501781 Ontario Ltd. v. Ontario (Human Rights Comm.) (No. 1), 1995 CanLII 18135

501781 Ontario Ltd. v. Ontario (Human Rights Comm.) (No. 1)

BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;

AND IN THE MATTER OF the complaint by Brad Thomson dated July 29, 1992, alleging discrimination in employment on the basis of handicap by 501781 Ontario Limited Operating as Fleetwood Ambulance Service, and Ontario Public Service Employees Union

B E T W E E N :

Ontario Human Rights Commission

• and - Brad Thomson Complainant

• and -

501781 Ontario Limited Operating as Fleetwood Ambulance Service, Ontario Public Service Employees Union Respondents

DECISION

Adjudicator: Katherine Laird Date: November 10, 1995 Board File No.: 93-0066 Decision No.: 95-050

A P P E A R A N C E S

Ontario Human Rights Commission Anthony Griffin, Counsel

Brad Thomson On his own behalf

501781 Ontario Limited Operating as Fleetwood Ambulance Service Elizabeth Keenan, Counsel

Ontario Public Service Employees Union Bebe Ahad, Counsel

INTRODUCTION

1In July 1992, the complainant, Brad Thomson ("Thomson"), filed complaints with the Ontario Human Rights Commission ("Commission") alleging discrimination by his employer, Fleetwood Ambulance Service ("Fleetwood") and his union, Ontario Public Service Employees Union ("O.P.S.E.U."). The complaints challenge a provision in the collective agreement which pro-rates the vacation of employees absent from work for a "whole month" for any reason other than vacation or specified paid leave. The complainant was absent for 16 or 17 months (depending on whether or not calculated as calendar months) from 1989 to 1991 due to workplace injuries, compensable under the Workers' Compensation Act, R.S.O., c.W.11, as amended. His absences in each of the three years resulted in a reduction in his vacation entitlement in each succeeding year. The issue to be decided is whether the reduction in the complainant's annual vacation entitlement constitutes discrimination in employment on the basis of handicap, contrary to sections. 5(1) and 9 of the Human Rights Code, R.S.O. c.H.19, as amended ("Code").

PRELIMINARY ISSUES

2The Commission requested that the complaints be amended to reflect the correct spelling of the complainant's name ("Thomson"); to remove Fred Upshaw as a named respondent in the complaint against O.P.S.E.U.; and to correct the corporate name of the respondent employer ("501781 Ontario Limited Operating as Fleetwood Ambulance Service"). The motion was unopposed, and the requested amendments were ordered. The Commission also advised that it was abandoning the allegation of discrimination on the basis of union membership.

DECISION

3This Board of Inquiry finds that the right of the complainant, under s. 5(1) of the Code, to equal treatment in employment, without discrimination because of handicap, has been infringed, in contravention of s. 9 of the Code, by the application of article 14.08 of the collective agreement to the calculation of the complainant's vacation entitlement.

THE FACTS AS AGREED

4Counsel provided the Board with an agreed statement of facts, as follows:

1. The complainant, commenced employment as an Ambulance Attendant with the respondent, Fleetwood Ambulance Service, on January 28, 1984, and has remained an employee of Fleetwood since that time.

2. On April 20, 1989, Thomson injured his left knee while at work, and subsequently claimed and received benefits under the Workers' Compensation Act. He was absent from work and in receipt of benefits under the Workers' Compensation Act, from April 20, 1989 to March 5, 1990.

3. On July 2, 1990, Thomson injured his back at work, but did not take any time of work at that time.

4. On November 28, 1990, Thomson underwent knee surgery related to his injury of April 20, 1989. As a result, Thomson was absent from work and in receipt of workers' compensation benefits for the period from November 28, 1990 to March 4, 1991.

5. On April 17, 1991, Thomson underwent back surgery related to his injury of July 2, 1990. As a result, Thomson was absent from work and in receipt of workers' compensation benefits from April 17, 1991 to August 17, 1991.

6. Fleetwood is an agent of the Crown for the sole purpose of collective bargaining. The respondent, Ontario Public Service Employees' Union, is the authorized representative of the employees of Fleetwood. The employment of Thomson and other employees of Fleetwood is governed by the provisions of a collective agreement negotiated between Fleetwood and O.P.S.E.U.

7. Article 14.01 of the attached collective agreement, (Appendix "A"), negotiated between Fleetwood and O.P.S.E.U., provides:

Employees shall receive vacation with pay in accordance with credited service with the Company as of April 1st in any year as follows:

(a) After completion of probation, employees with less than one (1) year's continuous service with the Company shall receive ten (10) hours vacation with pay for every month of completed service.

(b) Employees who have attained one (1) year's continuous service with the Company shall be entitled to three (3) weeks' vacation with pay to be based on the normal work week.

(c) Employees who have attained ten (10) years' continuous service with the Company shall be entitled to four (4) weeks' vacation with pay to be based on the normal work week. Effective April 1, 1989, the reference to ten (10) years' continuous service shall become eight (8) years' continuous service.

8. Article 14.08 of the same collective agreement provides:

An employee will have his vacation pay pro-rated in respect of a whole month in which he is absent from duty for any reason other than vacation or paid leave of absence under Article 17. Such pro-rating will be on the basis of a loss of 1/12 of the annual vacation entitlement for each whole month of absence.

9. Pursuant to the provisions of article 14.01, Thomson was entitled to three weeks' vacation with pay for the years 1990-91 and 1991-92. For the year 1992-93, he was entitled to four weeks' vacation with pay.

10. Fleetwood, for the purpose of administering vacation entitlement under the collective agreement, treats one week as representing 40 hours. Consequently, for the years 1990-91 and 1991-92, before the application of article 14.08, Thomson was entitled to 120 hours of vacation per year. For the year 1992-93 he was entitled to 160 hours. Under the provisions of article 14.08, in the years 1990-91 and 1991-92, Thomson would therefore lost 1/12 x 120 hours, or 10 hours of vacation entitlement for each month of absence from work. For the year 1992-93, by application of article 14.08, Thomson would lose 13.3 hours of vacation entitlement for each month of absence from work.

11. Thomson was absent from work from April 20, 1989 to March 5, 1990, for a total of ten whole months of absence. The application of article 14.08 would reduce Thomson's vacation entitlement for the fiscal year of April 1, 1990 to March 31, 1991 by 100 hours.

12. Thomson's second absence from work was from November 28, 1990, to March 4, 1991, for a total of three whole months of absence. The application of article 14.08 would reduce Thomson's vacation entitlement for the fiscal year of April 1, 1991, to March 31, 1992, by 30 hours.

13. Thomson's third period of absence was from April 17, 1991 to August 17, 1991, three (or four) whole months of absence. The application of Article 14.08 would reduce Thomson's vacation entitlement by 40 (or 53) hours for the vacation year of April 1, 1992 to March 31, 1993.

14. The sole reason for Thomson's three absences were the work-related injuries and the consequent surgery. Thomson's vacation entitlement for the years in question was pro-rated, under article 14.08 of the collective agreement, because of the three absences.

EVIDENCE ON UNION LIABILITY

5The only evidence led at the hearing was that of the complainant, as witness for O.P.S.E.U., on the issue of union liability. The complainant's evidence was undisputed and I accept it in its entirety.

6The complainant testified that article 14.08 had been in the collective agreement for a number of years. The union first raised deletion of the article in contract negotiations in April 1990. The complainant was local president of the union in 1990/91, and was personally been involved in the union's efforts to have the provision removed from the collective agreement. He testified that the union consistently pushed for the removal of article 14.08 in negotiations in subsequent years, and that the employer refused to agree to its deletion. The issue was taken to interest arbitration in August 1992. The arbitrator denied the union's request to delete the article, noting that the same language was used in collective agreements for other ambulance services and for the Ontario Public Service.

7The complainant testified that he was involved in initiating a union grievance on the issue in March 1991, which grievance was eventually dropped, on the advice of counsel, in favour of pursing a human rights remedy. In July 1993, the complainant, as union local vice-president, filed another policy grievance with respect to article 14.08, having by this time grown frustrated with the human rights enforcement process under the Code. That grievance is on hold pending the decision of this Board.

THE LAW

8The complaints in this case allege both direct and constructive discrimination in employment. The relevant sections of the Code are:

Section 5(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, sexual orientation, age, record of offences, marital status, family status or handicap.

Section 11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

9The ground of discrimination at issue in these complaints is handicap. In section 10(1)(e), the Code defines "handicap" to include a compensable injury under the Workers' Compensation Act. Section 10(1) provides:

In Part I and in this Part,

"because of handicap" means for the reason that the person has or has had, or is believed to have or have had,

(e) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act.

The respondent employer relied on section 17 in answering the allegations in the complaint against them. Section 17 provides:

(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.

(2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and the health and safety requirements, if any.

SUBMISSIONS

Submissions of the Commission

10The Commission submitted that the denial of vacation entitlement, pursuant to article 14.08 of the collective agreement, constituted both direct and constructive discrimination in employment. The Commission urged the Board to adopt a broad, purposive approach when considering the nature of the rights created by the Code: Ontario (Human Rights Commission) v. Simpson-Sears Ltd. (sub nom. O'Malley v. Simpson-Sears) (1985) 1985 CanLII 18 (SCC), 23 D.L.R. (4th) 321 (S.C.C.); Canadian National Railway Co. v. Human Rights Commission (Canadian) (sub nom. Action Travail des Femmes v. Canadian National Railway Co.) 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 (S.C.C.); Berg et al. v. University of British Columbia (1993) 1993 CanLII 89 (SCC), 18 C.H.R.R. D/310 (S.C.C.). By corollary, the Commission submitted that defences established by human rights legislation should be strictly construed: Insurance Corporation of British Columbia v. Heerspink (1982) 1982 CanLII 27 (SCC), 3 C.H.R.R. D/1163 (S.C.C.); Brossard v. Quebec (Commission des droits de la personne) (1988) 1988 CanLII 7 (SCC), 10 C.H.R.R. D/5515 (S.C.C.); Zurich Insurance Co. v. Ontario Human Rights Commission (1992) 1992 CanLII 67 (SCC), 16 C.H.R.R. D/255 (S.C.C).

11Applying this approach to the facts of this case, the Commission argued that the purpose of s. 10(1)(e) of the Code was to prevent workers with compensable injuries from experiencing adverse treatment at work as a result of their injuries: Re The Crown in Right of Ontario (Ministry of Health) and Ontario Public Service Employees' Union (Martin) (1993) 1993 CanLII 16786 (ON GSB), 31 L.A.C. (4th) 129. It was submitted that the legislative purpose of s. 10(1)(e) fit with the overall purpose of the Workers' Compensation Act, which was said to be elimination or reduction of the negative consequences to an employee who is injured at work: Re Depuis and The Crown in Right of Ontario (unreported, May 11, 1988, Grievance Settlement Board (GSB) File #1335/86).

12Counsel relied on a series of arbitration and human rights decisions in which workplace policies on absence from work have been found to discriminate on the basis of handicap: Re Ontario Nurses' Association and Etobicoke General Hospital et al. (1993) 1993 CanLII 8635 (ON CTGD), 14 O.R. (3d) 40 (Div.Ct.); Re Glengarry Industries /Chromalox Components and United Steelworkers (1989) 13 L.A.C. (4th) 326; Thorne v. Emerson Electric Canada Ltd. et al. (1993) 1993 CanLII 16439 (ON HRT), 18 C.H.R.R. D/510, (Board of Inquiry); Engell v. Mount Sinai Hospital (1990) 1989 CanLII 9070 (ON HRT), 11 C.H.R.R. D/68 (Board of Inquiry); Re Ontario Ministry of Health and O.P.S.E.U. (Martin) (1993) 1993 CanLII 16786 (ON GSB), 31 L.A.C. (4th) 129); Re City of Stratford v. C.U.P.E. (1990) 1990 CanLII 12800 (ON LA), 13 L.A.C. (4th) 1, affirmed April 19, 1991(Div. Ct., unreported); Re Riverdale Hospital (Board of Governors) and C.U.P.E. (1993) 1993 CanLII 16729 (ON LA), 39 L.A.C. (4th) 63.

13The Commission submitted that the agreed facts support a finding of both direct and constructive discrimination. Applying a direct discrimination analysis, counsel argued that the complainant was a person involuntarily absent from work due to compensable injuries and that, pursuant to article 14.08, he lost vacation days because of his handicap. Turning to a constructive discrimination analysis, counsel argued that the complainant's right to equal treatment had been infringed by article 14.08, which applied to all employees, but affected him differently as a person with a handicap under the Code.

14The Commission submitted that the respondents were required to accommodate the complainant under s. 17(2) if the Board found direct discrimination and under s. 11(2) if there was a finding of constructive discrimination. The accommodation sought by the employee was described as the right to be absent from work without penalty.

15Finally, the Commission submitted that, given the failure of Fleetwood to argue that accommodation of the complainant would have caused "undue hardship", pursuant to s. 11(2) or s. 17(2) of the Code, there was no defence available to a finding of discrimination, whether direct or constructive.

Submissions of the Respondent Union

16O.P.S.E.U. adopted the submissions of the Commission on all issues except liability. The representative for the union asked the board to note Article A of the collective agreement which incorporates the language of the Code into the employment contract.

17The submissions of all parties with respect to the issue of liability are summarized at the end of the decision.

Submissions of the Respondent Employer

18Fleetwood advanced a number of arguments in response to the case put forward by the Commission. For ease of reference, and without simplifying the complexity of the employer's submissions, I will refer to these arguments as: the "No Adverse Result" argument, the "No Causal Connection" argument, the "No Disparate Impact" argument and the "No Accommodation Possible" argument. Each of these arguments, summarized below, has been considered in other decisions to which the parties referred.

The "No Adverse Result" Argument

19This argument was not as fully developed as the other submissions, and is more difficult to summarize. The gist of the employer's position appeared to be that a reduction in vacation entitlement pursuant to article 14.08 could not constitute discrimination because there would be no detrimental impact on an accrued entitlement.

20Fleetwood relied on arbitral jurisprudence establishing that vacation entitlement is properly characterized, not as an employment right, but as a benefit, part of the wage package, which is earned by actually working: Northern Electric (1975) 1974 CanLII 2372 (ON LA), 6 L.A.C. (2d) 181; Lion's Gate Hospital (1979) 1979 CanLII 3996 (BC LA), 23 L.A.C. (2d) 308; Chemical Developments of Canada Ltd. (1975) 1975 CanLII 2080 (ON LA), 8 L.A.C. (2d) 401. Counsel noted that the collective agreement at issue established that vacation was earned by years of service. Without reference to the actual vacation entitlement of the complainant, under article 14.01 of the collective agreement (as established in the Agreed Statement of Facts), the employer took the position that the pro-ration of vacation, under article 14.08, did not remove an employment right earned by the complainant through attendance at the workplace.

21In support of this approach, counsel cited two decisions of the Office of Adjudication which held that the Employment Standards Act (R.S.O. 1990, c.E. 14, as amended) is not contravened when employees do not accrue vacation during pregnancy or parental leave: City of Sault Ste. Marie and Ministry of Labour and C.U.P.E. unreported, May 1, 1994, Decision #94-174; City of Etobicoke and Ministry of Labour and C.U.P.E. unreported, September 8, 1994, Decision # 94-161.

22Fleetwood also argued that the nature of vacation as an earned benefit distinguished the present complaint from cases in which employment rights (with respect to seniority, termination or promotion ) were affected by workplace policies on absence. On this basis, the employer argued that the Board should not follow the cases relied upon by the Commission: Etobicoke General Hospital; Glengarry Industries; Thorne; Engell; Martin; City of Stratford; Riverdale Hospital. In each of these cases, a finding of discrimination was made in respect of an employer policy on absence from work, or an absenteeism provision in a collective agreement, that impacted on the employment rights of a grievor or complainant.

23Finally, Fleetwood urged the Board not to follow three decisions of the Grievance Settlement Board holding that vacation should accrue during workers' compensation leave on the basis that it was paid leave: Sears and Ministry of Community and Social Services, unreported decision, December 3, 1987, GSB File #1129/86; Dupuis; Bowen and Ministry of Health, unreported, September 2, 1994, GSB File #3676/92. Counsel noted that the decisions were based on the particular wording of the collective agreements under consideration and did not consider the issue in the context of human rights legislation. In these cases, the Grievance Settlement Board followed a line of decisions holding that precise language in the collective agreement is necessary to oust an assumption that vacation will accrue during involuntary absences: Re Cranbrook and District Hospital and Registered Nurses Association (1979), 1979 CanLII 3921 (BC LA), 24 L.A.C. (2d) 274; Re Joseph Brant (1973), 1973 CanLII 2089 (ON LA), 5 L.A.C. (2d) 15. In the employer's submission, the clear contractual language in the Fleetwood-O.P.S.E.U. collective agreement is sufficient to limit vacation accrual during workers' compensation leaves.

The "No Causal Connection" Argument

24Having regard to the wording of s. 5, Fleetwood argued that the loss of vacation entitlement could not be considered to be discrimination "because of ... handicap ..." (emphasis added) because there was no causal connection between the pro-rating of vacation and the complainant's status as a person with a handicap as defined in the Code.

25Relying on Re Ontario Human Rights Commission et al. and Gaines Pet Foods Corp. et al. (1993) 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290, it was submitted that the pro-rating of vacation entitlement could only be held to be discrimination if there was a "direct and substantial link" between the reduced vacation and the compensable injuries. Counsel argued that the proximate cause of the loss of vacation entitlement was the absence from work, without regard to the cause of the absence. On this basis, counsel urged the Board to find that there was no direct and substantial link between the loss of vacation and a prohibited ground of discrimination.

26Counsel cited Kennedy House Youth Services Inc. and O.P.S.E.U. (unreported arbitration decision, November 22, 1993, Brandt) as an example of the proper approach to take in considering the effect of a collective agreement provision pro-rating vacation entitlement on the basis of absence. In that case, a board of arbitration held that the pro-rating provision did not result in discrimination on the basis of union membership even though the reason for the absence was a strike by the bargaining unit.

27Counsel also cited with approval the decision in Re Canada Packers Inc. and U.F.C.W. (1993) 1992 CanLII 14584 (ON LA), 28 L.A.C. (4th) 193. The facts before the arbitration board in that case involved termination of an employee pursuant to a loss of seniority provision in the collective agreement. Application of the provision was triggered by absence in excess of an allowable period set in the contract. The board rejected allegations that the loss of seniority provision resulted in discrimination on the basis of disability as follows:

The starting point for the analysis in my view begins with the ... phrase "because of". That language required causality between the two events and not merely correlation. In other words, for the company to have run afoul of the provisions of the Code, it must have terminated the grievor's employment for the very reason that she was in receipt of workers' compensation benefits, not simply because the termination occurred while she was in receipt of the benefits. .... In the matter before this arbitration board, there is no evidence whatsoever even to suggest that the grievor's employment was terminated for the reason, whether solely or partially, that she was in receipt of workers' compensation benefits. Instead, she was terminated solely for the reason that her absence exceeded the period of the allowable break provided for under the collective agreement . The fact that she received workers' compensation benefits was purely coincidental; the same rules were applied to her as would have been for someone who was absent for other than a compensable injury or illness.

Fleetwood urged the Board to apply the same approach in the present case. The test was said to be not whether all employees received identical benefits, but whether or not any denials of full entitlement were based on a prohibited ground of discrimination.

The "No Disparate Impact" Argument

28Fleetwood submitted that, even if it is acknowledged that article 14.08 had an adverse effect on the complainant because of handicap, there can be no finding of discrimination because the complainant was treated in the same way as all other employees affected by the policy. Given that all employee vacations were subject to the prorating formula for absence over one month, the employer argued that there was no disparate impact on the complainant as a person identified by a prohibited ground of discrimination.

29Fleetwood emphasized that, under article 14.08, employees on workers' compensation leave are treated the same way as employees absent on short-term or long-term disability leave and as employees on any other unpaid leave: absence for more than one month results in a loss in vacation entitlement. Relying on Brooks v. Canada Safeway Ltd.(1989) 1989 CanLII 96 (SCC), 59 D.L.R. (4th) 321 at 337 (S.C.C.), Battlefords and District Co-op v. Gibbs (1994) 1994 CanLII 4550 (SK CA), 116 D.L.R. (4th) 109 , and Re Glen Haven Manor Corp. and C.U.P.E. (1991) 1991 CanLII 13417 (NS LA), 19 L.A.C. (4th) 61, counsel argued that exclusions from benefit entitlement are not discriminatory if all employees affected are treated equally. If all employees are subject to the same rules of disentitlement, then there can be no disparate or disproportional impact, and no finding of discrimination.

30Counsel cited Re Canadian Airlines International Ltd. and Canadian Union of Public Employees (1993) 1993 CanLII 16781 (CA LA), 32 L.A.C. (4th) 398, as an example of the correct approach to considering reductions in benefit entitlement. In that case, the arbitrator rejected a union argument that the Canadian Human Rights Act, R.S.C. 1985, c. H-6, required that employees on maternity leave accrue vacation on an equivalent basis to employees not absent from work. At p. 408 of the decision, the arbitrator stated:

Further, although the Supreme Court of Canada in the Brooks case expressed its concern about pregnant women bearing a disproportional amount of the costs of procreation, it did not adopt the approach being advanced by the union. Instead the court held only that employees on maternity leave were entitled to be treated in a manner similar to other employees who were off work for health-related reasons.

I recognize that the law as it related to discrimination on the basis of sex continues to evolve. .... At least at this point in the evolution of the law, however, I am unable to conclude that the Canadian Human Rights Act goes beyond requiring that, for vacation entitlement purposes, employees on maternity leave be treated as well as employees off work for other health-related reasons and instead requires that they be treated in the same manner as if they were still actively at work.

31Fleetwood argued that, if workers' compensation recipients were entitled to earn vacation during their absence from work, this would constitute not just equal treatment, but preferential treatment. An employee could potentially earn a windfall by receiving compensation, at 90% of wages untaxed, plus vacation pay on top. Further, it was submitted that if the position of the union is taken to its logical conclusion, an employee on compensation leave would be entitled to receive full pay and benefits as if s/he were still at work.

The " No Accommodation Possible" Argument

32Fleetwood submitted that no finding of discrimination is possible because the complainant could not have been accommodated under s. 17 of the Code. Even if the Board of Inquiry would otherwise have determined that article 14.08 of the collective agreement resulted in discrimination on the basis of handicap, s. 17 of the Code was said to provide a complete defence for the employer.

33Section 17(1) provides that there is no infringement of the Code if a person claiming a right is incapable of exercising the right claimed because of a handicap. Under s. 17(2), a board of inquiry cannot find a person to be incapable unless satisfied that their needs cannot be accommodated without undue hardship.

34In the employer's submission, the facts demonstrate that there was no possible accommodation of the complainant's needs, as required by s.17(2), which would have allowed the complainant to attend work. Fleetwood argued that the duty to accommodate does not require a change in the terms of the collective agreement, but only an accommodation that would enable the complainant to return to work. Given that there was nothing the employer could do to accommodate the complainant in such a way as to enable him to perform his job, counsel submitted that s. 17(1) provides a complete answer to the allegations in the complaint.

ANALYSIS

35The issue to be decided in this case is whether the pro-rating of the complainant's annual vacation entitlement, due to absence for compensable injuries, infringes his right under the Human Rights Code to equal treatment in employment. In proceedings before human rights boards of inquiry, the Commission has carriage of the complaint and the onus of establishing a prima facie case of discrimination. The Supreme Court of Canada, in the O'Malley decision, defined a prima facie case in the human rights context, as follows:

A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent employer. (p. 338)

In the present case, the Commission submitted that the agreed facts established a prima facie case of both direct and constructive discrimination.

Direct Discrimination

36The Commission argued strenuously that the evidence established a prima facie case of direct discrimination, as well as constructive discrimination. O.P.S.E.U. made no submissions on this point, and Fleetwood simply stated at the beginning of its submissions that the facts did not fit within the definition of direct discrimination established by the Supreme Court of Canada in O'Malley. The findings which I make with respect to the allegation of constructive discrimination make it unnecessary to consider whether a finding of direct discrimination is also supportable. However, it may be useful to consider briefly the nature of the distinction between direct and constructive discrimination.

37The Supreme Court of Canada clarified the distinction between direct and constructive discrimination in the O'Malley decision:

A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection when an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here". There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is no concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code, I am of the opinion that this court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.

38Applying this analysis to our case, it is clear that article 14.08 is not on its face discriminatory. Application of article 14.08 is not triggered directly by a factual situation identified as a prohibited ground of discrimination, such as a compensable injury, but rather by a circumstance neutral on its face: absence from work. Article 14.08 does not provide that vacation will be reduced when employees are absent for one month because of an injury or illness, as was the case in Etobicoke General Hospital, City of Stratford and Glengarry Industries. Employees may be absent for a number of unspecified reasons, some of which could raise issues of discrimination (eg. maternity leave; illness) and some of which could not (eg. jury duty; educational leave). Contractual language which reduces vacation on the basis of absence from work is not on its face discriminatory and cannot be held to directly discriminate against an employee.

Constructive Discrimination

39To support a finding of constructive discrimination, the Commission must demonstrate that the agreed facts establish each constituent component of the alleged discrimination. What are the elements of a finding of constructive discrimination? In Proving Discrimination in Canada, (Carswell, Toronto: 1987), Vizkelety defines the case to be made as follows:

Under this theory, a prima facie case of discrimination will be made out where a standard, rule or requirement is shown to be more onerous for protected group members than for members of the majority. (p. 31-32)

40A fuller formulation of the components of constructive discrimination can be taken from the definition in the O'Malley decision. If we examine that definition, excerpted above at page 15, we find that the starting point is a neutral rule or standard adopted for genuine business reasons. The elements of the O'Malley definition are:

• a neutral rule or standard which
• applies equally to all employees but which
• has a discriminatory effect upon a prohibited ground on one or a group of employees in that
• it imposes penalties or restrictive conditions not imposed on others
• because of a special characteristic of the employee or group of employees.

The latter part of the definition is key. It provides that the "discriminatory effect upon a prohibited ground" arises because of the impact of the neutral rule on the group. The identified group is penalized, not because of unequal application of the rule, but because a special characteristic of the group makes the equally-applied, neutral rule more onerous for that group. This is made clear by the final sentence in the passage:

An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.

41The Supreme Court in the O'Malley defined constructive discrimination decision in the context of s. 4 ( now s. 5) of the Code, prior to enactment of s. 11 (formerly 10) of the Code. The definition in the decision is an interpretation of the s. 4 right to "equal treatment with respect to employment without discrimination because of ...." the listed enumerated grounds. Section 11 is in Part II of the Code (entitled INTERPRETATION AND APPLICATION) and provides an interpretation of Part I rights to include constructive discrimination. The elements in the s. 11 definition are:

• a requirement, qualification or factor that is not discrimination on a prohibited ground but that
• results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and
• of whom the person is a member.

42In comparing the O'Malley definition with the s. 11 codification of constructive discrimination, it is clear that the formulation by the Supreme Court is fuller and more comprehensive. Both formulations must be read in the context of s. 5 which establishes that discrimination must be "because of ..." a prohibited ground. Both are predicated on a neutral rule that results in a discriminatory effect or restriction on a person or group identified by a prohibited ground. The Supreme Court definition, which remains authoritative, provides in addition that the challenged rule applies equally to all employees; that the restriction is not imposed on others; and that the restriction arises because of a special characteristic of the person or group.

43On a superficial application of either definition of constructive discrimination, a finding of constructive discrimination appears possible. On our facts, there can be no dispute that the complainant had a handicap within the meaning of the Code. As a person in receipt of workers' compensation benefits, the complainant is by definition identified by a prohibited ground of discrimination. Applying the s. 11 definition, article 14.08 can be described as a non-discriminatory rule that results in a restriction (loss of vacation) on a group of persons identified by a prohibited ground (handicap) of whom the complainant is a member. Quaere whether the element of causality, brought in by the language of s. 5, can be established?

44Considering the O'Malley definition, article 14.08 can be described as a neutral rule applying to all employees, which imposes a restriction on the complainant (loss of vacation), not imposed on others (employees not absent for more than one month) because of a special characteristic of the complainant (compensable injury). However, an essential element of the O'Malley definition may disappear if the "others" (whose treatment is to be compared with that of the complainant) is taken to be other employees absent for more than a month on unpaid leaves: there may be no differential treatment as compared with that group.

45This superficial consideration demonstrates that the issues of causality, impact and the appropriate comparator are key. Let us examine Fleetwood's submissions in light of this analysis of the constituent elements of constructive discrimination.

The "No Adverse Result" Argument

46Fleetwood argued, in effect, that the complainant has not experienced discrimination because he has not suffered a loss or adverse result; he has not suffered an adverse result because he had no right to accrue vacation in the first place when absent from work. Vacation was described as an earned respite from work. How can the complainant have earned vacation during a period when he was not at work? And if he has not earned vacation, what has he lost by the application of article 14.08?

47First of all, let me deal briefly with the case law cited by counsel. I agree with Fleetwood that the Grievance Settlement Board cases (Sears, Dupuis and Bowen) are not of assistance because they do not apply a human rights analysis. The decisions of the Office of Adjudication, which analyse vacation entitlement during maternity leave under the Employment Standards Act, also cannot assist in our inquiry. However, I accept the submission of the Commission that the reasoning in cases such as Etobicoke General Hospital, City of Stratford, Riverdale Hospital and Glengarry Industries has application to our facts, and must be considered. The fact that this line of cases considers termination and seniority rights, and not benefits, does not allow us to ignore the human rights analysis of absenteeism policies in these decisions. In particular, we must have regard to the decisions of the Divisional Court, in Etobicoke General Hospital and in City of Stratford, which consider and apply the Human Rights Code in reviewing arbitration awards.

48The distinction which Fleetwood makes between termination or seniority rights, on the one hand, and earned benefits, such as vacation, on the other, appears to turn on the question of when entitlement vests. Fleetwood argues that there is no adverse impact on the complainant because vacation entitlement only accrues through actual attendance at the workplace, and the complainant was not at work. In my view, the wording of the collective agreement does not support this analysis. After the first year of employment, vacation is earned on the basis of years of service; it is not accrued on a monthly basis according to attendance. But for the application of article 14.08, the complainant would have been entitled to at least 170 more hours of vacation from 1990 to 1993. Article 14.08 does not prevent the accrual of vacation days; in the words of the article, its application results in a "loss" in "annual vacation entitlement".

49Moreover, on a human rights analysis, it may not matter if the negative impact experienced by the complainant is that he is prevented from accruing vacation or that he loses accrued vacation. The Code does not differentiate between penalties which have a prospective impact and penalties which retrospectively affect fully accrued rights. Neither is such a distinction supported by the language in the O'Malley decision. The fact that vacation is considered a benefit, earned or earnable by actual attendance in the workplace, does not in any way undercut the characterization of the pro-rating provision as a restriction or penalty. The complainant experiences a reduction in the vacation to which he would have been entitled, had he not been off work with a compensable injury. This can only be considered a negative or adverse result caused by Article 14.08. The question of whether that adverse result is discriminatory must be considered in the context of the arguments on causal connection and disparate impact raised by Fleetwood.

The "No Causal Connection" Argument

50What is the reason for the pro-rating of the complainant's vacation entitlement? Is it his absence from work, regardless of the cause, or is it the compensable injuries which resulted in the absences. This is by no means a simple question to answer.

51There is considerable authority in support of the Commission's position that the true cause of the disentitlement is the compensable injuries. The Divisional Court, in Gaines Pet Foods Corp., established the importance of examining the proximate cause for a workplace penalty resulting from absence, noting that the proximate cause may be disability even if the primary cause is not. This approach was applied by the Grievance Settlement Board in the Martin decision, in which absence due to compensable injuries was considered in denying a promotion opportunity to the grievor. In Martin, the Grievance Settlement Board relied on Glengarry Industries, since cited with approval by the Divisional Court in Etobicoke General Hospital. The panel in Martin held that compensable injuries were the proximate, if not the primary, cause of a promotion being denied to the grievor.

52Commission counsel argued that the Board was bound to follow the decision of the Divisional Court in Etobicoke General Hospital. The Court found an arbitral decision to be patently unreasonable in failing to make a finding of discrimination in respect of an automatic termination clause. Application of the automatic termination clause was triggered by an absence from work for more than 24 months due to illness or disability. In making its determination, the Court cited with approval City of Stratford, upheld by the Court on similar facts. In City of Stratford, an automatic termination clause, triggered by absence due to disability, was found to result in discrimination because of handicap.

53The analysis approved by the Divisional Court is set out in the following passage from Glengarry Industries, quoted with approval in Etobicoke General Hospital:

There is no question that the grievor was treated no differently from other employees absent for six months due to sickness or accident. Similarly, there is little question that she was treated differently from the majority of the employees in the bargaining unit and that difference in treatment was due to her absence which, in turn, was due to her compensable injury. .... The grievor ... was subject to automatic termination due to her innocent absence as a result of her compensable injury. Accordingly, under the automatic termination provision, she does not have the same right as other employees to challenge her termination with the standard of proper cause.

Applying this analysis (and language) directly to our case, there is no question that the complainant was treated no differently from other employees absent for more than a month on unpaid leave. Similarly, there is little question that he was treated differently from the majority of other employees, and that the difference was due to his absence which, in turn, was due to his compensable injuries. In our case, the complainant loses the full vacation entitlement enjoyed by other members of the bargaining unit due to his absence as a result of his injuries. Accordingly, under article 14.08, he does not have the same entitlement to vacation as do other employees.

54In considering the analysis approved by the Divisional Court in Etobicoke General Hospital, I note a factual difference between our case and Etobicoke General Hospital, as well as City of Stratford and Glengarry Industries. In those three cases, the challenged articles in the collective agreements provided that the penalty was triggered by absence in excess of an established period "due to illness and disability" (Etobicoke General Hospital), "due to sickness or injury" (City of Stratford), "due to sickness or injury" (Glengarry Industries). In other words, the contracts expressly established the causal connection between the facts associated with a prohibited ground of discrimination, the absence and the resulting penalty. Arguably, as the Court noted in Etobicoke General Hospital, the discrimination in those cases can be considered direct as well as constructive. Does this difference make the analysis of causation in those decisions inapplicable to our facts?

55I do not find this to be a sufficient basis for distinguishing Etobicoke General Hospital, City of Stratford and Glengarry Industries on the question of the causal connection. In those decisions, as in our case, the absence which triggers the penalty is due to compensable injuries. The facts are parallel, and the language of the collective agreement cannot have the effect of masking the causal connection.

56I have considered the approach to causation adopted by the arbitration board in Riverdale Hospital. In that case, as in ours, the issue was a reduction in vacation entitlement triggered by any unpaid absence in excess of thirty days (other than maternity leave). After referring to the emphasis in the O'Malley decision on the impact of unequal treatment, the award states:

To apply that analysis to the case at hand, the very reason for the grievor's absence from work, and hence his loss of seniority and reduction in vacation entitlement, is his work-related injury. It is our conclusion that the necessary correlation between [the grievor's] disability and his reduction in vacation entitlement exists. (p.72)

57Turning to the cases relied upon by the employer, the decision in Canada Packers expresses most succinctly the argument put forward by Fleetwood. The arbitration board in Canada Packers found that the termination of the grievor was "solely" because of a period of absence in excess of the allowable period established in the collective agreement. The fact that the absence occurred while on workers' compensation was held to be "purely coincidental".

58In my view, the analysis in Canada Packers is similar to the reasoning applied by the Supreme Court in the Bliss v. Canada (Attorney General) 1978 CanLII 25 (SCC), [1979] 1 S.C.R. 183, since rejected by the Court in Brooks v. Canada Safeway and in Andrews v. Law Society of B.C. (1989) 1989 CanLII 2 (SCC), 56 D.L.R. (4th) 1. In the Bliss decision, the Court considered the differential treatment of pregnant employees under a benefit plan. Because all women are not pregnant, the differential treatment was found to be based on pregnancy, not gender, and hence not prohibited under human rights legislation. Similarly, Fleetwood argues, relying on Canada Packers, that because all persons on workers' compensation are not absent for a "whole month", and all employees absent for a month are not on compensation, the differential treatment is "solely" because of the absence, and not because of the compensable injuries. Both approaches take a limited view of the facts and fail to look behind the apparent reason for the differential treatment. In the words of the Gaines Pet Foods Corp. decision, the analysis stops at the primary cause and fails to consider the proximate cause for the differential treatment.

59Nonetheless, I note that there is a difference between the situation before the Court in Bliss and our facts. In Bliss, the causal connection between the differential treatment and gender is underlined by the fact that, although all women are not pregnant, all pregnant persons are women. This does not match the situation in our case. Although all employees on workers' compensation are not absent for more than a month, it is also true that all employees absent for more than a month are not on compensation. Employees may be absent for more than a month on other kinds of unpaid leave. Does this affect our analysis of the causal connection between the penalty (loss of vacation) and the prohibited ground (handicap as a person on workers' compensation)?

60The issue raised by this analysis goes to the question of disparate impact, not cause. Not all employees who are detrimentally affected by the policy can be said to be so affected because of a prohibited ground. The group of employees affected is wider than the group identified by the specific prohibited ground, but on the question of causation, this only means that the differential treatment, in the case of these other employees, is not because of disability. The fact that other employees are affected for other reasons does not in any way negate the fact that, in the case of the complainant, the proximate cause is the compensable injuries. However, the fact that article 14.08 has a negative impact on a wider group of employees than those with a handicap under the Code will be considered with reference to the submissions of the employer on disparate impact.

61The analysis of the Divisional Court in Etobicoke General Hospital, City of Stratford and Gaines Pet Foods Corp. is determinative on the question of causation. Moreover, this analysis is consistent with the approach of the Supreme Court in O'Malley. In O'Malley, the Court did not find that the reason for the complainant's termination was that she did not work on Saturdays. The Court looked behind her failure to work and considered the reason for it - her religious practice.

62I find that the complainant's status as a person with a handicap under the Code is the proximate cause for the loss of vacation entitlement experienced by the complainant under article 14.08 of the collective agreement.

The "No Disparate Impact " Argument

63Having determined that article 14.08 of the collective agreement had an adverse impact on the complainant, and that his compensable injury was the proximate cause, the third issue raised by the employer is whether or not article 14.08 had a disparate impact on the complainant. In the words of the Supreme Court in O'Malley, was there a penalty imposed on the complainant which was not imposed on others? As discussed above, the answer to this question may depend on which group of employees is ”˜chosen' for comparison purposes. What is the appropriate comparator group to consider in determining if the complainant was subjected to differential treatment?

64The question of identifying the appropriate employee comparator group has been at issue in a number of cases in which discrimination is alleged based on differential treatment under a collective agreement. There are two separate lines of arbitral jurisprudence on the question. In support of the proposition that treatment of the complainant should be compared to that of other employees on unpaid leave, or other employees absent for health reasons, Fleetwood relied on the approach adopted in Canadian Airlines, Canada Packers and Glen Haven Manor, and pointed to the uniform treatment of the complainant as compared to other employees in this group. In reply, the Commission and O.P.S.EU. argued that treatment of the complainant had to be compared to that of all bargaining unit employees, and relied on Riverdale Hospital, City of Stratford and Etobicoke General Hospital. (Neither the Commission or Fleetwood addressed the treatment of employees on maternity leave.)

65I find that the appropriate comparator for the complainant is the group of employees in the bargaining unit as a whole. This approach has been adopted by the Divisional Court in Etobicoke General Hospital, and approved by the Court in dismissing the judicial review application in City of Stratford. Limiting the comparison to other employees on unpaid leave ignores the true issue raised by the facts. The complaint of Mr. Thomson is that, when he returns to work after a compensation leave, he is not entitled to the same vacation as other employees who were not injured and involuntarily absent for more than a month during the previous year. To consider only other employees on unpaid leave, would be to artificially limit the scope of the comparison, and to ignore the proximate cause of the differential treatment, which I have found to be the compensable injuries (and hence the complainant's handicap under the Code). If the cause of the differential treatment is the injuries, which have in turn caused the absence, then the appropriate comparison must be between the complainant and the broad group of employees in the bargaining unit who have not suffered a compensable injury resulting in a lengthy involuntary absence.

66Restricting the comparison to other employees on unpaid leave would apply a "similarly situate" approach to the analysis of this case, contrary to the direction given by the Supreme Court in Andrews and Brooks. In Andrews, McIntrye J. stated in his dissenting reasons (concurring on the result):

Thus, mere equality of application to similarly situate groups of individuals does not afford a realistic test for a violation of equality rights. For, as has been said, a bad law will not be saved merely because it operates equally upon those to whom it has application. Nor will a law necessarily be bad because it makes distinctions. (p. 12-13).

67This brings us to the next question: given that the treatment of the complainant under the collective agreement is to be compared to that of all other employees, has the Commission demonstrated a disproportional or disparate impact on the complainant? What kind of evidence is necessary to establish a disproportionate impact? Is it necessary, as was suggested in cases cited by Fleetwood (Canadian Airlines and O.P.S.E.U. v. Ministry of Health , unreported, Feb. 17, 1995, GSB File #1389/91), to compare the impact of the policy on injured employees with the impact on all other employees? Should one rather focus on the specific impact on the complainant as compared to other employees? Is statistical evidence necessary to compare, for example, the rate at which employees on compensation missed work for more than a month with the rate among other employees? Is it possible without this sort of evidence to find that article 14.08 has a disparate impact on the complainant, or on all employees on workers' compensation? These questions were not addressed in submissions.

68The approach adopted by the Supreme Court in O'Malley is of assistance. In that case, like ours, the issue was a neutral policy which applied to all employees: the requirement to work on some Saturdays. The policy can be assumed to have had an unwelcome impact on a number of employees for a variety of reasons. Employees with children in school; employees who regularly took Saturday classes or who played on a sports team on Saturdays; employees whose spouses worked a regular week, may all have been negatively affected by the new policy. In the case of the complainant, the policy was found to have a detrimental effect because of her religious practice. The fact that other employees may have been negatively affected for a variety of reasons did not prevent the Court from finding that there was a disparate impact on the complainant individually. The Court did not find a need for statistical evidence comparing the impact of the Saturday work rule on employees practising a religious faith as compared to employees not practising. Without any kind of quantitative evidence, the Court found that the neutral rule penalized the complainant in a way that it did not penalize others, because of a "special characteristic" of the complainant associated with a prohibited ground of discrimination.

69This is consistent with the approach developed by McIntyre, J. in his reasons in Andrews:

In simple terms, then, it may be said that a law which treats all identically and which provides equality of treatment between "A" and "B" might well cause inequality for "C", depending on differences in personal characteristics and situations. To approach the ideal of full equality before and under the law ... the main consideration must be the impact of the law on the individual or the group concerned .... In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another. (p.11)

70In our case, the agreed facts establish that the complainant lost between 170 and 183 hours of vacation (depending on method of calculation) over the period from 1990 to 1993. The loss of vacation entitlement occurred because of a special characteristic of the complainant - his involuntary absence from work due to a compensable workplace injury - which characteristic establishes the complainant as a person identified by a prohibited ground of discrimination. As compared to other employees as a whole, the negative impact on the complainant individually can be found to be disparate based on the involuntary nature of his absence from work and the very significant loss of vacation entitlement. Simply put, the complainant is penalized by article 14.08 in a way that other employees are not penalized, because his injuries forced him to be absent from work for significant periods of time. Accordingly, I find that article 14.08 of the collective agreement has a disparate impact on the complainant.

71The Commission has established that the agreed facts support a prima facie case of constructive discrimination. Before considering if Fleetwood has raised a defence under s. 17, there are two additional points raised by the employer which should be addressed. Fleetwood submitted that a finding of constructive discrimination could result in preferential treatment, because an employee could receive, in a single year, full compensation benefits, at 90% of wages untaxed, plus vacation with pay. Further, Fleetwood argued, a finding of constructive discrimination would open the door to claims for full wages during compensation or maternity leaves. Let me attempt to briefly deal with these arguments before moving to consideration of the s. 17 defence.

72On our facts, the issues as framed by the employer are not before this Board. At Fleetwood Ambulance Service, vacation entitlement earned in one year is not available to an employee until the succeeding year, with the result that there is no possibility of taking vacation with pay in the same year as it was earned, while simultaneously receiving full compensation benefits. Further, there is, of course, no claim for full wages before me.

73However, I acknowledge that there is a potential issue of fairness implied by the employer's submissions. What Fleetwood is asking is, even if it is constructive discrimination to deny full vacation entitlement to employees on compensation, is it unfair? And if it is unfair, would it also be unfair, and result in constructive discrimination, if an employer did not pay full wages to an employee involuntarily off work for non-compensable health reasons? What about unfairness to the employer? Is it fair to ask employers to fund equality to this extent?

74Fleetwood's questions raise issues of public policy. As a society, our shared sense of fairness is constantly changing and evolving. For example, in many workplaces, including apparently Fleetwood Ambulance Services, employees on maternity leave are now entitled to accrue vacation. Presumably this indicates not only an evolving understanding of human rights requirements, but also an evolving sense of public responsibility for the needs of women giving birth, such as was discussed in the Brooks decision and referred to in Canadian Airlines. There may or may not be similar evolving public support for injured workers who are required to be absent from work for significant periods. Fleetwood raises also the situation of employees with serious non-work-related health problems which may require significant absences from work over a number of years. Would an employee on a reduced work week because of health problems be entitled to accrue full vacation? What about an employee whose health prevents him or her from working more than eight or ten months a year, every year? Should the cost of achieving equality for these employees be borne by individual employers or by society as a whole?

75None of these questions are before the Board in this proceeding. I note in particular that, in the case of non-compensable illness or injuries, there would be a preliminary issue, not present in our case, as to whether or not there is a handicap within the meaning of the Code. Moreover, in considering the broad policy questions raised by other fact situations, it is important not to forget that, under the Code, individual employers are only required to accommodate employees to the point of undue hardship. Fleetwood choose not to raise an undue hardship defence in this case, perhaps believing that the cost of accommodating the complainant would not meet the standard of undue hardship. However, I note that, in considering hardship under s. 11(2), as opposed to under s. 17(2), the employer can rely on the cost of accommodating the needs of the group, not just the individual. In other words, a defence will be available if it can be demonstrated that the cost of accommodating the group of employees identified by the prohibited ground would result in undue hardship to the employer, even if the cost of accommodating the individual would not.

76To take Fleetwood's example, an employer facing a claim for full wages, from an employee on compensation leave, might well mount a successful defence based on the cost of accommodating the group affected. The group might be defined as all employees currently or potentially off work due to a compensable injury, or perhaps as all employees currently or potentially off work due to a handicap. In our case, Fleetwood did not argue that the cost of accommodating the needs of employees on compensation leave, by allowing accrual of full vacation entitlement, would have caused it undue hardship. If Fleetwood had put this defence before the Board, the first question for determination would have been the scope of the group to be considered.

77This completes the analysis of the merits of the complaint in the absence of a statutory defence. I have found that the loss of vacation entitlement had an adverse effect on the complainant and that the compensable injury was the proximate cause of the loss. Further, I have found that article 14.08 had a disparate impact on the complainant as a person identified by a prohibited ground of discrimination. In my view, all the constituent elements of a finding of construction discrimination have been established by the agreed facts, regardless of whether one applies the s. 11 definition, or the formulation developed by the Supreme Court in O'Malley. The employer has specifically abandoned the defence of undue hardship. It remains for us to consider whether there is a defence under s. 17 of the Code.

The "No Accommodation Possible" Argument

78Fleetwood relies on s. 17 of the Code to establish a defence based on the inability of the complainant to attend work. Arguing that no accommodation under s. 17(2) would enable the complainant to perform his work duties, the employer takes the position that s. 17(1) provides a complete defence.

79Section 17(1) provides that, if a person claims infringement of his/her right to equal treatment, the right claimed will not be infringed if the person cannot exercise that right because of handicap. This section has most commonly been considered in cases where an employee seeks accommodation to enable him or her to perform the essential duties of a job. Section 17(2) provides that, in assessing ability to work, accommodation of the needs of the worker must be considered.

80In our case, the complainant is not claiming the right to work. The right claimed by the complainant is the right to earn full vacation during compensation leave. Accordingly, the right claimed cannot be described as one which the complainant is incapable of exercising because of his disability. There is no need to consider accommodation under s. 17(2); section 17(1) has no application to our facts. The fact that there was no accommodation possible which would have enabled the complainant to work is not relevant.

81In so finding, I adopt the reasoning of the Divisional Court in City of Stratford, where it considered an automatic termination provision, as follows:

In my view, the arbitrator was bound to consider the provisions of the Human Rights Code in arriving at her interpretation of the provision of the collective agreement in question. And, in light of the issue she was asked to determine, I do not think that she erred in arriving at her conclusion solely on the basis of the provisions of s. 4 (now 5) of the Code without reference to s. 16 (now 17). To my mind, the issue did not raise any question of "incapability", and accordingly, the provisions of s. 16 of the Human Rights Code were not relevant for her purposes. (p. 3)

82In written submissions invited after the hearing, Fleetwood urged the Board to follow the reasoning in Versa Services Ltd. and Milk and Bread Drivers, Diary Employees, Caterers and Allied Employees Union (unreported arbitration decision, January 5, 1994, Brown), affirmed February 7, 1995 (Div.Ct., unreported). This decision dealt with the payment of benefits during health-related leaves. The arbitrator held that handicap discrimination cases were properly considered under s. 17, not s. 11, and that accordingly capacity to perform the essential duties of the job, with accommodation, was a threshold issue. In reaching this conclusion, the arbitrator relied on the fact that s. 17 of the Code is "addressed exclusively to handicap".

83In my view, this interpretation of s. 17 is incorrect. Constructive discrimination complaints based on handicap must be considered under s. 11; s. 17 of the Code becomes relevant only if the capability of the employee to exercise the claimed right is an issue. Where, as in our case, no issue of capability is raised, s. 17 is simply not relevant. I adopt the reasoning in City of Stratford in preference to that in the Versa Services decision.

84The employer has not established a defence under s. 17 to the case of constructive discrimination made out by the Commission. Moreover, although this was not argued before me, I question whether a s. 17 defence is available to bar a duty to accommodate under s. 11(2), given the precise language in s. 11 (1)(b) excluding consideration of s. 17.

85Before turning to the issue of liability, I would like to address briefly a case brought to my attention by counsel for Fleetwood after the hearing: O.P.S.E.U. and Ministry of Health (unreported, May 31, 1994, GSB File #1389/91). The facts in that case are very similar to ours. At issue was an article in the collective agreement between the union and the District of Halton and Mississauga Ambulance Service. Article 14.06, like our article 14.08, pro-rated vacation by 1/12 in the event of an absence from work for more than a month.

86The Grievance Settlement Board decided the same issue as I have considered, and decided it differently. The Board found, among other things, that the decisions in Etobicoke General Hospital and City of Stratford could be distinguished as dealing with employment rights, not benefits. In finding that there was no discrimination on the basis of handicap, the Board relied primarily on the fact that article 14.06 was " imposed on all members of the work force who are absent from work for more than a month" (at p. 83 - emphasis in original; and at p.92-93).

87In my view, the decision of the Grievance Settlement Board inappropriately applies a direct discrimination analysis. In determining that there is no constructive discrimination because the restrictive article in the collective agreement is imposed on all employees, the decision misses the true issue. A restrictive policy that was imposed only on a group identified by a prohibited ground would be directly discriminatory. In a constructive discrimination analysis, it must be determined if the equally applied policy has a different impact on a group identified by a prohibited ground. Relying on the definition of constructive discrimination in O'Malley, the issue is not whether the policy itself is applied or imposed equally, but whether it affects the complainant differently and adversely because of membership in a group identified by a prohibited ground.

88Much of the arbitral case law relied upon by the employer appears to make this basic error: constructive discrimination is confused with direct discrimination and, accordingly, the appropriate analysis is not applied in determining whether or not there is an infringement of the Code. One of the key elements in the O'Malley definition of constructive discrimination, which appears to often be ignored, is the stipulation that the rule or standard is assumed in the first instance to "apply equally to all employees". Interestingly enough, these words are omitted in the excerpt from the decision cited in Andrews and Brooks, and in most of the subsequent caselaw. (See, for example, Glen Haven Manor at p. 69-70.) The omission has the effect of blurring the distinction made in O'Malley between the application of the policy or rule itself and the resulting imposition of a restrictive condition or penalty, that is, the negative impact.

UNION LIABILITY

89The Commission relied on Renaud v. Board of School Trustees et al. (1992), 1992 CanLII 81 (SCC), 16 C.H.R.R. D/425 (S.C.C.), in arguing that O.P.S.E.U. should be held liable for a finding of discrimination as a party to the collective agreement. In response, O.P.S.E.U. submitted that it had made considerable efforts to have article 14.08 removed from the contract, and that on this basis, the decisions in Renaud and in Gohm v. Domtar Inc., (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 could be distinguished. Fleetwood argued that O.P.S.E.U. should be held liable because it had agreed, in this collective agreement and others, to include the offending provision.

90I have accepted the evidence of the complainant with respect to the union's efforts, at the bargaining table, in interest arbitration, and by grievance, to have article 14.08 removed from the contract. The union did indicate support for the employer at one point in the human rights investigation, but this appears to have been a temporary change in position. The union has challenged similar contractual language in other proceedings, including before the Grievance Settlement Board in O.P.S.E.U. v Ministry of Health.

91Although in Renaud, the Court held that it would not be appropriate to examine collective bargaining negotiations to determine which party pressed for the offending provision, the facts in our case are distinguishable. There is undisputed evidence to demonstrate that the union actively sought the deletion of article 14.08 from the employment contract over a series of years, and on more than one front. On this basis, I find that the union took appropriate steps to remove the provision, and accordingly, cannot be found liable for the discriminatory impact of article 14.08 on the complainant.

REMEDY

92The Commission, Fleetwood and O.P.S.E.U. all agreed that, in the event that a finding of discrimination was made, a prospective remedy under s. 41(1)(a) would be appropriate. The union submitted that the order should direct the employer to negotiate appropriate changes to the collective agreement. The Commission opposed an order which would send the parties back to the negotiating table, arguing that the Board should direct that article 14.08 does not apply to employees absent on workers' compensation. Fleetwood submitted that, if a finding of discrimination was made, the remedy should deal only with future compliance with the Code.

93Neither the Commission, nor the complainant individually, made submissions seeking a monetary award for loss arising out of the infringement, pursuant to s. 41(1)(b). O.P.S.E.U. asked for an "order that vacation benefits be paid to the complainant". Fleetwood clearly stated its opposition to a monetary award, arguing that it would not be appropriate in this case to compensate for prior loss of vacation entitlement.

94Given that the appropriateness of a restitutional award has not been fully addressed in submissions, I will remain seized to deal with this issue should any party seek to raise it.

ORDER

95Pursuant to s. 41(1)(a) of the Code, I order the respondent, 501781 Ontario Limited Operating as Fleetwood Ambulance Service, to forthwith cease applying article 14.08 of the collective agreement, or its successor, to the calculation of vacation entitlement for employees who have had an injury or disability for which workers' compensation benefits were claimed or received.