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- 17 -Superior Court, [1998] R.J.Q. 1892, [1998] Q.J. No. 1959 (QL). Appeal allowed,Bastarache, Binnie, LeBel and Deschamps JJ. dissenting.Julius H. Grey, Lynne-Marie Casgrain, Elisabeth Goodwin andJean-Philippe Desmarais, for the appellants Moïse Amselem, Gladys Bouhadana, AntalKlein and Gabriel Fonfeder.2004 SCC 47 (CanLII)David Matas and Steven G. Slimovitch, for the appellant the League forHuman Rights of B’Nai Brith Canada.Pierre-G. Champagne and Yves Joli-Coeur, for the respondent.Dale Fedorchuk, Bradley Minuk and Dave Ryan, for the interveners theEvangelical Fellowship of Canada and the Seventh-day Adventist Church in Canada.Canada.Palbinder K. Shergill, for the intervener the World Sikh Organization ofPrabhu Rajan, for the intervener the Ontario Human Rights Commission.was delivered byThe judgment of McLachlin C.J. and Iacobucci, Major, Arbour and Fish JJ.IACOBUCCI J. —I. Introduction
- 18 -1 An important feature of our constitutional democracy is respect forminorities, which includes, of course, religious minorities: see Reference re Secessionof Quebec, [1998] 2 S.C.R. 217, at paras. 79-81. Indeed, respect for and tolerance of therights and practices of religious minorities is one of the hallmarks of an enlighteneddemocracy. But respect for religious minorities is not a stand-alone absolute right; likeother rights, freedom of religion exists in a matrix of other correspondingly important2004 SCC 47 (CanLII)rights that attach to individuals. Respect for minority rights must also coexist alongsidesocietal values that are central to the make-up and functioning of a free and democraticsociety. This appeal requires the Court to deal with the interrelationship betweenfundamental rights both at a conceptual level and for a practical outcome.2 More specifically, the <strong>cases</strong> which are the subject of this appeal involve areligious claim by the appellants for the setting up of a “succah” for nine days a year inthe pursuit of their religious beliefs on their co-owned property under the QuebecCharter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec Charter”). TheQuebec courts denied the claim. With respect, I disagree and would allow the appeal.3 In particular, after defining the scope of freedom of religion and itsinfringement, I find that the appellants’ religious freedom under the Quebec Charter hasbeen infringed by the declaration of co-ownership. While the respondent has raisedrights to enjoy property and personal security as justification for its refusal to allow asuccah to be set up, I find that the impairment of the appellants’ religious freedom isserious whereas I conclude that the intrusion on the respondent’s rights is minimal. Assuch, I hold that the appellants must be permitted to set up succahs on their balconies,provided that the succahs remain only for the limited time necessary — in this case nine
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Federal CourtCour fédéraleOttawa,
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TABLE OF CONTENTSPARA.I. Introducti
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G. Accommodation in the Post-Novemb
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Page: 2[5] Also at issue in Air Can
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Page: 4[13] Based upon his years of
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Page: 6[22] Both complaints were re
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Page: 8Tribunal’s decision as it
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Page: 10[37] The Tribunal observed
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Page: 12VII.Standard of Review[45]
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Page: 14[53] There is also no dispu
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Page: 16the Charter. By failing to
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Page: 18impaired the relevant right
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Page: 20workers were compensated fo
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Page: 22The Supreme Court found tha
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Page: 24[93] With this in mind, Jus
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Page: 26[100] Our legal system oper
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Page: 28observed in her dissenting
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Page: 30[116] Further, as I observe
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Page: 32[124] There is a further co
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Page: 34[132] However, as the Ontar
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Page: 36[139] Where earlier Supreme
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Page: 38[148] There have been devel
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Page: 40[156] These circumstances f
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Page: 42have abolished mandatory re
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Page: 44[170] The arbitrator’s se
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Page: 46[178] As noted earlier, the
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Page: 48i) The Section 1 Analytical
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Page: 50requires a consideration of
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Page: 52[198] The Tribunal further
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Page: 54[206] At this stage of the
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Page: 56retirement to be imposed up
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Page: 58[221] As the Supreme Court
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Page: 60legislatures have struck a
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Page: 62[236] Air Canada’s expert
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Page: 64question the assumption und
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Page: 66[251] Dr. Kesselman confirm
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Page: 68choose to continue working.
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Page: 70[267] However, Dr. Kesselma
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Page: 72need the money. Those who w
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Page: 74[283] While Chief Justice M
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Page: 76for the accommodation of th
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Page: 78requirements. As a conseque
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Page: 80Gunderson and Pesando entit
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Page: 82employment arrangements inv
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Page: 84assisted employers in manag
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Page: 8615(1)(c) of the CHRA and th
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Page: 88[334] The Tribunal rejected
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Page: 90[343] Indeed, the majority
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Page: 92[351] For the reasons given
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Page: 94[358] As to the scope of th
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Page: 962006. Six Sigma is a busine
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Page: 98[376] The Tribunal also fou
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Page: 100agreement would affect oth
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Page: 102[392] It is true that the
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Page: 104[400] That is, while the q
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Page: 106ICAO standards. Air Canada
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Page: 108ii)The Accommodation of Mr
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Page: 110[424] The evidence before
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Page: 112company about three months
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Page: 114[441] The major focus of C
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Page: 116[450] For example, Captain
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Page: 118Duke explained why a sched
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Page: 120ii)The Tribunal’s Findin
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Page: 122[474] Messrs. Vilven and K
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Page: 124[482] I have concluded tha
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Page: 126memorandum of fact and law
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Page: 128JUDGMENTTHIS COURT ORDERS
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Page: 2agreement relate to the indi
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FEDERAL COURTSOLICITORS OF RECORDDO
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COURT OF APPEAL FOR BRITISH COLUMBI
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Health Sciences Assoc. of B.C. v. C
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Date: July 9, 2004File: 348Indexed
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[7] Myert contracts with provincial
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- Proportional client case manageme
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scrutinizing closely, the contract
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[29] Two New Moons fell on work day
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and based on the last paragraph of
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I understand that I am still in my
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terminate his employment due to his
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searches in December 2002, which wa
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[65] I find that Mr. Derksen has es
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[71] Finally, I cannot find that My
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complainant as a result of contrave
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Other Orders[84] Mr. Derksen seeks
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Canadian HumanRights TribunalTribun
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I. COMPLAINT[1] This complaint aros
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3[12] Previous to the hearing, the
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5[22] Jason also worked regularly s
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7III.RESPONDENT’S OPERATIONS[33]
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9building on the air field where sm
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11consideration of the nature of
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13been described by her then superi
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15c) The bulk of employees in the C
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17b) “In addition to programming
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19V. COMPLAINANT’S CASEA. Evidenc
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21Hence, while the Respondent is pr
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23Ms. Gerstl, and would not allow h
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25[109] Under cross-examination, Ms
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27[120] Mr. Star also testified to
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29[129] Mr. Star confirmed that at
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31shifts as of right when her circu
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33[149] There has been a phenomenal
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35- workers are less engaged with l
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37worker’s sense of control and h
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39[178] Complainant’s counsel cha
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41have also increased for families.
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43referral, hiring, promotion, trai
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45[210] The interpretation that ‘
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47[219] This Tribunal does not find
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49[230] Both parties rely on their
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51not discrimination found in any g
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53VI.RESPONDENT’S CASEA. Evidence
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55approximately 14 weeks. There is
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57[270] When asked under cross-exam
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59[281] However, Mr. Sheridan ackno
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61[293] Mr. Sheridan responded that
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63[299] There was no one called as
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6515 people at any given time, or 4
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67[324] CBSA’s approach upon rece
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69[335] The one question relied upo
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71the U.S. So, whereas in the U.S.
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73could accommodate Ms. Johnstone
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75b) Ms. Johnstone has demonstrated
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77contributions as a full-time empl
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79[385] However, by a decision rend
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CANADIAN HUMAN RIGHTS TRIBUNALPARTI
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INTRODUCTION[1] Raymond Jones is on
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eligious requirements by scheduling
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[18] In the last couple of years, t
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Bible-trained conscience would be i
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Did the Respondents refuse to conti
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further, there is nothing to sugges
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[47] Section 37(2)(d)(ii) of the Co
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first year at Menzies he received n
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• That the Respondents Cornelius
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INTRODUCTION[1] Darshan Pannu works
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[9] For their part, Skeena and the
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elevated hydrogen sulfide concentra
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[27] As a result of complaints by a
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[37] However, his back condition di
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[45] Mr. Pannu alleges that Skeena
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(2) Protective respiratory equipmen
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condition can drive safely. That is
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emergency procedure that the Compla
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[75] I can see no justification for
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tacitly approved a less than accept
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would impose some cost on Skeena. I
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time and because those people are l
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[104] The evidence before me establ
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[110] Since Skeena has established
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TABLE OF CONTENTSPageI. INTRODUCTIO
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2A. The Facts(i)The Canadian Nation
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4CMC. Ms. Storms occupied that posi
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6[26] The work schedule of a Conduc
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8It is this provision that allows C
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10[44] Because she was hired after
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12[54] Ms. Storms also testified th
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14[64] She also testified that CN c
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16not have to cover the shortage in
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18November 13 th , he started train
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20Tribunal to identify any legislat
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22accurate” and she added that
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24[101] There was no response from
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26supervisor the result would have
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28[116] On cross-examination, Ms. S
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30[125] On February 16 th , 2006, M
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32A railway is, by its nature, a tw
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34[132] Section 7 states :7. It is
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36(ii)The Lawa) The prima facie cas
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38strike that balance coupled with
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40duty or obligation” and that th
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42apply the Hoyt approach. In Chant
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44the Complainant’s “parental p
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46January at the latest.” (para.
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48c) Has a prima facie case of disc
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50CN’s other witnesses could not
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52Has CN established that it could
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54[189] The evidence establishes th
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56[196] The evidence also indicates
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58[202] Once the door is opened, th
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60about the policy and that if she
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62iii. Is it necessary to have all
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64person is assessed according to h
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66At the most, according to Cathy S
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68(iii)Compensation for lost wages[
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70“child care issue”. They felt
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TABLE OF CONTENTSPageI. INTRODUCTIO
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2A. The Facts(i)The Canadian Nation
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4[15] When an employee is working o
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6eventually disappear altogether. T
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8an employee of CN until her employ
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10(iv)The Conductors recalled to co
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12evidence confirming that this was
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14(v)The Complainant’s recall to
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16the same difficulties with childc
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18during a meeting where various to
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20[81] Mr. Broshko was not called a
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22[87] Section 10 of the Act provid
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Page 481 and 482: 26118 This Tribunal has considered
Page 483 and 484: 28wrong in law.” (Johnstone, supr
Page 485 and 486: 30[106] In Falardeau v. Ferguson Mo
Page 487 and 488: 32Employees, (2006) 88 C.L.A.S. 212
Page 489 and 490: 34[118] The Tribunal also disagrees
Page 491 and 492: 36[125] The Tribunal concludes that
Page 493 and 494: 38[131] CN’s justification for de
Page 495 and 496: 40terminals. Employees hired after
Page 497 and 498: 42868 (Grismer), at para. 31). Empl
Page 499 and 500: 44[150] The evidence clearly establ
Page 501 and 502: 46vi. Have other parties who are ob
Page 503 and 504: 48followed in this case and that
Page 505 and 506: 50complaint of discrimination based
Page 507 and 508: 52that she be reinstated in her emp
Page 509 and 510: 54reasonable to conclude therefore
Page 511 and 512: 56involved in this case decided tha
Page 513 and 514: CANADIAN HUMAN RIGHTS TRIBUNALPARTI
Page 515 and 516: - 2 -Evangelical Fellowship of Cana
Page 517 and 518: - 4 -demolition. The application wa
Page 519 and 520: - 6 -Here, the impugned stipulation
Page 521 and 522: - 8 -Whether one can waive a consti
Page 523 and 524: - 10 -in relation to one another wh
Page 525 and 526: - 12 -The obligation imposed on the
Page 527 and 528: - 14 -By Iacobucci J.Referred to: R
Page 529: - 16 -Canadian Charter of Rights an
Page 533 and 534: - 20 -festival, which begins in lat
Page 535 and 536: - 22 -Co-owners may not decorate, p
Page 537 and 538: - 24 -16 Each of the appellants non
Page 539 and 540: - 26 -also satisfied that, contrary
Page 541 and 542: - 28 -concluded that the accommodat
Page 543 and 544: - 30 -of succahs on the balconies o
Page 545 and 546: - 32 -Quebec Charter or under the C
Page 547 and 548: - 34 -purpose of s. 2(a) is to ensu
Page 549 and 550: - 36 -commands of their common fait
Page 551 and 552: - 38 -determining, either explicitl
Page 553 and 554: - 40 -55 This approach to freedom o
Page 555 and 556: - 42 -60 At this stage, as a genera
Page 557 and 558: - 44 -B. Application to the Facts(1
Page 559 and 560: - 46 -mandated “obligation” to
Page 561 and 562: - 48 -the significance of a strict
Page 563 and 564: - 50 -77 Similarly, a communal succ
Page 565 and 566: - 52 -82 Against the appellants’
Page 567 and 568: - 54 -maximize human rights invaria
Page 569 and 570: - 56 -persuaded that the purported
Page 571 and 572: - 58 -“did not read these provisi
Page 573 and 574: - 60 -Succot, subject to the undert
Page 575 and 576: - 62 -6.16 EXTERIOR DECORATIONS PRO
Page 577 and 578: - 64 -[TRANSLATION] . . . practisin
Page 579 and 580: - 66 -reserved for exclusive use to
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- 68 -the building’s style and it
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- 70 -129 Regarding the third step
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- 72 -The essence of the concept of
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- 74 -137 In light of the foregoing
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- 76 -(M. Tancelin, “L’acte uni
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- 78 -142 Although any analysis of
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- 80 -of Quebec (C.C.Q., preliminar
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- 82 -in enacting s. 9.1, as eviden
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- 84 -Charter involves finding a ba
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- 86 -159 The appellants submit tha
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- 88 -as it does not bar the appell
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- 90 -emergency routes will be comp
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- 92 -access routes too much if cer
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- 94 -would amount to an impairment
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- 96 -178 The appellants contend th
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- 98 -erection on the communally ow
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- 100 -Charter of Rights and Freedo
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- 102 -(Journal des débats: Commis
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- 104 -Can one waive his or her rig
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- 106 -198 In my view, the “reaso
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- 108 -[TRANSLATION]Q. You said ear
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- 110 -denial of construction of th
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- 112 -11. A succah in the garden h
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CITATION: VILVEN V. AIR CANADA, 200
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the shared meaning of the English a
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451, (1990), 52 B.C.L.R. (2d) 105,
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(i) Mandatory retirement at Air Can
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[7] It should also be noted at the
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[25] In contrast, Mr. Kelly’s hum
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first officers. While noting that c
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3. Was there a “normal age of ret
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at the very heart of a free and dem
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situation of pilots working in Cana
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[114] The fact that other Canadian
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[132] Firstly, as Air Canada has no
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[151] In contrast, the French versi
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of relevant positions. As the Tribu
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[189] Before turning to discuss the
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and Harrison, and paragraph 15(1)(c
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working beside them is paid more th
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Rather, it is the permissive provis
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treatment is as between workers und
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(ii) The degree of correspondence b
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[296] In Lavoie, Justice Bastarache
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the law to university professors ov
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constitutionally protected right, t
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colour, religion, age, sex, sexual
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2D. Conclusion on Seniority .......
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2II.Cease and Desist Order[3] The c
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4defence to any other outstanding o
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6A. Vilven[22] For the purpose of d
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8seniority to transfer to Toronto a
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10knowing that they will be frozen
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12[54] Kelly provided two calculati
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14earned about $5,000 a month. Sinc
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16[77] Kelly said he also made some
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18VI.Pain and SufferingA. Vilven[88
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20complainants continued with Air C
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22retired at some point in the near
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24(ii)Kelly[117] As to Kelly’s se
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26[127] Air Canada seeks to support
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28[138] In Martin, the Supreme Cour
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30[150] For the Supreme Court in Hy
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32[161] Thus the respondents argue,
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34F. Conclusion on Previous Financi
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369) Air Canada is to pay fifty per
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APPENDIX II2010 CHRT 27 (CaPay Rate
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I. INTRODUCTION[1] This is an emplo
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3described by the Complainant’s c
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5The training takes from four (4) t
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7available for work, but if he or s
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9back to their home residence at re
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11nature of the father’s work mak
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13[57] Due to its location, the Van
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15(iv)The Conductors recalled to co
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17August 12 th . He works from that
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19When asked by CN counsel why he h
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21[88] Employee QR was covering a s
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23[96] In CN’s Amended Statement
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25[105] On cross-examination, the C
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27Vancouver. On cross-examination h
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29[121] The Complainant also testif
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31at the end of May or in the first
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33schedule. She was asking, in effe
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35B. ISSUES[139] The issue raised i
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37differential manner and was termi
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39117 Discrimination on this ground
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41[154] In Johnstone, the Federal C
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43approach in Campbell River. For e
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45discrimination set out in the CHR
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47the complaint and that no jurispr
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49[178] In February 2005, the Compl
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51equally and fully in employment w
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53[191] The use of the term “undu
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55[198] The evidence clearly establ
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57[205] CN “Accommodation Guideli
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59had trained its managers well eno
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61[219] She further testified that
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63[224] To meet the procedural comp
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65the situation in the present case
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67[238] The Tribunal has referred i
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69(iii)Compensation for lost wages[
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71speaking to the Complainant, what
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