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HomeMy WebLinkAboutKaduri 14-07-23IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 560 (the Union) and SENECA COLLEGE (the College) RE’ GRIEVANCE OF HARVEY KADURI (the grievor) #2013-0560-003 Appearing for the Union: Jesse Isaac Gutman, Grievance Officer Appearing for the College: Kathryn J. Bird, Hicks Morley Arbitration Board: Norm Jesin, Chair Pamela Munt-Madill, Union Nominee Carla Zabek, College Nominee AWARD: In this grievance it is alleged that the College has discriminated against the grievor 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. (Article 4.01 of the collective agreement incorporates the prohibition contained in s. 5 of the HRC that there shall be no discrimination in employment based on the items enumerated therein, including creed.) The grievor is Jewish. He has been a full time teacher in the Colleges IT department since 2000. When he initially applied for the position he informed the College that he also taught computer classes at a Jewish high school known as CHAT. He had asked that the College accommodate his morning teaching schedule at Chat by scheduling his classes at the College after 1.00 pm. The College agreed to that accommodation and had continued with the accommodation until the events giving rise to this grievance. In June 2012, the College informed its teachers that it was going to implement a new automated scheduling system. Under the new system classes would be automatically scheduled in accordance with the demand for particular courses and the availability of teachers for those courses. In implementing this system the College informed its teachers that it would be prepared to accommodate its schedule for those with medical disabilities. There was no indication that it would accommodate religious requirements. The implementation of this system would mean that the College could no longer commit to accommodating the grievor’s request to only be scheduled in the afternoon. Nevertheless, the College has continued to accommodate the grievor but has also indicated that he will not be so accommodated for the 2014 – 15 academic year. It is the Union’s position that the College’s refusal to continue to accommodate the grievor’s employment schedule at CHAT constitutes a failure to accommodate his religious beliefs and therefore constitutes discrimination on the basis of creed contrary to s. 5 of the HRC. The parties have raised two preliminary motions to be determined by this decision. The first, raised the College, is a motion to dismiss the grievance on the basis that it does not raise a prima facie case. The second, raised by the Union, is a motion for interim relief, essentially seeking the relief claimed in the grievance on an interim basis pending the issuance of a final decision. That is, the Union seeks an interim Order that the College continue to accommodate the grievor’s schedule at CHAT until a final decision is issued in this case. We will deal first with the College’s motion to dismiss the grievance for failure to raise a prima facie case. The facts giving rise to the grievor’s claim are set out in a statement of written particulars filed by the Union. Paragraph 3 of the particulars describes the basis of the grievor’s claim that his position at CHAT must be accommodated in the following terms: Mr. Kaduri is Jewish and he is an active member of his community. As part of his sincerely held beliefs and his commitment to his faith, he is required to give back to his community. Mr. Kaduri felt he could best fulfill this commitment by using his unique skill set within the Jewish community. That is, he decided to pursue teaching technology part-time at [CHAT], the only Jewish High School in Toronto. There he has also participated in course development, as a Department Head and actively contributes to IT planning for all campuses of the school. It is the position of the College that the particulars filed by the grievor do not establish a prima facie case that the College is discriminating against him on the basis of creed. According to counsel, to establish a prima facie case the grievor must assert that he is required by his religious belief to maintain employment at CHAT – that is, to maintain a second position at CHAT in exchange for wages. According to counsel, the grievor does not make such a claim and indeed, such a claim would realistically have little, if any chance of succeeding. Rather, the grievor claims simply that he is required by his religious belief to “give back” to his community and he has chosen to give back by teaching at CHAT. There are many forms in which the grievor may “give back” to his community and the College cannot be forced to accommodate this particular choice. In any event, according to counsel, the particulars do not establish that there has been an infringement of the grievor’s requirement to give back to his community and therefore there is no infringement of the grievor’s religious observance and therefore no discrimination on the basis of creed. In support of its position the College relied on a number of cases including the recent Supreme Court of Canada decision in S.L. and D.J. v. Commission scolaire des Chenes et al., [2012] S.C.R. 235. The Union asserts that very little is required to establish a prima facie case of discrimination and that it has met its threshold in this regard so that evidence should be presented. In this regard the Union relies on Peel Law Association v. Peters, [2013] ONCA 396. In that case the appellants were lawyers attending on a matter in the Brampton Court. They were black. During a break they attended a lounge operated by the respondent association. They were asked to produce identification. They were the only ones in the lounge asked to produce identification. The Human Rights Commission determined that they were unlawfully discriminated against because of their colour. The Commission found that the facts established a prima facie case of discrimination and that the evidentiary burden shifted to the respondents to explain their actions. As no explanation was provided the claimants were successful. That decision was overturned by the Divisional Court but was restored in the Court of Appeal. At paragraph 73, the Court stated that “… “little affirmative evidence” is required before the inference of discrimination is permitted”. The Union also relied on a number of cases, including the Supreme Court of Canada decision in Syndicat Northcrest v. Amselem, [2004] SCC 47, in support of the proposition that in assessing the religious belief to be protected, one applies a subjective test so that if grievor sincerely believes he is required by his religious beliefs to teach at CHAT that that practice must be accommodated. In Amselem, the Court had to consider whether the Orthodox Jewish claimants could build a “succah” or temporary dwelling on their balconies during the Jewish festival of Succoth. The by-laws governing the residence prohibited the erection of such dwellings on the balconies. Although a rabbi testified that it would be sufficient to build a common dwelling in the courtyard, the claimants asserted that according to their belief this was insufficient and they were required to build their own dwellings on their own balconies. At paragraph 46, Iacobbucci J., speaking for the majority, established the following subjective test to assess whether a particular belief should be protected: … claimants seeking to invoke the freedom of religion should not need to prove the objective validity of their beliefs in that the beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for the courts … More recently in Commission Scolaire, the Supreme Court noted that while the Court had previously established a subjective test for determining the existence of a religious belief, it was necessary to apply an objective test to determine if the religious belief had been infringed. At paragraph 24, Deschamps J., speaking for the majority, stated the following: It follows that when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief exists that has been infringed. The subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion including the belief in an obligation to conform to a religious practice … proving the infringement requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom. In this case the Union has asserted that the grievor has a “sincerely held belief” that he is required by his faith “to give back to his community”. For the sake of this argument I must accept this assertion at face value. The difficulty with the Union’s position is that it is not asserted that it is the grievor’s sincerely held belief that he is required to teach at CHAT on a part time basis in exchange for wages. Rather, that is a choice he has made as the means of fulfilling his requirement to give back to his community. Indeed, it would be remarkable to suggest that the grievor is required by his religious belief to teach at CHAT. And in fact, that is not what is being asserted. Surely there are many ways in which the grievor could fulfill his obligation to give back to his community. 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. That would in essence require the College to accommodate the grievor’s simple and understandable desire to hold a second job. But given that it is not asserted that the grievor is prevented from pursuing other avenues from giving back to his community, and given that the scheduling process is designed to apply to all teachers, we cannot see how a case can be made on the particulars alleged that the grievor is being discriminated against because of his creed. 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. In this case it is not the requirement to give back that is being infringed but the particular choice of how to fulfill it. This does not constitute an infringement of a religious requirement in our view and therefore the particulars, even if accepted, do not constitute discrimination on the basis of creed. For these reasons it is our conclusion that the College’s preliminary motion should be allowed and that the grievance must be dismissed. In light of our conclusion regarding the College’s preliminary motion we have determined that there is no need to deal with the Union’s request for interim relief. Dated at Toronto, this 23 rd day of July, 2014 ------------------------- Norm Jesin, Chair I dissent (see attached) -------------------------- Pamela Munt-Madill I concur ------------------------- Carla Zabek DISSENT OF PAMELA MUNT-MADILL: With all due respect I must disagree with the Majority’s decision. The Majority is incorrect in basing its decision exclusively on the statements of the Union contained in the written particulars and not considering the Union’s clearly stated position during the two days of hearing. The Union’s statements made at the two days of hearing form part of the prima facie case which the Board must consider. The Majority’s decision fails to do so. Furthermore, the Majority has incorrectly interpreted the particulars put forth by the Union. The statements the Majority relies upon as constituting the Union’s prima facie case are clearly marked in the particulars as indicating the background to the current grievance. They cannot be reasonably interpreted as representing the position of the Union at the time the grievance was filed. Finally, the Majority has incorrectly applied the test required by Amselem to the facts of this case. As noted in the Majority’s decision, the test established in that case requires an inquiry into the sincerely held religious beliefs of the claimant. The Majority has erred by failing to hear evidence of the Grievor’s sincerely held religious beliefs despite the Union’s position that these beliefs would establish the need for the requested employment accommodation. For all of these reasons, the Majority should have found that the Union had established a prima facie case of discrimination and permitted the Union to call evidence regarding the Grievor’s request for religious accommodation.