View cases - Stewart McKelvey

Page: 103[396] That is, the failure of Parliament to mention a thing in a list will give rise to the inferencethat it was deliberately excluded. As Professor Sullivan says, “The force of the implication dependson the strength and legitimacy of the expectation of express reference. The better the reason foranticipating express reference to a thing, the more telling the silence of the legislature”: at p. 244.[397] In this case, a substantial body of Supreme Court jurisprudence had developed well beforethe addition of subsection 15(2) to the CHRA in 1998, with respect to the nature and scope of theduty to accommodate and the factors to be considered in assessing whether that duty had been2011 FC 120 (CanLII)fulfilled: see, for example, Central Alberta Dairy Pool, and Renaud, both previously cited.Parliament would thus have been well aware that factors such as impact on employee morale andinterference with the rights of other employees had been identified as relevant considerations in anaccommodation analysis.[398] Nevertheless, in enacting subsection 15(2) of the CHRA, Parliament did not say that theTribunal was to consider matters “such as” or “including” health, safety and cost, but chose insteadto specifically identify the factors to be considered in relation to the question of accommodation asbeing these three specific matters. These circumstances give rise to a strong inference thatParliament intended the list set out in subsection 15(2) of the CHRA to be an exhaustive one.[399] My conclusion that subsection 15(2) of the Canadian Human Rights Act should beinterpreted as limiting the factors to be taken into account in an accommodation analysis to health,safety and cost is reinforced when the issue is examined in light of the principles to be applied wheninterpreting human rights legislation.