HomeMy WebLinkAbout1995-1301TRATNYEK97_08_28
ONTARIO EMPLOy/tS DE LA COUAONNE
CROWN EMPLOYEES DE L'OI(TARIO
1111 GRIEVANCE COMMISSION DE
# SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE800, TORONTOONM6G 1Z8 TELEPHONEJTELEPHONE (41ts) 32ts-1388
180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACSIMILE/TELECOPIE (41ts) 32ts-13g(J
GSB # 1301/95, 1303/95
OPSEU # 95G037, 95G035
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Tratnyek)
Grievor
- and -
the Crown in Right of ontario
(Ministry of Community & social services)
Employer
BEFORE M R Gorsky Vice-Chair
FOR THE A. Pinto
UNION Counsel
Scott & Aylen
Barristers & Solicitors
FOR THE C. Samaras
EMPLOYER Counsel
Legal Services Branch
Ministry of Community & social Services
HEARING February 23, 1996
June 11, 1996
July 18, 1996
November 28, 1996
2
DEe I S ION
Exhibit 1 is a Joint Agreed statement of Facts, dated June
11, 1996, between the parties, which is as follows:
1. The grievor, Anthony Tratnyek, 37, is a Programmer
Analyst in the Information systems Branch of the
Ministry of Community and Social Services He is a
full-time civil servant classified as a Systems
Officer 2
2. The grievor is a member of OPSEU Local 599. He
filed two grievances both dated May 4, 1995. One
grievance claims under "Articles A and 55
specifically but not exclusively" that his
employer discriminated against him. The other
grievance claims under "Article A and 30
specifically but not exclusively" that his
employer discriminated against him. [Employer
Document Book Tab 1]
3. The parties agree that the grievances were filed
in a timely manner.
4. The grievor is a member of the Worldwide Church of
God. The parties agree that the Worldwide Church
of God is a bona fide religious denomination and
that the grievor is a bona fide member of that
denomination
5 Based on a decision of the Grievance Settlement
Board, Ontario {Ministry of Government Services}
and 0 P S E U , Kimmel/Leaf, (1991), 21 LAC
( 4 th) 129 (Kaplan) [Employer Document Book Tab 3],
Cabinet approved a policy for the observance of
religious holidays by OPS employees.
6. The policy provided for two days paid leave for
religious observance under Articles 55 or 83 of
the collective agreement (Special and
Compassionate Leave), for members of religious
denominations arrived at in consultation with
religious leaders, and using section 20 of the
Marriage Act as a guide The policy also provided
for additional days off with or without pay
3
through scheduling changes or the use of earned
entitlements or unpaid leave [Employer Document
Book Tabs .. , 5] In the policy, "lieu time" does
not refer to social contract days The policy
predated the social contract.
7. The employer's rationale for two days with pay
reflects the two statutory holidays associated
with Christianity in the Employment Standards Act
8. The parties agree that the western Christian
Church does not require Easter Monday to be a day
of religious observance.
9. In August, 1992, after consultation with religious
leaders, the "Religious Holidays List" referred to
in the policy was released. [Employer Document
Book Tab 5]
10 A "Religious Holidays List" is published
periodically by Management Board Secretariat
(MBS) [Employer Document Book Tab 6]
11. The grievor requested a total of 11 days off with
pay for 1995. He claimed the first 3 days under
Article 55 (Special and Compassionate Leave), and
the remaining 8 days under Article 30 (Leave -
special) of the Collective Agreement. [Employer
Document Book Tab 2]
12. Pursuant to the Sectoral Framework Agreement under
the Social Contract Act between OPSEU and OPS, the
OPSEU bargaining unit was required to take social
contract days during the period 1993 to 1996, as
set out in the Memorandum of Understanding.
[Employer Document Book Tabs 8 , 9]
13 The grievor was permitted to take 11 days off via
implementation of the religious leave pOlicy Two
days with pay were granted pursuant to Article 55,
and he was permitted to take the remaining 9 days
off without pay The grievor chose not to count
any of the 9 days off as "social contract days," 5
of which were available for the fiscal year April
1, 1995 through March 31, 1996. [Employer Document
Tab 2]
14. The grievor worked compressed work weeks in 1995.
The grievor's position required a nominal work
week of 36 25 hours. The grievor completed the
4
requisite hours for 3 weeks (108 75 hours) in 14
days, allowing the grievor to take a week-day off
every 3 weeks The grievor chose not to use any of
his compressed work week (CWW) days off for his
religious observance
15. In early January, 1995, the grievor submitted a
tentative schedule to his supervisor, Grace Wong,
listing tentative days off for:
(1) vacation; - 20 days; disbursed throughout the
year
(2) compressed work week. (Jan 17, Feb 7 & 28,
March 21, April 11 & 12 (1/2 days), May 23,
June 13 & 14 (1/2 days), July 4 & 25, August
15 & 16 (1/2 days), Sept 5 & 26, November 7 &
28 and December 19;
(3) Five (5) social contract days required by the
Memorandum of Understanding (Tab 9 Employer's
Document Book); and
(4) Approximately 45 additional unpaid social
contract days (short-term leave without pay)
pursuant to the Agreement at Tab 8, generally
taken on Mondays.
The parties agree that the grievor would have been
permitted to, and in fact may have taken different
days off from those tentatively scheduled. At the
same time (i.e. early January 1995) he indicated
to his supervisor that he would be making a
subsequent request for days off for religious
observance under Articles 55 and 30 of the
collective agreement This request was in fact
made March 28, 1995 At an April 5 meeting the
grievor was given the opportunity to schedule any
of the above-noted entitlements on his religious
holidays. He requested that the time off for
religious observance be granted pursuant to
Articles 55 and 30 of the collective agreement
In this case, overtime was not available.
16 The parties agree that the following employees in
Management Board Secretariat have received a third
day off for religious observance with pay on the
terms described in the letter dated October 25,
1995
Sheila Kimmel
5
" Karen Green
Pat Hoffman
Barry Stein
Stephen Leaf
These employees were OPSEU members and were not on
a compressed work week schedule. They were,
however, required to take social contract days, 5
of which were available for the fiscal year April
1, 1995 through March 31, 1996.
[The letter of October 25, 1995, referred to in
this paragraph 16, is as follows:
October 25, 1995
corporate Information Technology Branch
MEMORANDUM TO: Pat Hoffman
SUBJECT: Leave with Pay - Religious Observance
I have reviewed your request for a third day of
unpaid leave, for the observance of a religious
holiday on October 4th, 1995. Under my
discretion and in accordance with the Public
Service Act, I am pleased to approve a third
day's leave for religious observance to
accommodate your needs.
This decision in no way supersedes the current
Management Board of Cabinet Policy for
religious observance, nor does it amend, vary
or alter the terms of the Collective Agreement.
David Ritcey
Director, Corporate Information Technology
cc: Employee File
17. In 1995, there were approximately 80,000 employees
in the ontario Public Service (OPS)
Article A.l 1 of the collective agreement
6
is as follows:
A.1.1 There shall be no discrimination practised by
reason of race, ancestry, place of origin,
colour, ethnic origin, citizenship, creed,
sex, sexual orientation, age, marital status,
family status, or handicap, as defined in
section 10(1) of the ontario Human Rights
Code (OHRC).
Article 30.1 of the collective agreement, entitled "Leave -
Special," is as follows.
30.1 Leave-of-absence with pay may be granted for
special or compassionate purposes to an employee
for a period of:
(a) not more than six (6) months with the
approval of his Deputy Minister; and
(b) over six (6) months upon the certificate of
the Commission and with the approval of the
Lieutenant Governor in Council.
Article 55 of the collective agreement, entitled "Special
and Compassionate Leave," is as follows:
55 1 A Deputy Minister or his designee may grant an employee
leave-of-absence with pay for not more than three (3)
days in a year upon special or compassionate grounds.
55.2 The granting of leave under this Article shall not be
dependent upon or charged against accumulated credits
The language of Article 83 of the collective agreement,
entitled "Special and Compassionate Leave" is identical to that
of Article 55.
7
The 11 religious holidays with respect to which notice was
given by the Grievor to his supervisor, Grace Wong, on March 28,
1995, were:
- Festival of Unleavened Bread - April 18-21
- Festival of Trumpets - September 25
- Day of Atonement - October 04
- Festival of Tabernacles - October 10-13
- Last Great Day - October 16
By Interoffice Memorandum, being part of Tab 2 of Exhibit 4,
"Religious Holiday Notice," dated March 29, 1995, Ms. Wong
notified Mr. Tratnyek:
The Religious Holidays Policy allows for up to TWO paid days
for classified employees for religious holidays requiring
absence from work as identified on the Religious Holidays
List.
If you require additional days, you will be able to use
earned entitlements or unpaid leave. Earned entitlements
include vacation credits, overtime, lieu time, compressed
work week days, management compensation option etc. If
credits are not sufficient or the employee prefers not to
use them, then unpaid leave will be approved.
I will [sic] like to meet with you to discuss your request
We can meet on Wednesday, April 5 at 3 pm in 12 East
The final page of Tab 2 of Exhibit 4, entitled "Confirmation
- Denial of Religious Holidays," dated October 5, 1995, addressed
by the Grievor to Ms. Wong is as follows:
This is to confirm with you, as my supervisor, that
during today's meeting:
8
- my 1995 Religious Holidays with pay (other than
for 2 days) has been denied as I specified on the
leave form dated March 30/95
- the Oct. 09th date is the only date you accept as
a Religious Holiday as per the 1995 Religious
Holiday List and not Oct lOth to Oct. 13 as I had
indicated and
- I can take all the days off that I specified but I
must use some other credits or take the days off
without pay.
Reference was made to Re The Crown in riQht of ontario
(Ministry of Govern~ent Services) and Ontario Public Service
Employees Union (Kimmel/Leaf) (1991) , 21 L.A.C ( 4th) 129
(Kaplan) The grievance in that case was similar to those before
me
A consideration of adverse effect discrimination forms part
of the legal analysis required when considering the impact of
Article A.1. This would be true even prior to the parties
agreeing to Article A.1, as is apparent from Bousquet, 541/90
(Gorsky), which is referred to at p. 145 of Kimmel/Leaf:
"While it is not within the jurisdiction of a board of
arbitration to enforce the provisions of the Code, it
cannot ignore the general law of the land where there
is a conflict between the collective agreement
provisions and the relevant statutory provisions" (at
p. 14). It is noteworthy that Bousquet was decided
under the predecessor collective agreement, that is
prior to the coming into force of art. A.
In Kimmel/Leaf, the grievors were members of the
Conservative branch of Judaism and were employed in the Ministry
9
of Government Services. The grievor, Kimmel, on July 18, 1990,
wrote to her acting supervisor requesting special leave of
absence with pay for the observance of one of her high holy days,
Rosh Hashanah Management denied her request on the basis that
the collective agreement and the Public Service Act did not
include the Hebrew High Holidays "and normally, special leave
provisions are not applied for religious holidays." She was
advised that she could request from her supervisor "approval for
vacation days and/or a leave without pay for observance of these
holidays " This is what she did when she took vacation days,
although she filed a grievance alleging a violation of the
collective agreement. (Kimmel/Leaf, at p 134)
In Kimmel/Leaf, at pp. 135-136, there is a discussion
relating to the evolution of the policy concerning the granting
of special leave for religious observance set out in the ontario
Manual of Administration:
According to the extract from the manual dated August 9,
1976:
A deputy minister may grant an employee leave-of-
absence with pay for not more than three days in any
calendar year upon special or compassionate grounds
The three days:
Should only be used for unforeseen personal emergencies
and for religious holidays.
The manual dated August 21, 1978, uses similar language but
then goes on to provide: "Generally this leave should be
granted only when an employee has exhausted his/her
accumulated vacation credits." The manual dated August 5,
10
1986, provides that Deputy Ministers may grant employees
leaves of absence with pay for not more than three days in
any calendar year on special or compassionate grounds It
does not, however, make any reference to religious
observance, or any other grounds, for that matter Also
introduced into evidence was a memorandum dated October 22,
1979, from the Ministry of Health concerning leave with pay
This memorandum states:
Previously discretionary leave was only to be
granted for unforeseen personal emergencies
and religious holidays; now it may be granted
for unforeseen personal or family emergencies
and special and compassionate reasons but
generally not for religious holidays. Where
specific commitments have already been made
to grant discretionary leave for future
religious holidays, these should be honoured.
(Emphasis theirs.)
At p. 137 of Kimmel/Leaf, the Ministry of Labour's policy
with respect to "leave with pay - special and compassionate
circumstances" is noted:
Special and compassionate circumstances include but are
not limited to the following:
. . .
- up to two days per year for major religious
holidays or specific religious observance not
covered as statutory holidays.
The two days were said to be related to Christian observance
of Christmas and Good Friday. Reference was made to paragraph 7
of the Agreed statement of Facts in the case before me: "The
Employer's rationale for two days with pay reflects the two
statutory holidays associated with Christianity in the Employment
standards Act "
11
At p. 138 of Kimmel/Leaf, reference was made to the evidence
of a witness from the Ministry of Labour that the Ministry had
. .selected two days a year because in looking at the
statutory holidays it was clear that two of them
related to Christian observance, Christmas and Good
Friday. By providing up to two days for persons who
were not of the Christian faith, or indeed Christians
who celebrated these holidays on different dates, such
as the Eastern Rite of Orthodox Christians, the
ministry was seeking to give people of other religious
faiths an equitable opportunity to celebrate at least
two of their holidays
The witness for the Ministry of Labour also testified (p.
139 Kimmel/Leaf) that there were 80,000 to 90,000 employees in
the ontario Public Service at the time. Cf. para. 17 of the
Agreed Statement of Facts in this case. Counsel for the Employer
-
submitted that whatever consideration was given to the size of
the Public Service in Kimmel/Leaf should be given "considerable
weight" in this case in terms of assessing the Employer's
obligation to accommodate.
Reference was made to p. 149 of Kimmel/Leaf:
Applying the board's jurisprudence with respect to the
standard of review, union counsel briefly canvassed
some of the reasons given by the employer for the
denial of the special leave and argued that the
employer, in both the Leaf and Kimmel cases, failed to
conduct a proper investigation and applied pre-existing
policy in a mechanistic way in order to deny both
grievors application for special leave Moreover, in
neither case were any alternatives proposed or
canvassed. Rather, in both cases, the employer simply
denied the requests, and in the case of Ms Kimmel did
not even discuss with her the reasons for her request
Counsel argued that the conduct of the employer in both
cases failed to meet the standards established in the
long-standing jurisprudence of this board, and
12
submitted that the grievances should be allowed on this
basis.
Reference was also made to the statement at p. 150 of
Kimmel/Leaf:
Union counsel submitted that the decision to deny
special leave to Mr. Leaf and Ms Kimmel constituted
either or both adverse and direct discrimination and
should also be set aside on the basis that the employer
failed to properly exercise its discretion according to
the standards set out by this board. Counsel pointed
out that the decision was discriminatory in another
sense as well. Employees of this same employer with the
Ministry of Labour received special leave to attend to
their religious holidays, but employees of this
ministry did not. Counsel pointed out that there is
only one employer, and the policies of that employer in
one ministry were relevant to its actions in another.
Reference was also made to the statements of the Arbitrator
in Kimmel/Leaf at p. 153:
Turning to union counsel's arguments with respect to
adverse and direct discrimination, employer counsel
argued that neither had been established in the instant
case. In counsel's submission, the application of art.
55.1 in the instant case cannot be said to constitute
direct discrimination. The intent of this provision, in
counsel's submission, is to provide paid leave for
individuals in unexpected non-recurring situations.
Moreover, in counsel's view, the fact that art 55.1 is
not normally used for leaves of religious nature cannot
be said to adversely affect the griev~rs because the
grievors were entitled to arrange leave without pay. In
the case that the board did find an adverse impact,
counsel argued that the employer had met the test of
reasonable accommodation by allowing the grievors to
take the requested leave without pay, or as vacation
days. In this regard, counsel drew the board's
attention to Re Stelco wire Products Co and U 5 W ,
LOC 3561 (1986) , 25 L A.C (3d) 427 (Brent). In this
case, a Seventh Day Adventist was discharged for not
working on Fridays The board ordered him reinstated.
It did not, however, order an accommodation. Instead,
13
it ordered the employer to try to find some job which
did not involve interference with the grievor's
religious beliefs Moreover, it required the grievor to
be "flexible" and to make "reasonable sacrifices in
order to return to employment of some kind with the
company" (at p 443) If flexibility and sacrifice
failed, the grievor was to be laid off
Vice-Chair Kaplan, in Kimmel/Leaf, agreed with all three of
the Union's submissions. In finding a violation of both Article
55.1 and Article A of the collective agreement, he found that the
decision not to grant special leave to the grievors constituted
adverse effect discrimination giving rise to an accommodation
obligation on the part of the employer to the point of undue
hardship. It was also found that the obligation had not been
discharged It was also concluded that the decision not to grant
special leave constituted direct discrimination against the
grievors and should be set aside. Finally, the board concluded
that the employer failed to properly exercise its discretion
"according to the standards long established by this board" (at
p. 157)
Counsel for the Employer submitted that I should not follow
Kimmel/Leaf because it was said to have been wrongly decided
That case, being a decision of another panel of this Board, must
be given considerable deference in accordance with the decision
of Chairperson Shime in Re Blake et al. and Toronto Area Transit
operation Authority (May 3, 1988) (unreported). However, the
Kimmel/Leaf case was decided on October 7, 1991, and subsequent
14
to that date there have been a number of significant decisions of
the Supreme Court of Canada that have dealt with similar issues
and which I should consider in deciding the issues before me The
cases are Commission Scola ire ReQionale de Chambly v Berqevin
(1994), 115 D L.R (4th) 609 and Board of School Trustees, School
District No. 23 (Central okanaqan) et al. v. Renaud et al.:
Ontar.io Human RiQhts Commission et al. (1992) 95 D L.R. ( 4 th)
577
The board in Kimmel/Leaf noted the existence of a Ministry
rule "that special leave with pay is not 'normally' granted for
religious holidays" (at p. 157). The rule is referred to in the
board's treatment of both adverse effect discrimination (at pp
157-160), and direct discrimination (at p. 160). In referring to
the policy, the board noted, ibid. :
Although the policy in the instant case indicates that
"normally" special leave will not be given for
religious holidays, it appears from the evidence that
"normally," in fact, means "never," at least in the
case of annually recurring religious events.
The arbitrator, in Kimmel/Leaf, found the policy to be (at
p 157) " neutral on its face in the sense that it applies to
. everyone who works at the ministry It is not, however, neutral
in its application." At p 158, the board found that:
..the rule in question had an adverse impact on the
grievors because they were members of a minority group
The result of the rule was to discriminate against them
on the basis of creed, one of the prohibited grounds in
art. A of the collective agreement, by making them
choose between a day's wages and the celebration of one
15
of their holy days As a result of this adverse impact
discrimination, a duty to accommodate to the point of
undue hardship arose.
At p. 160, the board concluded that the policy of "never"
granting special leave for religious purposes amounted to
discrimination:
. . . against members of minoritarian religions . .. While not
crass, this is direct discrimination nevertheless
Accordingly, the policy is in conflict with art. A of the
collective agreement and we declare it to be of no effect
In Re ontario Human Riqhts Commission et ale and Simpsons-
Sears Ltd. (1985), 23 D.L R. (4th) 321 (S.C C.), McIntyre J.,
stated, at p. 332
A distinction must be made between what I would
describe as direct discrimination and the concept
already referred to as adverse effect discrimination in
connection with employment Direct discrimination
occurs in this connection where an employer adopts a
practice or rule which on its face discriminates on a
prohibited ground For example, "No Catholics or no
women or no blacks employed here" There is, of course,
no disagreement in the case at bar that direct
discrimination of that nature would contravene the Act
On the other hand, there is no concept of adverse
effect discrimination It arises where an employer for
genuine business reasons adopts a rule or standard
which is on its face neutral, and which will apply
equally to all employees, but which has a
discriminatory effect upon a prohibited ground on one
employee or group of employees in that it imposes,
because of some special characteristic of the employee
or group, obligations, penalties, or restrictive
conditions not imposed on other members of the work
force. For essentially the same reasons that led to the
conclusion that an intent to discriminate was not
required as an element of discrimination contravening
the ~, I am of the opinion that this court may
consider adverse effect discrimination as described in
these reasons a contradiction of the terms of the ~
An employment rule honestly made for sound economic or
16
business reasons, equally applicable to all to whom it
is intended to apply, may yet be discriminatory if it
affects a person or group of persons differently from
others to whom it may apply From the foregoing I
therefore conclude that the appellant showed a prima
facie case of discrimination based on creed before the
board of inquiry.
In Kimmel/Leaf, the policy or rule to which the board
directed its mind was one which denied leave with pay under
Article 55 to persons requesting such leave so as to be able to
engage in religious observance The same rule cannot be one
which "on its face discriminates on a prohibited ground," and at
the same time be "a rule or standard which is on its face neutral
and which will apply equally to all employees, but which has a
discriminatory effect upon a prohibited ground on one employee or
group of employees in that it imposes because of some special
characteristic of the employee or group, obligations, penalties
or restrictive conditions not imposed on other members of the
workforce."
As noted, the Chambly case was not decided until after
Kimmel/Leaf An examination of that case indicates the
elaboration of the Supreme Court on the subject of discrimination
on the grounds of creed and exactly what action constitutes
adverse effect discrimination on that ground In chambly, at p
615, per Cory J., the Court notes that the employer school board
"took the position that it would not object to Jewish teachers
17
taking the day [Yom Kippur] off but that it would have to be
r without pay."
At p 621, Cory J. notes that the first task was to
determine "whether the calendar which fixed the teachers' work
schedule and formed part of the collective bargaining agreement
had the effect of discriminating against Jewish teachers " At pp
622-623, Cory states:
. Here the schedule of work is based upon the
Catholic calendar of holidays. None the less, I think
the calendar should be taken to be secular in nature
and thus neutral or non-discriminatory on its face. It
will be remembered that the majority of the Court of
Appeal determined that since the calendar did not have
any religious aims, it was not discriminatory. With
respect, I think this was an erroneous conclusion It
is true that this approach can properly serve to
determine that there has been no direct discrimination.
However, the analysis cannot stop there. Consideration
must still be given to the effect of the calendar in
order to determine if there is indirect or adverse
effect discrimination.
In my view, the calendar which sets out the work
schedule, one of the most important conditions of
employment, is discriminatory in its effect. Teachers
who belong to most of the Christian religions do not
have to take any days off for religious purposes, since
the Christian holy days of Christmas and Good Friday
are specifically provided for in the calendar Yet,
members of the Jewish religion must take a day off work
in order to celebrate Yom Kippur. It thus inevitably
follows that the effect of the calendar is different
for Jewish teachers They, as a result of their
religious beliefs, must take a day off work while the
majority of their colleagues have their religious holy
days recognized as holidays from work In the absence
of some accommodation by their employer, the Jewish
teachers must lose a day's pay to observe their holy
day. It follows that the effect of the calendar is to
discriminate against members of an identifiable group
because of their religious beliefs. The calendar or
work schedule is thus discriminatory in its effect.
18
In Alberta Human Riqhts Commission v Central Alberta Dairy
~ (1990), 72 D L.R. (4th) 417 (s.CC), the employer's rule of
mandatory Monday attendance subject to certain exceptions had an
adverse effect on adherents of minority religions. The
discrimination related to the adverse impact on minority
religions of the employer's work schedule. Similarly, in the
Renaud case it was the adverse impact of the employer's work
schedule on the appellant, a Seventh-Day Adventist, who was
employed as a school custodian, in requiring him to work on an
afternoon shift on Fridays that represented adverse effect
discrimination, imposing on the employer a duty to accommodate by
taking reasonable measures up to the point of undue hardship
Similar issues were dealt with in Richmond v. Canada (Public
Service Commission), an unreported Judgment of the Federal Court
of Appeal, dated March 26, 1997, which examined and attempted to
apply the analytical framework enunciated in Chambly. In that
case the appeal concerned several grievances filed by the
appellants after their employer refused to grant them a paid
leave of absence to observe the Jewish High Holidays. The
employer responded to the appellants' submissions that they were
discriminated against on the basis of religious affiliation and
that their employer had failed to fulfil its obligation to
"accommodate" as required by law, by taking the position that
each of the grievors was granted the required leave of absence
19
and offered several options to redress the loss of pay arising
from the absence, including use of annual leave. In that
decision, both the majority and dissenting decisions held that it
was the "calendar" that led to "indirect discrimination "
Both the majority and dissenting decisions concluded that
there was indirect discrimination and that the question to be
asked was whether "the employer has taken reasonable steps, short
of undue hardship, to accommodate the appellants so that they
might fulfil their religious obligations according to the tenets
of their religion .. lf (Majority decision at p 9) (And see
.
dissenting decision at p. 18). The difference between the
majority and the dissenting decisions concerned whether the
employer had met its obligation to accommodate.
In RiChmond, the appellants filed grievances under their
respective collective agreements claiming they were discriminated
against by their employer on the basis of their religion, since
they were refused leave with pay to observe the Jewish High Holy
Days of Rosh Hashanah, observed over a period of two days and Yom
Kippur, a one-day religious holiday.
I agree with the arbitrator in Kimmel/Leaf that having found
adverse effect discrimination on a prohibited ground (creed) it
was then necessary to ascertain whether the employer had
fulfilled its duty of accommodation.
20
At pp. 158-9 of Kimmel/Leaf, the board stated
The evidence indicates that the duty was not met in the
instant case Offering the grievors their pre-existing
entitlement does not constitute an accommodation In
our view, as in Simpsons-Sears, the employer has an
obligation, once adverse impact discrimination is
established, to demonstrate that it has attempted
accommodation up to the point of undue hardship In the
instant case it could perhaps be argued that the
employer made some accommodation efforts in the sense
that it offered the grievors the option of taking the
days off without pay, or taking holidays on the days in
question This, however, is not an accommodation, for
the result of this "accommodation" is discriminatory to
the grievors and any accommodation must be directed at
the elimination of discrimination. It is also
noteworthy that the employer made no effort whatsoever
in either case to explore alternative accommodation
arrangements.
At pp. 159-160, the board stated:
Counsel for the employer argued that the employer had
discharged its duty of "reasonable accommodation." with
respect, that is an incorrect characterization of the
obligation. The duty, once adverse impact has been
established, is to accommodate to the point of undue
hardship. In our view, the employer was required to
explore and then offer an accommodation to each of the
grievors Put another way, the initial obligation to
accommodate rests on the employer Had the employer
made a real effort to accommodate to the point of undue
hardship, then our disposition of the grievances would
almost certainly have been different Once the employer
makes its offer of accommodation, again to the point of
undue hardship, the employee has an obligation to
respond to the offer and to be reasonable in his or her
response In the instant case, the parties never
reached that point
This duty to accommodate to the point of undue hardship was
not met in this case, and it is on this basis that we find a
violation of art. A and art. 55 1 of the collective
agreement The concept of "undue hardship" requires some
sacrifice on the part of the employer, not as arbitrator
Outhouse suggests [in Re civil Service Commission and Nova
21
scotia Government Employees Union (1989), 7 L A.C (4th)
257], on the part of an employee The employee's obligation
is to respond reasonably and in good faith to a real offer
of accommodation, but that, of course, presupposes the pre-
existence of such an offer. We find that there was no such
offer in the instant case. . . .
Counsel for the Employer asked me to find that the
Kimmel/Leaf case had been wrongly decided, and submitted that,
insofar as it followed erroneous principles relating to
accommodation, the principles were properly stated in the
Richmond case by the majority of the Federal Court of Appeal
(The decision of the Federal Court of Appeal in Richmond is dated
March 26, 1997, after the last day of hearing in this case, and
counsel, by agreement, made written submissions with respect to
the decision which I have considered and for which I thank them )
The decision of the majority of the Court in Richmond states
the issue before it (at pp. 15-16)
[para19] Was the employer, under the doctrine of undue
hardship, compelled to use the discretionary provisions
of the collective agreements in such a way as to add
automatically the three days of leave with pay for
religious observance of the Jewish faith, without
requiring from the employees the supplementary
sacrifices on which the grievances are based?
[para20] My view is that the employer could not, with
the collective agreements as they stand, have used the
discretionary provisions in such a way The risk is not
just a possible grievance, as in Renaud The employer
could not unilaterally render mandatory what is
discretionary without risking a serious disruption of
the balance of the collective agreements The number of
days provided for mandatory leave with pay would then
not have applied to all in the same manner Besides
enjoying, as holidays, the religious days of the
majority, those of the Jewish faith would have had
22
three more days of mandatory leave with pay for
religious purposes Christmas and Good Friday do not
represent the full panoply of "holy" or "feast" days of
religious observance in Christian religions, and
certainly not of the Roman Catholic faith, as evidenced
in the case of Birks v. City of Montreal [See Note 22
below] where Epiphany, All Saints and Conception were
listed as days of religious observance Nothing would
then prevent Christians from claiming they are also
entitled to more days of religious observance as leave
with pay days Would the employer be in a position to
distinguish between important days and less important
days of religious observance? Besides, where would the
limit lie, vis-a-vis all other religions? It would
hardly be an answer to say that each case would need to
be appreciated according to its circumstances
----------------
Note 22: [1955] S.C.R. 799
----------------
Referring to the Kimmel/Leaf case, Desjardins J stated, at
pp. 16-17:
[para22] The decision of the Ontario Crown Employees
Grievance Settlement Board is Re The Crown in right of
Ontario (Ministry of Government Services) and Ontario
Public Service Employees Union (Kimmel/Leaf) [See Note
23 below] is also different from the case at bar.
There, the collective agreement, which contained a non-
discrimination clause, provided in its section 55 1
that special and compassionate leave of absence with
pay may be granted by the employer on a discretionary
basis for not more than three days in a year The
employer had, however, a rule that special leave with
pay was not normally granted for religious purposes
under that section, and refused to apply section 55 1
to those wishing to take these allocated days so as to
attend to their religious obligations The grievors, in
that case represented by their union, had either to
take these days off without payor use their vacation
credit
----------------
Note 23: 21 LAC (4th) 129.
----------------
[para23] The Board accepted that the employer had not,
in the words of Gohm v. Domtar Inc., [See Note 24
23
below] taken "substantial or meaningful steps" to
accommodate the requirements of the complainants. It
further noted that the employee who sought and obtained
special leave to fulfil religious obligations was not
in an advantageous position relative to other
employees. If anything, the opposite was true, because
once that employee had extinguished his or her special
leave with pay, there was no longer any for other
purposes [See Note 25 below]
----------------
Note 24: (1990) 12 C H R R D/161 (pentney) at para
96, cited in 21 LAC (4th) 129 at 158.
Note 25: (1990) 12 C H.R.R. D/161 (pentney) at para
96, cited in 21 LAC. (4th) 129 at 162.
----------------
[para24] The result in Kimmel/Leaf was to give everyone
the right to claim up to three days for special or
compassionate reasons, including for religious
activities. The accommodation could be done without
disrupting the balance of the collective agreement
In his dissenting decision in Richmond, Robertson J. stated
at pp 28-29:
[para49] The development of the law relating to
religious discrimination and the duty of accommodation
is at an embryonic stage and largely dependent on the
Supreme Court having the opportunity to establish the
analytical framework required in order for lower courts
and tribunals, including those responsible for the
interpretation of collective agreements, to apply the
law in a consistent and non-discriminatory manner
If the Grievor, in the case before me, had been the subject
of adverse effect discrimination and merely requested three days
for the observance of religious holidays pursuant to Article 55,
I would have found nothing in the majority decision in Richmond
that could affect my conclusion with respect to the finding of
the board in Kimmel/Leaf The fact that, in Kimmel/Leaf, two days
24
of special leave were being requested pursuant to Article 55 and
r that the grievor, in the instant case, requested three days under
that article, would not affect the principle eunciated in that
case, which was not faulted in Richmond, and it would follow that
his request for three days should have been granted as a required
accommodation under the collective agreement and the ~, if
failure to do so meant that he would suffer a financial loss or
other significant detriment, unless the Employer could
demonstrate that to do so would subject it to undue hardship
I agree with the statement of Robertson J , at pp 32-33 of
Richmond:
[para58] In my view, and I say this with the greatest
of respect, today the issue of religious accommodation
does not turn so much on the interpretation of human
rights legislation as it does on the meaning and scope
of the accommodation doctrine as understood by the
Supreme Court: see Chamb1y, supra and Central Okana9an
School District No. 23 v. Renaud,[1991] 2 S.C.R. 970;
compare with ontario Human Ri9hts commission and
O'Malley v. Simpsons-Sears Ltd., [1985] 2 S C R 536
and Bhinder v. Canadian National Railway Co., [1985] 2
S C R 561. I take it to be a matter of accepted law
that any statute which prohibits discrimination on
religious grounds will be interpreted to include
adverse effect discrimination in the employment
context
In the case before me, much was made on behalf of the
Employer of the existence of what was said to represent a
reasonable policy with respect to accommodating the religious
beliefs of employees through the granting of leave with pay,
subject to the employee using certain entitlements such as
25
vacation entitlement and compressed work week days off in order
to obtain the leave for religious observance without loss of pay
In the Richmond case, Desjardins J. distinguished the
Kimmel/Leaf case from the case before him on the basis of the
difference in the provisions relating to the granting of leave
without pay. He did not address, as did Robertson J , the
significance of such provisions in determining whether the
necessary accommodation had been afforded.
At p. 40 of Richmond, Robertson J. stated:
[para79] Applying the analytical framework outlined by
Justice Cory in Chambly, I am entitled to take note of
the fact that each of the collective agreements
contains a special leave provision. Those provisions
indicate a degree of flexibility on the part of the
employer and suggest that the type of accommodation
sought by the appellants is not unreasonable I cannot
forget that in Chambly there were similarly worded
special leave provisions and both the Arbitration Board
and the Supreme Court found that those provisions could
reasonably be interpreted to provide for paid leaves
. . I also take note of the fact that the appellants
seek a maximum of three days of paid leave each year
(eg in 1997 only two of the three holy days will fall
on a weekday)
In Chambly, at p_p. 630-1, Cory J stated
The provisions of a collective bargaining agreement
cannot absolve either the employer or the union from
the duty to accommodate. Yet, the terms of the
agreement are relevant in assessing the degree of
hardship which may be occasioned by interference with
its terms. Thus, as pointed out in Renaud, supra, at p
587, a substantial departure from the normal operation
of the conditions or terms of employment set out in the
collective agreement may constitute undue interference
26
in the operation of the employer's business However,
in this case, the collective bargaining agreement
/ supports the position taken by the appellants and the
majority of the arbitration board.
I recognize that other cases may demonstrate circumstances
which would make reasonable accommodation impossible. For
example, if the religious beliefs of a teacher required his
or her absence every Friday throughout the year, then it
might well be impossible for the employer to reasonably
accommodate that teacher's religious beliefs and
requirements. However, that is far from the situation
presented in this case.
The above quotation points out the real significance of
clauses in a collective agreement that deal with the granting of
leave.
At pp. 623 of Chambly, Cory J. stated:
Adverse effect discrimination can occur quite innocently in
situations where an employer adopts a rule, a standard or a
procedure, which although neutral on its face, and equally
applicable to all employees, is nevertheless discriminatory
in its effect upon an individual or a group of employees
because of some characteristic of that group such as their
religion. When adverse effect discrimination occurs, it can,
just as surely as direct discrimination, confront employees
with harsh conflicts between employment and religious
beliefs and just as surely it will infringe human rights
legislation. When it arises, the employer must take
reasonable steps to accommodate the individual or group of
employees adversely affected see, for example, O'Malley,
supra, at p 332
At pp. 625-6 of Chambly, Cory J. stated.
. Why should there be reasonable accommodation in
those situations where there exist apparently neutral
employment rules, standards or procedures which none
27
the less adversely affect an identifiable individual or
group of employees?
,,-
The response to that question must flow from the very aim
and purpose of human rights legislation. Those enactments
seek, to the extent that it is reasonable, to provide equity
or fairness in the workplace to persons of all religions,
races and nationalities. To the vast majority of Canadians
their work and place of work are matters of fundamental
importance. Fairness in the work place is the desire of all
It is a magnificent goal that is worth striving to attain.
Once it has been established that there is adverse effect
discrimination flowing from employment rules, procedures or
standards, then there must be a reasonable attempt on the
part of the employer to accommodate the employees adversely
affected. Almost invariably, those adversely affected will
be members of a minority group. If there is to be true
equality and fairness in the workplace without regard to
religious beliefs then it follows, as the night the day,
that there must be a duty resting upon an employer to take
reasonable steps to accommodate those employees that are
adversely affected by the employment rules. This is
essential if the aim of human rights legislation is to be
fulfilled. Anything less defeats the purpose of such
legislation and makes it a hollow enactment of little value
in the workplace
This principle is so important that McIntyre J., speaking
for a unanimous court in O'Malley, supra, indicated that a
reasonable accommodation was an integral aspect of equality
It thus can be taken that the duty to accommodate is a
fundamentally important aspect of human rights legislation
and an integral part of the right to equality in the
workplace It then becomes necessary to determine precisely
what constitutes reasonable accommodation.
It was pointed out in Renaud, supra, at p 589, that
historically the duty to accommodate developed as a means of
limiting the liability of an employer who was found to have
discriminated by the bona fide adoption of a work rule
without any intention to discriminate. By providing
reasonable accommodation to the affected workers, the
employer could justify the adverse effect discrimination and
thereby avoid liability for the unintended consequences of
the rules of employment
At p 629 of Chambly, Cory J stated:
28
It is not necessary that a collective bargaining
agreement specifically provide for the observance of
/ the holy day of a religious minority Its provisions
are simply a factor to be considered in determining
whether the employer can reasonably accommodate the
religious observances of the minority In this case,
the collective agreement provides a flexibility that
demonstrates that a reasonable accommodation could be
made.
If a collective agreement does not provide such flexibility,
it would still have to be determined if the granting of the
accommodation sought would impose undue hardship on the employer
Robertson J., in Richmond, spent some time dealing with the
decision of the Adjudicator in that case, and noted, at pp 24-
25
[para39] The Adjudicator concluded that the relevant
jurisprudence did not reveal an obligation to
accommodate up to the point of undue hardship, unless
there are no other less onerous arrangements available
to the employer to accommodate an employee. On the
AdjUdicator's understanding of the decision in
Commission Scolaire Reqionale de Chambly v. Berqevin,
[1994] 2 S.C.R 525 , the duty to accommodate
requires the employer to provide for time off without
loss of pay, but does not establish a need for an
employer to suffer hardship in order to accommodate an
employee wishing to observe his or her religious holy
days. In light of the employer's offer of accommodation
consonant with Treasury Board's policy, the AdjUdicator
held that it would violate the collective agreement to
order that discretionary leave be granted pursuant to
the special leave provisions. To grant the order
requested by the appellants would render mandatory the
discretionary authority to grant special leave and
violate subsection 96(2) of the Public Service Staff
Relations Act, R S C 1985, c. P-35 That provision
provides that no adjudicator shall render a decision
which has the effect of requiring the amendment of a
collective agreement A more extensive discussion of
the Adjudicator's reasoning is found at pages 33-34 of
his decision
29
Having considered the relevant jurisprudence,
I am satisfied that a need to accommodate has
been established by the Supreme Court of
Canada but that there is no need to
accommodate "up to the point of undue
hardship" if there is another means of
accommodation available In the instant
cases, the employer had in place a policy
with regard to leave for religious
observances; there could be "the use of
annual or compensatory leave, shift exchanges
in the case of shift workers, variable hours
of work (compressed work week) or individual
arrangements for make-up time, if
operationally feasible" However, none of the
grievors asked for accommodation other than
through leave with pay "for other reasons."
A careful reading of the Chambly (supra)
decision does not reveal any need for an
employer to suffer hardship in order to
accommodate an employee in fulfilling his or
her religious obligations There was
identified, however, a need to accommodate an
employee in such circumstances and this
accommodation must provide for time off
without loss of pay. Loss of pay, I believe,
formed the very foundation for the Court's
decision in Chambly (supra) to restore the
award of the majority of the arbitration
board granting the teachers in question leave
with pay in that the Court was of the opinion
that the employer refused to reasonably
accommodate them when it only allowed them to
take time off without pay.
In the instant grievances, there was no loss of pay for
the grievors They were all granted the leave they
ultimately requested, namely vacation leave, when they
were refused their first request, that is, leave with
pay "for other reasons" under a clause in the
collective agreement allowing for such leave at the
employer's discretion As counsel for the employer has
suggested, there may be circumstances where the
employer might grant such leave to accommodate an
employee in fulfilling his or her religious
obligations, but when there are other arrangements made
available to an employee to take the necessary leave
without loss of pay, I believe that it would violate
the collective agreement for me to order that
discretionary leave be granted in light of the
employer's scheme in place to accommodate an employee
30
by other arrangements such as those provided for in the
employer's "policy" In this regard, I refer to
subsection 96(2) of the Public Service Staff Relations
Act. There is no absolute right to "leave with pay for
other reasons" for employees who wish to take time off
to observe their religious obligations. The courts have
recognized only that an employer must accommodate such
an employee by allowing him time off without loss of
pay. The requirement that the accommodation must be up
to the point of undue hardship comes into play only if
there are no other arrangements less onerous to the
employer available to accommodate an employee -- then
the employer must burden itself up to the point of
undue hardship.
At p. 26 of Richmond, Robertson J. notes that on the
judicial review application, the Trial Judge "was of the opinion
that the Adjudicator's decision was correct."
At p. 26, Robertson J also stated that:
[para42] The Trial Judge concluded that where an offer
of accommodation from an employer is not reasonable an
adjudicator might be obliged to read the special leave
provisions as mandatory in order to ensure compliance
with the non-discrimination articles However, the
Trial Judge held that the Adjudicator was correct in
concluding that a reasonable offer of accommodation had
been made by the employer and, therefore, there was no
need to consider the special leave provisions In the
opinion of the Trial Judge, the following passage from
Chambly established that an offer of accommodation need
only be reasonable to satisfy the duty to accommodate
(at 546):
It is important to remember that the duty to
accommodate is limited by the words "reasonable" and
"short of undue hardship." Those words do not
constitute independent criteria Rather they are
alternate methods of expressing the same concept
One of the main arguments made on behalf of the Employer in
the case before me was that it need only offer an accommodation
31
that is reasonable and did not have to undertake additional
~ measures of accommodation up to the point of undue hardship.
At p. 37-38 of Richmond, Robertson J. states.
[para70] The central position of the Adjudicator and
Trial Judge is that once it is determined that the
employer's offer of accommodation is reasonable it is
simply unnecessary to have recourse to the special
leave provisions of a collective agreement. with
respect, I cannot agree for three reasons. First, as I
have already discussed, construction of the special
leave provisions should be the starting point of the
analysis. I shall say no more about this issue. Second,
and most importantly, the duty as formulated below is
not in accord with the jurisprudence. Third, its
validity is premised on the assumption that the
granting of paid leaves to the appellants is an
unreasonable form of accommodation. I shall deal with
my last concern first.
[para71] It seems to me that the question as to what is
or is not reasonable is to be answered by reference to
surrounding circumstances and not by abstract
reasoning see Renaud, supra at 984, per Sopinka J.
["What constitutes reasonable measures is a question of
fact and will vary with the circumstances of the
case"]. For the sake of argument assume that in the
present case the employer's offer of accommodation is a
reasonable one. I do not think it follows from that
premise that the possibility of granting the appellants
paid leaves of absence is necessarily unreasonable Yet
that is the very inference we are being asked to draw.
Were it otherwise, the Adjudicator would have had to
decide whether the employer's offer of accommodation
was as reasonable, or more so, than the relief being
sought by the appellants
[para72] I would agree that there is no general rule
or principle of law requiring employers to grant
employees paid leaves so that they may practise their
religious beliefs. But neither am I prepared to hold as
a general rule that as long as an employee is permitted
a leave of absence together with the opportunity to
make up for a day of lost pay, an employer has
satisfied its duty to accommodate. The relief being
sought by the appellants may not only be reasonable but
in fact and law more reasonable than the accommodation
being o~fered by ~peir employer.
32
(Emphasis added )
[para73] The question of reasonableness is to be
resolved in a contextual manner and not merely by
recourse to broad propositions of law. For example, in
a situation where the employment involves shift work,
varying considerations will come into play in
determining what constitutes reasonable accommodation
In certain instances the opportunity to exchange a
shift with another employee may be all that is
necessary to accommodate an individual's religious
beliefs In other cases accommodation may require
different arrangements More likely than not the issue
will be dealt with fairly in a collective agreement. A
more extreme example, but one which illustrates my
point, stems from my presumption that Jewish members of
the judiciary would never be asked to take annual leave
or work extra hours for time observing the High
Holidays In the end, if I were to accept the
accommodation duty as formulated by the decision makers
below, I suspect that the law would reflect differing
ideological dispositions rather than consistency in
decision making. The better and proper approach is
found in the Supreme Court jurisprudence.
(Emphasis added )
[para74] Once it has been established that there
has been adverse effect discrimination flowing from the
application of a facially neutral employment rule, such
as a work schedule based on the Christian calendar,
then it is settled law that there must be a reasonable
attempt on the part of the employer to accommodate the
employees adversely affected That reasonable
accommodation is an integral aspect of equality is
firmly entrenched in the jurisprudence The extent of
the duty to accommodate in cases of adverse effect
discrimination was outlined in O'Malley, supra, at 555
. . .
[para75] The above passage makes it clear that
accommodation up to the point of undue hardship is what
is required of an employer In Renaud, supra, the
Supreme Court addressed the scope of the duty in the
context of the de minimis argument. That argument can
be traced to a decision of the United States Supreme
Court which had held that to require an employer to
f bear more than a de minimis cost would amount to undue
I hardship: see Trans World Airlines, Inc. v. Hardison,
432 U S 63 (1977)
33
Referring to Kimmel/Leaf, Robertson J stated at pp 39-40
/
[para77] It seems clear to me that under the existing
law reasonable accommodation on the part of the
employer can result in the employer being subjected to
a degree of hardship as long as it does not amount to
undue hardship: see Re Kimmel/Leaf (1991), 21 L A.C.
(4th) 129 Reasonable accommodation is therefore
synonymous with accommodation up to the point of undue
hardship. Thus, the question to be addressed in this
case is not whether the employer's offer of
accommodation is reasonable in the circumstances. The
proper question is whether the granting of leave with
pay will expose the employer to undue hardship. If it
does then the granting of leave without pay is all that
is required of the employer.
[para78] It follows from what I have said that the
Adjudicator and Trial Judge erred in their
understanding and application of the law regarding
reasonable accommodation Both failed to address the
proper legal question. Both erred in concluding that
there is no need to accommodate up to the point of
undue hardship if another less onerous means of
accommodation is available Moreover, the employer
elected not to lead any evidence to establish that the
relief sought by the appellants would cause it
unreasonable financial hardship or impair operational
requirements. That being so the appellants are entitled
to the relief sought by default. In arriving at this
conclusion I am cognizant of the fact that the thought
of the federal government opening its books in an
access to unlimited sources of revenue is at the very
least problematic if not naive In the circumstances, I
am prepared to explain why I am of the opinion that
what the appellants seek in this case is reasonable to
the extent that it could not possibly result in undue
hardship to this federal employer
(Emphasis added )
What Desjardins J had to say about the decisions of the
Adjudicator and the Trial Judge in Richmond is set out at pp 9-
10 of his decision
[para12] The burden of proof is on the employer who pleads
that the adjudicator and the trial judge were correct in
deciding that reasonable offers had been made by the
34
employer, through the Treasury Board policy, where each case
is examined on an individual basis and every effort is made
to allow an employee to be absent from work without
suffering loss of income The employer contends that in
C.S.R. de Chambly, there was no possibility of make-up time
in any way, with the result that the teachers would have
lost pay, a situation not encountered here. Moreover, the
employer contends that the grievors' complaints, if
determined to be well founded, would render mandatory what
is discretionary under the collective agreements It finally
submits that the employees also had a duty, under the law as
established in Renaud, to accept reasonable accommodation.
Desjardins J. does not deal, as did Robertson J , with the
fact that the Adjudicator and the Trial Judge in Richmond did not
find that the duty to accommodate went beyond reasonable
accommodation and rejected the notion that there was a duty to
make reasonable accommodation up to the point of undue hardship
From the way Desjardins J. stated the nature of the burden of
proof, it would appear that, in uphblding the Adjudicator's and
the Trial JUdge's decisions, he agreed that it was only necessary
to find that "reasonable offers had been made by the employer
through the Treasury Board policy, where each case is examined on
an individual basis and every effort is made to allow an employee
to be absent from work without suffering loss of income " After
quoting extensively from the Chambly case (at pp 10-12 of
Richmond), Desjardins J concluded, at pp 14-16:
[para1?] In the case at bar, the respondent could not
have sought any testing of or amendments to the
collective agreements so as to modify the designated
pay holidays, since Christmas and Good Friday are
prescribed as paid holidays under the Canada Labour
~ Could the respondent have done more with the
collective agreements as they stand?
-.
35
[para18] The collective agreements are flexible in the
sense that they give discretion to the employer to
, grant leave with pay for purposes other than those
specified in the collective agreements. The Treasury
Board policy already provides for leave with pay in
situations such as time for voting, time for
recreational, personal and other special reasons,
medical and dental appointments, adverse climatic or
environmental conditions, international sporting events
and Reserved [sic] Forces training, provided certain
standards and procedures are met These leave
situations, which apply to all, irrespective of their
religion, are said to be "authorized in accordance with
the relevant authority, that is, the collective
agreement or the appropriate terms and conditions of
employment." They are subject to important
restrictions The time for voting is governed by
legislation and except for federal elections, referenda
or plebiscites, [See Note 21 below] the Treasury Board
policy specifically refers to them. On the other hand,
leave "for recreational, personal and other special
reasons" may be granted, "but is to be charged against
an employee's vacation leave credits..." Routine
medical and dental appointments are limited to half a
day, a series of continuing appointments are to be
charged to sick leave Adverse climatic or
environmental conditions are monitored.; Participation
at international sporting events is limited in time,
certification must be furnished, and the employee's
unused vacation leave is to be liquidated before any
additional leave is granted. Reserved [sic] Forces
training should conform to existing legislation
----------------
Note 21: See, however, the Canada Elections Act,
R S.C 1985, c. E-2, s 148
----------------
What appeared to Desjardins J to be reasonable
accommodation up to the point of undue hardship related to the
Courts finding that "the employer could not unilaterally render
mandatory what is discretionary without risking a serious
disruption of the balance of the collective agreements " This was
because he found that "the number of days provided for mandatory
36
leave with pay would then not have applied to all in the same
manner."
As Robertson J pointed out, Chambly made it clear that
there need be no leave provisions in the collective agreement
that could accommodate an employee's request for leave for the
purposes of religious observance. Such provisions merely assist
in a determination of whether reasonable accommodation is
possible. In Andrews v. Law society of British Colunbia, [1989] 1
S C R 143, McIntyre J made it clear, at pp. 164-5, that equal
treatment without discrimination does not mean identical
treatment There are circumstances when equal treatment without
discrimination on a prohibited ground can only result from
affording a protected minority certain rights which are not
granted to the majority Because some religions or branches
thereof have only two mandatory days when a member would be
expected to absent him/herself to engage in religious observance
does not mean that equal treatment without discrimination will
follow if every other religion or denomination thereof is given
two days off with pay to observe some of their holy days
Reference was made by McIntyre J to R. v. Big M Dru9 Mart Ltd.,
[1985] 1 S C R 295, where Dickson C J said at p. 347:
The equality necessary to support religious freedom does not
require identical treatment of all religions In fact, the
interests of true equality may well require differentiation
in treatment.
37
It might be that in a given circumstance it would be obvious
that an employer could not accommodate a particular employee's
religious requirements by offering ~ days because to do so
would inevitably lead to undue hardship. In the Simpsons Sears
case, at p. 338, McIntyre J stated
. . In some cases [undue hardship] .. may be established
without evidence, for example, a requirement that all
employees work on saturday in a business which is open only
on Saturdays . . . .
It is significant that McIntyre J. continued the last quoted
statement:
. . but once the prima facie proof of a discriminatory
effect is made it will remain for the employer to show undue
hardsip if required to take more steps for its accomodation
than it has done.
The number of religious holy days that require a member of a
religious denomination to be absent from work for the purpose of
religious observance is not the issue. The issue is whether an
employer can accomodate the religious needs of an employee who
belongs to a minority religion without suffering undue hardship
It is not numbers but the securing, "as far as is reasonably
possible equality, that is to say, fairness in the work place"
that is significant in the inquiry. (Chambly, per Cory J. at p.
624 )
In dealing with the submissions that the form of
accommodation sought by the appellants would render the
discretionary or special leave provisions mandatory and thereby
38
amend each of the collective agreements contrary to Subsection
~ 96(2) of the Public Service Staff Relations Act, Robertson J
noted, at pp 41-42 of Richmond
[para83) .It is true that in Central Alberta Dairy
Pool v. Alberta (Human Rights Commission), [1990] 2
S C R 489 at 520-21, Justice Wilson stated that
accommodation which had the effect of making changes to
a collective agreement could constitute undue hardship
It is equally true that in Renaud the Supreme held that
a collective agreement cannot displace human rights
obligations ) Having regard to these principles, I
shall dispose of the amendment argument on two bases
[para84] First, the effect of this decision is to give
precedence to the "No-Discrimination" clauses and the
Canadian Human Rights Act over the special leave
provisions to the extent that they are thought to
conflict. Second, it cannot be forgotten that the
precedential value of this decision does not extend
beyond the facts and the religious minority concerned
Accordingly, in other cases giving rise to an
allegation of adverse effect discrimination a different
legal result might be reached even though identical
provisions of a collective agreement are in issue In
such circumstances, it cannot be said that had the
AdjUdicator found in favour of the appellants his
decision would have had the effect of amending the
collective agreement
At pp 42-43, Robertson J stated
[para8?] The question I must answer is whether Chambly
would have been decided differently if the employees in
that case could have made up for the lost day of wages
I think not As I understand the law, the critical
question is not whether an employee will suffer
hardship if the relief sought by him or her is denied
Rather, the proper question is whether the employer
will suffer undue hardship While I recognize that
Justice Cory addressed the de minimis argument raised
by the employer in Chambly, I do not regard his
analysis on that point as an implicit acceptance of the
notion that employees who have been subjected to
adverse effect discrimination must also establish that
they will suffer hardship if the relief they seek from
their employer is not granted To hold otherwise would
.
39
result in a fundamental reformation of the
accommodation doctrine In effect, the employer's duty
J to accommodate would become preconditioned on the
employee establishing some sort of hardship. I do not
read Justice cory's reasons as departing from basic
accommodation precepts previously established.
-
Robertson J. then went on to consider the reverse
discrimination argument (at pp 43-45):
[para89) .. that to grant the Jewish teachers more
than the required leave of absence would amount to
reverse discrimination by favouring Jewish teachers
over those of the Catholic faith (at p. 547 of
Chambly) . In other words, Jewish employees would
receive an extra paid holiday -- something not
available to those of the Christian faiths Justice
Cory disposed of this argument by noting that the
teachers were reasonably seeking no more than to use a
day of paid absence under either the force majeure
provision or the discretionary leave clause of the
collective agreement
[para90] The reverse discrimination issue exists in the
circumstances of the present case just as it did in
Chambly, although the matter cannot be dealt with in
identical fashion here because the Adjudicator did not
construe the paid leave provisions in the collective
agreements Nevertheless, the argument also lacks merit
in the circumstances of this case. The gist of the
reverse discrimination idea is that a group of
employees should not receive what is perceived as a
"perk" accorded on the basis of membership in a certain
religion. stated even more bluntly, the argument is
that Jewish employees of the federal pUblic service
should not receive an extra one to three days off with
pay over the course of a year to observe their most
significant religious holidays. However, to conclude
that such an arrangement causes Christian employees to
suffer an unacceptable inequity on the basis of their
religion is to understand equality in merely formal
terms -- a conception which has been rejected by the
Supreme Court in its Charter jurisprudence on equality
rights.
[para91] As counsel for the appellants noted in oral
argument, the purpose of accommodation is not to
equalize the number of paid religious holidays among
employees of different faiths. Rather. the purpose of
40
accommodation is to protect fundamental freedom of
conscience and religion. On a purposive or substantive
," approach to the duty of reasonable accommodation,
employee morale remains relevant to an assessment of
whether a given means of accommodation would generate
undue hardship for an employer. But to the extent that
others' concerns are unreasonable, as in the case of
the advocates of the reverse discrimination argument in
Chambly, those concerns must remain irrelevant.
Likewise, in the circumstances of this case, it would
be unreasonable to allow a formal definition of
eqpality to prevail over the substance of religious
equality. This is so because, as the preceding analysis
has demonstrated, it i~ not ~nreasonable for this
federal employer to grant paid leaye to the appellants.
[para92] I do not deny that there may be employees who
think that their Jewish co-workers are receiving a
"bonus" as a result of this decision. But in my view,
care should be taken to separate the legal concept of
discrimination, reverse or otherwise, from the politics
of resentment I take it for granted that no one would
begrudge a colleague one or two days of paid leave to
mourn the death of a close relative. Correlatively, why
would one begrudge a Jewish employee paid leave to
observe his or her holy days? To deny the force of this
analogy is to suggest that there exists a hierarchy of
needs and values in which religion has neither primacy
nor prominence. Yet the latter position flies in the
face of the Charter. in which religious freedom is
enshrined
[para93) Put a different way. the legal concept of
employee morale cannot be invoked to support a reverse
discrimination argument when the true foundation of
that argument is based on the politics of resentment.
It must be remembered that this is not ~ cas~ in which
Jewish employees are receiving extra holidays in tb~
usual sense of that word. I say this because paid leave
is not being granted under the pretext of religious
observance. The appellants are not seeking paid leaves
for the purpose of enabling them to pursue secular
interests or endeavours, as. one might do during
vacation time. Ouite the contrary. the appellants are
being given time off with pay to observe a day of
atonement (Yom Kippur) and the Jewish New Year (Rosh
Hashanah). One who does otherwise on his or her day(s)
off is not acting bona fide. . . .
(Emphasis added )
41
Robertson J. then dealt with the "floodgates" argument that
.r
had been raised in the majority judgment of the Quebec Court of
Appeal in Chambly He stated
[para94] Returning one last time to Chambly, I note
that the majority judgment of the Quebec Court of
Appeal in that case reasoned, in part, that the
arbitral award of paid leave to Jewish teachers to
observe Yom Kippur was unreasonable and could give rise
to an untenable situation for the school board because
the logic of the arbitrator's decision could be
extended to Muslim teachers who celebrate their
religion each Friday and on the days just before and
after the month of Ramadan In his analysis, Justice
Cory dealt with that issue, that is the floodgate
argument, as follows (at 551).
I recognize that other cases may demonstrate
circumstances which would make reasonable
accommodation impossible. For example, if the
religious beliefs of a teacher required his or her
absence every Friday throughout the year, then it
might well be impossible for the employer to
reasonably accommodate that teacher's religious
beliefs and requirements. However, that is far
from the situation presented in this case.
Hence, it is clear that the Chambly case cannot
properly be invoked as authority for the proposition
that members of any and all religions shall be
necessarily entitled to perfect accommodation of their
beliefs. In short, the accommodation requested must be
reasonable as determined by surrounding circumstances.
[para95] In oral argument, counsel for the respondent
suggested that other religious groups could be affected
by the outcome of this case. I a9ree. However, it does
not follow from that sU9gestion that employers will
necessarily be le9ally required to satisfy perfectly
the demands for accommodation in any and all
circumstances. On the contrary, the jurisprudence
plainly indicates that there is a corollary to the
employer's duty of reasonable accommodation~ namely,
the reciprocal obli9ation borne by all reli9ious 9roups
and their individual members to accommodate le9itimate
secular concerns. Put differently. demands for
unreasonable accommodation which will cause undue
hardship for the employer will not be sanctioned by the
42
courts. For this reason alone, the flood9ates ar9ument
must fail.
(Emphasis added.)
My understanding of the reasons given by Cory J. in Chambly
is that the duty to furnish reasonable accommodation up to the
point of undue hardship does not guarantee an employee any number
of days for religious observance. In a specific case an employee
will not be entitled to any of the days requested to observe a
religious obligation because no form of accommodation is
available that would not impose undue hardship on his/her
employer. It is not the number of days of religious leave that is
requested but the ability of the employer to afford reasonable
accommodation up to the point of undue hardship that is material
It is up to the employer to prove that accommodation beyond a
certain point would represent undue hardship to it. Merely
stating that a certain number of days must represent undue
hardship because the number is significantly larger than that
granted members of the majority religious persuasion is
insufficient to establish that that would, in fact, be the case
As stated by Robertson J :
. demands for unreasonable accommodation which will
cause undue hardship for the employer will not be
sanctioned by the courts, or by other adjudicators with
jurisdiction to deal with such issues (Richmond, at p
46)
One day may be too many, and 11 days may not be.
43
In dealing with the "politics of resentment" noted by
Robertson J., I refer to OPSEU (stewart), an unreported decision
of vice Chairperson F. Briggs (GSB #3843/92), dated June 22,
1995. In that case, following the Kimmel/Leaf decision, it was
noted that the employer issued the policy which sets out various
minority religions and their high holy days for the years 1991 to
1994 The policy allows members of religious minorities to claim
up to two special leave days for the celebration of their
holidays. These days are requested and granted under Article 55
and are days off with pay as considered under the section of the
collective agreement This would appear to be the same policy as
is before me In the stewart case, at p. 3, the union, in its
opening statement, indicated that although it did not endorse the
policy in its entirety, did not regard it to constitute
"discrimination" as considered under Article A in the collective
agreement The union agreed, as a general proposition, that the
policy was in accordance with the decision of Kimmel/Leaf. The
grievance appeared to have been accepted by the union in
accordance with its policy of allowing grievors to determine
whether a matter would be arbitrated.
From the perspective of the grievor in stewart (p. 3), the
grievance was "a matter of money. not religious holidays He is
receiving less salary than others which is neither [according to
the grievor] fair nor equitable." The grievor stated that he was
"in complete agreement with what he understood was the Employer's
_.~
44
position at the Kimmel/Leaf hearing . . He maintained that the
majority of his co-workers continue to be very annoyed that some
people are receiving special treatment." (at p. 3 )
The grievor, in stewart, indicated (at p 4)
...that he was at a complete loss to understand why the
Employer "had done a complete reversal" on this matter
He was of the view that he and his mainstream religious
co-workers are the victims of reverse discrimination.
He was aware of an earlier decision in Re civil service
commission and Nova Scotia Government Employees Union
(1989) 7 L A.C (4th) 257 (Outhouse), in which a
similar grievance was dismissed, in part, because "the
grievor would ultimately wind up being paid for three
more holidays than would Christian employees." Mr.
Stewart suggested that [the arbitrator] ought to follow
the logic found therein
As noted, above, the Arbitrator in Kimmel/Leaf rejected the
conclusion and reasoning in the Nova scotia Government Employees
case.
At p. 4 of Stewart, the Arbitrator stated that Kimmel/Leaf
had been supported in Chambly, and concluded (at pp 4-5):
It is because of this decision and the decision in
Kimmel/Leaf that the Union is compelled to take the
position that the collective agreement is not being
violated The Union further argued that Arbitrator
Outhouse was wrong when he found that it would be
reverse discrimination to find for the grievors The
Supreme Court of Canada addressed this issue at page
627 of Chambly (supra)
The Union, in stewart, did not suggest that the grievance
should be upheld, nor did it submit that the Employer was
45
treating the grievor in a discriminatory manner, and the
,,,.. Arbitrator found (at p. 5) that she was "faced with a grievor
with a complaint that is not endorsed by his Union." The decision
of the Arbitrator was that there was no difference between the
parties, and therefore the grievance was dismissed.
The Arbitrator went on to state, at p. 7, that even if she
was wrong with respect to the matter of jurisdiction, she would
not have upheld the grievance for the reasons put forward by the
employer:
Labour Relations between the parties would be put into
chaos if the Grievance Settlement Board routinely
overturned earlier decisions of the Board. There must
be some blueprint for the parties to follow in their
ongoing relationship. If this Board were to second
guess the Kimmel/Leaf or any other like decision, the
parties would forever be inclined to re-litigate
matters until they got the answer they want. The lack
of consistency could threaten the foundations of the
parties' ongoing labour relations.
The Arbitrator went on to state (at pp. 7-8) that she
completely disagreed with the representations of the grievor that
the case was "a matter of money." It was "a matter of
discrimination on the basis of religion " She went on to state,
at p. 8:
It is astonishing to me, that a mere two years after
the Kimmel/Leaf decision, some members of the religious
majority are so intolerant so as to complain in this
fashion citing the inequitable nature of the situation
Indeed, the specific remedy requested by the grievor
is, effectively, that I order a return to a situation
which the Supreme Court of Canada has found to be
discriminatory
46
'" The Arbitrator went on to state: "I have difficulty
believing that an informed member would ascribe [sic] to Mr.
stewart's views."
It would be unfortunate if my decision in this ca~e was
construed to mean that members of minority religions were
automatically entitled to the number of holy days specified by
their religion, with pay. Such a ~eading would not only be wrong,
it would feed into the regretable pOlitics of resentment
exemplified in the stewart case. As I indicated above, in a
somewhat different formulation, there is no "magic" in the number
of days that are required by members of a particular religious
denomination for the observance of holy days An employee is
entitled to receive the number of days required to carry out
his/her religious obligations only where the accommodation
granted in order to permit such observance is not unreasonable in
that it will not cause undue hardship for the employer In many
cases, the more days requested, the greater will be the
likelihood of the employer experiencing undue hardship if it was
required to grant the request In the abstract, it is not
possible to identify that point where a certain number of days
requested will amount to an unreasonable demand which will cause
undue hardship to the employer
47
Counsel for the parties agree that the jurisprudence that
I-" ought to govern my determination of whether the Employer is
guilty of adverse effect discrimination that has not been
accomodated is found in the O'Malley, Central Alberta, Renaud and
Chambly cases decided by the Supreme Court of Canada. I have
concluded that the dissenting reasons of Robertson J , in
Richmond, more correctly follow the analytical framework
established in those cases, and especially in Cq~mbly
If I had found adverse effect discrimination against the
Grievor as a result of the operation of the work calender used by
the Employer, because he could not, in the absence of the
Employer's consent, celebrate the 11 holy days established by the
religious group he belongs to without suffering a detriment, the
issue before me would relate to whether the Employer has
satisfied its legal obligation to accomodate him in his desire to
celebrate his holy days as can the members of the majority
religion
There is a fundamental difference between counsel as to what
the Supreme Court said about the nature and extent of an
employer's duty to accommodate after it has been determined that
an employee suffered adverse effect discrimination
The Employer submitted that its obligation is satisfied once
it is determined that the accommodation offered is "reasonable,"
- - - -
48
and that in such circumstances it is unneccessary for it to
accommodate short of undue hardship, and that it does not have to
suffer some hardship to satisfy its obligation.
The Union's position is that the reasonableness of the
accomodation cannot be determined without examining it in a
larger context, including an assessment of the form of
accomodation being sought by the Grievor. If the accomodation
sought by the Grievor is closer to what would amount to complete
accomodation, his request should be granted if doing so could be
done short of subjecting the Employer to undue hardship, even if
the Grievor's request would impose some hardship on it.
Key to the differences between counsel, is their
disagreement of what is meant by the frequently quoted statement
of sopinka J in Renaud, at p 585:
. . . The extent to which the discriminator must go to
accommodate is limited by the words "reasonable" and "short
of undue hardship." These are not independent criteria but
are alternate ways of expressing the same concept .
The Employer regarded this statement as meaning that the
words "reasonable" and "short of undue hardship" express the same
concept, therefore it is sufficient for the Employer to offer
accomodation that is reasonable, without any further
consideration of whether it is up to the point of undue hardship
49
The quoted statement of Sopinka J cannot be interpreted in
.- isolation from its context. My reading of his reasons in Renaud
satifies me that he meant that once adverse effect discrimination
is established an employer's duty of accomodation requires an
attempt to provide the most complete form of accomodation in
this case, the granting of religous leave for 11 days without
imposing a financial or other undue burden on the Employer. If
complete accommodation can be achieved without undue hardship to
the employer, it must be offered. Where this cannot be
accomplished without imposing "undue" hardship on the employer,
such accomodation could not be regarded as being "reasonable " It
would then be incumbent on the employer to offer the next most
complete form of accomotation that would not impose undue
hardship on it. If such accomodation is available, then it would
have to be offered to the employee, and the employer could not
argue that a lesser form of accomodation is reasonable. The
employer's obligation to accommodate would be satisfied when that
point is reached where the accommodation is as complete as
possible without imposing undue hardship on it. Where two forms
of accomodation can be offered by an employer "short of undue
hardship" then I fail to see how the lesser form can be regarded
as being reasonble so as to satisfy its obligation When
"reasonable" accomodation is being offered by an employer, it is
necessary to ask "Compared to what?"
50
Sopinka J. also commented on the relationship between
"reasonable accommodation" and undue hardship in his minority
reasons in Central Alberta Dairy Pool, at p. 445, in his
.
approving reference to Roosma v. Ford Motor Co. (1988), 9
C H R.R. 0/743 (ont. Bd Inq ), at p. 0/4747, and his conclusion,
at p 445-6: "As indicated above, the employer must establishthat
it could not accommodate the appelant without undue hardship "
union counsel in the case before me recognized that there
can be a visceral negative response to a request for 11 days (or
any sinificant mumber of days) of paid leave to allow for the
observance of religous holy days. He emphasized that focusing on
the number of days requested ignores the real issue of whether
granting a genuine request in full would impose not mearly some
hardship but undue hardship on an employer. There may be
circumstances where a request for one day's leave would impose
undue hardship on an employer, as where the employee is the only
one who performs a particular essential function for the employer
and in his absence the entire operation would have to be shut
down, imposing a substantial financial burden on the employer
Some of the visceral response, which may be a manifestation
of resentment to "perks" being granted to religious minorities,
could be the result of the unwillingness on the part of some
employees to understand and accept the protected nature of
religious observance and the fundamental differences between the
51
observance of secular holidays and religious holy days "Why
should he/she get more days off than I do?" He/she will not at
the point where the leave results in interference in an
employer's operation so as to constitute undue hardship, as when
the leave results in undue operational inneficiencies This
would also be the case at the point where the absence imposes an
unacceptable burden on other employees who have to bear the brunt
of accomodation through increased workload.
There could also be a failure to appreciate the operation of
the rules governing accomodation, and an unwillingness to accept
that equal treatment does not mean identical treatment While
most people will be able to understand the concept of equal
treatment without discrimination in the context of a claim for
accomodation in a case involving a handicaped employee, they may
regard equality in a case such as the one before me as being
satisfied if it is achieved by granting the number of days with
pay for religious observance that are given, as of right, to the
majority. Hence, in this case the policy developed by the
Employer (Exhibit 4, Tab 4 provides:
Accomodation for religious holid~ys requiring absence from
work (as identified on a list to be sent to ministries) will
be provided by up to two paid days for classified employees
. . .
If the above provisions are not possible or sufficient, the
employee will be able to use earned entitlements or upaid
leave
54
No evidence was called by the Employer to demonstrate that
there would be undue expense or undue intererence in its
operations if complete accommodation was offered. I was merely
asked to find that that would be the result given the
demographics of the public service. The concerns of the Employer
may turn out to be real. However, on the evidence before me
there is no basis for my concluding that the result anticipated
by it would come to pass if I held in favour of the Union.
I can appreciate the importance of this case to the
Employer, and given its belief in the downside potential should
the grievance succeed, I would have expected evidence to be
adduced in support of its position. It was open to it to adduce
evidence based on projections that arose from studies undertaken
by it to assess the likely cost to it and any other impact on its
operations in the event that accommodations were offered,
starting with complete accommodation. I do not believe it was
forclosed from formulating a survey because of concerns about
asking questions that might disclose an employee's religious
beliefs. I am aware of a previous voluntary, anonymous survey
conducted by the Employer that sought information of an
employee's religious beliefs If such a survey had been
conducted and I viewed it as beng valid, I might have been able
to conclude that the accommodation requested by the Grievor would
have imposed undue expense or undue interference in the
employer's operations and therefore would cause it undue
55
hardship. In such case the Grievor, if discriminated against,
would have had to accept less than complete accommodation and the
Employer might have then led evidence, based on such studies, to
establish at which point accommodation could be made without
imposing undue hardship to it. Instead, I was asked to find
undue hardship without the kind of cogent evidence that would
enable me to do so
The position of the Employer was that not only had it
satisfied its obligation to accommodate, if the Grievor is found
to have been subjected to adverse effect discrimination, but also
that it had not discriminated against the Grievor at all. In the
Chambly case, at p 621, Cory J. held that there must first be a
finding that there was discrimination:
First, it must be determined whether the calendar which
fixed the teacher's work schedule and formed part of the
collective bargaining agreement had the effect of
discriminating against Jewish teachers.
It has been held by this court that to demonstrate that
there has been discrimination, a plaintiff must establish
that the following three elements exist
(1) that there is a "distinction, exclusion or preference";
(2) that the "distinction, exclusion or preference" is
based on one of the grounds listed in the first
paragraph of s. 10 of the Quebec Charter; and
(3) that the "distinction, exclusion or preference has the
effect of nullifying or impairing" the right to full
and equal recognition and exercise of a human right or
freedom."
In applying the principles to the facts of Chambly, Cory J
stated, at p 623.
56
In my view, the calendar which sets out the work schedule,
one of the most important conditions of employment, is
discriminatory in effect. Teachers who belong to most of
the Christian religions do not have to take any days off for
religious purposes, since the Christian holy days of
Christmas and Good Friday are specifically provided for in
the calendar. Yet, members of the Jewish religion must take
a day off work in order to celebrate Yom Kippour It thus
inevitably follows that the effect of the calendar is
different for Jewish teachers. They, as a result of their
reliqious beliefs. must take a day off work while the
majority of their colleaques have their reliqious holy days
recoqnized as holidays from work. In the absence of some
accommodation by their employer, the Jewish teachers must
lose a day's pay to observe their holy day. It follows that
the effect of the calendar is to discriminate against
members of an identifiable group because of their religious
beliefs. The calendar or work schedule is thus
discriminatory in its effect.
(Emphasis added.)
Counsel for the Employer argued that the Grievor did not "as
a result of [his] religious beliefs [have to] take a day off work
off work while the majority of [his] colleagues [had] their
religious holy days recognized as holidays from work " Nor did
the Grievor in "the absence of some accommodation by [his]
employer . lose a day's pay to observe [his] holy day[s]."
In applying the principles in Ghambly to the facts of this
case, it is first necessary to examine Article 48 1 of the
collective agreement which deals with entitlement to certain
holidays including Good Friday and Christmas Day (being the only
mandatory days for religious observance requiring absence from
work for members of the majority religion):
An employee shall be entitled to the following paid holidays
each year
57
... Good Friday. Christmas Day..
Article 48 2 provides:
Except as provided in section 48.3 when a holiday specified
in section 48.1 falls on a Saturday or sunday or when any
two of them fall on a successive Saturday and Sunday, the
regular working day or days next following is a holiday or
are holidays, as the case may be, in lieu thereof, but when
such next following regular working day is also a holiday
the next regular working day thereafter is in lieu thereof a
holiday.
Article 48.3 provides:
Those employees whose work schedules are subject to rotating
work weeks which include scheduled weekend work on a regular
or recurring basis shall have the .. Christmas Day...
designated as December 25th, .. and section 48 2 shall have
no application to these employees in respect of these
holidays
By its language Article 48 only designates Christmas Day a
paid holiday when it falls between Monday and Friday in the case
of employees who are not on a regular or recurring basis
scheduled to work weekends For those employees who are so
scheduled, when December 25th falls on a weekend, that is the day
off with pay
For employees who do not work weekends (those describled in
Article 48 20, when Christmas Day falls on a Saturday or Sunday
it is not Christmas Day that is the holiday with pay but "the
regular working day next following " In the situation
described, Christmas Day is not the holiday recognized by the
58
collective agreement, nor is it paid for It is "the regular
working day . . next following" that is the "holiday . in lieu
thereof." All employees affected by Article 48 2 have the lieu
day off with pay as a purely secular holiday
In the result, employees who belong to "most of the
Christian religions" do not get Christmas Day as a paid holiday
for religious observance when it falls on a Saturday or Sunday if
they are covered by Article 48 2. Article 48 recognizes that the
holiday with pay for Christmas only applies when it occurs on
what would be a working day for most employees Under the terms
of the collective agreement before me, members of minority
religions are, therefore, not discriminated against when they are
not given their religious holy days off with pay when they would
not be working on those days and would not lose a day's pay to
observe them or incur a significant detriment if required to do
so. They would not have to take a day off for each of such holy
days nor lose a day's pay to observe them, as was the case for
the employees in Chambly
In order for there to be discrimination as outlined in
Chambly, at p. 621, the "distinction, exclusion or preference"
referred to must have "the effect of nullifying or impairing" the
"right to full and equal recognition and exercise of a human
right or freedom "
~ -
59
Given the effect of Article 48 on members of the majority
religion, which is to insure that they do not lose pay on their
mandatory holy days because they must then be absent from work,
members of minority religions are entitled to the same rights On
the facts of this case there was an issue as to whether the
Grievor "must lose "" pay to observe " . . holy day(s)" as were
the Jewish teacher's in Chambly "in the absence of some
accommodation by their employer ... " (At p. 623.) In chambly
.
the answer was "yes" and the employees succeeded.
On June 16, 1997, I wrote to counsel for the parties
requesting them to address the following matter:
I wish to know how the existence of the days referred to by
Mr Samaras [15 compressed workweek days and 70 other days
accumulated through vacation credits and social contract
days] affects the grievor's claim for 11 days with pay to
observe the 11 religious holidays claimed by him It would
appear that Mr. Samaras is taking the position that the
grievor could have used some of those days for the purpose
of observing those religious holidays without any loss of
income
In his written submissions on behalf of the Employer, Mr
Samaras stated
.. with respect to the 45 unpaid social contract days which
he took mostly on Mondays ... he could have rescheduled them
on some or all of the 11 days on which he wanted to be
absent for religious observance . Although employees were
not paid for social contract days, since the grievor already
had made a choice to take 45 social contract days, he would
not have suffered any loss of income by arranging to take
some of those days on some or all of the 11 days on which he
was absent for religious observance
60
Paragraph 15 of the Agreed statement of Facts filed by the
parties provides as follows:
~
In early January 1995, the grievor submitted a
tentative schedule to his supervisor, Grace Wong,
listing tentative days off for: . .
(3) Five (5) social contract days required by the
Memorandumof Understanding (Tab 9 Employer's Document
Book): and
Approximately 45 additional unpaid social contract days
(short-term leave without pay) pursuant to the
Agreement at Tab 8, generally taken Mondays
The parties agree that the grievor would have been permitted
to, and in fact may have taken different days off from those
tentatively scheduled. At the same time (i e. early January
1995) he indicated to his supervisor that he would be making
a subsequent request for days off for religious observance
under Articles 55 and 30 of the collect[ive] agreement. This
request was in fact made March 28, 1995. At an April 5
meeting the grievor was given the opportunity to schedule
any of the above-noted entitlements on his religious
holidays. He requested that the time off for religious
observance be granted pursuant to articles 55 and 30 of the
collective agreement In this case overtime was not
available
. .
The policy provides for rescheduling of work shifts to
accomodate religious observance. The policy specifically
contemplates the use of compressed work week days for
religious observance The policy does not specifically refer
to the social contract because, when the policy was
developed the Social Contract Act did not exist The policy
is broad enough however, to include the use of social
contract days off as a means by which an employee may be
accommodated for request [sic] for absence due to religious
observance.
.
Although the grievor (just like all other employees) was not
paid for the five social contract days he was required to
take and the 45 social contract days which he chose to take,
he would not have sufferred any loss in pay had he chosen to
take some of those days on some or all of 11 days that he
chose to be absent for religious observance
61
In his reply submissions of July 30, 1997, on behalf of the
/ union, Mr. Pinto stated:
Social contract Days - The grievor submits that these days
are irrelevant since they were not ~ days. Recourse to
the social contract days starts from the wrong premise, i e.
that if the grievor isn't getting paid for a religious
holiday, he should coincide a day when he isn't getting paid
anyway; whereas the proper question is, if the grievor is to
be paid for days off for religious observance (just like
everyone else), at what point does it pose undue hardship on
the employer?
. . .
In the alternative, if the social contract days are deemed
to be relevant, then the grievor submits that, with respect
to the:
(a) 5 mandatory social contract days, the employer's
policy did not refer to social contract days (paragraph
6 of the Joint Agreed statement of Facts) so they
should not be considered in the question of
accomodation. In the further alternative, if they are
nevertheless considered, the grievor points out that
the Jewish employees in MBS were never forced into
using their mandatory social contract days to resolve
their religious leave concern A third day off with pay
was provided to them. Also, only 5 social contract
days were available from April 1995 to April 1996 From
the grievor's vantage pint in early April 1995, it may
have been unreasonable for him to coincide these
particular mandatory social contract days on the same
days as his religious holidays later on in April or
Sept - Oct. 1995.
(b) approximately 45 additional unpaid social contract
days generally taken on Mondays The grievor took these
days off entirely on a voluntary basis presumably to
participate in certain out-of-work activities that the
grievor saw fit It follows that if the grievor's claim
is denied on the basis that the grievor reasonably
expected to coincide one of these social contract days
with a religious observance day, the grievor's out-of-
work activity would be fettered by the very
requirements of religious observance on that day,
effectively negating the purpose of taking an unpaid
day off
.
62
In summary, it is misleading to suggest thatthe grivor
simply chose not to coincide various available days off
/ with his requested religous leave. ... By looking at
the various categories of time that were available to
the grievor, it is clear that he acted reasonably in
refusing to coincide them with the request for
religious leave. More importantly, the fact remains
that the employer has offered no evidence or
explanation of what undue hardship it would have
suffered if the grievor had been paid for the third and
following requested days off.
(Emphasis in original )
The position of the Union was that equal treatment requires
that payment be made by the Employer for each day of religious
leave that an employee is entitled to because the holiday
schedule provides for pay for certain holidays that happen to
represent religious holidays for employees adhering to the
majority religion, and because this is reflected in the
Employer's policy with respect to other religious holidays The
request for payment for the day(s) of absence is said to insure
equality of treatment The right to the accomodation requested
will only depend on whether it would impose undue hardship on the
Employer.
Given the language of Article 48, where the Employer is
agreeable to granting the Grievor religous leave as requested to
allow him to celebrate his holy days, and he is, in any event,
able to arrange his affairs so he can do so without any
significant financial loss or burden, then he is not entitled to
be paid for the days of absence This is not a case where an
63
employee is claiming holiday pay as provided for in the
r/ collective agreement when the holiday falls on a day when he is
not scheduled to work, as when he is on vacation. The claim of
the Grievor is based on his right to equal treatment in being
granted religious leave with pay as are members of the majority
religion There are only two religious holy days requiring
absence from work for that group, Christmas Day and Good Friday
In the case of Christmas Day, when it falls on Saturday or Sunday
another regular working day becomes the hOliday, and it this
secular "lieu" day that is the "paid hOliday." The parties have
recognized what "paid holiday" will replace Christmas Day when
that day is not a regular working day and I cannot view that day
as a religious holiday. It is difficult to see how a member of a
minority religion is discriminated against when he too is not
paid for a religious holiday in similair circumstances to that of
a member of the majority religion. The structure of Article 48
dictates that in the circumstances described in Article 48 2
Christmas Day (a day of religious observance for adherents of the
majority Christian faith) is not a day off with pay.
In this case the Grievor had some five involuntary and 45
voluntary social contract days for which he would not be paid.
There was nothing in the evidence to disclose that he could not
have taken the five social contract days to coincide with five of
the holy days for which he requested religious leave. In such
case, there being no evidence to the contrary, he would not have
64
suffered any significant financial loss or interference in his
? plans for those days
As the Employer in this case did not call any evidence to
support its assertion that to accomodate the Grievor by paying
him for all of the religious holidays requested by him would
result in its suffering undue expense or interence in its
operations, I rejected its submissions with respect to undue
hardship which were based on certain broad demographic facts,
without more. similarly, in the absence of cogent evidence from
the Grievor that he would suffer some significant expense or
interference in his plans for the five involuntary social
contract days if he used them to observe his holy days, I cannot
conjecture and conclude that that would be the case
I find no significance in the fact that the Employer's
policy predated the Social Contract In deciding whether the
Grievor was subject to adverse effect discrimaination contrary to
the ~ and the collective agreement, I am concerned with
whether there were any days available to the Grievor to observe
his holy days without imposing some undue expense or interference
with his plans for the days in question if he used social
contract days to celebrate his holy days In this sense a day is
a day, whatever its designation The only question is' Is that
day available to the Grievor for observing one of his holy days
65
without his incurring undue expense or interference with his
? plans?
The Employer suggested that there was no difference between
the five involuntary and 45 voluntary social contract days
insofar as their availability to the Grievor is concerned as days
off for religious observance of his holy days. Unlike the 45
voluntary social contract days opted for by the Grievor, which he
did not have to take, he had to take the five involuntary ones
These were in no way earned benefits, but they were non-working
days which, on the evidence before me, he could have used for
religious observance without loss of income or other
inconvenience
On the special facts of this case there was no
discrimination against the Grievor which required accommodation
as described in Chambly for five days which are represented by
the five involuntary social contract days that he could have used
for the purpose of observing five of his holy days without any
financial loss or other detriment There was no "distinction,
exclusion or preference" based on creed that had "the effect of
nUllifying or impairing" the "right to full and equal recognition
and exercise of a human right or freedom" because he had those
days available through existing involuntry social contract days
Unlike the facts in Chambly and Kimmel/Leaf, the Grievor would
not lose a days pay to observe five of his holy days Nor was
/
66
there any indication that he would suffer any other kind of
,- significant detriment if he did so
The situation with respect to the 45 voluntary social
contract days is different from that of the five involuntary
ones. The Employer's position with respect to those days is
tantamount to requiring the Grievor to take unpaid leave to
celebrate his holy days without loss of pay Unlike voluntary
social contract days, the Grievor had no choice but to take the
five involuntary social contract days. They were non-working,
non-paid days that existed outside of his volition
Nor do I regard vacation days or days earned as a result of
working a compressed work week as being in the same category as
involuntary social contract days. The same can be said of days
the Grievor was asked to take as unpaid leave or any of the other
expedients suggested by the Employer except for the five social
contract days noted.
To the extent that the Grievor has been subjected to adverse
effect discrimination so as to be entitled to accommodation by
the Employer, in the absence of a demonstration that granting the
days requested for religious observance with pay would have
imposed undue hardship on the Employer, the Grievor would not be
required to use vacation days, unpaid leave etc in order to be
able to observe his holy days Chambly and Kirnmel\Leaf "Vacation
67
benefits including vacation pay amd the time period during which
a vacation may be taken ... have generally been regarded by
arbitrators as earned benefits forming part of the total wage
package negotiated by the parties and included in the agreement "
Brown and Beatty Canadian Labour Arbitration Third Edn. para.
8:3210. Requiring the Grievor to use his vacation benefits would
have had the effect of imposing a financial burden on him to
observe his holy days, something members of the majority religion
were not required to do.
Where there has been adverse effect discrimination and an
employer has taken reasonable steps towards fulfilling its
obligation to accommodate which "do not fully reach the desired
end," an employee may have to also take "some accommodating
steps" or "sacrifice his religious principles or his employment "
(Simpson-Sears, at p 335, per McIntyre J. The situation
described is one where the accommodation is not perfect because
to require perfection would result in undue hardship. It is at
the point where more perfect accommodation would lead to undue
hardship on the employer that the employee has to take "some
accommodating steps" Also see Kimmel/Leaf at pp.159-60.
In the case before me, the Employer has agreed to allow the
Grievor two paid days for religious holidays in accordance with
its policy, and I have found that he should have used five
involuntary social contract days for that purpose I also found
.
68
and that he was not discriminated against with respect to those
r'" days. In a case such as the one before me, there is no
discrimination with respect to those five days and, hence, no
duty to accommodate The Grievor cannot decline to use those
days for religious observance without a substantial basis for
refusing to do so. The situation is different where he is asked
(1) to use a day that represents an earned benefit (vacation days
or days off earned as a result of working a compressed work
week) ; (2) to take leave without payor (3) to take a voluntary
social contract day.
Cases of alleged adverse effect discrimination should not be
decided on the basis of a rigid application of a supposed
formula In endeavoring to insure that minority religions are
treated fairly, it is necessary to understand what rights are
being protected in the case of the majority religion. If it is
the right to have recognized holy days off for religious
observance without sUffering any financial loss, as it is in this
case, then that is the right which members of minority religions
are entitled to. The exercise whereby this is accomplished is
not one of perfection If members of minority religions are able
to observe their holy days without having to use available days
in a way that would result in financial hardship or in some
significant inconvenience, then that is what they must do How
this is accomplished in this case is explained above
- -.
69
What counsel for the Union has asked me to do is to overlook
the purpose of Article 48 and conclude that there has been
adverse effect discrimination covering the days sought by the
Grievor and proceed to the next step, which is to determine
whether there has been reasonable accommodation by the Employer
to the point of undue hardship That is the proper question once
discrimination has been found. I have not found discrimination
with respect to the five days above referred to and did not have
to pursue the issue of undue hardship as it related to those
days.
The approach urged on me by counsel for the Employer would
have had the effect of imposing on the Grievor certain
obligations not placed on members of the majority religion, and
make realization of equality between members of the majority
religion and those of minority religions, as it relates to the
observance of religious holy days, problematic.
I do not regard the evidence with respect to the exceptions
made with respect to certain employees in Management Board
Secretariat, referred to above, as indicative of an intention to
depart from the Employer's policy for an additional day of
religious leave with pay so as to require the same treatment to
be afforded to all civil servants.
70
For the reasons stated above, the Grievor is entitled to be
,/ paid for four additional holy days, and to this extent the
grievance succeeds In all other respects, the grievnce is
denied.
I retain jurisdiction to deal with any difficulties the
parties may experience in the implementation of this decision
DATED at Toronto this 28th day of August, 1997.
-wr_~~
M R Gorsky, Vice-Chairperson