View cases - Stewart McKelvey

49Resources or that she had been referred to them. It is clear from the evidence that CN did notfollow the procedure set out in its own policy and that it had decided that “family status”, at leastin terms of parental obligations and responsibilities, was not a ground of discrimination for whichaccommodation was required. It is also clear that CN never did an individualized assessment ofthe Complainant’s situation as it was required to do.[166] I will know deal briefly with CN’s position to the effect that it would be undue hardship togrant the relief sought by the Complainant because she would then be granted “super seniority”based on the simple fact of her status as a parent.2010 CHRT 23 (CanLII)[167] According to Stephanie Ziemer, CN does not capture the information regarding how manyof its employees are parents. She added that the only way to have this information would be toreview each employee’s file to see who they designate as dependants. Ms. Ziemer further addedthat from CN’s employees “group insurance” benefit plan “we can assume that approximately68% of [CN’s] workforce are parents.” This very partial evidence falls well short of the evidencethat CN would need to produce to justify discrimination on a balance of probabilities using thetripartite Meiorin BFOR test.[168] CN did not produce evidence to prove that accommodating the Complainant in this casewould have constituted undue hardship for the company. On the contrary, CN’s counsel during hisexamination of Ms. Storms asked her the following question: “If Ms. Seeley had reported toVancouver in 2005 would that have resolved the shortage?” Her answer was: “No, it wouldn’thave resolved the shortage but everybody counts. We would have had one more person to manthe operation and we would have used one less manager to fill in.” (The emphasis is mine.)[169] Furthermore, if the Tribunal was to accept CN’s argument that because a vast majority ofits employees are parents, accommodating the Complainant would cause it undue hardship, thatwould mean that any workplace with a large number of persons falling into a group with one orthe other of the personal characteristics set forth in section 3 of the CHRA would automatically beprecluded from the application of the law. For example, it would mean that women working in aworkplace where the vast majority of employees are women would be precluded from making a