Case Name:
Regina (City) v. Kivela

Between
The City of Regina and Canadian Union of Public
Employees Local 21, appellants, and
Gary Wayne Kivela and Saskatchewan Human Rights
Commission, respondents

[2006] S.J. No. 195
2006 SKCA 38
Docket: 1038 (1028)

Saskatchewan Court of Appeal
Sherstobitoff, Lane and Smith JJ.A.

Heard: December 16, 2005.
Judgment: April 5, 2006.
Reasons: April 5, 2006.
(83 paras.)

Administrative law — Judicial review and statutory appeal — Deference to expertise of decision-maker — Appeal by City and union from dismissal of appeal from human rights tribunal's decision awarding damages to disabled employee who had resigned allowed in part — Tribunal's factual determinations were reasonably founded in the evidence and the tribunal made no error in its remedial award — Chambers judge erred in not instructing the tribunal to reconsider its award for injured feelings in light of the finding that it had no jurisdiction to take into account any allegations of harassment.

Employment law — Workplace discrimination — Defences — Undue hardship — Duty of reasonable accommodation — Appeal by City and Union from dismissal of appeal from human rights tribunal's decision awarding damages to disabled employee who had resigned allowed in part — Tribunal did not err in finding that City and union had failed to accommodate employee to the point of undue hardship.

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 City and Union from dismissal of appeal from human rights tribunal's decision awarding damages to disabled employee who had resigned allowed in part — Tribunal did not err in finding that employee's resignation was of no significance to its finding of discrimination or to the remedies — Chambers judge erred in not instructing the tribunal to reconsider its award for injured feelings in light of the finding that it had no jurisdiction to take into account any allegations of harassment.

Appeal by the City of Regina and the Canadian Union of Public Employees (CUPE) from the dismissal of their appeal from a human rights tribunal's decision awarding damages to Kivela under the Saskatchewan Human Rights Code on the grounds that he had been discriminated against while employed by the City as a truck driver. Kivela claimed that as a result of his disabling cerebral palsy he was denied a permanent position and was kept on casual status for 15 years. Suffering from stress and depression, he ultimately resigned from his position to access his pension plan. The tribunal held that but for discrimination based on disability, Kivela would have been awarded a permanent position by the end of 1998 and that the discrimination made him unable to continue in the City's employment after 1998. The tribunal also concluded that Kivela had suffered discrimination as a result of harassment involving derogatory comments made by co-workers. On appeal, the Chambers judge held that the City was not responsible for harassment against Kivela. However, the Chambers judge also found that the City did not discharge the onus of showing that it had taken reasonable steps to accommodate Kivela. Although the City and CUPE 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 it took.

HELD: Appeal allowed in part. The Chambers judge erred in not instructing the tribunal to reconsider its award for injured feelings in light of the finding that it had no jurisdiction to take into account any allegations of harassment. However, the tribunal did not err in finding that the City and CUPE had failed to accommodate Kivela to the point of undue hardship. The central incident of discrimination identified by the tribunal was not the failure to give Kivela a permanent position in response to his repeated complaints, but the failure to adequately correct the fact that the seniority provisions were operating in a way that systemically discriminated against Kivela. The tribunal did not err in its determination that Kivela's resignation was of no significance to its finding of discrimination or the remedies. Voluntary resignation did not bar the grievor's right to arbitral remedies under the Code. The question for the tribunal was not whether the resignation was valid, but whether the discrimination caused Kivela's resignation and whether, but for the discrimination, Kivela would have continued in his employment with the City. There was no error in the tribunal's treatment of the effect of Kivela's resignation on his claim for compensation. The factual determinations of the tribunal were reasonably founded in the evidence before it, and the tribunal made no error in its general approach to the remedial award.

Statutes, Regulations and Rules Cited:

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, ss. 16, 31.3, 32(1), 32(5)

Workers' Compensation Act, 1979, S.S. 1979, c. W-17.1

Counsel:

Gail Wartman for the City of Regina

Peter J. Barnacle for Canadian Union of Public Employees Local 21

Milton C. Woodard, Q.C. for Saskatchewan Human Rights Commission Gary Wayne Kivela, in person

The judgment of the Court was delivered by

¶ 1 SMITH J.A.:— In November 2000, Gary Kivela filed complaints under Part II of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the "Code") against the City of Regina, his former employer, and subsequently against the appellant Union, alleging that the City and the Union had discriminated against him when he was employed by the City as a truck driver. The principal allegation was that the discrimination related to his being denied a permanent position as a truck driver with the City. The complaint was upheld in a decision of Roger J. F. Lepage, sitting as a tribunal pursuant to the Code, who found that, but for discrimination based on disability, the complainant would have been awarded a permanent position by the end of 1998 and that the discrimination had caused the complainant to be unable to continue in the City's employment after 1998. A number of remedies were ordered, including compensation for lost wages for the five years from 1999 to 2003, re-employment with the City in a permanent position when one became available, and compensation for monthly wage loss in the meanwhile. He was also awarded interest on the damages for wage loss, a "gross up" to compensate for any additional tax liability, and damages of $10,000 as compensation for injured feelings. The City and the Union were also ordered to amend seniority standards and division of boundary standards in the collective agreement to prevent systemic discrimination against persons with disabilities.

¶ 2 The City and the Union appealed that decision to the Court of Queen's Bench, where the appeal was dismissed. The City and the Union have now appealed the decision of the Court of Queen's Bench dismissing their appeal from the decision of the tribunal.

Background Facts

¶ 3 Gary Kivela suffers from a serious physical disability, cerebral palsy. The tribunal award described his affliction as follows:

... 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.

¶ 4 Remarkably, despite this severe disability, Mr. Kivela obtained the qualifications to drive a truck and became, from all accounts, an excellent truck driver. In 1982 the City of Regina hired Mr. Kivela as a casual bargaining unit employee to drive a truck. The City and the appellant Union are parties to a collective agreement. The hiring of Mr. Kivela required the parties to relax certain provisions of the agreement, for truck driving positions were highly coveted positions and were normally reserved for permanent employees who had sufficient seniority to outbid competitors for these jobs. Permanent positions, in turn, were awarded largely on the basis of seniority acquired by casual employees. The compromise granted by the agreement of the City and the Union was to permit Mr. Kivela to drive a truck even though he was only employed in the normal entry position as a casual employee. Casual employees could eventually become permanent employees, but, because casual work was normally seasonal, and many City employees were casual seasonal workers, it normally took many years for a casual employee to accumulate sufficient seniority to win a permanent position.

¶ 5 Other accommodations were also made for Mr. Kivela. There were some adaptations to the truck he drove and some maintenance responsibilities which normally accompanied the position of truck driver were performed by other workers. In the early years, because Mr. Kivela could not perform the type of manual labour performed by most casual employees, there was risk that he could not accumulate sufficient hours before seasonal lay-off to qualify for employment insurance. In these cases, the parties again agreed to relax provisions of the collective agreement to provide him with enough additional hours of work to qualify for that benefit.

¶ 6 Mr. Kivela was never satisfied with the extent of these accommodations. He was fiercely and justifiably proud of his qualification as a truck driver and felt that he deserved a permanent position. At the time that he was hired by the City, he would have preferred a contract with the City that permitted him to use his own truck and guaranteed a certain amount of work. This was not possible due to restrictions on the method whereby City contracts were awarded. It was the City which suggested that he accept employment as a casual employee, with special accommodation under the collective agreement to permit him to work as a truck driver, in what has been acknowledged as an innovative and progressive attempt, in 1982, to accommodate Mr. Kivela's disability.

¶ 7 Throughout his employment with the City, which continued up until 1999, Mr. Kivela was a member of the Union. However, from the outset Mr. Kivela made it clear that he wished to be a permanent employee, rather than a casual employee, and that he did not feel that he should be restricted by the provisions of the collective agreement that required him to accumulate significant seniority along with other casual employees in order to obtain permanent status. He rarely communicated with the Union, but communicated his position directly to senior City management, to City Council, and, on occasion, to the press. His repeated delegations to City Council to argue his position began in the fall of 1983. His requests for a position based on "affirmative action" were repeatedly considered by City management, which concluded each time that Mr. Kivela's options were to continue as a casual employee and gain more seniority in accordance with the collective agreement for the opportunity to obtain permanent status when positions became available, or resign from the City, become an independent trucker, and attempt to obtain contracts with the City in competition with other independent truckers. It was also suggested that Mr. Kivela endeavour to gain experience with other equipment which could potentially extend his hours of work and chance of recall during the winter months.

¶ 8 In 1996 the City and the Union realized, for the first time, that casual employees hired after Mr. Kivela were beginning to pass him on the seniority list and some had managed to obtain permanent status. Officials of the City and the Union met to discuss the problem in June 1996. They concluded that the reason Mr. Kivela was being bypassed on the seniority list was that, due to his disability, which prevented him from accepting hours of work involving manual labour, he was in fact accumulating fewer hours than other casual employees who might be recalled earlier for work that Mr. Kivela could not perform. The City and the Union, acknowledging that, for these reasons, the seniority provisions of the collective agreement were working in a way that discriminated against Mr. Kivela on the basis of his disability, addressed the problem by agreeing that, effective April 1, 1996, Mr. Kivela would be credited with seniority hours from the point in time in which his spot on the seniority list was recalled, even if he was unable to accept the work offered. This would ensure that he maintained his then current position on the seniority list despite the limitations imposed by his disability. In addition, in the fall of the same year, the Union and the City further agreed that, in order to increase Mr. Kivela's opportunity to accumulate hours toward seniority, so that he could acquire a permanent position sooner, he would be allowed to "cross boundaries" (accept work in other departments), without regard to restrictions in the collective agreement that applied to other employees. It was also understood that once Mr. Kivela obtained a permanent position, he would be allowed to continue to drive a truck, and would not have to bid competitively for such a position with other permanent employees.

¶ 9 Mr. Kivela loved being a truck driver and was fiercely proud of his professional qualifications and status, and of the fact that, despite his disability, he was able to support himself. The physical demands of the work also helped him remain physically fit, staving off the muscle deterioration that would otherwise have resulted. However, by 1998 he was becoming increasingly anxious and depressed about his work situation. Because of his disability his work was challenging but also exhausting. There is evidence that he feared that the tandem truck he drove was being phased out by the City and he claimed that he was never informed about the 1996 agreements to protect his seniority status and allow him to accumulate extra hours. He always believed that the collective agreement between the City and the Union was irrelevant to his situation and, from the outset of his employment, he saw his inability to achieve permanent status as discriminatory.

¶ 10 In November 1998 Mr. Kivela refused to accept an assignment to work in the Water Works department. For two days he had been hauling crushed concrete in circumstances that were physically exhausting to him, but on the third day of this job he had been told that his truck was too small and he would be reassigned. He was upset at the suggestion that his truck was too small, as he had been doing the work for two days and already feared that work with the tandem truck was being reduced. He felt his exhausting physical efforts were not appreciated. There had been an earlier incident when he was sent to work in the Water Works department. These employees were not familiar with Mr. Kivela's work and feared that his driving created a danger. They refused to work with him and he was sent home for two weeks, with pay. City officials intervened and the matter was resolved, but Mr. Kivela did not want to return to work in that department. In the result, on this day (as it turned out, his last day of work), he was exhausted, angry and frustrated. He refused the assignment to the Water Works department and went home.

¶ 11 This incident occurred only a few days before the already scheduled seasonal lay-off, and, like at least one other incident in which he had left work in anger and frustration, it was ignored by his employers, who took no disciplinary action. In December, Mr. Kivela wrote to the mayor and Council, the Union, his supervisor, Mr. Faul and other members of administration in Public Works setting out a number of criticisms and demands. It is useful to set out this letter to indicate the nature of the relationship in place:

	Dec 11th, 1998
	To the Honourable Mayor, Doug Archer, Mayor's office, City Hall, Regina.
	To the mayor and members of council, local 21 CUPE, To Kevin Faul, Bill Cronin, Bill Acorn, and Bob Forbes.
	I am under Doctor's care for stress and depression.
	This is my first major use of time off for health or any other reason in the eighteen years that I have driven specially equipped tandems for the city of Regina. I want to submit a list of requests and I ask that they be dealt with when I am able to return to work.
	The first request concerns the series of decisions that have been made to exclude tandems including my specially equipped unit from hauling gravel, sand, snow, asphalt, slag, sweepings, grade haul and planer operations. I worked very hard hauling and weighing loads on Nov. 9 and 10. This required me to climb out and into the cab 48 times a day. When I returned expecting to go back on the same haul after Nov 11th, I learned that no more tandems were to be used. I was angry and exhausted. My doctor advised me to use my sick days and to apply for compensation. Now I want to ask you to use this time to respond to my needs and my requests.

Get back to the spirit of the agreement worked out with myself and CUPE 21 in 1982 that one specially equipped tandem gravel truck be used by myself in hauling the above listed material.

2. Prepare for my return to work, a. A winter parking
space with a handicap parking sign for my half ton, and

b.		A spot fixed up for the city tandem inside the garage with a handicapped sign and non slip steel grid as at the asphalt tower for 3 feet around the sides and back of the space.
c.		Appoint two garage employees so that one or the other is available to look after the truck in the way this was done during the first eight years of my employment.
d.		Assign the truck #13108 for my use only so that I can keep its seats, windows and mirrors properly adjusted, clean and nice.
3.		Install two pair of bigger vibrators to shake the load loose.
4.		I am willing to work with waterworks if their attitude changes toward me.
5.		I want to go back to haul any materials that need hauling: gravel, sand, snow, asphalt, slag, sweepings, grade haul, and planer operations.

	I am still waiting for an adequate response to my earlier letters. These include a supertruck proposal and 4 requests in my April 1998 letter. In it I asked for 2000 hrs of work or cash equivalent, permanent staff, 4 weeks sick days and 4 weeks holidays. I put no limit on my willingness to work as many hours as can be scheduled by the city.
	Yours truly,
	"G. Kivela"

¶ 12 The City attempted to respond to these concerns in a letter of February, 1999, as follows:

	February 5, 1999 File No. ...
	Dear Mr. Kivela:
	I have been asked to respond to your letter addressed to Mayor Archer, December 11, 1998. As you are aware, I am responsible for administration of the Accommodation Policy, therefore, my response is made from that perspective, as well as our meeting January 20, and a meeting between Bill Aldcorn, Bob Forbes, Kevin Faul, Warren Bobbee, and myself January 27. Copies of the Accommodation Policy and the revised version of the Anti-Harassment Policy are enclosed for your reference.
	Your requests are in italic print followed by my response:

Get back to the spirit of the agreement worked out with myself and CUPE 21 in 1982 that one specially equipped tandem gravel truck be used by myself in hauling the above listed material.

	Response:
	Employment as an equipment operator work will be assigned to you according to your ability to do the work and seniority as per Schedule "B" of the CUPE Local 21 Collective Agreement. You will receive written instructions related to your work assignment. We require that you provide us with information related to the equipment you are able to operate and the accommodations you require to operate equipment. You may be assigned to work in Water and Sewer and/or may be assigned to drive the sign truck.

Prepare for my return to work:

A winter parking space with handicap parking sign for my half ton.

	Response:
	A winter parking space adjacent to the transit garage will be designated for persons with disabilities and will be available for your use.

A spot fixed up for the city tandem inside the garage with a handicapped sign and non slip steel grid as at the asphalt tower for 3 feet around the sides and back of the space.

	Response:
	A space inside the garage will be designated and assigned for tandem truck #13108 in the winter. Public Works will approach Support Services to explore the options for creating a non-slip surface. I will consult with the Access Committee, Facilities Subcommittee on this matter.

Appoint two garage employees so that one or the other is available to look after the truck in the way this was done during the first eight years of my employment.

	Response:
	A member of the work crew will be assigned on each of your shifts to complete aspects of the circle check that you are unable to perform. Servicing/repairs to the vehicle you are operating will be coordinated between the Roadways Supervisor and the Garage Supervisor, who will determine the priority of all work in the garage. If the repairs/servicing to the vehicle you are operating can be completed that same day, the time spent waiting will be considered paid time or alternative duties will be assigned.

Assign the truck #13108 for my use only so that I can keep its seats, windows and mirrors properly adjusted, clean and nice.

	Response:
	It is not possible to meet this request. Members of the crew you are working with will be assigned each shift to clean and service the vehicle you will be operating.

Install two pair of bigger vibrators to shake the load loose.

	Response:
	Public Works will determine the effectiveness and feasibility of installing larger vibrators. Members of your crew will clean the truck box of the vehicle you are operating.

I am willing to work with waterworks if their attitude changes toward me.

	Response:
	The City of Regina is committed to providing a safe, positive work environment where everyone is treated with dignity and respect. The City of Regina does not condone and will not tolerate any form of harassment in the workplace. Any incidents of harassment must be reported in accordance with the Anti-harassment Policy.
	All employees in Public Works will receive mandatory Anti-harassment training in 1999. Employees in Roadways will receive Anti-harassment training prior to your return to work.

You must be prepared to accept work in all divisions, as assigned.

I want to go back to haul any material that needs hauling: gravel, sand, snow, asphalt, slag, sweepings, grade haul, and planer operations.

	Response: See response to item #1
	In addition, the loads that you are assigned to haul will be estimated rather than weighed at scales located at the landfill and St. John Yard to decrease the number of time you are required to climb in and out of the cab of the vehicle you are operating.
	In regards to the final paragraph of your letter where reference is made to previous letters and requests related to hours of work, permanent staff, sick leave and holidays, you are advised to direct these requests to your CUPE representative.
	Please contact me at 777-7707 if you have any further questions or comments.
	Yours truly, "Paula Doyle"
	Paula Doyle Employment & Development Officer

¶ 13 Meanwhile, Mr. Kivela was receiving medical treatment for depression and stress. When spring recall began in the spring of 1999, he was unable to return to work. He attempted to obtain benefits under The Workers' Compensation Act, 1979, S.S. 1979, c. W-17.1 for his stress, but these were denied, the Board taking the position that he had not established that the stress from which he suffered was caused by his work. Mr. Kivela decided in May 1999, to resign, so that he could access a portion of his locked in pension. It is clear that he felt unable to return to work at that time. A member of the staff in Human Resources encouraged Mr. Kivela to rethink his decision, assuring him that further accommodations were being made and it was likely a permanent position would soon be available for him. However, Mr. Kivela resigned, effective May 20, 1999.

¶ 14 Mr. Kivela filed his complaint with the Saskatchewan Human Rights Commission against the City of Regina on November 3, 2000 and against the Union on September 21, 2001. The tribunal decision is dated October 10, 2003. The complaint against the Union read as follows:

	I have a disability, Cerebral Palsy. I was employed as a truck driver by the City of Regina from July 1982 until November 12, 1998 during which time I was a member of the Canadian Union of Public Employees, Local 21.
	During my employment, I was denied a permanent position. I was kept on casual status for more than 15 years, which was highly unusual. I was also paid less than other workers doing the same work. I raised my concerns with my union but they did not represent my interests or bargain fairly on my behalf. I believe my disability was a factor in their inaction.
	I have reasonable grounds to believe, and I do believe, the Canadian Union of Public Employees (CUPE) Local 21 discriminated against me in regard to employment because of my disability, contrary to Section 18 of The Saskatchewan Human Rights Code.

¶ 15 The similar complaint against the City read as follows:

	I have a disability, Cerebral Palsy. I was employed as a truck driver by the City of Regina from July 1982 until November 12, 1998.
	During my employment, I was discriminated against by the City of Regina. For example, for the first three or four years I was paid $5.00 less per hour than others doing the same job. I was kept in a casual position as long as I was there, even though people who started after me moved on to permanent positions. I believe the City of Regina could have accommodated me in a permanent position by giving me duties I could perform along with driving truck. In 1998, I left my employment because of this discrimination.
	I have reasonable grounds to believe, and I do believe, the City of Regina discriminated against me in the terms and conditions of my employment because of my disability, contrary to Section 16(1) of The Saskatchewan Human Rights Code.

II.

The Tribunal Decision

¶ 16 In its decision the tribunal recounted the facts, generally as I have outlined them above, and made a number of crucial findings.

¶ 17 First, it was noted that throughout his employment with the City Mr. Kivela was paid 4% less than his assigned pay scale as a casual employee because there were certain jobs in relation to his truck driving duties, such as vehicle inspection, that he was unable to do and that were therefore done by other employees. During the hearing, the City acknowledged that this wage differential was inappropriate and compensated Mr. Kivela in the amount of $8,902. The tribunal found that the wage differential constituted direct discrimination contrary to s. 16 of the Code.

¶ 18 The tribunal next addressed the operation of the seniority provisions in the collective agreement as they affected the situation of Mr. Kivela, concluding as follows:

16.		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. ...
17.		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. The usual way casual employees became permanent tandem truck drivers was to bid into other permanent positions, then when the next permanent tandem 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 other permanent jobs.
18.		Only after Mr. Kivela's endless attendances upon the City requesting and demanding he be made a permanent employee were actions taken to maintain his spot 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 1st, 1996, Mr. Kivela was credited with seniority hours from the point in time in which his spot 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.
19.		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.

¶ 19 The tribunal then turned to consider whether the seniority provisions in the collective bargaining agreement, as applied to Mr. Kivela, constituted discrimination within the meaning of the Act. Citing British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 (the "Meiorin" decision), the tribunal considered that it should determine, first, whether the complainant had established a prima facie case of discrimination. If so, it should then consider whether the discriminatory standard is a bona fide occupational requirement ("BFOR"). This would require the employer to establish that the standard was adopted for a purpose rationally connected to the performance of the job, that it was adopted in an honest and good faith belief that it was necessary to the fulfillment of that work related purpose, and that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To satisfy the last requirement, the employer must show that it was impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

¶ 20 The tribunal found that a prima facie case of discrimination had been established, in that the seniority system embedded in the collective agreement worked to Mr. Kivela's disadvantage because of his disability. In effect, because his ability to perform manual labour was limited by his disability, he was not an equal participant in the system. He could not obtain extra hours of work and would on occasion be unable to work when, by virtue of his position on the seniority list, he should have been recalled. In this case, the fact that other casual employees were overtaking and passing Mr. Kivela on the seniority list was seen as evidence that the provisions had an adverse impact upon him.

¶ 21 The analysis then turned to whether the employer and Union had met the test for a BFOR. The tribunal accepted that in general the seniority system set out in the collective agreement had some relation to job performance and that it was adopted honestly and in good faith as an objective way to measure job performance.

¶ 22 The next question was whether the City and the Union had met their duty to accommodate to the point of undue hardship. The tribunal recognized the importance of the role of seniority provisions in collective agreements, but cited a number of authorities to the effect that the existence of such provisions does not alleviate the duty to accommodate to the point of undue hardship when such provisions have a disproportionate impact upon workers not able to perform work due to disability. The question was therefore whether it was in this case impossible for the standard to accommodate individual employees sharing the characteristics of Mr. Kivela without undue hardship.

¶ 23 The tribunal noted the many ways in which the City and the Union had, in fact, accommodated Mr. Kivela, and, in particular, the accommodations made in 1996 to ensure that Mr. Kivela would no longer lose seniority but would move up the list according to the employee directly below him on the seniority list, and to allow him to cross boundaries to obtain more hours of employment. It then commented:

95.

... I find that all of the accommodations made for Mr. Kivela by the City and CUPE were reasonable. However, these accommodations did not rectify the cumulative negative impact upon Mr. Kivela of having the seniority provisions apply to him for most of his employment. This cumulative effect continued to negatively impact Mr. Kivela's ability to obtain permanent employment up until the time he left his employment.

¶ 24 The tribunal concluded that, because the accommodations that had been made by way of adjustments to the requirements of the collective agreement were clearly possible and did not constitute an undue hardship, the appellants had failed to establish that it would have caused undue hardship to implement the 1996 arrangements earlier, "or when the cumulative negative impact of the standard seniority provisions was realized, to implement them retroactively and put Mr. Kivela into the next available permanent truck driving position." [para. 96] The tribunal held that a retroactive application of the 1996 accommodation would simply have been a matter of ensuring that Mr. Kivela's place in the seniority list was not adversely affected by his disability.

¶ 25 The appellants argued before the tribunal that Mr. Kivela had resisted efforts by the City to find additional employment for him because he did not want to do any other work except for driving a truck, and did not want to work in any department except for Roads. The tribunal rejected these arguments, finding as a fact that Mr. Kivela had acted reasonably in refusing to take one job offered (to drive a sign truck) and in refusing on the one occasion to return to Water Works. It was found, as well, that, in general, there were no other jobs that Mr. Kivela could do, and that no other jobs were offered to him:

109.

... Neither the City nor CUPE put forward any evidence to show that other heavy equipment utilized by the City could or could not be modified to meet Mr. Kivela's physical limits, or that alternative job opportunities were canvassed with Mr. Kivela. The fact that Mr. Kivela only wanted to drive truck is irrelevant. It was not a matter of personal choice. Because of his disability, he could not do anything else.

¶ 26 The tribunal rejected the argument that Mr. Kivela had himself failed to identify seniority as the source of the discrimination and had instead pursued permanent status on the basis of the principle of affirmative action and the existing job equity policy, commenting that there is no general duty on employees to identify the source of discrimination. The duty was on the employer and the Union to ensure that workplace standards did not operate in a discriminatory fashion.

¶ 27 The tribunal concluded:

116.		It is my conclusion that all of the efforts actually made in response to Mr. Kivela, although reasonable, did not deal directly and effectively with his claim that the seniority standards in the collective agreement were discriminatory towards him on the basis of his disability. While not disregarding the efforts of the Respondents going to great lengths to accommodate Mr. Kivela, I agree with the Human Rights Commission that their efforts of accommodation were "too little, too late" to reverse the systemic discrimination experienced by Mr. Kivela over the years. While reasonable and acceptable, the accommodations do not meet the duty to accommodate short of undue hardship.
117.		In conclusion I find that the City of Regina and the Canadian Union of Public Employees, Local 21 contravened sections 16 and 18(1) of the Code by discriminating against the complainant Mr. Kivela on the basis of his disability. Neither the City nor CUPE established their inability to accommodate Mr. Kivela in obtaining permanent employee status with the City in 16 years, or that their duty to accommodate would cause undue hardship. I also find that the Respondents have not suffered prejudice having regard to the length of time that has passed, as has been suggested. The duty to accommodate is a positive one, and an on-going obligation, imposing on the employer the duty to explore all possible accommodations available to the employee.

¶ 28 In addition to finding that strict application of the seniority provisions resulted in adverse effect discrimination, the tribunal also concluded that Mr. Kivela had suffered discrimination as a result of harassment. This finding related to the incident in Water Works, referred to above, as well as one or two incidents of fellow workers making derogatory remarks, reported by Mr. Kivela in his testimony. This finding raises another issue, because the Commission had indicated to the appellants before the hearing that it was not pursuing allegations of harassment. As a result of this, the learned chambers judge reversed the tribunal on this point, and that determination has not been appealed.

¶ 29 The tribunal then went on to consider the effect of Mr. Kivela's resignation in May 1999 on the remedies he was seeking. It found, as a fact, that at the time of his resignation Mr. Kivela was very depressed and considered himself to be in a dead end job, having no knowledge of any plan in place to ensure that he obtained a permanent position. The tribunal concluded:

123.

... I find that had Mr. Kivela achieved permanent status with the City, he would not have resigned. His resignation was therefore one effect of the discrimination. One of the most important purposes of human rights legislation is to put a person back in the position they would have been in had the contravention not occurred. It would therefore be at odds with this purpose to find that Mr. Kivela's actions in resigning had any significance in terms of the duty to accommodate or the remedies the Tribunal can award. To do otherwise would be to hold that the Respondents' duty to accommodate or Mr. Kivela's entitlement to a remedy are lessened because the discrimination had a particularly negative impact upon him, which is nonsensical.

¶ 30 Relevant to this conclusion, the tribunal also found that there was a causal link between the depression Mr. Kivela was suffering at the time of his resignation and the discrimination he suffered in his employment.

III.

Judgment of the Chambers Judge

¶ 31 The chambers judge identified the main issues on the appeal before him to be the legal relevance of the resignation of Mr. Kivela to his complaints in general, and to his right to certain remedies, and the tribunal's application of law in relation to the duty to accommodate on the evidence before it. There was also the issue of whether, as a matter of natural justice, the tribunal was entitled to make a finding that the City was responsible for harassment against Mr. Kivela. As I have indicated above, on the last point, the chambers judge found in favour of the City, and this decision has not been appealed. The issue of harassment was found not to have been properly before the tribunal. An issue does rise on the appeal before this Court as to whether the learned chambers judge, having found that the tribunal erred in this regard, took that finding into consideration in upholding in their entirety the remedies accorded by the tribunal. I return to this point below.

¶ 32 The chambers judge indicated that the standard of review applicable on an appeal from a human rights tribunal was determined by the Supreme Court of Canada in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 and Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825. He concluded that the standard of review of a tribunal's interpretation of laws of general application was that of correctness, while more deference was owed to findings of fact and "adjudication in a human rights context." (Judgment, at paras. 49-50.) Thus, the standard of review with respect to the tribunal's finding of discrimination and its remedial order was seen to be "reasonableness" and the standard of review with respect to findings of fact was said to be that of patent unreasonableness.

¶ 33 This finding was of little import, in the event, for on a review of the tribunal's decision, the learned chambers judge found that he was in agreement with its important determinations, holding that the seniority provisions in the collective bargaining agreement discriminated against Mr. Kivela on the basis of his disability, that the City and the Union were too late in developing their plan to remedy the situation, that had the impact of the seniority system on Mr. Kivela been properly taken into account he would probably have achieved permanent status before 1996 and certainly prior to his last day of actual work in November of 1998, and that the City and the Union had therefore failed to accommodate Mr. Kivela's disability to the point of undue hardship.

¶ 34 To the Union's argument that prior to the 1996 agreement it was unaware of the discriminatory effect of the seniority provisions of the collective agreement in relation to Mr. Kivela's disability, and should therefore not be held responsible for adverse effects of the provisions which occurred or accumulated prior to 1996, the chambers judge concluded that intention to discriminate was irrelevant to a claim of workplace discrimination. In effect, he agreed with the tribunal that, once the City and the Union became aware that the seniority provisions of the collective agreement were adversely affecting Mr. Kivela by reason of his disability, they had an obligation, to the point of undue hardship, to correct the situation retroactively by putting Mr. Kivela in the position he would have been in, vis-à-vis the seniority list, had the discrimination not occurred.

¶ 35 On the question of the effect to be given to Mr. Kivela's resignation in May 1999, the chambers judge noted the following findings of fact by the tribunal (at para. 74):

*		Mr. Kivela was very depressed and truly perceived himself to be in a dead end job;
*		He had no knowledge of a plan in place where he would become permanent, and honestly believed that he would never become permanent;
*		He resigned only to obtain pay out of his pension contributions;
*		Had Mr. Kivela achieved permanent status with the City, he would not have resigned;
*		His resignation was one effect of the discrimination.

¶ 36 He concluded that, on these findings, which were within the tribunal's jurisdiction, the tribunal properly found that the termination of Mr. Kivela's employment with the City was a loss caused by the discriminatory conduct of the City and the Union in failing to accommodate his disability to the point of undue hardship. He held that the tribunal was correct in concluding that it should accord remedies sufficient to put the complainant back in the position he would have been in if the contravention of the Code had not occurred.

¶ 37 On the question of damages, the chambers judge noted that the tribunal had, at the invitation of the parties, refrained from making a final determination of the quantum of damages, but had retained jurisdiction regarding the calculation of damages should the parties fail to agree. In light of this agreement, coupled with the paucity of submissions on the question of damages before him, the chambers judge also retained jurisdiction with leave to the parties to refer the matter back to him after the tribunal made its final decision.

IV.

Grounds of Appeal and the Positions of the Parties

¶ 38 The Union took the appeal on the following grounds:

(a)		that the learned Queen's Bench Judge erred in interpreting and applying the law on the duty to accommodate to the point of undue hardship. In particular, the learned Queen's Bench Judge erred by disregarding the legal effect of efforts at accommodation made by the Union once the discrimination was identified.
(b)		the Queen's Bench Judge erred in applying the law regarding the effect of the Complainant's resignation.
(c)		the learned Queen's Bench Judge erred in applying the law on damages, and particularly, he failed to take into account the Union's efforts at accommodation and the complainant's resignation.

¶ 39 The City's notice of appeal raised the following grounds:

(a)		That the learned Queen's Bench Judge erred in his application of the law surrounding the appropriate standard of review. In particular, he accorded an undue level of deference to the Human Rights Tribunal's applications of the law and findings of fact. The learned Queen's Bench Judge erred in determining that the findings of fact or absence of facts to support such applications of the law were not patently unreasonable.
(b)		The learned Queen's Bench Judge erred in his interpretation of the law surrounding the duty to accommodate a physically disabled employee to the point of undue hardship. The learned Queen's Bench Judge erred in sustaining an unreasonable onus upon the employer to be responsible for discrimination before it was identified, and to remedy, retroactively, any effects of discrimination. Further, and in the alternative, if retroactive remedy of discrimination was required, the Employer and the Union achieved that by means not adequately considered in the learned Queen's Bench Judge's application of the law surrounding accommodation.
(c)		The learned Queen's Bench Judge erred in law in his analysis of the complainant's resignation. The learned Judge accepted patently unreasonable findings of fact made by the Tribunal, and further, failed to apply the law surrounding resignation correctly.
(d)		Although the learned Queen's Bench Judge allowed the Appellant's ground of appeal based on harassment, he erred in law in failing to take into account how his finding that harassment was not in issue impacted upon the Tribunal's findings regarding accommodation, resignation, and damages.
(e)		The learned Queen's Bench Judge erred in failing to address damages beyond the directions regarding damages in the Tribunal's decision, in particular changes to the Collective Agreement, lost wages and other benefits, interest, reinstatement, and compensation for injured feelings. The learned Judge also failed to consider how the reasonable efforts at accommodation made by the Appellant, and absence of harassment, should, even if liability were sustained, reduce the amount of the damages.

¶ 40 Although many of the issues raised in the two notices of appeal are described as questions of law, or mixed law and fact, many, in my respectful view, are attacks on the reasonableness of the tribunal's findings of certain facts. Taking the City's grounds for appeal first, and setting to one side, for the moment, the question of the appropriate standard of review, it is apparent from the written and oral arguments made that the gist of the complaints is as follows:

(1)

In relation to the tribunal's finding that the City and Union had failed to accommodate Mr. Kivela to the point of undue hardship, the City complains:

(a)		that the tribunal erred in its interpretation of the legal duty to accommodate to the point of undue hardship by placing an unreasonable onus on the employer to be responsible for discrimination that occurred before it could reasonably have been identified and to remedy it retroactively; and
(b)		that the tribunal erred in its conclusion that the remedy provided by the parties in 1996 was inadequate to place Mr. Kivela in the position he would have been in had the seniority provisions not been discriminatory. The City's position is that the parties' agreement to let Mr. Kivela cross boundaries would have given him enough extra hours to qualify for a permanent position much sooner, but this failed to work solely because Mr. Kivela refused to accept other work available to him.

(2)		In relation to the tribunal's treatment of the resignation of Mr. Kivela, although the City argues that the tribunal and the Court below ought, as a matter of law, to have asked, simply, whether Mr. Kivela's resignation was voluntary, its alternative position is essentially that the medical evidence before the tribunal was inadequate to support its conclusion that there was a causal link between the discrimination Mr. Kivela suffered and his stress and depression, which in turn led inevitably to his resignation.
(3)		In relation to the tribunal's finding of harassment, the City argues that the chambers judge, having rightly found that the tribunal had no jurisdiction to make this finding, erred in failing to consider the impact of the finding on the tribunal's conclusions regarding the adequacy of accommodation, the legal effect of the resignation, and damages.
(4)		Finally, the City argues that the chambers judge erred in failing to address certain remedial issues raised in the original notice of appeal.

¶ 41 The Union's argument echoes the first and second of these issues and also complains of the failure of the chambers judge to consider the issue of damages. It is the Union's position that it is not liable for any of the damages relating to the order to reinstate Mr. Kivela to a permanent position, because it has not opposed that order and the failure to reinstate or pay Mr. Kivela since the date of the tribunal's order is solely the responsibility of the City.

¶ 42 With regard to the question of accommodation, the Commission points out that the tribunal found as a fact that the seniority system in the collective agreement was working in a way that discriminated against Mr. Kivela and that the appellants have not challenged this conclusion. The Commission argues that the balance of the objections raised by the appellants constitute attacks on the tribunal's findings of fact, and that these were, in all cases, reasonably supported by the evidence.

Analysis

A. The Standard of Review

¶ 43 The within matter came before the chambers judge by way of appeal from the tribunal decision pursuant to s. 32(1) of the Code, which permits an appeal on a question of law. There is no right of appeal on a question of fact. A further appeal lies to this Court under s. 32(5). The Commission concedes that the standard of review on a question of law is therefore correctness, but argues that this Court has no jurisdiction to review the findings of fact from the tribunal unless these amount to errors of law. This will be the case only in circumstances where the evidence, viewed reasonably, is incapable of supporting the tribunal's finding of fact.

¶ 44 The Commission goes on to argue that the tribunal's adjudication in human rights matters, i.e., its finding of discrimination and its remedial order, are entitled to deference even though these may be questions of mixed fact and law. On such issues the chambers judge found the standard of review to be that of reasonableness.

¶ 45 As I have indicated, in both Ross and Mossop the Supreme Court concluded in the circumstances of those cases that no deference was owed to a human rights tribunal in relation to general questions of law, including questions of statutory interpretation, and that the standard of review in relation to such questions was correctness. However, determinations of whether there has been discrimination, or whether the employer and union have failed to accommodate the complainant to the point of undue hardship, for example, are, inevitably, questions that require the application of the law to the facts as found by the tribunal and may involve considerations of what weight is to be placed upon those findings. For this reason, in both Mossop and Ross the Supreme Court suggested that, in relation to adjudication of such issues within the human rights context, deference might still be appropriate, yielding a standard of review of reasonableness. This conclusion followed a complete analysis on the then accepted "pragmatic and functional" basis, including, in particular, considerations of the expertise of the human rights tribunal and the purpose of human rights legislation.

¶ 46 While the Union does not contest this standard of review, the City argues that decisions of the Supreme Court since Ross have somewhat altered the analysis for determining the nature of the alleged error and the appropriate standard of review, whether the matter is before the court by way of judicial review or a statutory appeal. The City cites the Supreme Court decisions in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. Relying on these cases, the City would urge this Court to review the tribunal's conclusions on the questions of whether the conduct of the City and the Union constituted discrimination, and the related question of whether they had accommodated Mr. Kivela to the point of undue hardship on the standard of correctness, on the basis that both are questions of mixed fact and law, or, more properly, questions involving the application of the law to the facts.

¶ 47 On the question of the administrative law standard of review, it is my view that these cases should not be read as altering the standard of review in relation to human rights tribunals identified in Ross. The factors identified in Pushpanathan, for example, to be taken into account in determining the appropriate standard of review, are virtually identical to those featured in the analysis of La Forest J. in Ross, including the questions of the existence of a privative clause that would point to a higher standard of deference, the level of expertise of the tribunal with respect to the matter in question, the purpose of the legislation as a whole and the provision at issue in particular, and the nature of the problem being determined.

¶ 48 What is of particular note in the instant case, however, which might serve to distinguish the situation from that in Ross, is that the Saskatchewan statute gives a right of appeal on a question of law. This raises the question of the relevance of the standard of review discussed in Ross and Mossop, where there was no right of appeal and the matter came before the court by way of judicial review. In this respect, it is important to note the comments by the Supreme Court in Dr. Q, supra, (at p. 235) and Ryan, supra, to the effect that it is erroneous to assume that, because an act grants a right of appeal from the decision of an administrative tribunal, a court of appeal can deal with the matter without recourse to the usual administrative law principles pertaining to standard of review. Nonetheless, the fact that a statute gives a limited right of appeal is clearly a relevant factor to consider in applying the pragmatic and functional test identified in the cases referred to. It is apparent that in Ross La Forest J. relied to some extent on the existence of a limited privative clause in the legislation relevant to that case to conclude that the appropriate standard of review in relation to adjudication in the human rights context should, in that context, be deferential. The right of appeal on a question of law, in the Saskatchewan context, is the antithesis of a privative clause and would therefore arguably support a more expansive standard of review (i.e., correctness) in relation to any question of law.

¶ 49 Conversely, of course, by implication, the legislation intended complete deference to the tribunal's determinations of fact, for there is no right of appeal on a question of fact. The traditional view, in these circumstances, is that the tribunal's factual determinations are subject to review only if and to the extent that such findings constitute errors of law, as when there was no evidence before the tribunal that, viewed reasonably, was capable of supporting the tribunal's finding.

¶ 50 Regarding questions of law, it is clear in light of these considerations that the standard of review in relation to general questions of law, including questions of statutory interpretation, is correctness. Whether, despite the right of appeal accorded by the legislation on a question of law, a more deferential approach should be adopted in relation to the tribunal's application of the law to the facts in its determinations of discrimination, or whether the employer and the union have failed to accommodate the complainant to the point of undue hardship, is a question that may, in light of Dr. Q and Ryan, require further consideration. However, as will become more evident in the discussion that follows, I do not find it necessary to decide that question in the instant case, for, even on the more stringent standard of correctness, I find that the tribunal has committed no reviewable error in relation to these issues. As will be seen, it is possible in each case to distinguish in the questions posed those aspects of the issue that engage questions of law from those aspects which involve only the factual determinations of the tribunal.

¶ 51 Finally, to a limited extent this appeal raises the question of the reasonableness of the remedies imposed by the tribunal. As I will indicate below, in the Code this is a matter in which the tribunal is given wide discretion. Its decision therefore attracts the normal standard of review in respect to discretionary decisions, viz., that this Court will not interfere unless the tribunal has abused its discretion by acting arbitrarily or under a mistaken principle of law.

¶ 52 I turn, then, to discussion of the specific issues raised on this appeal.

Did the tribunal err in finding that the City and the Union had failed to accommodate Mr. Kivela to the point of undue hardship?

¶ 53 Both appellants complain, first, that the tribunal unreasonably imposed on them a duty to remedy discrimination inherent in the seniority system before they had any reason to believe that it was operating in a way that discriminated against Mr. Kivela on the basis of his disability, by ordering what they referred to as "retroactive" accommodation. This, it is argued, is a misinterpretation of the duty to accommodate to the point of undue hardship, for it would have been not only difficult, but impossible, to identify the source of discrimination earlier. The City had hundreds of casual employees, and the reasons for their accumulating or failing to accumulate hours toward seniority status varied widely from the availability of work at specific times and their then place on the seniority list to personal choice. When the appellants realized that the system was adversely affecting Mr. Kivela, in 1996, they moved immediately to remedy the situation. To expect them to do more than this would, in itself, impose "undue hardship".

¶ 54 In my view, this is the wrong way to view the effect of the tribunal's determination. Certainly the tribunal found that the seniority provisions were having an adverse effect on Mr. Kivela's seniority position prior to 1996 and that the cumulative effect was that he was not where he ought to have been, in 1996, on the seniority list. Therefore, the remedy implemented by the appellants in 1996 was seen as only a partial remedy-one which would prevent future erosion of his position, but did nothing to repair the damage already done. The tribunal also concluded that it would not have involved undue hardship to restore the seniority status lost due to the discriminatory impact of the seniority system. This last point is not seriously disputed by either appellant. The tribunal therefore concluded that accommodation to the point of undue hardship would have required the parties, in 1996, to grant, or restore, to the complainant immediate seniority status to enable him to obtain a permanent position, or, at the very least, sufficient additional hours of seniority so that, by the end of 1998, he would have been eligible for a permanent position. This would have put him in the position he would have been in had the discrimination not occurred. There was evidence that several people hired after Mr. Kivela had achieved seniority status by these dates, and this last conclusion is not unreasonable.

¶ 55 Accordingly, the tribunal did not impose on the appellants the unreasonable duty to recognize the systemic discrimination at a time when it was not reasonably apparent. The tribunal's point was not when they ought to have recognized the situation and acted to correct it. It was the adequacy of the remedy accorded once they did recognize the problem. In this sense, it is inaccurate to describe the tribunal's finding as, in effect, imposing a duty to correct the problem "retroactively", except in the sense that all restorative remedies refer back to what ought to have been done, but was not done, in the past. That the seniority provisions were, prior to 1996, operating in a way that had discriminatory impact on Mr. Kivela is clear. The duty was to act, at the time the discriminatory effect of the system was discovered, to correct the situation that then existed. As I have indicated, the parties do not seriously contend that it would have caused undue hardship to have done this. Thus, the tribunal committed no error in relation to this aspect of its ruling.

¶ 56 What the parties do argue, however, and this is the second aspect of this issue, is that the steps they took to remedy the situation were reasonable and should have been adequate, for, had Mr. Kivela cooperated with the scheme put in place by the appellants, it would have been sufficient to give him enough hours of work to make him eligible for a permanent position by the end of 1998. They contend that he would, in any case, have achieved permanent status by 2000, at the latest, had he not resigned in May 1999.

¶ 57 This aspect of the issue is a question of fact. Thus, the only question on appeal is whether there was some evidence before the tribunal that, viewed reasonably, supported its decision.

¶ 58 Certainly there was evidence that from the outset Mr. Kivela felt he should not be bound by the provisions of the collective agreement and pressed for accommodation that would have gone far beyond equal treatment under that agreement. Although most casual employees had to accumulate seniority for many years before being eligible for a permanent position, and could not obtain work driving a truck until they obtained permanent status, Mr. Kivela, who had been accommodated by being allowed to work as a truck driver from the outset, felt that he was being discriminated against because, as a truck driver, he was not given a permanent position within one or two years of his initial hiring. It is on this basis that he argues, even today, that he was subjected to discriminatory conduct throughout his employment.

¶ 59 In addition, there was considerable evidence that Mr. Kivela considered himself a professional truck driver and was not prepared to entertain offers of other kinds of work assignments. For example, this memo to the file dated September 11, 1984, from M. Grainger, Co-ordinator of Special Programs, was in evidence before the tribunal:

	Re: Gary Kivela
	The writer was contacted by Rev. Bob Gay today with the news that Gary had received his layoff notice for September 11, 1984, and that this period of employment would not allow Gary to qualify for U.I.C. benefits. Dennis Lawrysyn was then telephoned by the writer as to whether or not it was possible to arrange additional work to allow Gary to get his 20 weeks. On September 5, 1984, Mr. Lawrysyn telephoned back that they had identified a project which Gary might be able to perform for approximately three weeks. The writer informed Rev. Gay of this development and indicated that Public Works and Engineering would be discussing this possibility with Gary.
	On September 6, 1984, Gary contacted the writer stating that he considered himself a professional truck driver and was not prepared to entertain offers of other kinds of work assignments. That being the case, the writer advised Gary to communicate this information to officials of Public Works and Engineering. No further contact from Gary or Rev. Gay has been received to date. (Italics added)

¶ 60 On cross-examination of Mr. Kivela at the tribunal hearing by the Union's counsel, this exchange occurred:

1171 Q MR. McLEOD: ... Now, Mr. Kivela, you-I guess understanding that there were certain things you cannot do, one of the questions I asked you was-because you did-you did have that three weeks when you were working over at transit and counting passengers or something like that?

Yes.

1172 Q Now, I guess my question-the question that I asked you before was-I said would you have ever agreed to work at some job other than truck driving in order to acquire seniority, and your answer to that was no?

No.

1173 Q So you agree with that-with what you said then? My question-so you agree with that answer then?

Yes.

1174 Q Okay. And in a similar way I asked you, even though the City said go and look at job postings, the only kind of job application that you were interested in was that of a tandem truck driver, correct?

Yes.

¶ 61 Further, there was evidence that on one occasion, possibly in 1998, when there was no work for Mr. Kivela with the tandem truck, he was asked to drive the mail truck. He was angry that he was not allowed to drive the tandem truck, and believed that his work with that truck was being reduced or even phased out. Upset, he refused to drive the mail truck and walked off the job. On cross-examination by counsel for the City, he offered this explanation:

	926 Q You talked about a situation yesterday where you'd had arguments with a guy called Ken around the street sweeping operation?
	A Yes.

	927 Q		You argued with him for about an hour you
	said?

A Yeah, about an hour.

928 Q

Okay. And you were angry?

Oh boy.

929 Q

Yeah?

Yes.

930 Q Did you have some pretty definite ideas about the way things should be done in your section?

Yes.

931 Q Yeah. And-now you said that Kevin Faul asked you to drive the sign truck that day?

Yes.

932 Q

And you didn't do that, right?

No.

933 Q Now, in your examination for discovery you said to me that you considered it an insult to drive the sign truck?

Yes.

934 Q

Why?

A Why? Because I'm a-I am a gravel truck driver, and I know-I know very well they-they could use me on the-on the sweepings. And-and the second thing, how do you think I feel to sit in the truck and see those big trucks hauling? How you-how do you feel?

935 Q

Sitting in the halfton truck?

A Yeah, yeah, and you see those big semis go. How you feel?

936 Q

How would you feel Gary?

A Yeah. I won't feel too-too-not very-not very impressed.

937 Q

Not very impressed?

	A No. No. No. No, I-I was-I was good enough for 14 years, but as soon as the City bought semis, well, Gary, your truck is too small.
	938 Q Isn't it fair to say that you didn't want to drive any other place but in roadways? Was roadways where you wanted to be?

Yes.

939 Q

Did you want to go to any other place?

Like where?

940 Q

Water?

A I never say no. I said-I said I will go back if I get a letter of apology.

	941 Q		You said no on November 12th, 1998 though, didn't
	you?

You mean on my last day?

942 Q

Yes.

	...
	946 Q ... Yeah, around the-we were talking about this whole business of the sign truck-
	A No, no, I better start. I could understand if there's-I could understand if there is no work for truck, then maybe I understand, but-but-but I just came from upstairs, and I had a big fight, and that-and that day I was in no mood. I was-I was in a bad mood.

947 Q

You were very angry?

A I was so angry, I just-I just told Kevin Faul, Kevin Faul, don't bother me, I will go home.

948 Q

And you went home?

A Yes.

¶ 62 In its decision, the tribunal dealt with the appellants' argument in this regard in the following passages:

108.		The Respondents contend that Mr. Kivela is requesting accommodation on his own terms and the fact that he has not achieved permanent status is not to say that he has not been accommodated reasonably and adequately. The Respondents also submit that Mr. Kivela cannot expect 'perfect' accommodation for his disability. It is known from the facts that on one occasion in 1997, Mr. Kivela refused a job on the sign truck stating at the time he was in 'no mood.' While the Respondents insist that this is one example of a suitable job that was offered to Mr. Kivela, a job opportunity he turned down, the context in which the job was refused must be elicited. Just prior to the offer on the sign truck, Mr. Kivela had waited 3 hours, from 4 am until 7 am to find out that he had been cut off from hauling street sweepings, the new supervisor telling Mr. Kivela that his truck was too small. An argument followed between the two men leaving Mr. Kivela feeling frustrated and angry. It was at this time and in this state of mind that Mr. Kivela was offered the job on the sign truck.
109.		I find that Mr. Kivela acted reasonably in refusing to take the sign truck job and in refusing to return to Water Works on that occasion. Mr. Kivela was justified in refusing them at the time due to the circumstances surrounding the offers, plus the sign truck job was not offered to Mr. Kivela until 1998, 16 years after he commenced employment. Further, the evidence suggested that the offer was made on the spur of the moment and was not part of a well-thought-out plan for Mr. Kivela. There was no evidence about the duration of the job. From the evidence, I concluded that it was just a short, temporary assignment. In any event, it did not address Mr. Kivela's key and longstanding complaint that after 16 years he should have received a permanent position (see the letter from the City to Mr. Kivela dated February 5, 1999, where the City confirmed that it would be relying upon the existing seniority provisions in the collective agreement in determining whether to grant him permanent status in the future). The Respondents bear the onus of proving that there were other jobs available to Mr. Kivela that he unreasonably refused. The fact remains that there were no other jobs that Mr. Kivela could do for which the vehicle had been modified and it is the evidence of Mr. Kivela that no other jobs were seriously offered to him. The Respondents have failed to present evidence of other job opportunities available to Mr. Kivela. Neither the City nor CUPE put forward any evidence to show that other heavy equipment utilized by the City could or could not be modified to meet Mr. Kivela's physical limits, or that alternative job opportunities were canvassed with Mr. Kivela. The fact that Mr. Kivela only wanted to drive truck is irrelevant. It was not a matter of personal choice. Because of his disability, he could not do anything else.

...

111.

... Similarly, the argument that Mr. Kivela did not properly identify seniority as the source of the discrimination and instead pursued permanent status suggesting that this could be accomplished through the Job Equity Policy, has no bearing on the City's and CUPE's duty to accommodate. As I state above, there is no general duty upon employees to identify with specificity the workplace standards that are having a negative impact upon them, and to suggest appropriate accommodations. Mr. Kivela identified that there was a problem, early on in his employment. He was being passed on the seniority list, and it impeded his opportunities to obtain work and to obtain permanent status. It is the City and CUPE who ought to have initiated the process of accommodation, and ensured that the workplace standards in the collective agreements did not adversely affect Mr. Kivela based on his disability.

¶ 63 While this conclusion significantly downplays Mr. Kivela's frank admission that he did not want to consider any work other than that of tandem truck driver, the key point made by the tribunal is that the City did not at any point identify another job that Mr. Kivela, with his disability, could do. The City's witnesses were cross-examined on this point, and the tribunal's conclusion that Mr. Kivela could not have done any other work is reasonably supported by the evidence before it, which showed that any equipment had to be specially adapted for Mr. Kivela, and that he was not able to do the manual labour assigned to most casual employees.

¶ 64 Similarly, the tribunal, in my respectful view, failed to appreciate the point that Mr. Kivela's demands from the outset of his employment went well beyond his entitlement to accommodation under the Code. The evidence is overwhelming that he did not feel he should be bound by the limitations in the collective agreement that applied to all other City employees. I do not mean to say that this was necessarily unreasonable conduct from Mr. Kivela's perspective. He was justly proud of his significant achievement in acquiring the ability to be an excellent truck driver, despite his disability, and was by all accounts an extremely hard worker and a good employee. One can easily sympathize with his sense, in this context, that he was entitled to employment that recognized his achievement, his hard work and his need arising from his disability. At the same time, however, both the City and the Union made many efforts and accommodations over the years to ensure that Mr. Kivela received hours of work doing what he wanted to do-drive a tandem truck- albeit within the context of the general framework of the collective agreement. This is what they were obliged to do under the Code and in accordance with their obligations under the collective bargaining regime.

¶ 65 Accordingly, despite repeated sympathetic references in the tribunal decision to the fact that Mr. Kivela had made his wishes for permanent employment known over many years, implying that the appellants ought to have responded to these demands years earlier, (see, for example, para. 18 of the tribunal award, quoted above, as well as the reference in para. 109, immediately above, to Mr. Kivela's "key and longstanding complaint" about not being given permanent status, and in para. 111 to the fact that "Mr. Kivela identified that there was a problem, early on in his employment"), the central incident of discrimination identified by the tribunal was not the failure to give Mr. Kivela a permanent position years earlier in response to his repeated complaints, but, rather, the failure to adequately correct the fact, discovered only in 1996, that the seniority provisions were operating in a way that systemically discriminated against Mr. Kivela. There is no finding that Mr. Kivela ought to have been given a permanent position when he first began to demand one, and the evidence before the tribunal would not have supported such a conclusion.

¶ 66 Having said that, the tribunal is correct, in my view, in its conclusion that these facts did not excuse the incident of discrimination that was found to have occurred, for they did not affect the duty under the Code to accommodate Mr. Kivela's disability to the point of undue hardship.

Did the tribunal err in its determination that Mr. Kivela's resignation was of no significance to its finding of discrimination or the remedies to be accorded?

¶ 67 As I have indicated above, there are also two aspects to this argument. The appellants argue, first, that the tribunal ought to have determined that Mr. Kivela's resignation from his employment with the City was voluntary, and for that reason alone disentitled him to further remedies from the City. This is a question of whether the tribunal applied the proper test in determining the legal effect of the complainant's resignation. Second, they argue that the tribunal erred in determining that the resignation was causally related to the discrimination found. This is a question of fact.

¶ 68 The first point has no merit. The appellants rely on arbitral law dealing with the effect of a voluntary resignation to a claim for relief, including the remedy of reinstatement, under a collective bargaining agreement. In those circumstances it has frequently been held that the voluntary resignation of the grievor bars the right to arbitral remedies. The tribunal rightly determined that these cases are not relevant to the determination of appropriate remedies under the Code. The tribunal's remedial authority is derived from s. 31.3 of the Code, which reads as follows:

	Orders by human rights tribunal
	31.3 Where the human rights tribunal finds that the complaint to which the inquiry relates is substantiated on a balance of probabilities, the human rights tribunal may, subject to section 31.5, order any person who has contravened any provision of this Act, or any other Act administered by the commission, to do any act or thing that in the opinion of the human rights tribunal constitutes full compliance with that provision and to rectify any injury caused to any person and to make compensation for that injury, including:

(a)		requiring that person to cease contravening that provision and, in consultation with the commission on the general purposes of that provision, to take measures, including adoption of a program mentioned in section 47, to prevent the same or a similar contravention occurring in the future;
(b)		requiring that person to make available to any person injured by that contravention, on the first reasonable occasion, any rights, opportunities or privileges that, in the opinion of the human rights tribunal, are being or were being denied the injured person and including, but without restricting the generality of this clause, reinstatement in employment;
(c)		requiring that person to compensate any person injured by that contravention for any or all of the wages and other benefits of which the injured person was deprived and any expenses incurred by the injured person as a result of the contravention;
(d)		requiring that person to pay any compensation that the human rights tribunal considers appropriate, to any person injured by that contravention, for any or all additional costs of obtaining alternative goods, services, facilities or accommodations and any expenses incurred by the injured person as a result of the contravention; and
(e)		requiring that person, where the complaint is based on disability and the premises, facilities or services of the person complained against impede physical access or lack proper amenities, to take measures to make the premises, facilities or services accessible or to provide proper amenities, other than measures that would cause an undue hardship.

¶ 69 The tribunal therefore rightly concluded that its obligation was to accord remedies sufficient to put the complainant, Mr. Kivela, in the position he would have been in but for the discrimination. Thus, the question for the tribunal was not, as the Union wished to put it, whether the resignation was "valid", but whether the discrimination caused the resignation and whether, but for the discrimination, Mr. Kivela would have continued in his employment with the City.

¶ 70 Nor was there a reviewable error in the tribunal's factual determination that the complainant's resignation was causally related to the discrimination he had suffered. The tribunal found as facts that by the end of 1998 and into 1999 Mr. Kivela suffered from stress and depression to the point that he was unable to continue working, and that he resigned in order to access a portion of his retirement fund solely in order to support himself so far as possible. It found, further, that Mr. Kivela's stress and depression were causally related to the fact that he had not been able to obtain a permanent position, believed he would never be able to do so, and saw himself in a dead end situation.

¶ 71 The appellants argue that these findings of fact were unsupported by the evidence. I do not accept this argument. The question is whether there was any evidence before the tribunal that reasonably supported its conclusion. It is true that the medical evidence was not strong and even that there was some conflict in that evidence. One of Mr. Kivela's doctors, for example, had expressed the view that he would, eventually, be much better off working. When Mr. Kivela applied for worker's compensation benefits on the basis that he could not work due to job-related stress, the Commission denied compensation because there was insufficient evidence before it that his stress was job related. There was, however, another medical opinion to the effect that, due to his physical disabilities and his stress and depression, it was unlikely that he would be able to return to work in the near future, and that his employment situation with the City would aggravate his depression. Mr. Kivela's own testimony was that, in the spring and summer of 1999, he became literally ill whenever he thought of returning to work and simply felt unable to do so. This evidence was in the context of considerable other evidence that Mr. Kivela loved working, loved driving the truck, and knew that this physical activity was essential to his health. As he put it, "I did not resign for fun." Thus, in my view, there was evidence to support the tribunal's conclusion on the issue of causation.

¶ 72 I find no error in the tribunal's treatment of the effect of Mr. Kivela's resignation on his claim for compensation.

Did the chambers judge err in failing to consider the impact of the tribunal's finding of harassment on its other determinations, including the remedies accorded.

¶ 73 As mentioned above, the tribunal found the City liable for several instances of what it found to be harassment by other employees based on Mr. Kivela's disability. One of these was the refusal of the Water Works employees to work with him because they feared he was not a safe driver. The learned chambers judge ruled that the tribunal had no jurisdiction to consider these complaints, because the Commission had indicated to the appellants that it would not be pursuing them. This ruling has not been appealed.

¶ 74 The complaint on this appeal is that the chambers judge, having found that the tribunal erred in this regard, ought to have considered further the extent to which this error influenced the other conclusions of the tribunal.

¶ 75 There is at least some merit to this complaint. For example, the tribunal awarded Mr. Kivela $10,000 for injured feelings, the highest award possible under the Code. It is apparent that the tribunal must reconsider this award, which was based, in part on this consideration:

150.

... Mr. Kivela has expressed that he has felt embarrassed and ashamed following incidents of harassment on the basis of his disability. These incidents include, being required to leave the job at Water Works because of other employees' fears about his driving, being subject to mockery by his fellow employees on the two-way radio, and the subject of a cruel joke where a disrespectful message was written on the blackboard at Mr. Kivela's expense, amounting to blatant discrimination. ...

¶ 76 Apart from this point, however, it does not appear to me that there is any basis to conclude that other of the tribunal's findings or determinations were influenced by its findings on this point.

Did the chambers judge err in not addressing issues relating to the tribunal's award of compensation?

¶ 77 The parties have raised a number of issues relating to the tribunal's award of compensation. The chambers judge noted that the parties had not pursued these points in oral argument and that the tribunal had not yet made a final award, but had, at the request of the parties, left them the opportunity to reach an agreement, barring which, the matter could be referred back to the tribunal. The chambers judge accordingly decided to permit the parties, if they could not settle the quantum of damages, to refer the issue to the tribunal, and retained jurisdiction on the appeal if the parties were not satisfied with the tribunal's determination.

¶ 78 In light of the fact that the tribunal still has jurisdiction on this issue, the chambers judge's manner of dealing with this matter was appropriate. Indeed, in oral argument before this Court, the parties agreed that the matter should, in the first instance, be returned for consideration by the tribunal.

¶ 79 Accordingly, we make no determination on the questions relating to the tribunal's award of compensation, except for the direction, noted above, that the tribunal is to reconsider its award of damages for injured feelings in light of the determination that its findings of harassment were beyond its jurisdiction, and cannot be taken into account in any award made.

The Overall Reasonableness of the Tribunal Award

¶ 80 Finally, some remarks should be addressed to an argument advanced orally by the appellants, although perhaps not articulated in the notices of appeal as a separate issue. Both appellants argued before us that the chambers judge ought to have considered the overall reasonableness of the tribunal's award in light of all of the circumstances of this case. Because of its conclusion that, in failing to adjust Mr. Kivela's seniority status "retroactively" in 1996 so that he would have attained permanent status before he resigned in 1999, the parties failed to accommodate Mr. Kivela to the point of undue hardship, the tribunal has held the City and the Union liable for a very large award in damages including past loss of wages as a permanent employee for what will now be over five years. This, it is argued, is an unreasonable response to the good faith efforts of these appellants over many years to accommodate Mr. Kivela, particularly when combined with the facts, discussed above, that his own demands were often unreasonable, that he voluntarily resigned in 1999, making it impossible for the parties to further accommodate him after that date, and that he delayed in bringing his application to the Human Rights Commission.

¶ 81 This Court is not without sympathy to these arguments. However, it is not our role to determine whether we agree with the award of the tribunal, or whether we might, in the tribunal's place, have devised an approach more sympathetic to the position of the appellants. Section 31.3 of the Code gives the tribunal wide discretion to rectify or compensate any injury caused by discrimination. Thus, this Court can only consider whether the tribunal abused its discretion by acting arbitrarily or under a mistaken principle. The tribunal award is long and carefully reasoned. All of the appellants' arguments were recognized and responded to. The approach taken by the tribunal is supported by the statute. As we have discussed more specifically above, the factual determinations of the tribunal were reasonably founded in evidence before it. We find no error in the tribunal's general approach to its remedial award. As I have indicated above, specific issues raised by the parties in relation to that award must await further consideration by the tribunal.

VI.

Conclusion

¶ 82 The appeal is allowed only on the narrow point that the chambers judge erred in not instructing the tribunal to redetermine its award for injured feelings in light of the finding that it had no jurisdiction to take into account any allegations of harassment. In all other respects the appeal is denied, this Court finding no error of law in the conclusions of the learned chambers judge or the conclusions of the tribunal.

¶ 83 The Human Rights Commission shall have costs against the appellants in the usual way.

SMITH J.A.

SHERSTOBITOFF J.A.:— I concur.

LANE J.A.:— I concur.

QL UPDATE: 20060411
cp/e/qw/qlrds