HomeMy WebLinkAbout2013-2789 Bharti.15-03-05 DecisionCrown Employees
Grievance Settlement
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GSB#2013-2789
UNION#2013-0362-0022
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bharti) Union
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The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry) Employer
BEFORE Ian Anderson Vice-Chair
FOR THE UNION Billeh Hamud
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING November 12, December 4, 11, 2014.
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Decision
[1] This Grievor, Viren Bharti, alleges that the Employer has discriminated against him
on the basis of family status and religion by failing to accommodate his request that
he be permitted to work in the Greater Ottawa Area. The Employer has brought a
non-suit motion. For the reasons which follow, I allow the Employer’s motion and
dismiss the grievance.
Background
[2] In 2005, the Grievor applied for the position of Terrestrial Assessment Program
Biometrician (a statistician). The job posting indicated that the position was located
in either Sault Ste. Marie (preferred) or Peterborough. The Grievor lived in Ottawa at
the time of his application. The Grievor informed the Employer of his intention to sell
his home in Ottawa and relocate his family to Sault Ste. Marie. The Grievor was
awarded the position on February 28, 2005 with a start date of April 3, 2005. The
Employer agreed to temporarily allow the Grievor to work from the Peterborough
office until he sold his house in Ottawa and relocated to Sault Ste. Marie. The
Grievor commuted from Ottawa to Peterborough in order to perform the job.
[3] In March, 2006, the Employer agreed to change the location of the job to
Peterborough. The Grievor continued to commute from Ottawa to Peterborough to
perform the job until December 2007. At that time the Grievor was assigned work on
a temporary basis in Kemptville. From December 2007 until July 2008 the Grievor
commuted from Ottawa to Kemptville in order to perform his job.
[4] The Grievor was told once again that he had to report to work in Peterborough
commencing in July 2008. On the first day that he was to report to work in
Peterborough he laid off work due to illness. He was ill until sometime in October of
2008. While the Grievor’s evidence with respect to the rest of his work history was
not entirely clear, it appears that he then reported to work for a period of time in
Peterborough, was then assigned work by the Employer in Ottawa, followed by a
secondment to a position in Ottawa with the federal government which lasted for
more than a year. By April, 2012, the secondment had ended and the Grievor was
once again required to report to work in Peterborough. With the exception of
absences due to illness or vacation, and a without prejudice temporary assignment
to work in Ottawa from March to October, 2014, the Grievor has continued to be
required to work in Peterborough ever since.
[5] Throughout, the Grievor has maintained a residence in the Greater Ottawa Area and
commuted to Peterborough when required to report to work there.
[6] The Grievor is a Hindu. He is married and has two children, currently aged 14 and
20. His parents live with him, along with his wife and their two children. In this
grievance, the Grievor asserts that the Employer’s requirement that he report to
work in Peterborough constitutes a breach of the Human Rights Code, R.S.O. 1990,
c. H.19. In particular, he asserts this requirement constitutes a failure by the
Employer to accommodate his religious beliefs and certain eldercare obligations he
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has towards his parents. The accommodation he seeks is that he be permitted to
work in the Greater Ottawa Area on a permanent basis.
Principles Governing Non-Suit Motions
[7] The Union called one witness, the Grievor, and then closed its case. As noted, the
Employer brought a motion for non-suit. That is, the employer took the position that
the Union had not proven its case.
[8] There is no dispute between the parties as to the principles applicable to a non-suit
motion. Reference was made to: Ontario Public Service Employees Union (Vingar)
v Ontario (Health and Long-Term Care), 2014 CanLII 30275 (ON GSB); Ontario
Public Service Employees Union (Allin) v. Ontario (Ministry of Revenue), 2010
CanLII 38781 (ON GSB); and Ontario Public Service Employees Union (Thompson)
v. Ontario (Liquor Control Board of Ontario), 2012 CanLII 67531 (ON GSB). The
applicable principles may be summarized as follows:
i. The Board will not put the moving party to an election of whether or not to call its
own evidence as a matter of course. The appropriateness of putting the moving
party to such an election will be determined based upon the considerations of
expedition and fairness in the particular circumstances of each case.
ii. In a non-suit motion, the issue is whether the party responding to the motion has
made out a prima facie case.
iii. In determining whether a prima facie case has been made out, the test is whether
the evidence presented by the party responding to the motion is sufficient to allow
the Board to rule that it has proven its case on a balance of probabilities, if the
Board assumed its witnesses to be credible and drew in its favour all inferences
reasonably supported by direct evidence. No weight, however, should be given
to the evidence of a witness on a point about which he or she has given
contradictory accounts. (See Ontario Public Service Employees Union (Gareh) v.
Ontario (Ministry of the Attorney General), 2002 CanLII 45791 (ON GSB) at
paragraphs 8 - 10.)
iv. In assessing the existence of a prima facie case, viva voce evidence as well as all
documentary evidence before the Board must be considered.
v. Where a non-suit motion is granted, a written decision with reasons will follow.
However, where a motion is denied, no reasons, oral or written, will be issued.
[9] The Union states that a non-suit motion is not the time to test the quality, reliability or
credibility of the evidence. Accordingly, the Union asserts, I am required to assume
that everything the Grievor said is true for the purposes of this motion. With respect,
the second proposition does not follow from the first. The mere fact that the Grievor
testified as to something does not make it admissible evidence which must be
assumed to be true. Of particular application to this case, as will become apparent
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below, I am not required to accept as evidence hearsay statements or opinions
offered by the Grievor.
[10] Further, I agree with the Employer that the mere fact that the Grievor asserts
something is true, for example that the Sabbath is on Tuesday, does not make it so
for the purposes of a non-suit motion. In Nash v. Ontario (1995), 1995 CanLII 2934
(ON CA), 27 O.R. (3d) 1 the Ontario Court of Appeal held that for the purposes of
determining whether or not a plaintiff’s pleadings made out a prima facie case,
alleged facts that were patently ridiculous or incapable of proof need not be
accepted as true. Surely no less a standard should be applied on a non-suit motion,
where the responding party has not simply plead a case but lead all evidence it
asserts is necessary in order to prove its case.
[11] A distinction must also be made between facts and conclusions of fact. A false
conclusion is not rendered true, for the purposes of a non-suit motion, simply
because the Grievor has adopted that conclusion as his evidence. Similarly, a
conclusion stated in the nature of a bald allegation in the absence of detailed
evidence in support has no probative value: see Guarantee Co. of North America v.
Gordon Capital Corporation (1999), 1999 CanLII 664 (SCC), 178 D.L.R. (4th) 1
(S.C.C.) at paragraph 31 discussing the sufficiency of evidence submitted on a
motion for summary judgement.
Non-suit with respect to whether the Union has made out a prima facie case of
discrimination on the basis of family status
[12] This Board had occasion to consider the test for a prima facie case of
discrimination on the basis of family status in Ontario Public Service Employees
Union (Thompson) v. Ontario (Liquor Control Board of Ontario), 2012 CanLII 67531
(ON GSB). In that case, the Board reviewed the emerging jurisprudence on this
issue. Broadly stated, there were two approaches to when a prima facie case of
discrimination on the basis of family status had been made out so as to shift the
onus to the responding party to demonstrate that accommodation could not be
provided without undue hardship. One approach held that it was sufficient to
demonstrate any impact on a family obligation in order to make out a prima facie
case and shift the onus. The other approach held that it was necessary to
demonstrate serious interference with a substantial family obligation before the onus
shifted. In Thompson, a panel of this Board held that the latter approach should be
followed.
[13] Subsequent to Thompson, this issue was addressed by the Federal Court of
Appeal in Johnstone v. Canada, 2014 FCA 110. Both parties in this proceeding
agree that paragraph 93 of Johnstone sets out the applicable test:
I conclude from this analysis that in order to make out a prima facie case where
workplace discrimination on the prohibited ground of family status resulting from
childcare obligations is alleged, the individual advancing the claim must show (i) that a
child is under his or her care and supervision; (ii) that the childcare obligation at issue
engages the individual’s legal responsibility for that child, as opposed to a personal
choice; (iii) that he or she has made reasonable efforts to meet those childcare
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obligations through reasonable alternative solutions, and that no such alternative
solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in
a manner that is more than trivial or insubstantial with the fulfillment of the childcare
obligation.
[14] In my view, it is important to note that Johnstone did not simply adopt the test of
serious interference with a substantial family obligation. Rather, it gave those terms
a very specific meaning. In particular, it is necessary for a claim for accommodation
in relation to a family member to be founded in a legal responsibility of the claimant
towards that family member. This is made clear from the discussion at paragraphs
69 to 74 of Johnstone. At paragraph 74, the Court concluded by stating:
In conclusion, the ground of family status in the Canadian Human Rights Act includes
parental obligations which engage the parent’s legal responsibility for the child, such as
childcare obligations, as opposed to personal choices. Defining the scope of the
prohibited ground in terms of the parent’s legal responsibility (i) ensures that the
protection offered by the legislation addresses immutable (or constructively immutable)
characteristics of the family relationship captured under the concept of family status, (ii)
allows the right to be defined in terms of clearly understandable legal concepts, and (iii)
places the ground of family status in the same category as other enumerated prohibited
grounds of discrimination such as sex, colour, disability, etc.
[15] While Johnstone is a decision of the Federal Court of Appeal and not binding
upon me, it is of persuasive value. I also note that Johnstone, and in particular this
part of its reasoning, was considered and adopted by the Human Rights Tribunal of
Ontario in Wing v. Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472
(CanLII) at paragraphs 53 to 56. While the decisions of the Tribunal are also not
binding upon me, they too are of persuasive value, in particular having regard to the
expertise of that Tribunal. In any event, I agree with the reasoning in Johnstone and
adopt that approach.
[16] As a final note, I would observe that the obligation upon which the Union seeks to
rely in this case is the provision of the necessaries of life. As will become apparent,
this is the obligation which emerges from the application of the analytical framework
in Johnstone.
The First Factor: has the Union demonstrated that the Grievor’s parents are under
his care and supervision?
[17] In Johnstone, the Court elaborated on the meaning of this factor in the context of
childcare as follows:
[94] The first factor requires the claimant to demonstrate that a child is actually
under his or her care and supervision. This requires the individual claiming prima facie
discrimination to show that he or she stands in such a relationship to the child at issue
and that his or her failure to meet the child’s needs will engage the individual’s legal
responsibility. In the case of parents, this will normally flow from their status as parents.
In the case of de facto caregivers, there will be an obligation to show that, at the relevant
time, their relationship with the child is such that they have assumed the legal obligations
which a parent would have found.
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[18] This factor is concerned with determining whether or not the claimant has a
family status relationship with the person in question such that failure to meet that
person’s needs would engage legal responsibility. Put differently, it is concerned
with determining whether the claimant has a legal obligation towards the person, and
therefore also the nature of that legal obligation. Whether the obligation is engaged
is an issue addressed under the second factor.
[19] The Union has identified two sources of legal obligation on the part of the Grievor
to his parents. The first is was that the Grievor was a “sponsor” of his parents, within
the meaning of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(“IRPA”).
[20] The Union points to section 132(1) of the IRPA. That section provides in relevant
part: “…the sponsor’s undertaking obliges the sponsor to reimburse Her Majesty in
right of Canada or a province for every benefit provided as social assistance to or on
behalf of the sponsored foreign national …” during certain specified periods. The
section does not create any obligation on the part of a sponsor to the sponsored
individual.
[21] The Union also points to section 13.1 of the IRPA:
An undertaking given under this Act in respect of a foreign national - including a
sponsorship undertaking - is binding on the person who gives it.
[22] The Union filed an unsigned “Application to Sponsor, Sponsorship Agreement
and Undertaking” (form IMM 1344 (08-2014) E) from Citizenship and Immigration
Canada. That form provides in relevant part:
I undertake to provide for the basic requirements of the sponsored person and
his or her family members who accompany him or her to Canada, if they are not
self supporting. I promise to provide food, clothing, shelter, fuel, utilities,
household supplies, personal requirements, and other goods and services,
including dental care, eye care, and other health needs not provided by public
health care. I understand that the money, goods or services provided by me
must be sufficient for the sponsored person to live in Canada.
…..
… If the sponsor, and if applicable, the co-signer do not provide support as
required, the sponsored person can take legal action.
….
Elderly parents or grandparents who are sponsored are not expected to look for
a job to care for themselves.
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[23] The Employer notes that the document entered as an exhibit by the Union is
blank and unsigned. The Employer argues that there is no evidence beyond the
Grievor’s assertion that he signed such forms in relation to his parents. In my view,
for the purposes of the non-suit motion brought by the Employer the Grievor’s
assertion that he signed sponsorship forms in relation to his parents is sufficient
evidence that he did sign such forms.
[24] It appears, however, that the obligation created by the immigration sponsorship
form is to provide financial support. As will become apparent, the essence of the
Grievor’s claim is not that the Employer’s rule prevents him from financially
supporting his parents, rather it is that the Employer’s rule prevents him from
personally administering that support to his parents. As such, the immigration
sponsorship form does not create a legal obligation directly engaged by the facts in
this case.
[25] The second of legal obligation identified by the Union is section 215(1) of the
Criminal Code of Canada, R.S.C., 1985, C. C-46:
Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide
necessaries of life for a child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner;
and
(c) to provide necessaries of life to a person under his charge if that
person
(i) is unable, by reason of detention, age, illness, mental disorder or
other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.1
In Johnstone, a case involving obligations of a parent to child, section 215(1)(a) was
found to provide the basis for the legal obligation. In this case, the relevant legal
obligation, if any, is section 215(1)(c). It is important to note the differences in these
obligations. The obligation to provide the necessaries of life to a child under the age
of sixteen years of age arises from the relationship itself (parent - child) and is
unqualified. By contrast, the obligation of an adult child to provide the necessaries
of life to a parent does not arise from the relationship itself. Rather, it must be
shown that the parent is a person under the charge of the adult child. Further, even
if the parent is a person under the care of the adult child, the obligation to provide
the necessaries of life is qualified. The obligation only exists if the parent is, “by
reason of detention, age, illness, mental disorder or other cause” unable to withdraw
themselves from the charge of the adult child; and if the parent is unable to provide
themselves with the necessaries of life.
1 Section 215(2) creates an offence in relation to the breach of the legal duty set out in section
215(1). The issue for me is, however, is simply whether the legal duty under section 215(1)
applies to the Grievor, not whether a breach of that duty would constitute an offence under
section 215(2).
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[26] I pause to note that in my view, this difference accords with what is necessary to
establish in order to demonstrate “serious interference with a substantial family
obligation” towards a young child as opposed to an adult parent. Simply put, young
children are presumed to be dependent and unable to provide themselves with the
necessities of life and their parents are required to provide them by virtue of being
their parents. On the other hand, adults are presumed to be independent and able
to provide themselves with the necessaries of life unless the circumstances establish
the contrary.
[27] Some guidance as to the meaning of the legal obligation created by section
215(1)(c) is provided at paragraphs 33 - 34 and 40 to 44 of R. v. Peterson, 2005
CanLII 37972 (ON CA) (a case which is referenced in Johnstone).2 For present
purposes it suffices to note that in Peterson the Court observed that the term
“charge” is used in a variety of legal contexts, but that common to all usages is “the
exercise of an element of control by one person and a dependency on the part of the
other” (see para. 42). At paragraph 44, the Court observed:
A further consideration in determining whether a person is in the charge of
another is whether one person has explicitly assumed responsibility for the other,
for example, by obtaining a power of attorney for personal care or by publicly
acknowledging to others in the community by words or conduct an assumption of
responsibility.
[28] Thus, in order to satisfy the first factor of the test in Johnstone, the Union must
establish that the Grievor’s parents are: (i) under his charge; (ii) unable to withdraw
themselves from his charge by reason of detention, age, illness, mental disorder or
other cause; and (iii) are unable to provide themselves with the necessaries of life. If
these conditions are satisfied, then the nature of the obligation for the purposes of
the second factor in the Johnstone analysis is the obligation to provide the
“necessaries of life”.
[29] The first element which the Union must prove is that the Grievor’s parents are
under his charge.
[30] The Employer argues that the Grievor’s legal obligation is not engaged because
to the extent that there is evidence that his parents are under his care and
2 Peterson makes reference to section 32 of the Family Law Act, R.S.O. 1990 c. F.3, as
amended. It provides:
Every child who is not a minor has an obligation to provide support, in
accordance with need, for his or her parent who has cared for or provided
support for the child, to the extent that the child is capable of doing so.
It appears, however, that the obligation under the Family Law Act is to provide financial
support: see s. 33 of that Act. As noted, the essence of the Grievor’s claim is not that the
Employer’s rule prevents him from financially supporting his parents. As such, section 32 of
the Family Law Act does not create a legal obligation directly engaged by the facts in this
case.
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supervision they are also under the care and supervision of his wife. I am not
persuaded by this argument. If the Grievor’s parents are under his charge, the fact
that they are also under the charge of his wife would not relieve him of his legal
obligations towards them.
[31] The Employer argues that there is insufficient evidence to establish that the
Grievor’s parents require care and supervision at all. Accordingly, the Employer
argues that the Grievor has failed to establish that the first factor is satisfied. The
Union for its part argues that the evidence establishes that the Grievor’s parents are
under his care and supervision.
[32] It is at least arguable that the Grievor’s parents are under his charge. He
testified that he supports them financially. The immigration sponsorship form which
he completed in relation to each of them constitutes a public acknowledgement of
responsibility towards them. While scant, I am prepared to conclude that there is
sufficient evidence that they are financially dependent on him and that concomitantly
he exercises control over them. Accordingly, for the purposes of this non-suit motion
I find there is sufficient evidence that they are under his charge.
[33] The second element which the Union must prove in order to establish the legal
obligation upon which it relies is that the Grievor’s parents are unable by “reason of
detention, age, illness, mental disorder or other cause”, to withdraw themselves from
the Grievor’s charge. The mere fact that the Grievor’s parents are under his care
cannot provide the basis for inferring that they are unable to withdraw from his care.
If it did, it would render the separate express requirement, set out in section
215(1)(c)(i), to prove their inability to withdraw from care meaningless. Unlike
children, there is no presumption that adults require care.
[34] The Grievor’s evidence was that his father is 76 and his mother is 74. His
mother speaks Bhojpuri. She has lived with the Grievor’s family since 2005 or
2006. His father speaks primarily Hindi, although he is able to speak Bhojpuri. He
has lived with the Grievor’s family on a permanent basis since 2012. Neither of
them work. The Grievor supports them financially.
[35] According to the Grievor, his father has a heart condition and diabetes and, he
thinks, an element of dementia; his mother has the “same condition of dementia”.
He states they forget to take their medication or whether they have eaten breakfast.
They also have some mobility restrictions. Little medical evidence was filed in
support of these claims. An “Application for Accessible Parking Permit” for the
Grievor’s father was filed as an exhibit. The doctor completing the form has checked
off a box indicating that the father is “severely limited in the ability to walk due to an
arthritic, neurological, musculoskeletal or orthopaedic condition”. Also filed was a
referral by a doctor for physiotherapy for the father indicating that he had sacral and
hip pain and had fallen while walking down stairs. The referral requests that the
father be seen for fall prevention and reinforcement of muscle strength. There is no
other medical evidence, and therefore no medical evidence in support of the
Grievor’s speculation that his parents have an element of dementia.
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[36] The Grievor was asked what he did to assist his parents. He responded that first
of all he is the interpreter for them. In the morning he assists them in their daily
activities in the washroom, then he brings them downstairs for breakfast, which he
prepares. He then feeds them. He also provides them with their medication. As
noted, he stated that they tend to forget whether they have had their breakfast or
taken their medication. Then he goes to work. He testified that he also manages
their “adaptive equipment” by which he meant equipment in relation to blood
pressure and diabetes. He also indicated that he massages their legs sometimes,
noting that he is their only child or son living here. He drives them to doctors’
appointments and to religious activities.
[37] The evidence with respect to whether the Grievor’s parents require supervision
or assistance in his absence was less than clear. The Grievor testified that in order
to provide care to his parents in his absence for much of the period 2005 - 2013 his
wife worked out of their house (preparing food for her catering business). At another
point in his evidence, however, the Grievor testified about a job his wife obtained in
2012 or 2013 (the Grievor’s evidence was not consistent on this point) as a manager
for a food company in Ottawa, which she still holds. Presumably this job requires
the Grievor’s wife to work outside of their home. The contradiction between the
asserted need for the Grievor’s wife to be in the house in order to provide care for
the Grievor’s parents in his absence and the fact that since 2012 or 2013 she has
been working outside of the house was never addressed. The Grievor testified about
an “Indian woman” he sometimes pays to assist with his parents and he also testified
that on occasion his son will stay home to do this. He did not, however, testify that
there was always someone there when neither he nor his wife was at home.
[38] There was no direct evidence on the inability of the Grievor’s parents to withdraw
themselves from care as the question was never asked. The evidence with respect
to incapacity which would permit this inference to be drawn was, as noted, scant at
best. While there is evidence that the Grievor’s parents require assistance with the
activities of daily living during the course of the day when he is absent, that evidence
was contradictory, as noted above. There is no evidence, that they cannot choose
to live with someone else other than the Grievor’s statement that he is their only
child in Canada. That statement is not determinative. Leaving aside whether they
have other children in India, the question is whether there is anyone else who could
take charge of them. As noted earlier, the obligation to support in this instance does
not arise from the relationship of adult child to parent per se. Accordingly, in my
view there is insufficient evidence that the Grievor’s parents are unable to withdraw
from care. However, even if I am wrong in this conclusion, I am unable to accept
that the third element has been proven.
[39] The third element which the Union must prove in order to establish the legal
obligation upon which it relies is that the Grievor’s parents are unable to provide
themselves with the necessaries of life. Once again, unlike the case with children,
there is no presumption that an adult is unable to do so. I note the Union argued that
if the Grievor does not assist his parents in getting dressed and providing them their
breakfast they could “pass away”. In my view such an apocryphal outcome is
unlikely: there is no evidence that the Grievor’s parents are completely unable to
dress or feed themselves if food and clothes are at hand. However, I also do not
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think that the obligation only arises in such extreme circumstances. For example,
the obligation might also arise if the Grievor’s parents were able to care for
themselves as long as the necessaries of life are at hand but required supervision in
doing so. As noted, however, the evidence on that point was contradictory.
Accordingly, in my view there is insufficient evidence that the Grievor’s parents are
unable to provide themselves with the necessaries of live.
[40] Accordingly, I am not satisfied that there is sufficient evidence, if assumed to be
true, to permit the conclusion that the Union has established that the first factor in
the Johnstone analysis. However, in the event that I am wrong in this conclusion, I
turn to consider the second factor.
The Second Factor: has the Union demonstrated that the eldercare obligation at
issue engages the Grievor’s legal responsibility for his parents, as opposed to a
personal choice?
[41] In Johnstone, the Court elaborated on the meaning of this factor in the context of
childcare as follows:
[95] The second factor requires demonstrating an obligation which engages the
individual’s legal responsibility for the child. This notably requires the complainant to
show that the child has not reached an age where he or she can reasonably be
expected to care for himself or herself during the parent’s work hours. It also requires
demonstrating that the childcare need at issue is one that flows from a legal obligation,
as opposed to resulting from personal choices.
[42] A difficulty in this case is in identifying the need relied upon as engaging the
Grievor’s legal obligation towards his parents. There were times the Grievor
appeared to be asserting that the need in question was an obligation to personally
administer to his parents. While I accept that this would be preferable from the
perspective of the Grievor and his parents, the personal performance of filial duties
does not rise to the level of a legal responsibility. It is “preference”, not a
“requirement”: see Devany v. ZRV Holdings Ltd., 2012 HRTO 1590 at para 117.
However, there were also times that the Grievor appeared to be asserting that the
need in question was ensuring the provision of food, medication and the like to his
parents. I have no difficulty in concluding that these needs would arise from the
legal obligation to provide the necessaries of life as opposed to personal choices.
Given this, I turn to consider the third factor in the Johnstone analysis.
The Third Factor: has the Union established that the Grievor has made
reasonable efforts to meet those eldercare obligations through reasonable
alternative solutions, and that no such alternative solution is reasonably
accessible?
[43] In Johnstone, the Court elaborated on the meaning of this factor in the context of
childcare as follows:
[96] The third factor requires the complainant to demonstrate that reasonable efforts
have been expended to meet those childcare obligations through reasonable alternative
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solutions, and that no such alternative solution is reasonably accessible. A complainant
will, therefore, be called upon to show that neither they nor their spouse can meet their
enforceable childcare obligations while continuing to work, and that an available
childcare service or an alternative arrangement is not reasonably accessible to them so
as to meet their work needs. In essence, the complainant must demonstrate that he or
she is facing a bona fide childcare problem. This is highly fact specific, and each case
will be reviewed on an individual basis in regard to all of the circumstances.
[44] Assuming the Grievor has eldercare obligations to his parents which are
engaged, has the Union led sufficient evidence to demonstrate that the Grievor
made reasonable efforts to meet those obligations through reasonable alternative
solutions and that no such alternative solution is reasonably accessible? Based on
differing views of the evidence, the Union argues it has and the Employer argues it
has not. Accordingly, I turn to review the evidence.
[45] In chief, the Grievor was asked if anyone else could provide the care he performs
to his parents. He testified that his wife cannot help his father with the bathroom
because of the gender differences. With respect to the “adaptive equipment”, he
testified his wife is not as comfortable with the English language as he is. His wife
cannot speak his mother’s language and his children cannot speak either of his
parents’ languages. He testified that he contacted a Community Care Access
Centre, but they said they could not help with respect to a few “aspects”: the
‘“religious aspect”; the “food aspect”; and the “language aspect”. No further details
were provided as to what the Grievor meant by this. The Grievor’s evidence with
respect to the Community Care Access Centre was perilously close to a bald
assertion of a conclusion devoid of any particulars. As noted, he had identified an
“Indian woman” who sometimes comes and helps out, but testified she “cannot do
my job towards my parents”, and he cannot afford to pay her to be there every day.
[46] In cross-examination, the Grievor was asked about periods of time when he was
working in Peterborough, from 2005 to 2008. During those periods he testified that
his wife had “mostly” worked from home in order to take care of his parents. He
testified that she had “sacrificed too much for me”.
[47] The Grievor testified that his wife’s “area” was sociology and that she had
previously done work for the federal government. Given this, his evidence that her
lack of proficiency in the English language would preclude her from learning to
operate the adaptive equipment is inherently implausible. I am not prepared to
accept the Grievor’s hearsay evidence as to his wife’s capacity to learn as sufficient
on this point. Further, it appears when the Grievor is absent from the house at work
(whether in Ottawa or Peterborough) that at times his wife or his son do take care of
his parents and at other times his parents manage to take care of themselves.
Accordingly, the Union has not established there are no reasonable alternative
solutions with respect to the provision of the necessaries of life to the Grievor’s
parents.
[48] As referenced earlier, the Grievor appears to consider those solutions as
unacceptable because he considers it his responsibility as his parents’ son to
personally administer care to his parents. While this is a commendable aspiration, it
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finds no basis in section 215(1) of the Criminal Code. The legal obligation is to
provide the necessaries of life, not to administer them personally.
[49] The obvious alternative solution is for the Grievor and his family, including his
parents, to move from Ottawa to Peterborough. I am not unmindful that this would
constitute a significant disruption to the lives of the Grievor and his family. This
might not be reasonable in all circumstances. However, reasonableness in this case
must be assessed against the fact that the Grievor was hired in 2005 on the basis of
his undertaking to move from Ottawa and further that he subsequently made
representations over the years that he was planning to move to Peterborough. Yet,
ten years later, he has still not moved.
[50] There was no suggestion that the necessaries of life which the Grievor makes
available to his parents (food, shelter, medication etc.) cannot be provided in
Peterborough. Evidence as to the Grievor’s efforts to explore the possibility of
moving to Peterborough was scant. As pointed out by counsel for the Employer, the
Grievor repeatedly advised his managers that he was planning to move from Ottawa
to Peterborough. One such statement is in an email dated May 8, 2008. The
Grievor testified that he looked at houses in Peterborough in 2008. However, a
mere two months before, in March, 2008, the Grievor sold his house in the Ottawa
area and moved into another house in the Ottawa area.
[51] Renewed statements by the Grievor to the effect that he was planning to move to
Peterborough are recorded in emails dated April 3, May 3 and October 8, 2012. The
Grievor’s evidence was that he did put his house in Ottawa up for sale in the fall of
2012, with an asking price of $629,000, but that he took it off the market because the
“market was down”. I have several difficulties with this evidence. First, it is not
clear that the Grievor’s opinion evidence on the state of the market is admissible.
Second, the state of the market in Ottawa is relevant, if at all, only relative to the
state of the market in Peterborough. The fact that the market in Ottawa is “down” is
of little or no significance if the market in Peterborough was also “down”. There was,
however, no evidence as to the state of the market in Peterborough, let alone any
evidence that the Grievor looked for a house in Peterborough in 2012. There is
simply no evidence that the Grievor could not have purchased a comparable home
in Peterborough for the same (if not less) money as he would have received for his
house in Ottawa.
[52] The Grievor also suggested that if his family had moved in 2012, his wife stood to
lose a “profit share” of “up to 25%” for a company for which she was working. The
potential value of this profit share was never specified and the Union indicated that it
did not seek to rely upon it in its argument. The Union did, however, rely upon the
fact that the Grievor’s wife would lose this job if the family moved to Peterborough in
support of its argument that such a move was not a reasonable alternative. Once
again, to the extent that the Grievor’s wife’s employment is relevant, it is not only the
fact of the loss of the job in Ottawa but the prospect of finding an alternative job in
Peterborough which needs to be considered. In this respect, it is important to note
that the Grievor’s evidence was that his wife earned $14 per hour from her job in
Ottawa. There was no evidence of any efforts by the Grievor’s wife to locate
alternative employment in Peterborough.
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[53] I note that the Employer argues that financial considerations of the sort raised by
the Union are in any event irrelevant and cannot be a legitimate factor. The fact that
it makes more economic sense for the Grievor to live in Ottawa, it argues, cannot be
a basis for a legal obligation to accommodate him. Given that I have found that
there is no evidence that it makes more economic sense for the Grievor to live in
Ottawa than Peterborough, I need not address this argument further.
[54] I also note that at one point during his cross-examination it was put to the Grievor
that the amount that he would save in commuting costs would approximately offset
the loss of his wife’s income from her job in Ottawa. The Grievor answered: “But
there is the financial cost of looking after the parents. And then we have the
psychological impact on my parents as there is no temple in Peterborough.”
[55] The reference to the presence or absence of a temple in Peterborough was non
responsive to the question put. Further, at no earlier point in the proceedings,
including the Union’s various sets of particulars which were the subject of in an
interim decision in this matter dated October 28, 2014, was this claim asserted. For
these reasons, I do not consider it would be appropriate for me to consider this
evidence. Even if I were to do so it would have no impact on my decision for two
reasons. First, the presence or absence of a temple in Peterborough is relevant, if
at all, only to the extent that it speaks to a requirement arising from the religious
beliefs of the Grievor’s parents. The Grievor’s evidence as to his parent’s religious
requirements and by implication their beliefs is hearsay and not admissible. Second,
the Grievor’s evidence as to the psychological impact on his parents is in the nature
of an opinion which he is not qualified to give.
[56] Accordingly, assuming, contrary to my findings above, the Grievor has eldercare
obligations to his parents which are engaged, the Union has led insufficient evidence
to demonstrate that the Grievor made reasonable efforts to meet those obligations
through reasonable alternative solutions and that no such alternative solution is
reasonably accessible.
[57] In the event that I am wrong, I turn to consider the fourth factor in the Johnstone
analysis.
The Fourth Factor: has the Union established that that the impugned workplace
rule interferes in a manner that is more than trivial or insubstantial with the
fulfillment of the eldercare obligation?
[58] The Court in Johnstone elaborated on the meaning of this factor in the context of
childcare as follows:
[97] The fourth and final factor is that the impugned workplace rule interferes in a
manner that is more than trivial or insubstantial with the fulfillment of the childcare
obligation. The underlying context of each case in which the childcare needs conflict with
the work schedule must be examined so as to ascertain whether the interference is more
than trivial or insubstantial.
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[59] For the purposes of this part of the decision, notwithstanding the conclusions set
out above, I assume that the Grievor has a legal obligation to provide the
necessaries of life to his parents, that it is engaged by the need of his parents to
have supervised access to those necessaries of life, and that the Grievor made
reasonable efforts to meet those obligations through reasonable alternative solutions
and that no such alternative solution is reasonably accessible.
[60] The impugned employment rule is that the Grievor is required to work in
Peterborough. Because the Grievor lives in Ottawa, this results in lengthy
commuting time (approximately 6 hours round trip) which reduces the amount of
time that the Grievor has to be with his parents after his normal working hours
(ordinarily, 7.25 hours per day). Largely unexplained by the Union is why the
Grievor’s absence from his parents during commuting hours constitutes an
interference with his eldercare obligations but his absence from his parents during
work hours does not. There was no evidence, for example, with respect to specific
needs which fell outside of the Grievor’s working hours but within the hours which
would be spent commuting. Nonetheless, for the purposes of the non-suit motion I
would be prepared to conclude that being absent approximately 13.25 hours per day
is significantly more challenging than being absent 7.25 hours per day and would
interfere with the Grievor’s eldercare obligations in a way that is more than trivial or
insubstantial. Accordingly, I would conclude that the Union has led sufficient
evidence to establish the fourth factor.
[61] However, this conclusion is entirely derivative from the assumption that it would
not be reasonable to expect the Grievor to move. The Employer’s rules do not
require the Grievor to live far away from his workplace in Peterborough and the
Grievor’s eldercare obligations do not require that he and his parents live in Ottawa.
The Grievor and his parents can live anywhere, absent the assumption that it would
be unreasonable to expect them to move. Any interference which the Grievor
experiences with respect to eldercare obligations towards his parents as a result of
his lengthy commuting time arises not from any conflict between the impugned rule
and eldercare obligations, but from his personal preference for continuing to live in
Ottawa notwithstanding that his job is in Peterborough.
Non-suit with respect to whether the Union has made out a prima facie case of
discrimination on the basis of religious belief
[62] Both parties agree that the leading cases with respect to claims for religious
accommodation is Syndicat Northcrest v. Amselem, 2004 SCC 47. In that case,
Iacobucci J., writing for the majority, held that a claim for religious accommodation
could be founded upon a sincerely held religious belief, whether or not that belief
was objectively supported by religious dogma or scripture, while Bastarache J.,
writing for the minority, would have held that the belief had to be in fact rooted in
religious precept. The Employer characterizes the majority opinion as giving rise to
a subjective test and the minority opinion as giving rise to an objective test. It
argues that the applicable test is as set out the minority opinion, but that there is
insufficient evidence that the Grievor meets either that test or the subjective test set
out in the majority opinion. The Union argues that the applicable test is as set out in
the majority opinion.
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[63] The Employer asserts that the minority opinion makes more sense from a labour
relations perspective and that in any event the minority opinion was adopted by this
Board in Ontario Public Service Employees Union (Barillari) v. Ontario (Ministry of
Community and Social Services), 2006 CanLII 37572 (ON GSB). This argument
may be briefly addressed. First, it is not open to this Board to choose the minority
opinion of the Supreme Court of Canada over the majority view. Second, a careful
reading of the Barillari decision shows that the Board did not do so. Rather, after a
full hearing of the evidence the Board concluded that the asserted religious belief
was not sincerely held: see paragraph 89 of that decision.
[64] The majority test in Amselem is set out in the following paragraphs:
56 Thus, at the first stage of a religious freedom analysis, an individual advancing
an issue premised upon a freedom of religion claim must show the court that (1) he
or she has a practice or belief, having a nexus with religion, which calls for a
particular line of conduct, either by being objectively or subjectively obligatory or
customary, or by, in general, subjectively engendering a personal connection with
the divine or with the subject or object of an individual’s spiritual faith, irrespective of
whether a particular practice or belief is required by official religious dogma or is in
conformity with the position of religious officials; and (2) he or she is sincere in his or
her belief. Only then will freedom of religion be triggered.
57 Once an individual has shown that his or her religious freedom is triggered, as
outlined above, a court must then ascertain whether there has been enough of an
interference with the exercise of the implicated right so as to constitute an
infringement of freedom of religion under the Quebec (or the Canadian) Charter.
….
59 It … suffices that a claimant show that the impugned contractual or legislative
provision (or conduct) interferes with his or her ability to act in accordance with his or
her religious beliefs in a manner that is more than trivial or insubstantial. The
question then becomes: what does this mean?
60 At this stage, as a general matter, one can do no more than say that the context
of each case must be examined to ascertain whether the interference is more than
trivial or insubstantial. But it is important to observe what examining that context
involves.
61 In this respect, it should be emphasized that not every action will become
summarily unassailable and receive automatic protection under the banner of
freedom of religion. No right, including freedom of religion, is absolute …. This is
so because we live in a society of individuals in which we must always take the rights
of others into account.
[Emphasis in original.]
[65] I note that there is no assertion in this case that the Grievor’s asserted religious
belief infringes upon the rights of others. It is, therefore, not necessary to explore
the balance of the majority’s reasons on that qualification.
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[66] The majority’s application of its test to the facts before it in Amselem makes it
clear that it is important to specifically identify the asserted religious belief. This is
because the claimant must demonstrate that there is more than trivial or
insubstantial interference with the specific belief asserted, as illustrated by the
discussion at paragraphs 74 and 75 of Amselem. As will be discussed further
below, the determination of whether or not there has been an infringement of the
specific belief is based not upon the subjective belief of the claimant, but rather an
objective analysis.
[67] The Grievor testified that he is a Hindu and that in Hinduism, there are 4
components of one’s life: Artha, which means managing finances for the family;
Dharma, for which he stated the closest word in English is religion; Kharma (the
Grievor provided no definition of this term); and Moksha, which means liberation
after one passes away. He testified the male partner leads Artha, Kharma and
Moksha, but that the female partner leads Dharma. The Grievor testified that the
religious practice for which he seeks accommodation is Sandhya. This is the
practice of worshipping twice a day: in the morning and the evening, preferably at
sunrise and sunset. The act of worship, he testified, has many parts: prayers,
reading, eating some food, singing hymns. This act of worship follows under
Dharma and accordingly his wife leads it and, he testified, he believes his wife must
be physically present during the performance of the act of worship. This was the
sum total of the evidence on the Grievor’s religious beliefs.
[68] The Employer asserts that there is no evidence, apart from the Grievor’s bald
assertion, that there is a nexus between his belief as to the practice of Sandhya and
his religion of Hinduism. It contrasts this with the evidence before Arbitrator Albertyn
in 407 ETR Concession Co., (2007) 158 LAC (4th) 289. In that case a pastor
testified as to the nexus and scriptural documents were placed into evidence. The
Union notes that the majority in Amselem clearly stated at paragraph 54 that expert
evidence was not necessary:
A claimant may choose to adduce expert evidence to demonstrate that his or her
belief is consistent with the practices and beliefs of other adherents of the
faith. While such evidence may be relevant to a demonstration of sincerity, it is not
necessary. Since the focus of the inquiry is not on what others view the claimant’s
religious obligations as being, but rather what the claimant views these personal
religious “obligations” to be, it is inappropriate to require expert opinions to show
sincerity of belief. An “expert” or an authority on religious law is not the surrogate for
an individual’s affirmation of what his or her religious beliefs are. Religious belief is
intensely personal and can easily vary from one individual to another. Requiring
proof of the established practices of a religion to gauge the sincerity of belief
diminishes the very freedom we seek to protect.
[69] In my view, expert opinion evidence or corroboration is not required. In
particular, if, as the majority in Amselem concluded at paragraph 56 of its reasons
set out above, religious freedom extends to “subjectively engendering a personal
connection with the divine or with the subject or object of an individual’s spiritual
faith, irrespective of whether a particular practice or belief is required by official
religious dogma or is in conformity with the position of religious officials”, the
- 18 -
evidence of others that the practice or belief is required cannot assist. Rather, the
issue is the sincerity of the claimant’s beliefs.
[70] The majority in Amselem also provided guidance as to the nature of the inquiry
into the sincerity of a claimant’s beliefs:
i. “It is important to emphasize, however, that sincerity of belief simply implies an
honesty of belief.” (paragraph 51)
ii. “… the court’s role in assessing sincerity is intended only to ensure that a
presently asserted religious belief is in good faith, neither fictitious nor capricious,
and that it is not an artifice.” (paragraph 52)
iii. “Assessment of credibility is a question of fact that can be based on several non-
exhaustive criteria, including the credibility of a claimant’s testimony … as well as
an analysis of whether the alleged belief is consistent with his or her other current
religious practices.” (paragraph 53)
iv. “Because of the vacillating nature of religious belief, a court’s inquiry into sincerity
… should focus not on past practice or past belief but on a person’s belief at the
time of the alleged interference with his or her religious freedom.” (paragraph 53)
[71] The Employer challenges the sincerity of the Grievor’s religious belief. The thrust
of its argument is that his asserted belief is fictitious. It points to Loblaws
Supermarkets Ltd., (2012) 223 LAC (4th) 387 (Jesin). In that case, the employer
argued the grievor’s asserted religious belief (that he wished to observe the Sabbath
by attending mass and spending Sundays with his family and refraining from
working) was not borne out by his observed behaviour (he did not attend mass
regularly and engaged in a number of secular activities on Sundays with no asserted
religious value). Arbitrator Jesin agreed with the employer and accordingly found
the grievor’s beliefs were not sincerely held.
[72] In this case, the Employer points to a number of documented instances in the
period September 2012 to August 2013 in which the Grievor requested
accommodation for religious practices. The Employer asserts there is an
inconsistency between those requests and the Grievor’s asserted religious belief
that he must pray morning and evening in the presence of his wife.
• In September 2012 the Grievor had an exchange of emails with his supervisor in
which the Grievor sought to be permitted to arrive at work late each day and to
leave early on Fridays in order to avoid conflict with “our Friday evening and
everyday morning sun worship”.
• On October 8, 2012 in response to request for clarification from his supervisor
with respect to his September request the Grievor indicated that he commuted
from Ottawa to Peterborough on Mondays and returned to Ottawa on Fridays.
He sought accommodation for worship at sunrise and sunset by being permitted
to arrive late on Mondays and leave early on Fridays. In an email dated October
29, 2012, the Grievor’s request for accommodation had changed to arriving late
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on Mondays, working longer hours on Tuesdays, Wednesdays and Thursdays,
and having Fridays off.
• In an email dated August 26, 2013, the Grievor proposed that he be permitted
“tele working” (i.e. working from Ottawa) on either Mondays or Fridays, with the
other day off and longer work hours on Tuesdays, Wednesdays and Thursdays.
[73] The Employer also notes that since 2005 the Grievor has consistently pursued
the objective of being permitted to work in or from Ottawa. While the Grievor now
seeks to be permitted to work in or from Ottawa as a form of religious
accommodation, he has advanced a variety of reasons in the past:
• so that he might complete graduate studies work at universities in Ottawa
• his personal health (or stress and wellness)
• his care obligations for his parents
• his finances (commuting costs and his wife’s income)
• his view that it would be more productive for him to work from Ottawa
• his safety on the roads
[74] The Employer invites me to find that accordingly the Grievor’s religious belief is
not sincerely held.
[75] As noted by the Union, Loblaws was decided following a hearing of all of the
evidence: it was not a non-suit motion. For the purposes of this non-suit motion, I
am unable to find that the Grievor’s belief is not sincerely held. With respect to any
inconsistency between the Grievor’s religious belief and the accommodation he
sought in the various emails, I note that when asked about this matter, the Grievor
indicated that he was seeking partial accommodation in light of the Employer’s
refusal to grant fuller accommodation. For the purposes of this motion, I assume
that the Grievor’s evidence on that point is true. If that is the case, surely the fact
that an employee seeks partial accommodation in the face of a refusal to give full
accommodation does not relieve the employer of the obligation to properly address
the request for full accommodation. Similarly, the changing nature of the Grievor’s
reasons for seeking to be permitted to work in Ottawa over time may provide a basis
for reaching an adverse conclusion as to the Grievor’s credibility with respect to his
presently asserted beliefs, but that is not an issue which I am to determine on this
motion for non-suit. Given the direction by the majority in Amselem to focus on the
religious beliefs of the Grievor at the time of the asserted need for accommodation
based on those beliefs, I am unable to conclude for the purposes of this non-suit
motion that his past reasons for seeking to live in Ottawa are inconsistent with his
present beliefs.
[76] I turn to consider whether there is sufficient evidence that the Employer’s rule
interferes with the Grievor’s religious beliefs in a manner that is more than trivial or
insubstantial. The Employer made reference to OPSEU (Karduri) v. Seneca College
(2014) 245 LAC 4th 264 (Jesin). That decision cited the opinion of Deschamps J.,
writing for herself and six other members of the Court, in S.L. v. Commission scolaire
des Chênes, [2012] 1 SCR 235, 2012 SCC 7 (CanLII) for the proposition that while
there is a subjective test for determining the existence of a religious belief, an
- 20 -
objective test is to be applied in determining whether the religious belief has been
infringed. I note that the concurring opinion of LeBel J., writing for himself and the
other member of the Court, also makes it clear that an objective test is to be applied
in determining whether a religious belief has been infringed. Thus, the Court was
unanimous on that point.
[77] Seneca College quotes paragraph 24 of Deschamps J.’s opinion. I find it useful
to quote from Commission scolaire des Chênes at somewhat greater length:
[22] … [I]n Syndicat Northcrest v. Amselem, 2004 SCC 47 (CanLII), [2004] 2
S.C.R. 551, … the elements of a definition of freedom of religion were outlined. In
that case, Iacobucci J. explained that a person does not have to show that the
practice the person sincerely believes he or she must observe or the belief the
person endorses corresponds to a religious precept recognized by other followers. If
the person believes that he or she has an obligation to act in accordance with a
practice or endorses a belief “having a nexus with religion”, the court is limited to
assessing the sincerity of the person’s belief (paras. 39, 43, 46 and 54).
[23] At the stage of establishing an infringement, however, it is not enough for
a person to say that his or her rights have been infringed. The person must prove
the infringement on a balance of probabilities. This may of course involve any legal
form of proof, but it must nonetheless be based on facts that can be established
objectively. For example, in Edwards Books, the legislation required retailers who
were Saturday observers to close a day more than Sunday observers. In Amselem,
the infringement resulted from a prohibition against erecting any structure on the
balconies of a building held in co‑ownership, while the appellants believed that their
religion required them to dwell in their own succahs.
[24] 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 has been infringed, but whether 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. As with any other right or freedom protected by
the Canadian Charter and the Quebec Charter, proving the infringement requires an
objective analysis of the rules, events or acts that interfere with the exercise of the
freedom. To decide otherwise would allow persons to conclude themselves that their
rights had been infringed and thus to supplant the courts in this role.
[78] As noted above, for the purposes of this part of the analysis it is necessary to
specifically identify both the religious practice or belief and the rules, events or acts
said to interfere with that practice or belief.
[79] In this case, it is convenient to start by describing the employment rule said to
interfere with the Grievor’s religious beliefs. The Grievor’s work obligation is 36.25
hours per week. Ordinarily, he would be required to meet that obligation by working
during the hours of 8:00 AM and 5:00 PM, Monday to Friday. At times the employer
has permitted the Grievor variations on this arrangement, for example that he work a
compressed work week, with the result that he would work 7.77 hours per day during
the hours of 8:00 AM and 6:00 PM, Monday to Friday with the third Friday off. It is
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not, however, the hours of work which the Grievor challenges. Rather it is the
requirement that he work those hours at the Employer’s office in Peterborough.
[80] The Employer’s rules do not require the Grievor to live far away from his
workplace in Peterborough and the Grievor’s religious beliefs do not require that he
and his wife continue to live in Ottawa. Accepting for the purposes of this decision
that the Grievor’s religious beliefs require him to pray daily with his wife in both the
morning and the evening, the Grievor and his wife can do so anywhere. The
interference which the Grievor experiences with practicing Sandhya on a daily basis
arises not from any conflict between the impugned rule and his religious beliefs, but
from the fact that he lives in Ottawa notwithstanding that his job is in Peterborough.
Unless one were to conclude that it is unreasonable to expect the Grievor to move
from Ottawa to Peterborough, there is no basis for concluding that the Employer’s
rule interferes with the Grievor’s religious beliefs. For reasons stated above, it is my
view there is insufficient evidence to demonstrate that it is unreasonable to expect
the Grievor to move to Peterborough.
[81] For all of the foregoing reasons, the Employer’s non-suit motion is allowed and
the grievance is dismissed.
Dated at Toronto, Ontario this 5th day of March 2015.
Ian Anderson, Vice-Chair