View cases - Stewart McKelvey

64discrimination based upon gender. Accepting CN’s argument would have the effect of making itimpossible for an individual to make a complaint on the ground of family status – at least, familystatus matters that involve parental obligations and responsibilities – because most of theemployees in the workforce are parents and could also potentially follow the same route.[229] CN did not produce any evidence that it was overwhelmed with requests foraccommodation from people in the Complainant’s situation. In Grismer, supra, at para. 41, theSupreme Court of Canada stated quite clearly that in the context of accommodation“impressionistic evidence of increased expense will not generally suffice.” In Lane, supra,at paragraph 117, the Ontario Divisional Court added:2010 CHRT 22 (CanLII)Undue hardship cannot be established by relying on impressionistic or anecdotalevidence, or after-the-fact justifications. Anticipated hardships caused by proposedaccommodations should not be sustained if based only on speculative orunsubstantiated concern that certain adverse consequences “might” or “could”result if the claimant is accommodated.[230] Regardless of the particular basis for CN’s claim that it will suffer undue hardship, it iswell established that the undue hardship analysis must be applied in the context of the individualaccommodation being requested. As the Supreme Court stated in Grismer, supra, at paragraph19, accommodation must be incorporated into the standard itself to ensure that each person isassessed according to her or his own personal abilities, instead of being judged against presumedgroup characteristics which are frequently based on bias and historical prejudice. Accordingly, anemployee’s individual assessment is an essential step in the accommodation process unless it is initself an undue hardship for the respondent (See Grismer, at paragraphs 22, 30, 32 and 38;Meiorin, at paragraph 65; Audet v. National Railway, 2006 CHRT 25, at paragraph 61 and Knightv. Société des transports de l’Outaouais, 2007 CHRT 15, at paragraph 72). Again, this individualassessment was not done in the case of the Complainant.[231] In the instant case, CN has failed to provide evidence that accommodating theComplainant would cause undue hardship in terms of costs. The only evidence regarding costwas with respect to the training of Conductors and there was no attempt to relate that evidence to