View cases - Stewart McKelvey

More documents

Recommendations

Info

CANADIAN HUMAN RIGHTS TRIBUNALPARTIES OF RECORDTRIBUNAL FILES: T1176/5806, T1177/5906 & T1079/6005STYLE OF CAUSE:Robert Neil Kelly v. Air Canada and Air CanadaPilots Association and Geroge Viven v.Air Canada2010 CHRT 27 (CanLII)DATE AND PLACE OF HEARING: February 1, 2, 4, 5, 2010March 3, 4, 22 to 24, 2010April 28 to 29, 2010Ottawa, OntarioDECISION OF THE TRIBUNAL DATED: November 8, 2010APPEARANCES:Raymond HallDavid BakerFor the ComplainantsDaniel PoulinFor the Canadian Human Rights CommissionMaryse TremblayFred HeadonFor the RespondentBruce Laughton, Q.C.For the Air Canada Pilots Association
Canadian HumanRights TribunalTribunal canadiendes droits de la personneBETWEEN:KASHA A. WHYTEComplainant2010 CHRT 22 (CanLII)- and -CANADIAN HUMAN RIGHTS COMMISSIONCommission- and -CANADIAN NATIONAL RAILWAYRespondentDECISIONMEMBER: Michel Doucet 2010 CHRT 222010/09/29
Page 1 and 2:
Federal CourtCour fédéraleOttawa,
Page 3 and 4:
TABLE OF CONTENTSPARA.I. Introducti
Page 5 and 6:
G. Accommodation in the Post-Novemb
Page 7 and 8:
Page: 2[5] Also at issue in Air Can
Page 9 and 10:
Page: 4[13] Based upon his years of
Page 11 and 12:
Page: 6[22] Both complaints were re
Page 13 and 14:
Page: 8Tribunal’s decision as it
Page 15 and 16:
Page: 10[37] The Tribunal observed
Page 17 and 18:
Page: 12VII.Standard of Review[45]
Page 19 and 20:
Page: 14[53] There is also no dispu
Page 21 and 22:
Page: 16the Charter. By failing to
Page 23 and 24:
Page: 18impaired the relevant right
Page 25 and 26:
Page: 20workers were compensated fo
Page 27 and 28:
Page: 22The Supreme Court found tha
Page 29 and 30:
Page: 24[93] With this in mind, Jus
Page 31 and 32:
Page: 26[100] Our legal system oper
Page 33 and 34:
Page: 28observed in her dissenting
Page 35 and 36:
Page: 30[116] Further, as I observe
Page 37 and 38:
Page: 32[124] There is a further co
Page 39 and 40:
Page: 34[132] However, as the Ontar
Page 41 and 42:
Page: 36[139] Where earlier Supreme
Page 43 and 44:
Page: 38[148] There have been devel
Page 45 and 46:
Page: 40[156] These circumstances f
Page 47 and 48:
Page: 42have abolished mandatory re
Page 49 and 50:
Page: 44[170] The arbitrator’s se
Page 51 and 52:
Page: 46[178] As noted earlier, the
Page 53 and 54:
Page: 48i) The Section 1 Analytical
Page 55 and 56:
Page: 50requires a consideration of
Page 57 and 58:
Page: 52[198] The Tribunal further
Page 59 and 60:
Page: 54[206] At this stage of the
Page 61 and 62:
Page: 56retirement to be imposed up
Page 63 and 64:
Page: 58[221] As the Supreme Court
Page 65 and 66:
Page: 60legislatures have struck a
Page 67 and 68:
Page: 62[236] Air Canada’s expert
Page 69 and 70:
Page: 64question the assumption und
Page 71 and 72:
Page: 66[251] Dr. Kesselman confirm
Page 73 and 74:
Page: 68choose to continue working.
Page 75 and 76:
Page: 70[267] However, Dr. Kesselma
Page 77 and 78:
Page: 72need the money. Those who w
Page 79 and 80:
Page: 74[283] While Chief Justice M
Page 81 and 82:
Page: 76for the accommodation of th
Page 83 and 84:
Page: 78requirements. As a conseque
Page 85 and 86:
Page: 80Gunderson and Pesando entit
Page 87 and 88:
Page: 82employment arrangements inv
Page 89 and 90:
Page: 84assisted employers in manag
Page 91 and 92:
Page: 8615(1)(c) of the CHRA and th
Page 93 and 94:
Page: 88[334] The Tribunal rejected
Page 95 and 96:
Page: 90[343] Indeed, the majority
Page 97 and 98:
Page: 92[351] For the reasons given
Page 99 and 100:
Page: 94[358] As to the scope of th
Page 101 and 102:
Page: 962006. Six Sigma is a busine
Page 103 and 104:
Page: 98[376] The Tribunal also fou
Page 105 and 106:
Page: 100agreement would affect oth
Page 107 and 108:
Page: 102[392] It is true that the
Page 109 and 110:
Page: 104[400] That is, while the q
Page 111 and 112:
Page: 106ICAO standards. Air Canada
Page 113 and 114:
Page: 108ii)The Accommodation of Mr
Page 115 and 116:
Page: 110[424] The evidence before
Page 117 and 118:
Page: 112company about three months
Page 119 and 120:
Page: 114[441] The major focus of C
Page 121 and 122:
Page: 116[450] For example, Captain
Page 123 and 124:
Page: 118Duke explained why a sched
Page 125 and 126:
Page: 120ii)The Tribunal’s Findin
Page 127 and 128:
Page: 122[474] Messrs. Vilven and K
Page 129 and 130:
Page: 124[482] I have concluded tha
Page 131 and 132:
Page: 126memorandum of fact and law
Page 133 and 134:
Page: 128JUDGMENTTHIS COURT ORDERS
Page 135 and 136:
Page: 2agreement relate to the indi
Page 137 and 138:
FEDERAL COURTSOLICITORS OF RECORDDO
Page 139 and 140:
COURT OF APPEAL FOR BRITISH COLUMBI
Page 141 and 142:
Health Sciences Assoc. of B.C. v. C
Page 143 and 144:
Page 145 and 146:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Date: July 9, 2004File: 348Indexed
Page 165 and 166:
[7] Myert contracts with provincial
Page 167 and 168:
- Proportional client case manageme
Page 169 and 170:
scrutinizing closely, the contract
Page 171 and 172:
[29] Two New Moons fell on work day
Page 173 and 174:
and based on the last paragraph of
Page 175 and 176:
I understand that I am still in my
Page 177 and 178:
terminate his employment due to his
Page 179 and 180:
searches in December 2002, which wa
Page 181 and 182:
[65] I find that Mr. Derksen has es
Page 183 and 184:
[71] Finally, I cannot find that My
Page 185 and 186:
complainant as a result of contrave
Page 187 and 188:
Other Orders[84] Mr. Derksen seeks
Page 189 and 190:
Canadian HumanRights TribunalTribun
Page 191 and 192:
I. COMPLAINT[1] This complaint aros
Page 193 and 194:
3[12] Previous to the hearing, the
Page 195 and 196:
5[22] Jason also worked regularly s
Page 197 and 198:
7III.RESPONDENT’S OPERATIONS[33]
Page 199 and 200:
9building on the air field where sm
Page 201 and 202:
11consideration of the nature of
Page 203 and 204:
13been described by her then superi
Page 205 and 206:
15c) The bulk of employees in the C
Page 207 and 208:
17b) “In addition to programming
Page 209 and 210:
19V. COMPLAINANT’S CASEA. Evidenc
Page 211 and 212:
21Hence, while the Respondent is pr
Page 213 and 214:
23Ms. Gerstl, and would not allow h
Page 215 and 216:
25[109] Under cross-examination, Ms
Page 217 and 218:
27[120] Mr. Star also testified to
Page 219 and 220:
29[129] Mr. Star confirmed that at
Page 221 and 222:
31shifts as of right when her circu
Page 223 and 224:
33[149] There has been a phenomenal
Page 225 and 226:
35- workers are less engaged with l
Page 227 and 228:
37worker’s sense of control and h
Page 229 and 230:
39[178] Complainant’s counsel cha
Page 231 and 232:
41have also increased for families.
Page 233 and 234:
43referral, hiring, promotion, trai
Page 235 and 236:
45[210] The interpretation that ‘
Page 237 and 238:
47[219] This Tribunal does not find
Page 239 and 240:
49[230] Both parties rely on their
Page 241 and 242:
51not discrimination found in any g
Page 243 and 244:
53VI.RESPONDENT’S CASEA. Evidence
Page 245 and 246:
55approximately 14 weeks. There is
Page 247 and 248:
57[270] When asked under cross-exam
Page 249 and 250:
59[281] However, Mr. Sheridan ackno
Page 251 and 252:
61[293] Mr. Sheridan responded that
Page 253 and 254:
63[299] There was no one called as
Page 255 and 256:
6515 people at any given time, or 4
Page 257 and 258:
67[324] CBSA’s approach upon rece
Page 259 and 260:
69[335] The one question relied upo
Page 261 and 262:
71the U.S. So, whereas in the U.S.
Page 263 and 264:
73could accommodate Ms. Johnstone
Page 265 and 266:
75b) Ms. Johnstone has demonstrated
Page 267 and 268:
77contributions as a full-time empl
Page 269 and 270:
79[385] However, by a decision rend
Page 271 and 272:
CANADIAN HUMAN RIGHTS TRIBUNALPARTI
Page 273 and 274:
INTRODUCTION[1] Raymond Jones is on
Page 275 and 276:
eligious requirements by scheduling
Page 277 and 278:
[18] In the last couple of years, t
Page 279 and 280:
Bible-trained conscience would be i
Page 281 and 282:
Did the Respondents refuse to conti
Page 283 and 284:
further, there is nothing to sugges
Page 285 and 286:
[47] Section 37(2)(d)(ii) of the Co
Page 287 and 288:
first year at Menzies he received n
Page 289:
• That the Respondents Cornelius
Page 351 and 352:
INTRODUCTION[1] Darshan Pannu works
Page 353 and 354:
[9] For their part, Skeena and the
Page 355 and 356:
elevated hydrogen sulfide concentra
Page 357 and 358:
[27] As a result of complaints by a
Page 359 and 360:
[37] However, his back condition di
Page 361 and 362:
[45] Mr. Pannu alleges that Skeena
Page 363 and 364:
(2) Protective respiratory equipmen
Page 365 and 366:
condition can drive safely. That is
Page 367 and 368:
emergency procedure that the Compla
Page 369 and 370:
[75] I can see no justification for
Page 371 and 372:
tacitly approved a less than accept
Page 373 and 374:
would impose some cost on Skeena. I
Page 375 and 376:
time and because those people are l
Page 377 and 378:
[104] The evidence before me establ
Page 379 and 380:
[110] Since Skeena has established
Page 381 and 382:
TABLE OF CONTENTSPageI. INTRODUCTIO
Page 383 and 384:
2A. The Facts(i)The Canadian Nation
Page 385 and 386:
4CMC. Ms. Storms occupied that posi
Page 387 and 388:
6[26] The work schedule of a Conduc
Page 389 and 390:
8It is this provision that allows C
Page 391 and 392:
10[44] Because she was hired after
Page 393 and 394:
12[54] Ms. Storms also testified th
Page 395 and 396:
14[64] She also testified that CN c
Page 397 and 398:
16not have to cover the shortage in
Page 399 and 400:
18November 13 th , he started train
Page 401 and 402:
20Tribunal to identify any legislat
Page 403 and 404:
22accurate” and she added that
Page 405 and 406:
24[101] There was no response from
Page 407 and 408:
26supervisor the result would have
Page 409 and 410:
28[116] On cross-examination, Ms. S
Page 411 and 412:
30[125] On February 16 th , 2006, M
Page 413 and 414:
32A railway is, by its nature, a tw
Page 415 and 416:
34[132] Section 7 states :7. It is
Page 417 and 418:
36(ii)The Lawa) The prima facie cas
Page 419 and 420:
38strike that balance coupled with
Page 421 and 422:
40duty or obligation” and that th
Page 423 and 424:
42apply the Hoyt approach. In Chant
Page 425 and 426:
44the Complainant’s “parental p
Page 427 and 428:
46January at the latest.” (para.
Page 429 and 430:
48c) Has a prima facie case of disc
Page 431 and 432:
50CN’s other witnesses could not
Page 433 and 434:
52Has CN established that it could
Page 435 and 436:
54[189] The evidence establishes th
Page 437 and 438:
56[196] The evidence also indicates
Page 439 and 440:
58[202] Once the door is opened, th
Page 441 and 442:
60about the policy and that if she
Page 443 and 444:
62iii. Is it necessary to have all
Page 445 and 446:
64person is assessed according to h
Page 447 and 448:
66At the most, according to Cathy S
Page 449 and 450:
68(iii)Compensation for lost wages[
Page 451 and 452:
70“child care issue”. They felt
Page 453 and 454:
Page 455 and 456:
TABLE OF CONTENTSPageI. INTRODUCTIO
Page 457 and 458:
2A. The Facts(i)The Canadian Nation
Page 459 and 460:
4[15] When an employee is working o
Page 461 and 462:
6eventually disappear altogether. T
Page 463 and 464:
8an employee of CN until her employ
Page 465 and 466:
10(iv)The Conductors recalled to co
Page 467 and 468:
12evidence confirming that this was
Page 469 and 470:
14(v)The Complainant’s recall to
Page 471 and 472:
16the same difficulties with childc
Page 473 and 474:
18during a meeting where various to
Page 475 and 476:
20[81] Mr. Broshko was not called a
Page 477 and 478:
22[87] Section 10 of the Act provid
Page 479 and 480:
24[1999] 3 S.C.R. 3 (“Meiorin”)
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:
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 and 530:
- 16 -Canadian Charter of Rights an
Page 531 and 532:
- 18 -1 An important feature of our
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
Page 581 and 582:
- 68 -the building’s style and it
Page 583 and 584:
- 70 -129 Regarding the third step
Page 585 and 586:
- 72 -The essence of the concept of
Page 587 and 588:
- 74 -137 In light of the foregoing
Page 589 and 590:
- 76 -(M. Tancelin, “L’acte uni
Page 591 and 592:
- 78 -142 Although any analysis of
Page 593 and 594:
- 80 -of Quebec (C.C.Q., preliminar
Page 595 and 596:
- 82 -in enacting s. 9.1, as eviden
Page 597 and 598:
- 84 -Charter involves finding a ba
Page 599 and 600:
- 86 -159 The appellants submit tha
Page 601 and 602:
- 88 -as it does not bar the appell
Page 603 and 604:
- 90 -emergency routes will be comp
Page 605 and 606:
- 92 -access routes too much if cer
Page 607 and 608:
- 94 -would amount to an impairment
Page 609 and 610:
- 96 -178 The appellants contend th
Page 611 and 612:
- 98 -erection on the communally ow
Page 613 and 614:
- 100 -Charter of Rights and Freedo
Page 615 and 616:
- 102 -(Journal des débats: Commis
Page 617 and 618:
- 104 -Can one waive his or her rig
Page 619 and 620:
- 106 -198 In my view, the “reaso
Page 621 and 622:
- 108 -[TRANSLATION]Q. You said ear
Page 623 and 624:
- 110 -denial of construction of th
Page 625 and 626:
- 112 -11. A succah in the garden h
Page 627 and 628:
CITATION: VILVEN V. AIR CANADA, 200
Page 629 and 630:
the shared meaning of the English a
Page 631 and 632:
451, (1990), 52 B.C.L.R. (2d) 105,
Page 633 and 634:
(i) Mandatory retirement at Air Can
Page 635 and 636:
[7] It should also be noted at the
Page 637 and 638:
[25] In contrast, Mr. Kelly’s hum
Page 639 and 640:
first officers. While noting that c
Page 641 and 642:
3. Was there a “normal age of ret
Page 643 and 644:
at the very heart of a free and dem
Page 645 and 646:
situation of pilots working in Cana
Page 647 and 648:
[114] The fact that other Canadian
Page 649 and 650:
[132] Firstly, as Air Canada has no
Page 651 and 652:
[151] In contrast, the French versi
Page 653 and 654:
of relevant positions. As the Tribu
Page 655 and 656:
[189] Before turning to discuss the
Page 657 and 658:
and Harrison, and paragraph 15(1)(c
Page 659 and 660:
working beside them is paid more th
Page 661 and 662:
Rather, it is the permissive provis
Page 663 and 664:
treatment is as between workers und
Page 665 and 666: (ii) The degree of correspondence b
Page 667 and 668: [296] In Lavoie, Justice Bastarache
Page 669 and 670: the law to university professors ov
Page 671 and 672: constitutionally protected right, t
Page 673 and 674: colour, religion, age, sex, sexual
Page 675 and 676: Canadian HumanRights TribunalTribun
Page 677 and 678: 2D. Conclusion on Seniority .......
Page 679 and 680: 2II.Cease and Desist Order[3] The c
Page 681 and 682: 4defence to any other outstanding o
Page 683 and 684: 6A. Vilven[22] For the purpose of d
Page 685 and 686: 8seniority to transfer to Toronto a
Page 687 and 688: 10knowing that they will be frozen
Page 689 and 690: 12[54] Kelly provided two calculati
Page 691 and 692: 14earned about $5,000 a month. Sinc
Page 693 and 694: 16[77] Kelly said he also made some
Page 695 and 696: 18VI.Pain and SufferingA. Vilven[88
Page 697 and 698: 20complainants continued with Air C
Page 699 and 700: 22retired at some point in the near
Page 701 and 702: 24(ii)Kelly[117] As to Kelly’s se
Page 703 and 704: 26[127] Air Canada seeks to support
Page 705 and 706: 28[138] In Martin, the Supreme Cour
Page 707 and 708: 30[150] For the Supreme Court in Hy
Page 709 and 710: 32[161] Thus the respondents argue,
Page 711 and 712: 34F. Conclusion on Previous Financi
Page 713 and 714: 369) Air Canada is to pay fifty per
Page 715: APPENDIX II2010 CHRT 27 (CaPay Rate
Page 719 and 720: I. INTRODUCTION[1] This is an emplo
Page 721 and 722: 3described by the Complainant’s c
Page 723 and 724: 5The training takes from four (4) t
Page 725 and 726: 7available for work, but if he or s
Page 727 and 728: 9back to their home residence at re
Page 729 and 730: 11nature of the father’s work mak
Page 731 and 732: 13[57] Due to its location, the Van
Page 733 and 734: 15(iv)The Conductors recalled to co
Page 735 and 736: 17August 12 th . He works from that
Page 737 and 738: 19When asked by CN counsel why he h
Page 739 and 740: 21[88] Employee QR was covering a s
Page 741 and 742: 23[96] In CN’s Amended Statement
Page 743 and 744: 25[105] On cross-examination, the C
Page 745 and 746: 27Vancouver. On cross-examination h
Page 747 and 748: 29[121] The Complainant also testif
Page 749 and 750: 31at the end of May or in the first
Page 751 and 752: 33schedule. She was asking, in effe
Page 753 and 754: 35B. ISSUES[139] The issue raised i
Page 755 and 756: 37differential manner and was termi
Page 757 and 758: 39117 Discrimination on this ground
Page 759 and 760: 41[154] In Johnstone, the Federal C
Page 761 and 762: 43approach in Campbell River. For e
Page 763 and 764: 45discrimination set out in the CHR
Page 765 and 766: 47the complaint and that no jurispr
Page 767 and 768:
49[178] In February 2005, the Compl
Page 769 and 770:
51equally and fully in employment w
Page 771 and 772:
53[191] The use of the term “undu
Page 773 and 774:
55[198] The evidence clearly establ
Page 775 and 776:
57[205] CN “Accommodation Guideli
Page 777 and 778:
59had trained its managers well eno
Page 779 and 780:
61[219] She further testified that
Page 781 and 782:
63[224] To meet the procedural comp
Page 783 and 784:
65the situation in the present case
Page 785 and 786:
67[238] The Tribunal has referred i
Page 787 and 788:
69(iii)Compensation for lost wages[
Page 789 and 790:
71speaking to the Complainant, what
Page 791:
show all

View cases - Stewart McKelvey

Create successful ePaper yourself

Delete template?

Save as template?