’s position is that Mr. Kelsh has not proven a prima facie case of discrimination. The alleged discrimination, they argue, is framed in the language of failure to accommodate, which is not a stand-alone ground of discrimination under the Act.
[74] Should a prima facie case be made out, the Railway argues that it accommodated Mr. Kelsh to the point of undue hardship, and that accommodating him further would impose serious risks to safety and costs.
A. Was requiring Mr. Kelsh to take the D Card test in writing discriminatory?
(i) The test for discrimination
Protected Characteristic
[75] The Act defines “disability” in s. 25 as follows: “disability means any previous or existing mental or physical disability and include