Indexed As: Canadian National Railway v. Seeley et al. Federal Court Mandamin, J. February 1, 2013.

Transcription

1 Canadian National Railway (applicant) v. Denise Seeley and Canadian Human Rights Commission (respondents) and Ontario Human Rights Commission, Federally Regulated Employers - Transportation and Communication (intervenors) (T ; 2013 FC 117) Indexed As: Canadian National Railway v. Seeley et al. Federal Court Mandamin, J. February 1, Summary: Seeley complained that her employer, the Canadian National Railway (CN), discriminated against her based on family status by failing to accommodate her parental childcare obligations and by terminating her employment. The Canadian Human Rights Tribunal allowed the complaint. CN applied for judicial review. The Federal Court dismissed the application. Civil Rights - Topic 983 Discrimination - Employment - What constitutes discrimination - Seeley was employed by the Canadian National Railway (CN) as a conductor, but was on laid off status - CN recalled her to report for a temporary assignment to cover a major shortage in Vancouver, British Columbia - She advised that she had childcare issues and was granted a 30 day extension of the reporting deadline - She requested that CN relieve her from reporting on a compassionate basis under the collective agreement - CN did not respond to the request - Further extensions resulted in a deadline of June 30, On July 4, 2005, CN terminated her employment for failure to report to work - Seeley filed a complaint of discrimination based on family status - The Canadian Human Rights Tribunal held that family status included parental child care obligations - Seeley had established a prima facie case of discrimination where her parental duties and obligations combined with CN's rules made her unable to participate equally and fully in employment with CN - CN failed to establish that accommodating Seeley would have constituted undue hardship - The Tribunal allowed the complaint and directed CN to review its accommodation policy, reinstate Seeley and to pay her compensation for lost earnings, $15,000 for pain and suffering and $20,000 for reckless conduct - The Federal Court, applying the reasonableness standard, affirmed the findings that parental childcare obligations came within "family status", there was prima facie discrimination and CN had not met its duty to accommodate - With respect to the compensation, the tribunal had a reasonable basis to conclude that CN's conduct was reckless. Civil Rights - Topic 985 Discrimination - Employment - Duty to accommodate - [See Civil Rights - Topic 983]. Civil Rights - Topic 988 Discrimination - Employment - On basis of family, civil or marital status - [See Civil

2 Rights - Topic 983]. Civil Rights - Topic 1164 Discrimination - Remedies - Damages - [See Civil Rights - Topic 983]. Civil Rights - Topic 7115 Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - [See Civil Rights - Topic 983]. Civil Rights - Topic 7185 Federal, provincial or territorial legislation - Remedies - Damages - [See Civil Rights - Topic 983]. Cases Noticed: Hoyt v. Canadian National Railway Co., [2006] C.H.R.D. No. 33, refd to. [para. 19]. Brown v. Canada (Department of National Revenue, Customs and Excise), [1993] C.H.R.D. No. 7, refd to. [para. 19]. Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society (2004), 196 B.C.A.C. 236; 322 W.A.C. 236; 240 D.L.R.(4th) 479; 2004 BCCA 260, refd to. [para. 20]. Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 22]. Canada (Attorney General) v. Johnstone et al., [2013] F.T.R. TBEd. FE.022; 2013 FC 113, refd to. [para. 31]. University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 33] Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 33]. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 34]. Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 33]. Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 36]. Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat. Johnstone v. Canada (Attorney General) (2007), 306 F.T.R. 271; 2007 FC 36, refd to. [para. 41]. Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 41]. Scheuneman v. Canada (Attorney General), [2000] 2 F.C. 365; 176 F.T.R. 59 (T.D.), affd. (2000), 266 N.R. 154 (F.C.A.), refd to. [para. 41]. Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 46]. Human Rights Commission (Ont.) v. A et al., [2002] 3 S.C.R. 403; 294 N.R. 140; 166

3 O.A.C. 1; 2002 SCC 66, refd to. [para. 49]. B. v. Human Rights Commission (Ont.) - see Human Rights Commission (Ont.) v. A et al. McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, refd to. [para. 50]. Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161, refd to. [para. 56]. Schaap v. Canada (Minister of National Defence), [1988] C.H.R.D. No. 4, refd to. [para. 61]. Brown v. Canada (Department of National Revenue, Customs and Excise), [1993] C.H.R.D. No. 7, refd to. [para. 62]. Wight v. Ontario (Office of the Legislative Assembly), [1998] O.H.R.B.I.D. No. 13 (Ont. Bd. of Inquiry), refd to. [para. 63]. Rennie v. Peaches and Cream Skin Care Ltd., 2006 AHRC 13, refd to. [para. 63]. Canada Post v. Canada Union of Postal Workers, [2006] C.L.A.D. No. 371, refd to. [para. 63]. Rajotte v. The President of the Canadian Border Services Agency et al., 2009 PSST 0025, refd to. [para. 63]. Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 65]. Canadian National Railway v. Canada (Human Rights Commission) - see Action Travail des Femmes v. Canadian National Railway Co. et al Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 73]. Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 2010 ONCA 593, refd to. [para. 73]. Armstrong v. British Columbia (Minister of Health) (2010), 283 B.C.A.C. 167; 480 W.A.C. 167; 2010 BCCA 56, refd to. [para. 74]. Whyte v. Canadian National Railway, [2010] C.H.R.D. No. 22, refd to. [para. 77]. Richards v. Canadian National Railway, [2010] C.H.R.D. No. 24, refd to. [para. 77]. International Brotherhood of Electrical Workers, Local 636 v. Power Stream Inc., [2009] O.L.A.A. No. 447, refd to. [para. 80]. Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245, refd to. [para. 100]. Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 104]. Statutes Noticed: Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 3(1) [para. 59]. Counsel: Richard Charney, William Hlibchuk and Brian Gottheil, for the applicant; Simon Renouf and Shasta Desbarats, for the respondent, Denise Seeley; Daniel Poulin and Sheila Osborne-Brown, for the respondent, Canadian Human Rights

4 Commission; Cathy Pike, for the intervenor, Ontario Human Rights Commission; John Craig and Michelle MacGillivray, for the intervenor, Federally Regulated Employers - Transportation and Communication. Solicitors of Record: Ogilvy Renault LLP, Toronto, Ontario, for the applicant; Simon Renouf Professional Corporation, Edmonton, Alberta, for the respondent, Denise Seeley; Canadian Human Rights Commission, Ottawa, Ontario, for the respondent, Canadian Human Rights Commission; Ontario Human Rights Commission, Toronto, Ontario, for the intervenor, Ontario Human Rights Commission; Heenan Blaikie LLP, Toronto, Ontario, for the intervenor, Federally Regulated Employers - Transportation and Communication. This application was heard at Edmonton, Alberta, on June 2, 2011, by Mandamin, J., of the Federal Court, who delivered the following reasons for judgment on February 1, Editor: Gary W. McLaughlin Application dismissed. Civil Rights - Topic 985 Discrimination - Employment - Duty to accommodate - Seeley was employed by the Canadian National Railway (CN) as a conductor, but was on laid off status - CN recalled her to report for a temporary assignment to cover a major shortage in Vancouver, British Columbia - She advised that she had childcare issues and was granted a 30 day extension of the reporting deadline - She requested that CN relieve her from reporting on a compassionate basis under the collective agreement - CN did not respond to the request - Further extensions resulted in a deadline of June 30, On July 4, 2005, CN terminated her employment for failure to report to work - Seeley filed a complaint of discrimination based on family status - The Canadian Human Rights Tribunal held that family status included parental child care obligations - Seeley had established a prima facie case of discrimination where her parental duties and obligations combined with CN's rules made her unable to participate equally and fully in employment with CN - CN failed to establish that accommodating Seeley would have constituted undue hardship - The Tribunal allowed the complaint and directed CN to review its accommodation policy, reinstate Seeley and to pay her compensation for lost earnings, $15,000 for pain and suffering and $20,000 for reckless conduct - The Federal Court, applying the reasonableness standard, affirmed the findings that parental childcare obligations came within "family status", there was prima facie discrimination and CN had not met its duty to accommodate - With respect to the compensation, the tribunal had a reasonable basis to conclude that CN's conduct was reckless.

5 Civil Rights - Topic 988 Discrimination - Employment - On basis of family, civil or marital status - Seeley was employed by the Canadian National Railway (CN) as a conductor, but was on laid off status - CN recalled her to report for a temporary assignment to cover a major shortage in Vancouver, British Columbia - She advised that she had childcare issues and was granted a 30 day extension of the reporting deadline - She requested that CN relieve her from reporting on a compassionate basis under the collective agreement - CN did not respond to the request - Further extensions resulted in a deadline of June 30, On July 4, 2005, CN terminated her employment for failure to report to work - Seeley filed a complaint of discrimination based on family status - The Canadian Human Rights Tribunal held that family status included parental child care obligations - Seeley had established a prima facie case of discrimination where her parental duties and obligations combined with CN's rules made her unable to participate equally and fully in employment with CN - CN failed to establish that accommodating Seeley would have constituted undue hardship - The Tribunal allowed the complaint and directed CN to review its accommodation policy, reinstate Seeley and to pay her compensation for lost earnings, $15,000 for pain and suffering and $20,000 for reckless conduct - The Federal Court, applying the reasonableness standard, affirmed the findings that parental childcare obligations came within "family status", there was prima facie discrimination and CN had not met its duty to accommodate - With respect to the compensation, the tribunal had a reasonable basis to conclude that CN's conduct was reckless. Civil Rights - Topic 1164 Discrimination - Remedies - Damages - Seeley was employed by the Canadian National Railway (CN) as a conductor, but was on laid off status - CN recalled her to report for a temporary assignment to cover a major shortage in Vancouver, British Columbia - She advised that she had childcare issues and was granted a 30 day extension of the reporting deadline - She requested that CN relieve her from reporting on a compassionate basis under the collective agreement - CN did not respond to the request - Further extensions resulted in a deadline of June 30, On July 4, 2005, CN terminated her employment for failure to report to work - Seeley filed a complaint of discrimination based on family status - The Canadian Human Rights Tribunal held that family status included parental child care obligations - Seeley had established a prima facie case of discrimination where her parental duties and obligations combined with CN's rules made her unable to participate equally and fully in employment with CN - CN failed to establish that accommodating Seeley would have constituted undue hardship - The Tribunal allowed the complaint and directed CN to review its accommodation policy, reinstate Seeley and to pay her compensation for lost earnings, $15,000 for pain and suffering and $20,000 for reckless conduct - The Federal Court, applying the reasonableness standard, affirmed the findings that parental childcare obligations came within "family status", there was prima facie discrimination and CN had not met its duty to accommodate - With respect to the compensation, the tribunal had a reasonable basis to conclude that CN's conduct was reckless. Civil Rights - Topic 7115

6 Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - Seeley was employed by the Canadian National Railway (CN) as a conductor, but was on laid off status - CN recalled her to report for a temporary assignment to cover a major shortage in Vancouver, British Columbia - She advised that she had childcare issues and was granted a 30 day extension of the reporting deadline - She requested that CN relieve her from reporting on a compassionate basis under the collective agreement - CN did not respond to the request - Further extensions resulted in a deadline of June 30, On July 4, 2005, CN terminated her employment for failure to report to work - Seeley filed a complaint of discrimination based on family status - The Canadian Human Rights Tribunal held that family status included parental child care obligations - Seeley had established a prima facie case of discrimination where her parental duties and obligations combined with CN's rules made her unable to participate equally and fully in employment with CN - CN failed to establish that accommodating Seeley would have constituted undue hardship - The Tribunal allowed the complaint and directed CN to review its accommodation policy, reinstate Seeley and to pay her compensation for lost earnings, $15,000 for pain and suffering and $20,000 for reckless conduct - The Federal Court, applying the reasonableness standard, affirmed the findings that parental childcare obligations came within "family status", there was prima facie discrimination and CN had not met its duty to accommodate - With respect to the compensation, the tribunal had a reasonable basis to conclude that CN's conduct was reckless. Civil Rights - Topic 7185 Federal, provincial or territorial legislation - Remedies - Damages - Seeley was employed by the Canadian National Railway (CN) as a conductor, but was on laid off status - CN recalled her to report for a temporary assignment to cover a major shortage in Vancouver, British Columbia - She advised that she had childcare issues and was granted a 30 day extension of the reporting deadline - She requested that CN relieve her from reporting on a compassionate basis under the collective agreement - CN did not respond to the request - Further extensions resulted in a deadline of June 30, On July 4, 2005, CN terminated her employment for failure to report to work - Seeley filed a complaint of discrimination based on family status - The Canadian Human Rights Tribunal held that family status included parental child care obligations - Seeley had established a prima facie case of discrimination where her parental duties and obligations combined with CN's rules made her unable to participate equally and fully in employment with CN - CN failed to establish that accommodating Seeley would have constituted undue hardship - The Tribunal allowed the complaint and directed CN to review its accommodation policy, reinstate Seeley and to pay her compensation for lost earnings, $15,000 for pain and suffering and $20,000 for reckless conduct - The Federal Court, applying the reasonableness standard, affirmed the findings that parental childcare obligations came within "family status", there was prima facie discrimination and CN had not met its duty to accommodate - With respect to the compensation, the tribunal had a reasonable basis to conclude that CN's conduct was reckless.