Administrative law — Judicial review and statutory appeal — Standard of review — Employment law — Workplace discrimination — Duty of reasonable accommodation — Human rights law — Discrimination — Context — Employment — Grounds — Mental or physical disability — Type of discrimination — Constructive or adverse effect — Administration and enforcement — Judicial review.

       Appeal by the City of Regina and the local union from a tribunal decision that awarded damages to Kivela under the Human Rights Code. The City argued that there were incorrect findings in the duty to accommodate and in the alleged resignation of the respondent, Kivela. Kivela had argued that as a result of his disabling cerebral palsy he was denied a permanent position and kept on casual status for 15 years. He alleged he was paid less than others doing the same work. He claimed discrimination by the union also as his alleged complaints to the union resulted in inaction. He claimed to have resigned due to the discrimination. The union and the City argued that they met their duty to accommodate with regards to Kivela. Kivela could not access the disability plan, overtime work or other benefits that were accessible by full-time employees. By the time the City had made arrangements for Kivela to keep his seniority position, many co-workers had already passed him in seniority and the City did nothing about rectifying the past injustices. Kivela sought therapy, was diagnosed as depressed and commenced drug therapy. As he had no disability plan and could not work for health reasons, he resigned from his position to access his pension plan.

       HELD: Appeal dismissed. The reason Kivela was passed in seniority was because others worked at jobs Kivela could not do. The only way Kivela could gain the seniority to work full-time at the job he was capable of doing was to first work at jobs he was not capable of performing due to his disability. The standard of review was one of correctness as the issue was one of law. The City did not discharge the onus of showing that it had taken reasonable steps to accommodate Kivela. The City and union were too late in developing their plan to keep Kivela's seniority and they did not return to Kivela the benefits he would have enjoyed had his seniority accrued in a non-discriminatory manner. Though the City and union made reasonable accommodations for Kivela throughout his employment, they did not rectify the cumulative negative impact of the seniority provisions that existed for most of his employment. There was no evidence of undue hardship on the City for the accommodating measures they did take. Had Kivela climbed the seniority ladder in the same way as his co-workers, he would not have experienced the health issues and resigned.

Statutes, Regulations and Rules Cited:

Saskatchewan Human Rights Code, ss. 16, 18.

Counsel:

Gail D. Wartman for the City of Regina

Gary Wayne Kivela, self-represented

Milton C. Woodard, Q.C. for the Saskatchewan Human Rights Commission

Neil R. McLeod, Q.C. for Canadian Union of Public Employees Local No. 21

       [Editor's note: A corrigendum was released by the Court September 17, 2004; the corrections have been made to the text and the corrigendum is appended to this document.]

¶ 1      BARCLAY J.:— This is an appeal by the City of Regina (the "City") and Canadian Union of Public Employees Local No. 21 ("CUPE") from a decision dated October 10, 2003, of Roger J. F. LePage, sitting as a Tribunal (the "Tribunal") under The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the "Code"), in the matter of complaints filed by Gary Wayne Kivela ("Mr. Kivela"), against his employer the City.

¶ 2      The grounds of appeal in respect of the City are as follows.

¶ 3      As to the position of CUPE with respect to liability, the main grounds of appeal are as follows:

¶ 4      During oral argument it became clear that the main issues on the appeal were the duty to accommodate and the alleged resignation of Mr. Kivela.

¶ 5      Both the City and CUPE take issue with certain findings of fact made by the Tribunal. Notwithstanding their concerns, I am of the view that the facts which are set out in some detail in the decision of the Tribunal and in the brief of the Commission are reasonably accurate and have been referred to in my judgment. Here the appeal from the Tribunal is only on a question of law (s. 32 of the Code). By inference this denies the existence of any appeal on a question of fact. As stated by La Forest J. in the Supreme Court of Canada decision in Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53 at 69-70:

¶ 6      Mr. Kivela filed a complaint under Part II of the Code, alleging that CUPE discriminated against him on the basis of his disability. Mr. Kivela alleges the following:

¶ 7      Mr. Kivela also filed a similar complaint against the City. It reads as follows:

¶ 8      The City and CUPE deny that Mr. Kivela was discriminated against on the basis of his disability. They argue that they have met their duty to accommodate with regards to Mr. Kivela as an employee of the City.

¶ 9      The Tribunal heard five days of testimony from witnesses for both Mr. Kivela, the City and CUPE, as well as oral argument from their respective counsel and from Mr. Kivela personally.

¶ 10      Mr. Kivela is the complainant in this case. Mr. Kivela was born in Whitewood, Saskatchewan, on January 17, 1950. He has had Cerebral Palsy since birth. Cerebral Palsy is a qualitative motor disorder caused by damage to the brain. A common effect of Cerebral Palsy is a lack of muscle control and body movements. It is not a progressive disease. Rather, Cerebral Palsy conditions may improve, worsen or remain unchanged. Mr. Kivela's Cerebral Palsy is visible through his lack of control over his muscles and in his speech. He walks with considerable difficulty, using a cane to help his balance. Mr. Kivela's speech is also affected by his Cerebral Palsy, in that his speech is slow and slurred and often difficult to understand. Today, Mr. Kivela experiences further health problems, such as osteoarthritis of the major joints of his knees and feet, resulting in further degeneration of his physical capacity.

¶ 11      Mr. Kivela came to be employed as a casual truck driver with the City from July 5, 1982 until November 12, 1998. The City and CUPE accommodated him initially to allow him to occupy this position. Driving an eight-ton tandem axle truck owned by the City, Mr. Kivela hauled gravel, slag, street sweepings, asphalt and snow. To drive the eight-ton truck, Mr. Kivela possessed the necessary A-3 licence, and special modifications were made to the truck to accommodate Mr. Kivela's disability. Modifications included an extra step into the truck, raised floor boards and special hand levers.

¶ 12      As a casual employee with the City, Mr. Kivela began work in the spring (April-May), and would be laid off in the fall (October-November), the exact work period being dependent upon weather conditions and his level of seniority. Mr. Kivela's casual employment hours always entitled him to collect Employment Insurance ("EI") in the winter.

¶ 13      Because of Mr. Kivela's Cerebral Palsy, he is limited in his ability to perform certain tasks of physical labour in his employment with the City. Thus, Mr. Kivela's job was confined to hauling materials with an eight-ton tandem truck. While Mr. Kivela was somewhat slower in manoeuvring his unit, and required special assistance in maintaining his unit, the City administration and CUPE were both pleased by his work and ambition to be independent.

¶ 14      In the spring, Mr. Kivela often began hauling street sweepings, eventually working on the asphalt, hauling gravel, or any other material the City needed to be hauled. The tandem truck he drove was one of the 12 or 13 trucks purchased by the City in 1982. Mr. Kivela drove the same truck until November 12, 1998. In 1994, the City purchased semi-trailer trucks to replace most of their tandem trucks. Mr. Kivela testified that the Highway Board did not want to give him the required A-1 licence to drive a semi-trailer truck. After the purchase of the semi-trailer trucks, Mr. Kivela experienced a reduction in the amount of his work. The semi-trailers essentially took over hauling the materials that the tandems used to haul. In one effort to ensure Mr. Kivela did not lose hours, a belly plow was attached to his truck enabling him to plow snow in back alleys during the winter. However, once the City began using the semi-trailers, Mr. Kivela testified that 90% of the time he was finished work by 2:00 p.m. In addition, fellow employees often told Mr. Kivela to "get lost for an hour or two," in the afternoon. Although he would still receive his wage, this resulted in feelings of embarrassment for Mr. Kivela.

¶ 15      Mr. Kivela was first hired as a casual employee with the City and remained casual throughout his 16-year career. In his initial hire, Mr. Kivela was accommodated, as he did not have the physical capacity to work as a labourer, the normal entry level position with the City. With the agreement of CUPE, accommodation was made to hire Mr. Kivela as a casual employee in roadway construction and he was assigned to drive a tandem truck. Mr. Kivela would not have to serve time as a casual labourer to acquire seniority before being assigned to drive truck. At first, Mr. Kivela was paid as a labourer until his seniority would give him priority to drive truck. At that point, CUPE negotiated a pay scale for Mr. Kivela, reducing his pay by 4% to reflect the jobs and duties he was unable to perform, such as vehicle inspection which represented 20 minutes every eight hour shift. Thus, Mr. Kivela received 4% less in wages than other comparable City employees right up until his last day of work. During this hearing, the City acknowledged the wage differential was inappropriate and compensated Mr. Kivela in the amount of $8,902.00.

¶ 16      Mr. Kivela boasts an unblemished driving record for the 16 years he was employed with the City. Throughout Mr. Kivela's testimony, a recurring theme was obvious, in that his main goal throughout his 16 years with the City was to go from casual employee status to become a permanent employee with the City. His efforts to convince the City to give him a permanent position were endless. Mr. Kivela communicated his desire and intention to become a permanent employee through numerous attendances at City Hall and the Public Works Committee. On November 15, 1982, Mr. Kivela made a submission to City Council asking to be put on permanent or to have a contract, and made other submissions on November 1, 1983. On April 23, 1990, Mr. Kivela again wrote to the City and complained about not being made permanent. In the fall of the same year, Mr. Kivela had a meeting with the City's Administrative Services Manager, Warren Bobbee expressing his concerns about becoming a permanent employee. In December 1991, Mr. Kivela again made a submission to City Council to be put on permanent staff or to secure a long-term contract with the City. In addition to these efforts, Mr. Kivela applied twice for permanent jobs. The evidence shows that Mr. Kivela also directly sought help from CUPE on one occasion to attend a meeting at City Hall in 1996 or 1997. His testimony was that CUPE told him it was up to the City to give him permanent status.

¶ 17      Seniority is the process by which casual employees may gain permanent status. Seniority within a certain division will determine who is the first to be rehired in the spring and who is the last to be laid off in the fall. Mr. Kivela worked in the Roadway Construction Division of the Public Works Department. Casual employees within the Roadway Construction Division are recalled according to their seniority in comparison with other casual employees in Roadway Construction. As an example, a casual employee in Water Distribution could not claim the right to be recalled into Roadway Construction based on seniority. However, in bidding for permanent positions, seniority throughout the Department is considered. Permanent employees have priority over casual employees in bidding for any permanent position, amongst those who are qualified. If there are no qualified permanent employees who want to transfer into the position, then priority is determined between casual employees based on seniority, amongst those who are qualified.

¶ 18      Seniority for permanent employees is determined by reference to the date of appointment to a permanent position. A permanent employee gets a seniority date and has priority over other employees who have a more recent appointment date. All permanent employees have priority over casual employees no matter how recent their appointment. Seniority for casual employees is determined by total number of hours worked. Separate seniority lists are maintained for both casual and permanent employees and updated regularly. At any time a City employee can determine who they have priority over and who has priority over them. The seniority lists were much in evidence before the Tribunal.

¶ 19      In order to help explain the impact of the seniority system on Mr. Kivela, it is useful to describe how he was first hired by the City in 1982. The City could not have employed Mr. Kivela in the first place without significant accommodation within the seniority system. The entry-level position for every employee within CUPE's jurisdiction (outside workers) is as a Labourer I, which, as the name indicates, involves physically demanding work. This is the lowest position in terms of work assignment, skill level and rate of pay. The usual process is that applicants are hired on as a Labourer I in a casual position and then as their seniority increases they can apply for other positions. Labourer I employees have to compete with other employees with more seniority, but they always have priority over external applicants. It is possible that when a highly skilled position needs to be filled, an external applicant can be hired if there is no internal employee with the necessary qualifications. But this was a rare circumstance and it certainly would not have happened with respect to the truck driving positions.

¶ 20      Because of his Cerebral Palsy, Mr. Kivela could not perform the work of a Labourer I. He could only drive truck. The City has had a number of truck driver positions over the years, usually referred to in the Collective Bargaining Agreement as an Operator II. Had Mr. Kivela been able to gain employment with the City he would eventually have been able to bid into an Operator II position when he became the person with the most seniority. But it would be impossible for Mr. Kivela to ever gain employment with the City because the entry-level position was something he could not do because of his disability. The requirement of building up seniority as a Labourer I presented an insurmountable barrier for Mr. Kivela because of his disability.

¶ 21      In approximately 1981/1982, Mr. Kivela had his own truck and was lobbying the City to provide him with hauling contracts. It is fair to say that Mr. Kivela himself did not understand the potential to become a City employee. For a variety of reasons, simply providing Mr. Kivela with his own contracts was not possible. However, the City did arrange, with CUPE's cooperation, to bring Mr. Kivela on staff in a special casual position, with the approximate rate of pay for a Labourer I, but with a truck driving assignment. Several years later when Mr. Kivela would have had the seniority to bid into a truck driving position, he was reclassified as a casual truck driver and given the prevailing rate of pay for a truck driver less a small amount to reflect the fact that there were some tasks he could not perform. In this way Mr. Kivela was allowed to bypass the barrier that otherwise would have prevented a person with Cerebral Palsy, no matter how skilled, from ever becoming a truck driver with the City. In order for this scheme to work, both the City and CUPE had to agree to forego the seniority rights in the Collective Bargaining Agreement. Otherwise, someone already working as a Labourer I would have had priority to be assigned to a truck.

¶ 22      Mr. Kivela was, in each season after 1982 and until the end of his employment, a casual employee. He was called back for the construction season, in order of his seniority, and assigned to drive a tandem truck. Other casual employees with more seniority than Mr. Kivela either could not or did not use their seniority to bump Mr. Kivela off his truck. It was an informal arrangement that was never tested in the grievance process. A casual employee, with more seniority, would still be hired back in the spring ahead of Mr. Kivela and laid off in the fall after him, even if the work available was driving a tandem truck. But as soon as Mr. Kivela's name came up on the seniority list, he was brought back and assigned to a tandem truck.

¶ 23      Because Mr. Kivela could only drive truck, he was not able to maintain his position on the seniority list. A number of casual employees, who started after Mr. Kivela, and who in 1989 had fewer hours of total seniority, were able to work more hours than Mr. Kivela, pass him in total hours and thereby gain seniority ahead of him.

¶ 24      In the spring and fall of each year, casual employees had opportunities to continue working at stock piling, general maintenance, putting up snow fences, and other physical activities. Other employees gained a seniority advantage over Mr. Kivela by working at these jobs he could not do because of his disability.

¶ 25      The conclusion is inescapable that the reason Mr. Kivela was passed in seniority was because others worked at jobs that Mr. Kivela could not do. The other theoretical possibilities are that others passed Mr. Kivela because either he turned down work other than truck driving that he could do or that others gained more hours driving truck when Mr. Kivela did not want to or was otherwise unavailable. Neither of these theoretical possibilities have any substance in fact. The evidence was that Mr. Kivela was always enthusiastic about working and never turned down any work driving truck. Truck driving was his life. An employee who had less seniority than Mr. Kivela could not bump him off his truck and therefore could never gain more seniority over Mr. Kivela by driving truck because Mr. Kivela would be there driving as well. They could only gain more seniority by working at jobs other than truck driving at a time when there was no truck driving for Mr. Kivela.

¶ 26      The seniority lists show that in 1989 Mr. Kivela had more hours of seniority than William Hildebrand, Delbert Cyr, Tim LaFontaine, Tony Rope, Kerry Rusk and Jeff Dodds. By December 31, 1992, Hildebrand had passed Mr. Kivela. By July 21, 1993, all of Rope, Rusk and Cyr had passed Mr. Kivela. These individuals, as between themselves, changed order on the seniority lists as they made personal choices, or got more work as a result of special skills or from being in the right place at the right time. But the fact of the matter is that they all accessed work opportunities that are not available to Mr. Kivela and, because of that, they gained priority for further opportunities in priority over Mr. Kivela.

¶ 27      The fact that others passed Mr. Kivela on the casual seniority lists had two major effects. First, any individual with more seniority would have priority for recall and for retention of employment at the time of layoff whether or not the available work was truck driving. Mr. Kivela was only guaranteed the right to drive truck while actually at work. He was still recalled and laid off according to his seniority. Those who had gained more seniority by doing work that Mr. Kivela could not do, also had priority over Mr. Kivela, even to drive truck, when recall and layoffs were occurring. Secondly, those who had gained more casual seniority had priority over Mr. Kivela to bid on permanent positions.

¶ 28      The manner in which permanent positions were filled also worked to Mr. Kivela's disadvantage. Kevin Faul testified that most of his tandem truck drivers (those in his division) occupied permanent positions. There would be as many permanent tandem truck driver positions as the City felt were needed on a year round basis. But the only way casual employees became permanent truck drivers was to bid into other permanent positions, then, when the next permanent truck driver position came open, the employee could use his seniority as a permanent employee to bid back into this position. However, because of his disability, Mr. Kivela could not perform any of the other permanent jobs. In effect, Mr. Kivela was in exactly the same position he was in, in 1982. The only way he could gain the seniority necessary to work at the job he was capable of performing was to first work at jobs he was not capable of performing because of his disability. As with the casual positions, no other permanent position has been identified which Mr. Kivela could do other than driving truck. Witnesses Behman, for the City, and Cronin for CUPE clearly understood that it would be almost impossible for Mr. Kivela to ever get a position as a permanent truck driver.

¶ 29      Both the City and CUPE understood that some further accommodation in addition to what had already been arranged in 1996 was necessary and they were prepared to make that happen. The accommodation plan was to allow Mr. Kivela to fill a position he could not do and then assign him as a permanent employee to drive a tandem truck. Again, it was almost exactly the same solution that was implemented in 1982 when the City and CUPE agreed to hire Mr. Kivela as a labourer and yet assign him to truck driving duties.

¶ 30      The City and CUPE were too late in developing their plan. The plan was conceived in approximately early 1999, to be executed when Mr. Kivela got to the top of the seniority list, probably in about 2000. But, by this time Mr. Kivela was no longer able to work. It was assumed that the appropriate time to give the next available position to Mr. Kivela would be when he reached the top of the seniority list. However, this timing did not take into account that Mr. Kivela should have been at the top of the seniority list much sooner than 2000.

¶ 31      The permanent seniority list as of December 18, 2001, shows that Hildebrand, Rusk and Dodds, who passed Mr. Kivela on the seniority list, were permanent employees by 1996. Rope became permanent on April 18, 1999, approximately one month prior to Mr. Kivela's resignation, and Cyr became permanent on June 23, 1999, approximately one month after. Lafontaine became permanent at some unspecified date, but is not on this seniority list as he was terminated for reasons irrelevant to this inquiry.

¶ 32      The 1996 agreement was implemented to keep Mr. Kivela from falling further back in seniority. Even the employee who was the next lowest employee on the casual seniority list in April of 1996, Leonard Homeniuk, had a permanent position by September 2000, only one and one-half years after Mr. Kivela resigned. All of these individuals acquired permanent positions within Public Works and would be able to bid back into Roadway Construction.

¶ 33      Because of the way in which the system made permanent positions available, others were able to be flexible in ways that Mr. Kivela was not in order to gain permanent status.

¶ 34      Permanent status was something that was extremely important to Mr. Kivela. It was a guarantee of permanent, year round employment. In addition, permanent employees are entitled to double time for overtime (as opposed to time and one-half for casuals), mandatory access to the City's Disability Plan and mandatory access to the Permanent Employees' Superannuation Plan, which is a defined benefit plan, as opposed to the money purchase plan available to casual employees. (Admittedly, casual employees now have some access to the Permanent Employees' Superannuation Plan if they opt in). There would have been no difference between Mr. Kivela's assignment as a permanent truck driver and a casual, other than these benefits. The designation was the same (e.g. Operator II or Tandem Truck Driver), and the work and rate of pay were the same. It was simply a way of designating some employees as year round workers and providing them with benefits accordingly. One of the injuries suffered by Mr. Kivela as a result of not being made permanent at the appropriate time is that he was not able to access the City's disability plan in 1999.

¶ 35      Mr. Kivela's numerous attempts to gain permanent status over a 16-year period were unsuccessful. His frustration with the City and with CUPE heightened once he became aware of other casual City employees, hired after Mr. Kivela, passing him on the seniority list. The fact of other employees passing Mr. Kivela on the seniority list had two major effects. First, any individual with more seniority in his department would have priority for recall and for retention of employment at the time of layoff whether or not the available work was truck driving. Mr. Kivela was only guaranteed the right to drive truck while actually at work. Since recall and layoff was still according to seniority, employees who gained more seniority by doing work that Mr. Kivela could not do, had priority over him, even to drive truck during recall and layoff. Secondly, employees who gained more casual seniority had priority over Mr. Kivela to bid on permanent positions.

¶ 36      Only after Mr. Kivela's attendances upon the City requesting that he be made a permanent employee were actions taken to maintain his position on the seniority list. In 1996, communications between Mr. Kivela, the City and CUPE took place regarding Mr. Kivela's seniority situation. The City and CUPE recognized that the only way Mr. Kivela would ever gain the seniority necessary was to work at jobs he was not capable of performing. Effective April 1, 1996, Mr. Kivela was credited with seniority hours from the point in time in which his position on the seniority list is to be recalled. In other words, accommodation was made so that Mr. Kivela would no longer be passed by another casual employee on the seniority list. In the fall of the same year, an arrangement was made to allow Mr. Kivela to cross boundaries so that he could go to other divisions and get work, according to his seniority. This allowed him to accumulate more hours of work and hence, seniority.

¶ 37      While the agreement remedied the loss of seniority for Mr. Kivela from that point forward, it did nothing to rectify the previous loss of seniority from 1982 to 1996. Neither the City nor CUPE corrected the problem retroactively.

¶ 38      Mr. Kivela became so stressed about his employment situation and particularly his lack of permanent status that he was not able to continue working. This occurred on November 12, 1998, following two full days of hauling crushed concrete. On the third day, Mr. Kivela was told that his truck was too small and that he was to go to the Water Works Department, where workers had previously expressed fear of working with him. Mr. Kivela did not want to go to Water Works. He feared that he was being pushed out of his employment as a tandem truck driver. He then received his normal layoff notice as a casual employee effective November 15, 1998. It was at this time that Mr. Kivela began to see Dr. Blignaut who diagnosed him as being depressed and he commenced drug therapy in December of 1998. Upon a referral from Dr. Blignaut, Mr. Kivela also saw Dr. Beattie, a psychiatrist in January 1999, who assessed Mr. Kivela as suffering from reactive depression and a paranoid personality.

¶ 39      In the winter of 1999, during the seasonal layoff, Mr. Kivela corresponded with the City about obtaining permanent status and the need for further accommodation. By letter dated February 5, 1999, the City agreed to certain requests but made it clear that it was not prepared to deviate further from the seniority provisions of the Collective Bargaining Agreement. In fact, the City advised him to contact his CUPE representative regarding his concern about becoming "permanent staff."

¶ 40      In the spring of 1999, Mr. Kivela did not return to his employment, stating he had health problems. In a letter written by Mr. Kivela to the City and CUPE, he explained that he was under a doctor's care for stress and depression. Mr. Kivela sent a letter to the City resigning as at May 20, 1999. Mr. Kivela's testimony was that he did not resign for the "fun of it." Mr. Kivela stated the reason he resigned was to gain access to his pension fund. He would not have resigned if he had been entitled to a disability plan, which at the time was only available to permanent employees. His claim for compensation from the Workers' Compensation Board had been denied in December 1998. When his EI ended in the spring of 1999 Mr. Kivela had to apply for social assistance. Before applying for social assistance, he resigned and drew partially upon his City pension plan.

¶ 41      Mr. Kivela's Cerebral Palsy became more severe after he left work in November 1998. Working was good therapy for his disability and Mr. Kivela claims that his condition has deteriorated. Mr. Kivela also remains on anti-depressants to this day.

¶ 42      Mr. Kivela alleges that the City and CUPE brought this lawsuit on themselves through 16 years of "disability discrimination." His Cerebral Palsy became more severe after he had to leave his employment because of stress, burnout and depression. He maintained that he would have enjoyed an excellent permanent career if the City and CUPE would have treated him fairly instead of disability discrimination.

¶ 43      It is probably fair to say that Mr. Kivela did not fully appreciate exactly why he was not made permanent. But the fundamental allegation is simply that both the City and CUPE discriminated against Mr. Kivela in relation to his employment because of his disability. The Commission substantiated this allegation before the Tribunal by showing that there was a discriminatory impact on Mr. Kivela as a result of the seniority system established by the collective agreements in force from time to time between the City and CUPE.

¶ 44      As to accommodation, the Tribunal made the following finding:

What is the Appropriate Standard of Judicial Review?

¶ 45      Although there was some confusion as to the appropriate standard of review for decisions of human rights commissions, and in particular the amount of deference that should be afforded by the courts to these tribunals, the matter has now been conclusively decided by the recent decision of the Supreme Court of Canada in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825. In this case a teacher publicly made racist and discriminatory comments against Jews during his off-duty time. His writings and statements communicated his anti-Semitic views including four books or pamphlets, letters to a local newspaper, and a local television interview. A complaint was filed with the New Brunswick Human Rights Commission. The commission found that the teacher's off-duty comments denigrated the faith and belief of Jews and that the school board which employed the teacher was guilty of discrimination by failing to meaningfully discipline him. The commission directed the school board to comply with the following: (a) place Ross on a leave of absence without pay for a period of 18 months; (b) appoint him to a non-teaching position, if one became available during that period; (c) terminate his employment at the end of that period if, in the interim, he had not been offered and accepted a non-teaching position; and (d) terminate his employment with the school board immediately if he published or wrote anti-Semitic materials or sold his previous publications any time during the leave of absence period or at any time during his employment in a non-teaching position. The Court of Queen's Bench allowed the teacher's application for judicial review in part, ordering that clause 2(d) of the order be quashed on the ground that it was in excess of jurisdiction. The court also concluded that paragraph 2 of the order violated ss. 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms but that, with the exception of clause 2(d), it could be saved by s. 1 of the Charter. The Court of Appeal dismissed the cross appeals with respect to clause 2(d), and allowed the teacher's appeal, holding that clauses 2(a), (b) and (c) of the order infringed Ross' freedom of expression and freedom of religion, and could not be justified under s. 1. The Supreme Court of Canada allowed the appeal and clauses 2(a), (b) and (c) of the order were restored.

¶ 46      The decision of the Supreme Court of Canada is of importance as it raises two general issues in relation to the standard of judicial review. The first relates to the standard of deference to be applied to the Commission's finding of discrimination and its remedial order. The second relates to the standard of constitutional review to be applied to the Board's order.

¶ 47      With respect to the administrative law issue, the superior expertise of a human rights tribunal is confined to fact finding and decision making in the context of human rights and therefore, reasonableness is the test for judicial review. However, if the issue is one of law, the standard of review is one of correctness.

¶ 48      In other words, the appropriate standard of review by a superior court of a factual determination is whether the decision is patently unreasonable. La Forest J., in Ross, stated at p. 847:

¶ 49      Where a human rights commission is required to interpret laws of general application, the correctness test applies. In the Supreme Court of Canada decision in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, which was cited with approval in Ross, La Forest J. stated at p. 585:

¶ 50      The Supreme Court of Canada's decision in Ross concerning "jurisdictional facts" has extended the deference provided to a human rights commission to include not only the "jurisdictional facts" upon which the legal question is decided, but also the legal question itself. This proposition was asserted by La Forest J., speaking for the unanimous full court at p. 849:

Harassment

¶ 51      The City contends that during the hearing of this matter, and later, in its written submissions, the Commission took the position that harassment was no longer an issue being pursued in the proceedings, with the result that the City presented limited evidence on the issue of harassment.

¶ 52      There is merit to this submission. This is reflected in the memorandum of law filed by the Commission. The following extract from the memorandum states:

¶ 53      It was confirmed on the record that Mr. Kivela is not independently represented by legal counsel and he therefore will be relying on representations made by counsel for the Commission.

¶ 54      This ground of appeal is therefore allowed.

Accommodation

¶ 55      The leading case regarding the principle of accommodation is Ontario (Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 ("Simpson Sears"). In that case the appellant was required by her religion to not work from sundown Friday to sundown Saturday. However, her employer required all full-time employees to share in the work during the busiest times of the week: Thursday evenings, Friday evenings, and all day Saturdays. The appellant was informed that she would be allowed to work Monday to Thursday. But if she did so she would lose her status of being a full-time employee and consequently she would lose the benefits accruing to full-time employees. The Supreme Court held that Simpson-Sears' policy had a discriminatory effect on the appellant. Therefore it was required to attempt to accommodate her. As Simpson-Sears had failed to take any accommodating steps, and had not established that any accommodation would result in undue hardship, the violation was established.

¶ 56      In Simpson Sears the court held that an employment rule, honestly made for sound economic and business reasons and equally applicable to all to whom it is intended to apply, may nevertheless be discriminatory if it affects a person or persons differently from others to whom it is intended to apply. The intent to discriminate is not a governing factor in construing human rights legislation aimed at eliminating discrimination. Rather, it is the result or effect of the alleged discriminatory action that is significant. The aim of the Ontario Human Rights Code is to remove discrimination-its main approach is not to punish the discrimination but to provide relief to the victim of discrimination.

¶ 57      In a case of adverse effect discrimination, the employer has a duty to take reasonable steps to accommodate short of undue hardship in the operation of the employer's business. There is no question of justification because the rule, if rationally connected to the employment, needs none. If such reasonable steps do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part, must sacrifice either his religious principles or his employment.

¶ 58      The complainant first must establish a prima facie case of discrimination. The onus then shifts to the employer to show that he has taken such reasonable steps to accommodate the employee as are open to him without undue hardship. Here, the employer did not discharge the onus of showing that it had taken reasonable steps to accommodate the complainant.

¶ 59      In Simpson Sears, the court established two important concepts: 1) that intent to discriminate is not a requisite element of a finding of discrimination, and 2) that what is important is whether there is adverse effect discrimination. McIntyre J. states at pp. 549-550:

And at pp. 551-552:

¶ 60      McIntyre J. went on to describe the duty of an employer to accommodate short of undue hardship. He states at p. 555:

And at pp. 558-559:

¶ 61      I agree with the Commission that in effect, the seniority system prevented a person such a Mr. Kivela from ever getting a permanent position, without accommodation, by giving priority to all those who could work more hours or gain permanent status by being flexible enough to work at the wide range of positions that the City had to offer. Mr. Kivela could never take advantage of this reward system because he could only bid into truck driver positions.

¶ 62      The City and CUPE were too late in developing their plan. The plan was conceived in early 1999, to be executed when Mr. Kivela reached the top of the seniority list, probably in about 2000. But, by this time Mr. Kivela was no longer able to work.

¶ 63      Had the impact of the seniority system on Mr. Kivela, because of his disability, been properly taken into account, he would probably have achieved permanent status before 1996 when a number of those who passed him did. And certainly he would have achieved this status prior to his last day of actual work in  November of 1998. Mr. Kivela was faced with a compound problem. He needed to be accommodated in the process for becoming permanent. And, in assessing the appropriate time to do this, the City and CUPE needed to take into account that Mr. Kivela was lower on the seniority list than he ought to have been.

¶ 64      Here, the characterization of the order of the Tribunal is not to direct that Mr. Kivela be given a permanent position despite the seniority rights of others. It is to give Mr. Kivela the benefits he would have had if his seniority had accrued in a non-discriminatory manner. It is true that the Tribunal suggests that Mr. Kivela could have been accommodated in 1996 by giving him a permanent position. But this is only because it was reasonable to assume that Mr. Kivela could have been entitled to a permanent position by that time. It would have been equally acceptable if Mr. Kivela's seniority had simply been readjusted to take into account the decline in his seniority position.

¶ 65      It is not without significance that CUPE admitted that the seniority provisions in the Collective Bargaining Agreement did, in fact, discriminate. However, it denied liability for any period prior to 1996 because it was not aware of the problem prior to that date. I agree with counsel for the Commission that whether CUPE did or did not have knowledge is irrelevant. The breach occurs as soon as there is discrimination. The employer and CUPE are jointly responsible where a collective bargaining agreement that they negotiated is discriminatory. In Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Supreme Court of Canada decided that in organized workplaces the responsibility for discrimination that results from the operation of a collective bargaining agreement rests not only with the employer but also with the union. At p. 989, Sopinka J. states:

¶ 66      In my opinion CUPE is jointly responsible for the seniority provisions in the Collective Bargaining Agreement. As soon as the employer and/or the union contribute to adverse effect discrimination, the violation has occurred. For either the union or employer to avoid liability they must discharge their duty to accommodate. If the actions of the employer and/or union have a discriminatory effect on the employee, to avoid liability they must take steps to accommodate. Sopinka J. also described further, the extent of the duty at pp. 984-985:

And he then went on, at pp. 991-992, to describe what that meant to the union:

¶ 67      In my view, the problem Mr. Kivela faced in respect of seniority should have been remedied at an earlier date to avoid discrimination.

¶ 68      I agree with the Tribunal that although all of the accommodations made for Mr. Kivela by the City and CUPE were reasonable, the accommodations did not rectify the cumulative negative impact upon Mr. Kivela of having the seniority provisions apply to him for almost the duration of his employment. The cumulative effect continued to impact on Mr. Kivela's ability to obtain permanent employment until he left his employment.

¶ 69      As to undue hardship, some of the factors include financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. One must balance these factors against the right of the employee to be free from discrimination. (See Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489).

¶ 70      Therefore, the next question to determine is whether the City and CUPE accommodated Mr. Kivela up to the point of undue hardship. It is clear that an employer and/or union must take reasonable measures short of undue hardship to accommodate Mr. Kivela. It is critical to underscore that the City and CUPE did not contend that the accommodation made in 1996 altering the seniority provisions of the Collective Bargaining Agreement were an undue hardship. By way of analogy, would it have been undue hardship to implement the 1996 provision earlier or when the cumulative negative impact of the seniority provisions were realized to implement them retroactively?

¶ 71      Here the Tribunal's finding that there was no undue hardship is supported by the evidence. According to the evidence there are approximately 1,400 casual and permanent positions. Moving Mr. Kivela up the seniority list would have relegated certain union members in a large bargaining unit by one, which is insignificant. If this occurred, although Mr. Kivela would obtain the next permanent position, this would not be in disregard of the rights of other employees. Neither the City nor CUPE presented any evidence that would establish that a retroactive adjustment itself would create an undue hardship in the context that it would cause the seniority list to become unmanageable or ambiguous. It is not without significance that even if the membership of CUPE opposed the placing of Mr. Kivela into a permanent position, this by itself, does not justify a finding of undue hardship.

¶ 72      Furthermore, the fact that Mr. Kivela was accommodated a number of times by ignoring the seniority rights of employees with no apparent hardship, neither the City nor CUPE attempted to establish before the Tribunal that the accommodation they had already engaged in produced hardship.

¶ 73      I therefore conclude that Mr. Kivela has established a prima facie case of discrimination against both the City and CUPE. The onus then shifts to the City and CUPE to show that they have taken such reasonable steps to accommodate Mr. Kivela as are open to them without undue hardship. Here the City and CUPE did not discharge the onus of showing that they had taken reasonable steps to accommodate Mr. Kivela. Both the City and CUPE are jointly liable. I therefore agree with the decision of the Tribunal in this regard.

Termination

¶ 74      The City and CUPE contend that the Tribunal erred in law in failing to recognize the legal significance of Mr. Kivela's resignation from his employment. As an answer to this ground of appeal the Tribunal made the following findings of fact:

¶ 75      I take comfort in the comments of LaForest J. in the decision of the Supreme Court of Canada in Canada (Attorney General) v. Mossop, supra, in which he stipulated that the fact finding expertise of human rights tribunals should be restrictively interpreted. He then went on to say at p. 849 that:

¶ 76      The authorities relied on by the City and CUPE to support their submissions can be characterized as a claim for wrongful dismissal. Here, the Tribunal was dealing with complaints of discrimination. The authorities relied on are clearly distinguishable. The mandate of the Tribunal once a finding of discrimination is made is to determine what losses are caused by the discriminatory conduct. Here, the Tribunal made such a finding and that is within its jurisdiction. I agree with the Tribunal that the purpose and intent of the Code is to put a complainant back in the position he would have been if the contravention had not occurred.

¶ 77      Here, the Tribunal is exercising a statutory authority. Therefore the question to determine is whether the violation is substantiated and what damages flow from that violation.

¶ 78      In my view, there is no merit to this ground of appeal.

What is the Legal Effect of Delay of a Complaint Under the Code?

¶ 79      The right of a complainant to file a complaint comes from the Code and not Commission policy. The right is based on reasonable grounds under s. 27.

¶ 80      Here the Tribunal found that the violation of the Code had an ongoing effect. I also am of the view that the implementation and mechanics of the seniority system was easily identifiable from the Collective Bargaining Agreement since 1982. In terms of what positions Mr. Kivela, in view of his condition was able to do, most of the witnesses who testified before the Tribunal were employed by the City for many years and were very knowledgeable as to all material facts and therefore the City and CUPE were not deprived of procedural fairness. This ground of appeal fails.

Damages

¶ 81      As to damages, the tribunal made the following statement:

¶ 82      During oral argument on the appeal the parties concentrated on liability and there was a paucity of submissions on damages. I therefore will permit the parties, if they cannot settle the quantum of damages, to refer that issue to the Tribunal. After that has been done and the Tribunal makes a decision, the parties have leave to refer the matter to the Court of Queen's Bench and I will therefore retain jurisdiction.

¶ 83      For all the above reasons, the appeals by the City and CUPE on liability are therefore dismissed. Costs may be spoken to.

BARCLAY J.

[1]      On p. 2, para. [1], the words "and Canadian Union of Public Employees Local No. 21 ("CUPE")" should appear following the words (the "City"). Paragraph [1] in the original judgment should therefore read:

QL UPDATE:  20041006
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