View cases - Stewart McKelvey

61granted, the Complainant would not have provided services to CN and she would not have earnedany wages. CN did not submit any evidence to establish how the granting of a leave of absencewould have caused it an undue hardship.[214] Even if I was to accept the evidence that CN had provided some form of“accommodation” by granting the plaintiff more time to report to Vancouver, CN’s failure tomeet the procedural obligations of the duty to accommodate would in itself still give rise to aviolation of the Complainant’s human rights. The Supreme Court of Canada has acknowledgedthat both the decision-making process and the final decision have to be taken into consideration inanalyzing a BFOR. In Meiorin, the Court states at para. 66: “It may often be useful as a practicalmatter to consider separately, first, the procedure, if any, which was adopted to assess the issue ofaccommodation and, second, the substantive content of either a more accommodating standardwhich was offered or alternatively the employer’s reasons for not offering any such standard.”(See also Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2), 2004BCHRT 225, at paras. 84-86).2010 CHRT 24 (CanLII)[215] In Lane v. ADGA Group Consultant Inc., 2007 HRTO 34, at para. 150, (decision upheld bythe Ontario Superior Court of Justice, Divisional Court, at [2008] O.J. No. 3076, 91 O.R.(3d) 649)the Ontario Human Rights Tribunal held that:…[T]he failure to meet the procedural dimensions of the duty to accommodate is aform of discrimination. It denies the affected person the benefit of what the lawrequires: a recognition of the obligation not to discriminate and to act in such away as to ensure that discrimination does not take place.[216] In Meiorin, the Supreme Court identified the following question as being relevant inanalyzing the procedural part of the accommodation process followed by the employer:i. Has the employer investigated alternative approaches that do nothave a discriminatory effect, such as individual testing against amore individually sensitive standard?ii. If alternative standards were investigated and found to be capable offulfilling the employer's purpose, why were they not implemented?