View cases - Stewart McKelvey

40terminals. Employees hired after 1982, but prior to June 29, 1990, are referred to as “Category C”employees and may only be assigned to protect work at adjacent terminals.[137] In this case, category “D” employees, which include the Complainant, were recalled fromlay off and “forced” to cover the shortage in Vancouver. As we have seen due to its location, theVancouver terminal is a very active one. It constitutes a focal point for CN’s Canadian market.A shortage of running trades employees in Vancouver carries significant implications, as it canaffect CN’s ability to operate adequately throughout its network. Neither the Complainant nor theCHRC contested the fact that CN had a legitimate purpose in seeking to address the shortage ofConductors in Vancouver in 2005. Forcing employees to cover shortages can be considered asrationally connected to the performance of the job, certainly when the shortage can have animpact on the operation of the employer. The Tribunal therefore concludes that CN has met thefirst part of the Meiorin tripartite test.2010 CHRT 23 (CanLII)[138] Once the legitimacy of CN’s more general purpose is established, it must take the secondstep of demonstrating that it adopted the particular standard with an honest and good faith beliefthat it was necessary to the accomplishment of its purpose, with no intention of discriminatingagainst the claimant. If the imposition of the standard was not thought to be reasonably necessaryor was motivated by a discriminatory intention, then it cannot be a BFOR. (See Meiorin, supra, atpara. 60). There was no evidence submitted at the hearing to the effect that CN’s standard offorcing employees to cover shortages, as it is expressed in article 148.11 of the Collectiveagreement, was adopted with the intention of discriminating against the claimant. It is true thatcounsel for the Complainant did raise in his closing arguments a point about article 148.11 beingdiscriminatory. More specifically, he alluded to the differences in treatment between Conductors,who were hired prior to June 1990 and those hired afterwards. He noted that the Complainant hadnot commenced her employment with CN under this distinction. The evidence shows that theComplainant was hired in 1991, but that the distinction was introduced in February 1992 andapplied to employees hired after June 1990. Counsel further argued that since the “vast majorityof women Conductors” were hired after June 1990, this distinction constituted a discriminatorypractice against women Conductors. Although interesting from an argumentative point of view,