Ontario (Human Rights Comm.) v. London Monenco Consultants Ltd.
1987-01-22
Board of Inquiry Decision under the ONTARIO BOARD OF HUMAN RIGHTS CODE
Thomas Geiger and Bob Barboutsis Complainants
v.
London Monenco Consultants Limited, and Mr. T. F. Roger Respondents
Date of Complaint: April, 1984
Date of Decision: January 22, 1987
Place: Atikokan, Ontario
Before: Ian A. Hunter
Comm. Decision No.: 264
Appearances by: Walter E. Telfer, Counsel for Thomas Geiger and Bob Barboutsis Lianne Brossard and Catherine Osborne, Counsel for the Ontario Human Rights Commission John Broderick, Counsel for London Monenco Consultants Limited
FAMILY STATUS — travel allowance denied to single person — REASONABLE ACCOMODATION — travel allowance
Summary: The Board of Inquiry finds that London Monenco Consultants Ltd. did not discriminate against Thomas Geiger and Bob Barboutsis because of their marital status by paying no living allowance when they moved to Atikokan and refusing them regular paid flights to visit their home base because they were single.
London Monenco recruited employees for work at the Ontario Hydro Generating Station at Atikokan, Ontario. London Monenco's policy was to pay an $850 per month living allowance to relocating married employees. Relocating single employees were expected to live in camp, but could, if the company approved, receive a $350 per month living allowance if they lived outside camp. Married employees who did not bring their families with them to Atikokan were reimbursed for the expense of a trip home every three weeks. Single employees were not reimbursed for travel out of Atikokan.
The Board finds that the discrimination because of marital status was based on a bona fide qualification because of the nature of the work. London Monenco needed to provide incentives to married employees in order to attract them to the work, and to overcome the disadvantage of their being separated from their families.
The complaints are dismissed.
(A) Introduction
1This Board of Inquiry concerns two complaints of discrimination, one made by Mr. Thomas Geiger (Exhibit 1) the other by Mr. Bob Barboutsis (Exhibit 2) which raise identical issues. From 1982 to 1984 Mr. Geiger was a professional engineer employed by W. P. London and Associates Limited, on permanent assignment to London Monenco Consultants Limited and seconded by the latter to the Ontario Hydro Generating Station at Atikokan. In the same period, Mr. Barboutsis was an architectural planner employed by Monenco Engineers and Constructors Inc., also on permanent assignment to London Monenco Consultants Limited and seconded to the Ontario Hydro Generating Station at Atikokan.
2At the outset of the hearing, I amended the complaints, pursuant to section 38(3) of the Code, by the addition, as respondents, of W. P. London and Associates Limited and Monenco Engineering and Constructors Inc. Both were related companies to London Monenco Consultants Limited. The Ontario Hydro Project at Atikokan, which was the location of both complaints, was a joint venture among the Monenco group of companies. Mr. T. F. Roger is a named respondent in both complaints. No evidence was called as to Mr. Roger's involvement. Consequently, both complaints, in respect of Mr. T. F. Roger, are hereby dismissed.
(B) The Facts
3What is at issue is a document of London Monenco Consultants Limited called: Conditions of Field Assignment for Staff on Permanent Assignment: Procedure 27 (hereinafter Procedure 27). The document was dated August 11, 1982 and was signed by the Procedure Administrator, Mr. Turner-Bone.
4The relevant provisions of Procedure 27 are as follows:
5.2.1 Married Status:
(a) An employee, who relocates one or more of his dependants from his home base and takes up residence in the town of Atikokan, qualifies for a living allowance of $850.00 per month, or
(b) An employee, who elects not to relocate his family from his home base and takes up his assignment in Atikokan, shall be considered ”˜single status' and will receive the allowances and expenses designated in 5.2.2 and as follows:
(i) The employee shall not receive any relocation allowance.
(ii) The employee shall be reimbursed his actual travel expenses for each return trip to his home base once every three weeks subject to site management approval.
(iii) The employee, transferred from the Thunder Bay Project, who retains his residence in Thunder Bay, shall be reimbursed his actual travel expenses to and from Thunder Bay subject to site management approval. Travel expenses shall be calculated on a distance basis, assuming car travel from his residence in Thunder Bay.
5.2.2 Single Status:
The employee is expected to take up residence in the Atikokan construction camp, and as such does not qualify for a living allowance while in that residence.
Should the employee choose to establish residence other than in the camp, a living allowance of $350.00 per month will be paid, subject to management approval.
- Interpretation of Conditions
As no two cases will be the same, administration of this policy will be subject to interpretation by the management according to the circumstances.
5The Commission submits that Procedure 27 violates section 4(1) of the Code in two respects: (a) a differential living allowance ($850 per month for married employees; $350 per month for single employees) for employees who elect not to reside at the Atikokan camp site; and (b) a company-paid return trip to home base every three weeks for married employees, which was not provided to single employees, and, more particularly, not provided to the two complainants Geiger and Barboutsis. Both complainants were single and without dependants at all relevant times.
6The Commission submits that both aspects of Procedure 27 are a denial of equal treatment with respect to employment because both discriminate on the basis of marital status.
7It was clear on the evidence that both Geiger and Barboutsis were made aware of Procedure 27 prior to accepting employment at the Atikokan Project.
8Thomas Geiger began his employment with the Monenco companies in September, 1980. In 1982 he was working as a professional engineer on the Atikokan Project, but was working out of the company's head office in St. Catharines. In September, 1982, he went on a two-year assignment to the Atikokan job site. Before accepting the assignment he discussed the terms and conditions of employment, including Procedure 27, with his manager, Dudley Abraham. On July 14, 1982, he signed a document (Exhibit 6) acknowledging that his employment at the Atikokan job site would be governed by Procedure 27. His viva voce evidence left me in no doubt that he understood and accepted the terms and conditions set out in Procedure 27:
EXAMINATION-IN-CHIEF
Q. Mr. Geiger, by this letter, did you accept the terms and conditions of service as set out therein?
A. Yes, I did.
Q. What are those terms and conditions?
A. Those terms and conditions are the ones detailed in Procedure 27, with regards to conditions at the camp . . .
Q. Now, on July 14, 1982, you agreed to this procedure?
A. Yes, I did.
Q. Why would you have agreed to that procedure?
A. That was part of my continued terms, terms of employment with the company. In order to continue working on the project, I had to sign those terms and conditions.
Q. Where did you reside during the Atikokan assignment?
A. I resided in the camp.
Q. Why did you live in the camp?
A. That was the recommended location for us, for single people to stay.
Q. What was your marital status during the assignment to Atikokan?
A. Single.
Q. Did you have any dependants at that time?
A. No, I did not. (Transcript, Vol. 1, p. 29–30; 31–32)
9Mr. Bob Barboutsis commenced employment with Monenco companies in July, 1981. He was assigned to a petrochemical project in St. Catharines until that project ended in March, 1982. Early in 1982 he received a letter of termination of employment from the company to be effective April, 1982. However, before the effective termination date, Alex Curtis told him of the Atikokan Project and Mr. Barboutsis expressed interest. The company flew him up to Atikokan so that he could see the actual job site and be interviewed by Ontario Hydro personnel there. Procedure 27 was specifically discussed with Mr. Barboutsis. Mr. Barboutsis testified that he discussed the working conditions generally, and specifically the company's provision of return flights to married personnel at three-week intervals. He discussed this with Messr. Kirkham and Lafferty. Mr. Barboutsis told Mr. Kirkham that, if he went to Atikokan, he would want to return to home base (ie. Toronto) at company expense at Christmas, Easter, vacations and emergencies. Mr. Kirkham did not have authority to give that commitment, but he promised to talk to Mr. Turner-Bone about it. Half an hour later Mr. Kirkham returned, indicated that he had discussed it with Mr. Turner-Bone, and that Turner-Bone would not alter Procedure 27 to suit Mr. Barboutsis. "You have to take this assignment as is, or you have to take anything else that you see appropriate." (Transcript, Vol. 1, p. 96.) On this basis, Mr. Barboutsis accepted. On April 15, 1982, he signed a document (Exhibit 14) acknowledging that his employment on the Atikokan job site would be governed by Procedure 27. His viva voce evidence left me in no doubt that Mr. Barboutsis understood and accepted the terms and conditions as set out in Procedure 27.
10Mr. John Turner-Bone, a civil engineer of thirty years' experience, was the Procurement and Project Services Manager for the Monenco companies on the Atikokan Project. At the peak period, the Monenco companies had approximately one hundred people on site at Atikokan; the total complement of site workers (including Ontario Hydro employees, Acres Shawinigan, another contractor, and casual labourers) was approximately one thousand. Mr. Turner-Bone testified that, at the beginning of the project, Ontario Hydro wanted all personnel to either live on site (ie. in the trailer accommodation provided) or to relocate to Atikokan. However, it proved difficult for London Monenco to recruit the personnel it needed to do the job which it had contracted to do. Engineers, and particularly married senior personnel with families, were reluctant to uproot their families and to move to Atikokan for a project whose duration was uncertain. Many were equally reluctant to abandon their families at "home base" and to go and live for extended periods at a remote, relatively deprived job site. Consequently, the provision of company-paid return flights every three weeks evolved as an inducement to get married personnel, whose skills were vital to the success of the project, to agree to go to Atikokan. Mr. Turner-Bone testified:
As we went along further in the project we found there were short term assignments, and that it was not equitable to have a married person relocate, as the policy generally called for. Sell their homes in St. Catherines and Niagara Falls, and move their family up to Atikokan, if the period was only for a nine month or a year period. So this provision was put into the conditions so that we could have the services of the people who were required to do specific functions, that were probably more short term and not dislocate their families and cause a lot of upset. So that provision was made so that they could go and live as single status and have some benefit to be able to get back to their families, who would be living back in St. Catherines or Niagara Falls.
Q. From your experience abroad, if you have married people, is there any philosophy, or any particular reason why you would fly, or permit married people to leave the sites of this kind, and take them to their dependants? What considerations would management take? What factors would they take into consideration when developing a policy like that?
A. Well, because there is a responsibility that the person has back in his home, to look after his family, and it is rather difficult to look after his family from a remote location.
Even if the person is quite capable of paying bills, and buying groceries, and looking after the kids, there is still things that the spouse needs to do to help them out.
Q. Does it reflect on performance on the site?
A. Yes, and probably also it may be a negative factor, for the person would not accept an assignment there. (Transcript, Vol. 1, p. 183–185)
11The only additional relevant facts are that the complainants made no formal complaint to the company until April 4, 1984, when both wrote to Mr. Turner-Bone (Exhibit 10) claiming that Procedure 27 was discriminatory, and requesting that "expenses that otherwise could have been incurred be reimbursed fully." The complainants both testified that no formal complaint was made before this date because they were unaware of the prohibitions on discrimination because of marital status contained in the Ontario Human Rights Code. They became aware of the Code provisions when Ontario Hydro sponsored a seminar on human rights in April, 1983. When they did become aware of the Code, they contacted an officer of the Ontario Human Rights Commission in Thunder Bay, but were advised to exhaust internal company complaint mechanisms first. No explanation was given by either Mr. Geiger or Mr. Barboutsis for the delay from April, 1983 until the visit to the Human Rights Commission office in the spring of 1984 and the subsequent letter to the company (Exhibit 10, dated April 4, 1984) which flowed out of that visit.
(C) The Code
12The relevant provisions of the Ontario Human Rights Code are:
4.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, record of offences, marital status, family status or handicap.
9(c) ”˜Equal' means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination.
9(g) ”˜Marital status' means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage.
- The right under section 4 to equal treatment with respect to employment is not infringed where.
(b) the discrimination in employment is for reasons of age, sex, record of offences or marital status, if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment.
(D) The Issue
13The company contends that the discrimination between married and single employees at the Atikokan job site, by the provision of a different relocation allowance and company-paid return flights to married employees, was "a reasonable and bona fide qualification because of the nature of the employment" in question.
(E) Decision
14I have no difficulty in holding that the differential relocation allowance, while clearly discriminatory, was not in contravention of the Code. Section 23(b) must be interpreted, in my opinion, with at least a modicum of common sense and an awareness of the practicalities of life in the workaday world. It is considerably more expensive to relocate a family than for a single employee, without dependants, to relocate to a remote job site. The differential relocation allowance recognizes this fact of economic life. The Commission's submission seemed to be based on the premise that the purpose of the legislation is to mandate identical treatment of employees. If that were the legislative purpose, section 23(b), which constitutes legislative recognition that there are circumstances in which employment discrimination on the basis of age, sex, record of offences and marital status is legitimate (and it is significant to note that the exemption is limited to just those grounds), would not exist. The fact that section 23(b) does exits suggests that the purpose of the Code is to secure equal treatment, not identical treatment. And "equal" means subject to those requirements, qualifications and considerations that are non-discriminatory (section 9(c)). In my opinion, a different relocation allowance for married and single employees is one such consideration.
15I find support for this view in Tharp v. Lornex Mining Company, report of a board of inquiry under the British Columbia Human Rights Code, dated 1975. As a result of a complaint to the British Columbia Human Rights Commission, Lornex Mining Company posted a notice indicating that thenceforth all camp site accommodation, formerly open to men only, would be available on application to all single employees. However, the company made no significant structural alterations to the bunkhouses so that any female employee would be required to share toilet and shower facilities with male residents. When a female employee, who had applied for and accepted the accommodation without prior inspection, filed a complaint alleging sex discrimination, the company's defense was that it had complied literally with the order of the Human Rights Commission: it had made camp accommodation available to female employees on the same terms and conditions as male employees. The board of inquiry held that discrimination may result from strict equality as well as inequality, and that the spirit of human rights legislation may be circumvented although the letter is fulfilled:
It was contended that there can be no discrimination where everyone receives identical treatment. We reject that contention. It is a fundamentally important notion that identical treatment does not necessarily mean equal treatment or the absence of discrimination. We would add only that the circumstances of this complaint graphically illustrate the truth of this important notion.
16The provision of company-paid travel to home base for married employees every three weeks is more troublesome.
17The leading case on the interpretation of an exemption clause like section 23(b) arose under the predecessor Code (R.S.O. 1980, c. 340) in Ontario Human Rights Commission v. Borough of Etobicoke (1982), 1982 CanLII 15 (SCC), 132 D.L.R. (3rd) 14, 3 C.H.R.R. D/781 (S.C.C.). The prohibitions on discrimination in employment did not apply where the prohibited ground (in that case, age) was "a bona fide occupational qualification and requirement for the position or employment." For the Supreme Court of Canada, McIntyre J. enunciated a two-fold test for applying the exemption at 19–20 of D.L.R., [D/783 of C.H.R.R.]:
To be a bona fide occupational qualification and requirement a limitation, such as mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job . . .
18I am satisfied, based on the evidence of Mr. Turner-Bone, that he company has met this test. The provision of flights home for married employees was honestly imposed, in good faith, and in the sincerely held belief that it was necessary to induce the married, more senior company personnel, to go up to the remote Atikokan job site. It was provided in the interest of adequate performance of London Monenco's subcontracting obligations to Ontario Hydro. Certainly Mr. Turner-Bone believed that it was reasonably necessary to insure efficient and economical performance of the job, and no evidence was led by the Commission which would disprove this belief.
19The second element of McIntyre J.'s test is objective. While not holding "scientific" evidence to be necessary, McIntyre J. deprecates "impressionistic evidence . . . of insufficient weight." Mr. Turner-Bone's evidence might be classified as "impressionistic." The company led no evidence, for example, of the number of married men who refused to go to Atikokan before Procedure 27 was promulgated, nor the number of married men who agreed to go there after, nor the extent or frequency with which married employees used the return flight provision from Atikokan to home base. Nevertheless, none of Mr. Turner-Bone's, perhaps impressionistic, conclusions were refuted by evidence from the Commission, who bear the ultimate onus of proof. I draw comfort from McIntyre J.'s comment [at D/784 of C.H.R.R.]: "It would be unwise to attempt to lay down any fixed rule governing the nature and sufficiency of the evidence required [ie. to justify mandatory retirement at age 60] . . . In the final analysis, the Board of Inquiry, subject always to the rights of appeal under section 14(d) of the Code, must be the judge of such matters." Applying my best consideration to Mr. Turner-Bone's evidence, although it is somewhat impressionistic, I am satisfied that the provision of flights for married employees was objectively related to the employment at Atikokan, and that it was reasonably necessary to the discharge by London Monenco of its subcontractor's obligations in an efficient and economical way.
20In the Etobicoke case, supra, the discriminatory provision (mandatory retirement at age 60) was embodied in a collective agreement. It might be contended there that the union had "bargained away" the fundamental statutory human rights of individual members not to be discriminated against. The individual complainants there wished to exercise their statutory rights to continue in employment without discrimination because of age. In the instant case, no union is interposed between the complainants and the employer. Both complainants understood and accepted the terms of employment, which did not include a company-paid return flight home every three weeks. The company provided this to married employees to recruit them to go up to Atikokan, but the two single complainants freely accepted to go to Atikokan without that perquisite. Geiger and Barboutsis got exactly the employment contract they bargained for and agreed to. At the time that contract was made no part of it was tainted by illegality, nor was it contrary to the Ontario Human Rights Code. Now, when the contract is over, the complainants seek to establish for themselves a benefit which was not part of the original agreement. In essence, they seek to retroactively rewrite the employment contract they both voluntarily accepted. On that basis the instant case is distinguishable from the Borough of Etobicoke case; however, even applying the test from Etobicoke, I am satisfied that the respondent has met it.
21I note, also, that the Ontario Legislature has since changed the nature of the exemption in the applicable Code by the deletion of the word "occupational." Section 23(b) exempts a discriminatory employment limitation if marital status is "a reasonable and bona fide qualification because of the nature of the employment." In my opinion, the deletion of the modifier "occupational" is significant. The word "occupational" directed a board of inquiry's attention to whether the prohibited ground was related to the discharge of employment duties. For example, a group home for teenagers might have been permitted to discriminate by hiring only a married couple in order to provide the residents with role model substitute parents. "Marital status" would be "occupationally" relevant to the discharge of the duties of the position as group home leader. But the current Code deletes the word "occupational." Instead, it uses the phrase "because of the nature of the employment." In my opinion, this directs attention to a wider range of factors; in this case relevant factors include the remote location and the practical difficulty of recruiting married personnel unless some provision was made for them periodically to visit their wives and families. The effect of section 23(b), in Judith Keene's words, is that "the ”˜realities of the workplace' have, in some circumstances, been allowed to counteract the sweeping protections provided in Part 1 of the Code" (Human Rights in Ontario, (Toronto: Carswell, 1983, p. 180)).
22On the evidence before me, I am satisfied that the realities of the workplace required the company to make special provision in order that married employees could overcome the additional disadvantage of being separated from their families. They did so in a way which, at first blush, seems inconsistent with section 4(1) of the Code. However, I am satisfied that the discrimination in employment for reasons of marital status, which occurred in this case, was reasonable and bona fide given the nature of the particular employment involved. I find the employer's defence, pursuant to section 23(b) of the Code, compelling.
23Accordingly, both complaints are dismissed.