Lord v. Haldimand-Norfolk Police Services Board
1995-06-14
Ontario Board of Inquiry
Julie Lord Complainant
v.
Haldimand-Norfolk Police Services Board and Lee Stewart Respondents
Date of Complaint: July 15, 1991
Date of Decision: June 14, 1995
Before: Ontario Board of Inquiry, Loretta Mikus
Comm. Decision No.: 95-024
Appearances by: Jennifer Scott, Counsel for the Commission Paul Osier, Counsel for the Complainant Graydon Sheppard, Counsel for the Respondents
PREGNANCY — REASONABLE ACCOMMODATION — SEX DISCRIMINATION — work duty reassignment denied for police officer — DISCRIMINATION — adverse effect discrimination — direct discrimination — intention to discriminate — BONA FIDE OCCUPATIONAL QUALIFICATION — Etobicoke test — BURDEN OF PROOF — onus shifts to respondent — elements of a prima facie case — DAMAGES — injury to dignity and self-respect — LIABILITY — personal liability
Summary: The Board of Inquiry finds that the Haldimand-Norfolk Police Services Board discriminated against Julie Lord, who was a police constable, by refusing to assign her to light duties in the latter weeks of her pregnancy.
Ms. Lord began working for the Haldimand-Norfolk Police Services Board in 1986 as a police constable. In 1991, she informed her supervisor that she was pregnant and formally requested light duties for the latter part of her pregnancy. Ms. Lord was concerned that she could endanger her foetus and herself if she was doing regular policing during the last weeks of her pregnancy. She suggested that she could be assigned to Crime Stoppers, Community Relations, Dispatch or even a clerk-typist position for a short period.
However, she was advised that the positions she suggested as alternatives to regular police duties were not considered light duties. She was also advised that if she was concerned about her health and the health of her unborn child, she should go on short or long-term disability or take an unpaid leave of absence. The Board had a policy that did not allow for modified duties and therefore her request could not be accommodated.
Though Ms. Lord's doctor was of the opinion that had she been provided with light duties she could have worked until very close to term, she left work in November 1991 when she was about twenty weeks pregnant and took time off without pay. Because she was forced to begin her maternity leave earlier than she had planned, she was forced to return to work earlier.
In November 1993, Ms. Lord delivered a second child. In April 1993 she advised the Board that she was pregnant and would be seeking light duties, again identifying work in the Crime Stoppers program and in Community Services that she could perform during the latter weeks of her pregnancy. The only offer of accommodation made to Ms. Lord at this time was an offer to employ her as a temporary clerk-typist on the condition that she resigned her position on the force and forfeited her seniority, rank and benefits, with no offer of reemployment.
The Ontario Human Rights Commission argued that the policy of the Board not to provide light duties discriminated directly against Ms. Lord because of her sex. A male colleague was accommodated when he was unable to perform his duties because of pending criminal charges. The Police Services Board assigned him a variety of alternative duties, at full pay, for a period of two years and seven months. Ms. Lord was treated differently, the Commission argued, because of her sex.
In the alternative, the Commission argued that the actions of the Police Services Board constituted adverse effect discrimination. The Board's policy not to provide light duties can be viewed as neutral on its face, applying to everyone, but it has an adverse effect on pregnant women who face an increased risk of injury in the latter stages of pregnancy.
The Commission contended that there was no evidence that the policy not to provide light duties was based on a bona fide occupational qualification. If the Board of Inquiry finds that the policy is not bona fide, it must be struck down. On the other hand, if the Board of Inquiry finds that the policy is bona fide, the Police Services Board must show that it has accommodated the complainant to the point of undue hardship. In this case, the Commission argued that the Police Services Board cannot demonstrate that the policy is a bona fide occupational qualification, nor can it show that it accommodated Ms. Lord to the point of undue hardship.
The Police Services Board argued that it could not accommodate Ms. Lord because of its obligations under the Police Act. Section 42 of that Act sets out the duties of a police officer; an officer is expected to carry out all the duties listed in that section. Police officers face unsafe conditions in the normal course of their duties, and they cannot refuse that work because it is unsafe. The respondents argued that if the Board of Inquiry were to find that there is a duty to accommodate, it would make it difficult for the Police Services Board and the Chief of Police to comply with their obligations under the Act.
However, the Board of Inquiry finds that the policy of the Police Services Board was not a bona fide occupational qualification. The policy was not necessary to the efficient and economical performance of the job. This policy was promulgated in conformance with the Police Act. But the respondent's argument that the Police Act provides a complete defence on the grounds that to comply with it the Police Services Board had no choice but to demand that Ms. Lord perform the full range of her duties, is not persuasive. The Ontario Human Rights Code has primacy over other acts of the legislature. To suggest that the Police Act contains the sum total of the obligations under human rights legislation which police forces must discharge is to ignore the law.
The Board of Inquiry finds that the complainant made out a prima facie case of both direct and adverse effect discrimination contrary to the Code. A male constable was unable to perform the full range of his duties while under criminal investigation; he was accommodated. Ms. Lord was unable to perform the full range of her duties during the latter part of her pregnancy; she was not accommodated. In Ms. Lord's case, the Police Services Board relied on their policy not to provide light duties. There is no explanation for the different treatment, except the Police Services Board's unwillingness to accommodate pregnant officers. This inconsistent application of the policy and the failure to provide light duties to a pregnant woman constitutes direct discrimination on the basis of sex.
The Board of Inquiry also finds that there is no objective evidence to support the need for the policy. The claims that without it the Police Services Board could not meet its statutory obligations are subjective, vague, and speculative. The policy must be struck down.
However, the policy also has an adverse effect on female officers who are pregnant. The Police Services Board should have accommodated the complainant to the point of undue hardship, but there is no evidence of any effort to accommodate her needs. The Board of Inquiry finds that there were several options open to the Police Services Board that would have allowed them to accommodate Ms. Lord. The only offer the Police Services Board made to her was during her second pregnancy and that offer was unreasonable, since it would have required her to resign and forfeit benefits in exchange for a temporary position at a significantly reduced rate of pay.
The Board of Inquiry concludes that Ms. Lord was discriminated against because of her sex. She was the victim of both direct and adverse effect discrimination because of the Police Services Board's policy not to provide light duties.
The Board of Inquiry orders the respondents to pay Ms. Lord $35,306.91 as compensation for lost wages and benefits, $10,000 for mental anguish, and $10,000 or general damages. One thousand dollars of the general damages award is to be paid by Chief of Police Lee Stewart who made the decision to deny accommodation to Ms. Lord.
Cases Cited
Brown v. M.N.R., Customs and Excise (1993), 1993 CanLII 16426 (CHRT), 19 C.H.R.R. D/39 (Can.Trib.): 72
Emrick Plastics v. Ontario (Human Rights Comm.) (1990), 1990 CanLII 12452 (ON HRT), 14 C.H.R.R. D/68 (Ont. Bd.Inq.): 71
Haldimand-Norfolk (Regional Municipality) Police Assn. and Haldimand-Norfolk Police Assn. (Re) (March 12, 1992), (Ont. Bd.Arb., Barton) [unreported]: 62
Haldimand-Norfolk Police Services Board and Haldimand-Norfolk Police Assn. (Re) (June 26, 1993), (Ont. Bd.Arb, Jackson) [unreported]: 17
Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14, 3 C.H.R.R. D/781: 67, 69
Ontario (Human Rights Comm.) v. Fort Frances (Town) Commissioners of Police (1988), 1988 CanLII 8864 (ON HCJDC), 10 C.H.R.R. D/5831 (Ont. Div.Ct.): 43, 73
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 7 C.H.R.R. D/3102: 45, 63
Orangeville Police Services Board and Orangeville Police Assn. (Re) (February 11, 1994), (Ont. Bd.Arb., Knopf) [unreported]: 74
Legislation Cited
Ontario
Courts of Justice Act, R.S.O. 1990, c. C.43: 90
Employment Standards Act, R.S.O. 1990, c. E.14: 2
O. Reg. 321/90: 2
Human Rights Code, R.S.O. 1990, c. H.19
Preamble: 80
s. 5(1): 1
s. 9: 1
s. 11: 1
s. 25(2): 2
s. 41(1): 91
s. 41(2): 52
Occupational Health and Safety Act, R.S.O. 1990, c. S.43: 58
Police Services Act, R.S.O. 1990, c. P.15
s. 1: 54
s. 4: 54
s. 31: 54
s. 41(1): 54
s. 42: 56
s. 42(1): 54
s. 43(1): 54
s. 47: 17, 76, 79
s. 47(1): 54
s. 47(2): 54
s. 48(1): 54
s. 48(2): 54
s. 56(e): 56
s. 57: 56
s. 71: 57
1The complainant, Julie Lord, began working for the respondent, the Haldimand-Norfolk Police Services Board (hereinafter referred to as the "Board") in 1986 as a police constable. In 1991 she informed her supervisor that she was pregnant and formally requested light duties for the latter weeks of her pregnancy. She was advised that the Board had a policy that did not allow for modified duties and therefore could not accommodate her request. She filed a complaint under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (hereinafter referred to as the "Code") dated May 4, 1991, which was later amended by a complaint dated July 15, 1991, alleging that her right to equal treatment with respect to employment without discrimination on the basis of sex was infringed contrary to ss. 5(1), 9 and 11 of the Code. She named, as respondents, the Haldimand-Norfolk Regional Police, Chief of Police Lee Stewart, Inspector Bird and Sergeant Beuk. At the hearing the complaint was amended to read the "Haldimand-Norfolk Police Services Board."
2The complaint originally included a claim that the complainant was improperly denied disability benefits and the Commission intended to question the constitutional validity of s. 25(2) of the Code and various sections of the Employment Standards Act, R.S.O. 1990, c. E.14, and the regulations thereunder to the extent that those provisions were interpreted to permit the denial of disability benefits to female employees during pregnancy. As required, a Notice of Constitutional Question was served on the Office of the Attorney-General, who elected not to appear.
3At the commencement of the hearing, the Commission took the position that the respondents' denial of sick leave benefits, through its insurance carrier, was a violation of the Code. During the hearing counsel for the respondents took the position that, in the event there was a finding for the complainant on this issue, the Police Association would be equally liable for the breach since it negotiated the benefits package and agreed to its terms. He suggested that the Association should agree to be added as a party to the complaint and, in the absence of an agreement to do so, that I should add them as a respondent. Mr. Osier, complainant's counsel, also acts as counsel to the Police Association and asked for an adjournment to seek instructions from the Police Association. Respondents' counsel also suggested that Mr. Osier might be in a position of conflict as counsel to the complainant and to the Association, given that they might be adverse in interest. The hearing was adjourned to allow the parties to consider their respective positions.
4When the hearing reconvened, the parties advised the Board of Inquiry that, given the potential province-wide consequences of this issue, they had agreed to split the hearing and deal first with the issue of the alleged infringement of the Code. If necessary, they will ask me to reconvene the hearing to address that issue. As well, the complainant advised the Board that she was aware that Mr. Osier acted as counsel to the Police Association but elected to have him continue to act as her counsel.
FACTS
5There was very little dispute on the facts leading to the filing of the complaint. The respondent Board is directly responsible for the policing of seven urban communities within the boundaries of the Regional Municipality of Haldimand-Norfolk. Those communities are Caledonia, Delhi, Dunnville, Hagersville, Port Dover, Simcoe and Waterford. Division 1, the headquarters, is located in Simcoe, with additional divisions in Hagersville and Dunnville. The Board employed approximately seventy-five uniformed officers in 1991 consisting of, in ascending order or rank, sixty constables, nine sergeants, one staff sergeant, one inspector, one superintendent, one deputy chief and one chief of police. The sixty constables are divided into five platoons consisting of approximately twelve officers each. Members of the platoons patrol all seven communities. The platoons work a twelve-hour shift, except for a platoon that is referred to as the "1600 Platoon" which is scheduled from Thursday to Sunday, from 1600 hours to 0400 hours.
6The complainant commenced her employment in January 1986 as a fourth class constable. At the time of her pregnancy she was a first class constable and was assigned to the Simcoe Division. As would be expected, she was required to preserve the peace, prevent crimes and apprehend criminals and/or others who should lawfully be taken into custody. She was required to patrol her area on foot and in a cruiser. During her time as a constable she had been involved in the arrest and detention of persons charged under the Criminal Code on several occasions.
7In August 1991, she confirmed with her physician that she was pregnant and he raised with her the concern that, at about her sixteenth week of pregnancy, she should be reassigned to light duties. As a result of that discussion, on August 12, 1991, she advised Sergeant James Evans, the Station Duty Officer, that she was pregnant and that she would be taking a seventeen-week maternity leave and an eighteen-week parental leave beginning in March, as close to her due date as possible. She also advised him that she would like to discuss being assigned to alternative duties during the latter months of her pregnancy.
8Sergeant Evans wrote a memo, which was made an exhibit at the hearing, to that effect to Inspector Bird, advising him of her request. Inspector Bird met with the complainant and informed her that there were no alternative duties at the Board. When the complainant suggested she be assigned to Crime Stoppers, Community Relations, Dispatch and even a clerk-typist position, Inspector Bird told her that none of those duties were considered "light duties." In addition, he stated he could not place her in the front office because of possible complaints by the civilian staff about pay equity. He agreed that she should be concerned abut her health and the health of her unborn child and listed her options as short or long-term disability or an unpaid leave of absence.
9On the memo from Sergeant Evans, Inspector Bird wrote the following:
14th Aug 91 I spoke with Constable Lord and Sargeant Beuk at which time I instructed the officer as to what was available within our force. This being sick-time, Short term, long term London Life AS WELL AS the possibility of a leave of absence. She was advised that we do not have any light duty jobs "insidework" I also encouraged her to be concerned about the health of her child and herself and to discuss the matter with her husband and Doctor if she felt at any time she could not continue to perform full Police duties. As to uniform adjustments I advised her that we would consider adjustments as required and to notify her Sargeant accordingly. [sic]
In arriving at the decision to deny the complainant's request for light duties, Inspector Bird relied on the Policy I101 which reads, in part, as follows: "3. This Police Force does not provide modified work programs (light duties)."
10By letter dated September 6, 1991, the complainant wrote to the Chief of Police, Lee Stewart, advising him that she was in her ninth week of pregnancy and that her doctor had expressed concern about her continuing to perform the full duties of her position after her sixteenth week of pregnancy. She suggested she could be assigned to work in Training, C.I.B., Community Relations, serving summons, etc. She asked that the Chief of Police reconsider the Board's earlier decision to deny her request. She received a reply, dated September 10, 1991, signed by Inspector Bird on behalf of Chief Stewart, stating that the areas mentioned by her were not considered by the Board to be light duty positions. It went on to state that, since a human rights complaint had been filed by Ms. Lord, any further discussions would be through the Board's lawyer.
11In October 1991, the complainant requested alterations to her uniform to accommodate the changes in her figure due to her pregnancy. Her shirts were enlarged by adding a piece of material under the arms. The trousers were altered by the addition of an elastic panel. The regulations required her to wear her shirt inside her trousers so that she could reach her gun, handcuffs and baton, and, as a result it would be obvious to everyone that she was pregnant. She asked for permission to speak directly to the Board's tailor to ask for alterations that would make it possible for her to hide the fact she was pregnant. She was told that she would "only outgrow them anyway" and her request was denied.
12By letter dated November 26, 1991, the complainant again wrote to Chief Stewart requesting light duties. Attached to that letter was a letter from her own physician, Dr. Johnston, and a letter from Dr. K.G. Lamont who saw the complainant in the department of Obstetrics and Gynaecology at McMaster University. Dr. Johnston's letter began by advising Chief Stewart that the complainant was now in her twentieth week of pregnancy and:
Due to the potential trauma that may arise in the performance of her duties, that is, on patrol or potentially dangerous situations or confrontations, it is recommended that she be removed to lighter duties that would not expose her unborn child to potential risk.
13He referred Chief Stewart to Dr. Lamont's letter, which described the complainant as being in her eighteenth week of pregnancy and stated, in part:
She is a police officer. She is often on her own, frequently with a cruiser. She is often required to attend family violence of potential family violent situations, bar fights, etc. Because she is now pregnant, she is worried and under some stress because of this job situation.
Normally, when one is pregnant, one does not consider it an illness and that we feel that in most situations women can carry on and perform their normal duties. I think this is quite okay for most jobs.
In Constable Lord's case however, this is a different kind of job. It is associated with a lot of physical activity and the potential of danger not only to herself, but now to her fetus as well. I cannot give a medical or obstetrical good reason for her to be on lighter duties and away from the potential danger situation, but certainly common sense would dictate this. I am quite surprised that the Police Department have not been able to address this issue long ago and sort it out appropriately for themselves. Other constituencies of police have certainly done this in other communities.
14Dr. Johnston testified for the complainant. He has been a physician in the Simcoe area for approximately twenty-eight years and has been the complainant's physician since 1990. He has an extensive obstetrical practice and has treated approximately 2,500 patients and attended at more than eighty deliveries. As well, he has, as his patients, members of the respondent police force and of the local Ontario Provincial Police Department. He testified he was familiar with the duties expected of a police officer.
15During the complainant's pregnancy, he saw her on a monthly, biweekly and weekly basis. During those visits, he discussed with her the advisability of light duties. He testified that this was his first experience with a pregnant police office[r] and he had concerns abut her safety on the job in the latter months of her pregnancy. He explained that, at eight weeks, the uterus is the size of an orange but is expanding at the rate of one centimetre a week. At twelve weeks it is the size of a grapefruit, at sixteen weeks it is the size of a canteloupe and at twenty weeks it is the size of a small pumpkin. It becomes more spherical in shape at this time and extends above the pelvic bones. As it expands, other physiological changes occur, including a thinning of the uterine walls, an increased blood volume generally and an increased blood volume in the uterus specifically. Dr. Johnston stated that the risk that the complainant could suffer a catastrophic injury increased significantly from that time until the actual delivery. With respect to the fetus, he was particularly concerned about a blunt injury or penetrating wound to her abdomen. A blunt injury could cause, in his view, a rupture of the uterus which could result in a rupture of the amniotic sac, a shearing of the placenta from the uterine wall, or premature labour. In his opinion, a fetus at sixteen weeks would be unlikely to survive. As well, the complainant would be at an increased risk of internal infection which could have catastrophic results for her. Because of the increased blood volume, a penetrating wound would pose a particular danger. As well, he testified that, as the pregnancy progressed, the complainant would become less agile and flexible and, as a result, her ability to protect herself would diminish.
16He first raised the question of alternative duties with her as early as her eighth week of pregnancy and described the issue as a recurring theme in their prenatal visits. During those discussions, the complainant expressed her anxiety about the risks to her and her fetus. As the pregnancy progressed, her anxiety increased in proportion to the increased risk. She complained of sleeplessness, a loss of appetite and tearfulness. As well, she mentioned concerns about her job security, her relationship with the Board and financial problems she would face if she was forced to take an unpaid leave of absence. In spite of the letters he wrote on her behalf, he could not recall being contacted by anyone from the Board to discuss his recommendations. Finally, it was his evidence that, had the complainant's request for modified or light duties been accommodated, she could have worked until very close to term.
17The complainant's last day of work occurred on or about November 24, 1991. Prior to that, she took additional steps to attempt to obtain light duties. She filed a grievance with her union alleging that the Board violated the collective agreement when it failed to provide her with alternate work while she was pregnant. The allegations in the grievance claimed that the Board had discriminated on the basis of the Code or, in the alternative, that it had violated s. 47 of the Police Services Act, R.S.O. 1990, C. P.15 (hereinafter referred to as the "Police Act"). The resulting award (Haldimand-Norfolk Police Services Board and Haldimand-Norfolk Police Association (June 26, 1993) unreported (R.L. Jackson), described the grievance as "imprecise." The Board of Arbitration found that, in the absence of any language in the collective agreement importing the protections under the Code respecting discrimination, it had no jurisdiction to decide the first issue. With respect to the second, it found that the complainant was not "disabled" as defined in the Act and accordingly dismissed the grievance.
18The complainant also sought legal advice from Mr. Paul Osier, who attended at the hearing as her counsel. By letter dated April 2, 1992, he wrote to the Board advising it that he represented the complainant and asking that it reconsider it[s] decision not to grant her light duties during her pregnancy. As well, he advised the Board that there were several positions that would be suitable for her.
19The Board responded by letter dated April 8, 1992, and signed by Chief Stewart stating, in part, the following:
Thank you for your letter dated 02 April 1992 concerning the duties of Constable Lord during her pregnancy. Please be advised that the positions you have stated in your letter are assigned, for fairly short periods of time, to officers who have been chosen by their ability to fulfil these duties. In addition, these officers are also required to perform full police duties as well as attending special events.
This Department does not maintain a light duties policy and is prepared to defend its practice. This matter has been addressed previously on several occasions and I will reiterate that these special services programs are staffed by officers placed because of their ability, not because these positions are of a mundane nature for "disabled" officers.
20The complainant testified that, based on her experience on the force, she had reason to be concerned about her safety and the safety of her unborn child. She described an incident in December 1990 involving unruly patrons of a local pub in Port Dover. She was asked by the bouncer in the pub to assist him in dealing with five troublesome customers. The troublemakers left without incident but a customer began causing a scene. The bouncer asked the customer to leave several times and he refused. Constable Lord asked the customer to leave and he shoved her. She advised him he was under arrest at which time he attempted to run out the door. The complainant ran after him and managed to catch and hold him between the door and the door frame. While she was holding him he elbowed her in the stomach several times. She called for backup and, after about seven minutes, help arrived. At that time the policy of the Board required an officer to respond to a call, assess the situation and, if circumstances warranted, call for backup. When she reported for work the next evening, she was having pains in her stomach. She went to the emergency department at the hospital and was told she had suffered pulled muscles in her abdomen. She was prescribed muscle relaxants and advised to see her own physician within the next few days. She did see Dr. Johnston the following Tuesday, who confirmed the previous diagnosis and ordered her off work for about two and one-half weeks.
21While she was pregnant, the complainant testified that every day at work was cause for concern. For example, in late October, she was assigned to Caledonia and was called to a local bar for a domestic dispute. When she arrived a woman was leaving the bar with a gentleman who was being rude and abusive to her. The complainant asked him to step outside and he refused. He was over six feet tall and weighed about two hundred and fifty pounds. He was using foul language and was being very verbally abusive towards the woman he was with and the complainant. The woman told the complainant she would take him home and that everything would be all right. The complainant testified that she felt threatened and was afraid to arrest him in case anything happened to her or her fetus.
22Later that same morning, she was called to deal with two pit bulls who had attacked each other. Eventually she had to shoot one of the dogs, who continued to attack even though he was injured.
23She testified that each day got harder as her pregnancy progressed. She was disappointed, discouraged and upset for the whole time. She was concerned that, as a result of her human rights complaint, she would be "blackballed" with the Board. She was concerned that her future with the Board would be affected and that she would never be offered special assignments or job enrichment opportunities. As a result of the Board's refusal to accommodate her request for light duties, she was forced to take time off without pay. She had planned to work until March 29,1992, and to take maternity leave until September. Because she was forced to begin her maternity leave earlier than planned, she was forced to return to work earlier than planned, when her baby was four and one-half months old. In addition to the wages she lost during her leave of absence, her pension contributions to the Ontario Municipal Employees Retirement plan were reduced. She was advised that she could buy back her pension credits for the sum of $5,544.02 but was not in a financial position to do so.
24In November 1993 the complainant delivered her second child. In April 1993, the complainant advised the Board by letter that she was pregnant and that she would be seeking light duties during her pregnancy. She received a memo from Staff Sergeant Little stating the following:
I have been instructed by the Chief of Police to respond to your request for alternate duties.
Your attention is directed to Policy-Procedures No. I101, Section III, Page A(3), THIS POLICE FORCE DOES NOT PROVIDE MODIFIED WORK PROGRAMS (LIGHT DUTIES). Therefore, your written request for alternate duties during pregnancy up to the time of the taking of the maternity leave is denied.
The following benefits are available to you within this Department.
(1) SICK LEAVE — short term and long term.
(2) A LEAVE OF ABSENCE under Regulations of the Haldimand-Norfolk Regional Police, Page 15 2.10.9 (A) (B) (C).
If you wish to make application for a civilian part-time position and meet the qualifications your application would be considered. It should be clearly understood that the salary and benefits for any part-time position would be as set out in the present part-time contract between the Board and the Association.
There is also a full time Assistant Court Administrator's position available at the present time, however, this position is not on a part-time basis and therefore if you were to consider this position you would be required to resign your position as a constable (see the working agreement between the Board and the civilian members of the Association (page 29)).
Constable Lord, we encourage you to be concerned about the health of you and your unborn child. You should discuss the matter with your husband and your doctor and notify us immediately when you are unable to perform the essential duties of a police officer.
25The complainant explained that she did not consider the civilian jobs offered to her in this letter because she would have been obliged to retire her position as a constable and she had every intention of returning to that position after her pregnancy. As well, her salary would have dropped from approximately $50,000 per year to minimum wage.
26She continued working until her seventeenth week of pregnancy of her second pregnancy but had to take medical leave due to a lower sciatic condition that prevented her from performing her full duties. She applied for and was granted disability benefits from London Life. However, the following letter was written by Staff Sergeant Little regarding that claim for benefits:
03 June 1993
This correspondence is directed to you on the instruction of the Chief of Police. Mrs. Lord is a sworn police officer with this Department and in this capacity is required to perform the essential duties of that office.
As you are aware this Department does not have modified duties for any employees and therefore Mrs. Lord's request for modified light duties was denied on April 6, 1993.
Mrs. Lord has now made a claim for short term disability, indicating a possible return to work date of August 2, 1993. It should be clearly understood that we are not questioning the medical expertise of Dr. Johnston, however, would question of [sic] this employee is absent from work because of the condition diagnosis or because of the fact she is pregnant.
This information is supplied to assist your office in assessing entitlement to benefits in this claim.
27The complainant filed another complaint with the Human Rights Commission alleging discrimination on the same grounds cited in her first complaint. On August 31, 1994, the Board provided the complainant with the following undertaking:
The Haldimand-Norfolk Police Association undertakes and agrees that it will co=operate [S"Normal","Normal"]
28During her attempts to obtain light duties, the complainant referred to several positions on the Board that she felt would have been suitable. The first of these was the Crime Stoppers program which is a community-based program operated by the Board in conjunction with a civilian Board of Directors. The purpose of the program is to encourage citizens, under a promise of anonymity, to report on crimes to assist the police force in solving crimes. The officers assigned to Crime Stoppers do not become actively involved in the investigation of crime but receive, accumulate, validate, and communicate information gained through its 1-800 line. As well, the officers assigned to that program engage in public speaking to promote its goals.
29Constable Leigh was assigned to that Crime Stoppers from the fall of 1988 to September 1991. Notwithstanding the Board's position that this assignment is considered a job enrichment program that is awarded to officers for a definite period based on merit and experience, he testified that he was assigned to that position for an indefinite term and that he received no additional training before assuming it. While Constable Leigh was assigned to Crime Stoppers, he stated that he was never exposed to a potentially violent situation but that he did have to resume his normal duties four or five times due to a shortage of staff on a platoon or extra duty during special occasions such as Halloween. On all of those occasions he was notified in advance of the assignment. He testified that, when a platoon is short-staffed, an officer from the 1600 platoon is usually called in to replace the missing officer(s). In the alternative, the platoon operates short-handed, officers are offered overtime or, as a last resort, an officer is recalled from special services. In his opinion the complainant would have been capable of performing the duties of the position after some familiarization with the computer. He stated that, had he been approached, he would have voluntarily offered to be reassigned for the period of her pregnancy, as did Constable Rigby, who replaced him in 1991. Both officers were of the opinion that assigning the complainant to Crime Stoppers during her pregnancy would not have had any effect on the moral[e] of the other officers.
30Constable Marc Perrier has been an officer with the Board for approximately twenty years. During that time he had served on the Joint Forces Unit working with the RCMP in a drug operation and as a relief Court Officer. The latter job involved processing court documents. He was not required to wear a uniform although he was required to wear a side arm. As well, he was assigned to the training branch for a three-year period. This involved updating officers about changes in the Criminal Code and setting exams. From 1988 to September 1993, he was assigned to Community Relations. That unit is responsible for administering the Board's efforts to provide more of a community presence by talking to school children and interested groups regarding criminal behaviour and safety. Before taking over the assignment he received three days' training. He described the assignment as desirable because it involved working the day shift for the most part, although a certain amount of overtime was expected. There were two officers assigned to that unit although, according to Constable Perrier, there would have been sufficient work for a third person. During the time he was assigned to the unit, he was called back to regular duties four or five times each year, usually with advance notice. He acknowledged that, had he seen a crime in progress, it would have been his duty to attempt to prevent it and that risk was incorporated into his duties. However, during the time he worked on these special assignments, he never encountered any dangerous situations. It was his opinion that the complainant could have performed the necessary work during her pregnancy with some training. He agreed that her Early Childhood Education diploma would have been of benefit in the position. He was never asked to step aside for the complainant, although he would have been prepared to do so. He agreed with constables Leigh and Rigby that stepping aside for the complainant would not have created a moral[e] problem within the police force.
31In contrast, Constable Melvin Freisen, who has been assigned to the Community Services Program since 1990, testified that he would not have allowed a pregnant officer to perform his duties. According to him, he works longer hours than he did when he was on regular duties. As well, when he speaks publicly, he is required to carry heavy video equipment up and down stairs, which, in his opinion, a pregnant officer could not do. Further, he testified that he has worked in excess of two hundred hours on regular duties and has been involved in apprehending a man who was assaulting his spouse and carrying a drunken teenager out of the stands at the Caledonia Fair. In his opinion, a pregnant officer could not protect the public in the same manner.
32The other officer assigned to Community Relations was Constable Turkiewicz. In his opinion, he is busier than he ever was on regular duties. He stated that he works long hours every day, that most of his time is spent at evening meetings and that he had worked thirty-one of the last thirty-three days.
33The Commission argued that, notwithstanding the Board's policy, the Board has accommodated other officers with modified duties in the past. Constable Bryan Horton is a first class constable with the Board and has been employed by it since 1988. In 1990 he was charged with perjury and obstruction of justice. Instead of suspending him from his duties, the Board assigned him to what it referred to as "restricted duties" until the charges were dealt with. For a period of two years and seven months, he was assigned to the Simcoe Division, during which time he checked police vehicles for proper equipment, transported vehicles to the garage for service, updated the card system used to contact business people during the night about trouble in their establishments and sorted files, including tickets and vehicle logs. While he was on these restricted duties, he was involved in an incident while driving to work. He was not wearing a side arm at the time and when he called in to report the incident he was told to ignore it. That incident raised some concerns about his safety and, as a result of those concerns, he was driven from his home in Dunnville to the Simcoe office by one of the civilian staff.
34Staff Sergeant Little was the only senior officer to testify for the Board. He has been with this Board for thirty-two years and a Staff Sergeant for nine years. He described programs like Crime Stoppers and Community Relations as job enrichment opportunities for the officers to increase their experience and knowledge. Officers can submit applications for these programs and those applications are discussed at senior officers' meetings. The successful applicants are selected on the basis of merit and ability. The assignments are for a specified period of time and the officers know that they will be called back to regular duties as needed. It was Staff Sergeant Little's evidence that they could be called back as often as eight, ten or twelve times a month, depending on the number of absences in the force, sometimes with only ten minutes' notice. In his opinion, the complainant was not qualified to be assigned to any of those job enrichment programs. She was relatively new at the time and lacked the experience and knowledge of criminal behaviour necessary to perform those duties. He stated that he did not know if she was qualified but acknowledged that he made no attempts to find out. He agreed in cross-examination that, in the past, officers with less seniority than the complainant had been assigned to Community Relations and Joint Forces.
35He met with the complainant to discuss her request for light duties. He understood her request to be that the Board create a position in the organization that would not require her to perform her core police duties. He advised her that all police officers were expected to carry out all of the duties of their position unless in receipt of WCB or disability benefits. He also advised the complainant's doctor that the Board did not have light duties. He stated that it was important to him to make it clear to her doctor that they could not meet her request.
36He confirmed Constable Horton's evidence but stated that he was given a driver not only because of concerns about his safety but also to alleviate his stress. In response to the suggestion that Constable Horton was, in fact, given modified work for more than two and one-half years, Staff Sergeant Little conceded that duties had been created for him but stressed that those duties were meaningful and that the work he did would not have been done otherwise. He conceded that the policy regarding light duties was subject to the discretion of the Board and not "carved in stone."
37Finally, he agreed that the Board has, in the past, seconded officers to other police forces for special projects, one time for as long as sixteen months, and that, for public relations considerations, the Board felt it was worth the sacrifice. They covered those absences by utilizing officers from elsewhere in the force.
38When asked about the memo of April 6, 1993, he stated that he was instructed to advise the complainant of the benefits available to her. When he was asked why he wrote the letter of June 3, 1993, to London Life regarding the complainant's short-term disability claim, he testified that he was concerned that London Life was paying her benefits for pregnancy, which was not covered by the policy. He stated that it was his job to make sure the insurance company applied the policy correctly and he wanted them to check that she was actually entitled to the benefits she was receiving.
39Staff Sergeant Little agreed that the Board had adopted an Employment Equity Plan that included a hiring target of slightly less than 50 percent female officers and that the Board committed itself to amend its policies and procedures to remove any barriers to that target. He did not know, however, whether Policy I101 had been amended in accordance with that commitment. He conceded that, notwithstanding the Board's commitment to encourage women to apply for jobs in the force, a failure to accommodate pregnant women did not further that goal.
SUBMISSIONS OF THE COMMISSION
40Commission counsel took the position that this is a textbook case of direct and/or adverse effect discrimination. With respect to the issue of direct discrimination, the Commission argued that the facts were clear. The complainant met with Inspector Bird on August 14, 1991, to advise him of her pregnancy and to ask him for light duties. He relied on Policy I101 and denied her request, at the same time telling her that she should be concerned about her well-being and the well-being of her baby. She took his advice, discussed her condition with her doctor and put her request in writing. Again the Board denied her request. She continued to work four weeks beyond the recommended date, all the while seeking accommodation. She sought the opinion of a specialist, who stated that, although there was no obstetrical o[r] medical reason preventing her from working, "common sense" would dictate otherwise. The complainant never took the position she was unable to work. The concern was always for her safety and the safety of her unborn child.
41The medical evidence was uncontradicted. As her pregnancy progressed, the dangers to the complainant and her fetus increased dramatically. After sixteen weeks it was no longer safe for her to continue in her full duties as a police constable. If she had been offered light duties, it was Dr. Johnston's evidence that she could have worked until close to her date of delivery.
42Policy I101 and it[s] application, submitted the Commission, also constitutes direct discrimination against the complainant. The introduction to the Policy and Procedure manual states that it contains specific directions as well as "set guidelines" to be followed and, further, that it "governs specific action to be taken under various circumstances, however, common sense and sound judgement must also be exercised." The Board did exercise its discretion in the case of Constable Horton. When he was unable to perform his duties because of pending criminal charges, the Board assigned him a variety of alternative duties, at full pay. No matter what characterization the Board attempts to give these duties, the fact is they were modified duties devised to accommodate his situation.
43It refused, however, to accommodate a pregnant officer. The complainant was treated differently than her male counterpart and that constitutes discrimination contrary to the provisions of the Code. The Commission relied on the case of Ontario (Human Rights Commission) v. Fort Frances (Town) Commissioners of Police(1988), 1988 CanLII 8864 (ON HCJDC), 10 C.H.R.R. D/5831 (Div.Ct.).
44In the alternative, the Commission took the position that the actions of the Board constitute adverse effect discrimination. Policy I101 is, on its face, a neutral rule that should apply equally to all officers. However, it clearly excludes pregnant women from consideration of the fact they are at higher risk during the latter stages of their pregnancy. Policy I101 is discriminatory in that it treats one group of employees differently because of a special characteristic, that is, pregnancy, which is protected under the Code.
45The Commission took the position that once it has established a prima facie case of discrimination, the onus shifts to the Board to justify its policy. In this case, there is no evidence that the policy was necessary to the efficient operation of the force. The policy fails to meet the objective and subjective standards of the test articulated in the case of Ontario Human Rights Commission v. Simpsons-Sears Ltd. (O'Malley) (1985), 1985 CanLII 18 (SCC), 23 D.L.R. (4th) 321 [7 C.H.R.R. D/3102] (S.C.C.). It was the position of the Commission that, if this Board is satisfied that Policy I101 is not bona fide, the complaint must succeed and the policy must go.
46If, however, this Board of Inquiry accepts Policy I101 as justified, the Board must then show that it made every effort to accommodate the complainant, to the point of undue hardship. In this case, the evidence is clear that, neither at the time of the requests for light duties and even up to the date of the hearing, did the Board make any effort to accommodate the complainant. Inspector Bird admitted that, once he read the policy, "he didn't have to think any more." At no time did the senior members of the Board meet to discuss her request. The Board has made vague references to undue hardship but the evidence shows that there were alternative duties available that the Board refused to consider. At the very least she could have performed the same duties that Constable Horton performed while he was under threat of criminal prosecution.
47Constable Perrier testified that he could have used some help in Community Relations or, in the alternative, he would have stepped aside for the necessary period. Constable Freisen, while refuting the complainant's ability to do the job, testified that he worked more than two hundred hours' overtime and could have used extra help on his administrative duties. Constable Leigh said that he too would have stepped aside for the complainant but was never asked. The complainant herself suggested alternative duties in the clerical or administrative offices but no serious effort was made to explore those possibilities either.
48With respect to damages, the Commission has sought an order against both Chief of Police Stewart and the Board. While the Board itself is responsible for its policies, Chief Stewart was the directing force behind its enactment and its enforcement. The Commission sought an award of $10,000 against the Board and Chief Stewart personally and asked me to determine the portion attributable to each. The Commission argued that the $10,000 award is justified for several reasons: the infringement of the complainant's rights is ongoing; she has been denied her rights through two pregnancies and, even today, is being told by the Board that it does not provide modified duties; the Board has maintained its position even after it knew that the Commission considered its actions a breach of the Code; As well, argued the Commission, the policy was not enforced consistently. Duties were found to accommodate Constable Horton's situation to the extent that, for nineteen months he was given a personal driver out of concern for his stress. When the complainant asked for similar consideration, she was refused. At the same time she was being told that she was right to be concerned about her safety and the safety of her unborn child. In addition, she was forced to begin her maternity leave sooner than expected and, as a result she was forced to return to work sooner than planned. She had to leave her new baby six weeks earlier than she had wanted.
49The complainant experienced the same problems with her second pregnancy. In fact, she was told that, in order to obtain alternative work at a lower rate of pay, she would have to resign her position as an officer with the Board. When she qualified for disability payments because of a medical complication, the Board wrote to the insurance company suggesting that she was ineligible. The complainant interpreted that act as a sign of disfavour with the Board which, in turn, caused further stress and anxiety.
50Because of the actions of the Board, the complainant testified that she suffered anxiety over her safety, her unborn baby, financial problems as a result of unpaid leave of absence and job security and advancement. This is clearly a case, argued the Commission, where a meaningful award of general damages is warranted.
51The Commission [h]as sought an order that the Board accommodate requests from female officers for light duties in similar circumstances, although it expressed concerns about a general policy that could be interpreted to force light duties on women if it was their choice to work later in the pregnancy tha[n] the complainant. It concurred with the complainant's counsel regarding an order that the respondents be ordered to negotiate a policy that is consistent with its obligations under the Code.
SUBMISSIONS OF COMPLAINANT'S COUNSEL
52Mr. Osier, counsel for the complainant, suggested that this case involves two conflicting interests; that is, the procreation of children and the need to replace ourselves and the right of a person to pursue a career. Those conflicts, he argued, go beyond Policy I101 and are usually handled with common sense and sensitivity. In this case, the Board has shown itself to be inflexible in its outdated thinking. It has shown a rigidity which should not be condoned by this Board of Inquiry. Complainant's counsel reminded the Board of Inquiry that Staff Sergeant Little testified that Constable Horton was chauffeured to work partly because of the stress he was under at the time. Yet there was no acknowledgment that Constable Lord was under any stress arising from concerns about her own safety, the safety of her unborn child, finances and job security. Further he argued that it was especially stressful to her to file this complaint given the attitude of the police community about following the orders of your superior officer without question. As well, she suffered embarrassment and humiliation as a result of the intentional and wilful actions of the Board. Counsel asked that the Board be ordered to pay the maximum in general damages to compensate the complainant for the callous treatment she received at the hands of this Board over a period of years and through two pregnancies. As far as Policy I101 is concerned, Mr. Osier asked that the Board be ordered to negotiate a policy of accommodation with the members of the Police Association and that I retain jurisdiction to ensure that an appropriate policy is implemented pursuant to s. 41(2) of the Code.
SUBMISSIONS OF THE RESPONDENTS
53Counsel for the respondents took the position that the Board agreed completely with the medical evidence. The complainant was not suffering from an illness and could have performed her duties to the date of delivery. The sole basis for her complaint is that it was unsafe for her to continue to perform the full duties of a police constable. The issue was not whether there were light duties but rather whether the Board had to insulate her from harm.
54At issue, argued counsel, was the Police Act. The relevant sections of that Act read as follows:
Police services shall be provided throughout Ontario in accordance with the following principles:
The need to ensure the safety and security of all persons and property in Ontario;
The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.
Every Municipality to which this subsection applies shall provide adequate and effective police services in accordance with its needs.
A board is responsible for the provision of police services and for law enforcement and crime prevention in the municipality and shall,
(a) appoint the members of the municipal police force;
(b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality;
(c) establish policies for the effective management of the police force;
(e) direct the chief of police and monitor his or her performance;
(f) establish an employment equity plan in accordance with section 48 and the regulations, review its implementation by the chief of police and receive regular reports from him or her on that subject;
41(1) The duties of a chief of police include,
(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31(1);
(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;
(f) implementing the employment equity plan established under section 48 and the regulations;
42(1) The duties of a police officer include,
(a) preserving the peace;
(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;
(c) assisting victims of crime;
(d) apprehending criminals and other offenders and others who may lawfully be taken into custody;
(e) laying charges, prosecuting and participating in prosecutions;
(f) executing warrants that are to be executed by police officers and performing related duties;
(g) performing the lawful duties that the chief of police assigns;
(h) in the case of a municipal police force and in the case of an agreement under section 10 (Agreement for provisions of public services by O.P.P.), enforcing municipal by-laws;
(i) completing the prescribed training.
43(1) No person shall be appointed as a police officer unless he or she,
(a) is a Canadian citizen or a permanent resident of Canada;
(b) is at least eighteen years of age;
(c) is physically and mentally able to perform the duties of the position, having regard to his or her own safety and the safety of members of the public;
47(1) Subject to subsection (2), if a member of a municipal police force becomes mentally or physically disabled and as a result is incapable of performing the essential duties of the position, the board shall accommodate his or her needs in accordance with the Human Rights Code.
(2) The board may discharge the member, or retire him or her if entitled to retire, if, after holding a hearing at which the evidence of two legally qualified medical practitioners is received, the board,
(a) determines, on the basis of that evidence, that the member is mentally or physically disabled and as a result incapable of performing the essential duties of the position, and what duties the member is capable of performing; and
(b) concludes that the member's needs cannot be accommodated without undue hardship on the board.
48(1) Every police force shall have an employment equity plan prepared in accordance with this section and regulations.
(2) An employment equity plan shall provide for . . .
55It was the position of the respondent that the Board does not refuse to accommodate its members when necessary. Section 47 sets out the circumstances under which the Board is required to do so. That is the extent to which the Board is required to accommodate. Ms. Lord was, by her own admission, neither mentally nor physically incapable of performing her duties. What the complainant wanted was something else. She wanted protection from harm which meant a release from her duties as an officer.
56The respondent took the position that it could not accommodate the complainant's request because of their obligations under the Police Act. Section 42 sets out the duties of a police officer. An officer is expected to carry out all of the duties in that section. If Ms. Lord had been assigned duties as an officer and walked away from a crime in progress, she would have been guilty of an offence under s. 56(e) or 57 by withholding her services. The Chief of Police was faced with the problem of an officer who would not perform all of the statutory duties she was charged with under the Police Act.
57As far as the circumstances of Mr. Horton's duties are concerned, s. 71 of the Police Act states that the Chief of Police may suspend with pay an officer who is suspected of or charged with an offence. That is what happened in the case of Constable Horton. He was suspended with pay from his duties as an officer but, until the charges were dealt with, was given various duties unrelated to his rank. There were no health-related factors involved, as in the case of the complainant.
58The provisions of the Police Act must be read in conjunction with Policy I101. It is a restatement of the provincial objective that all police officers discharge the duties of their rank. For the same reasons, the provisions of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, that allow an employee to refuse unsafe work assignments, do not apply to police officers. Even though they face unsafe conditions in the normal course of their duties, they cannot refuse that work because it is unsafe. If this Board should find a duty to accommodate beyond that in the Police Act, it would make it difficult for the Board and the Chief of Police to comply with their obligations under the Act.
59It was the submission of the respondents that the unpaid leave of absence offered the complainant was a reasonable compromise in the circumstances.
60With respect to damages, in the event this Board of Inquiry should find there has been a violation of the complainant's rights under the Code, the respondents took no issue with the complainant's calculations regarding lost wages or pension contributions. It suggested that the issue of SUB payments under the Maternity Leave provisions of the collective agreement should be the subject of a grievance under that collective agreement.
61The respondents did, however, object to the Commission's calculations of general damages and took the position it was extraordinary and punitive. It argued that there was no evidence of mental anguish or any adverse effect on her health. There is no justification for such an award unless there was evidence of wilful or reckless action on the part of the respondents, which, it maintained, there was not.
62At the conclusion of the hearing, the Commission sought a clarification from the respondents regarding the SUB payments. Under the terms of the collective agreement, the griever was entitled to a top-up of her UIC payments to 93 percent of her regular pay for the duration of her maternity leave. Because of the retroactive pay increase awarded by the Barton Board of Arbitration (Regional Municipality of Haldimand-Norfolk Police Association and Haldimand-Norfolk Police Association (March 12, 1992), unreported (P.G. Barton), the griever's annual salary might have increased enough to require her to repay some of the SUB payments. If the "claw-back" provisions of the UI Act apply, the Commission asked this Board of Inquiry to order the respondents to reimburse the complainant for the amount reclaimed. The respondents assured the Commission that they would pay the damages in such a way so as not to prejudice the complainant.
DECISION
63The Supreme Court of Canada, in the case of Ontario Human Rights Commission v. Simpsons-Sears Ltd. (O'Malley), supra, has authoritatively ruled that discrimination contrary to the Code can take either a direct or indirect form. That case involved a refusal of the employer to accommodate a request from an adherent of a religious denomination that she not be scheduled to work on the Sabbath. A Board of Inquiry found that the Code prohibited employment conditions that, on their face, discriminate as well as those that result in discrimination. It also determined that the employer had positive obligation of reasonable accommodation but dismissed the complaint on the grounds that the Commission did not discharge its onus to prove that the employer acted unreasonably in its attempts to accommodate. An appeal to the Divisional Court was dismissed on the grounds that the legislation prohibited only intentional discrimination. That decision was further appealed to the Supreme Court of Canada, which allowed the appeal on several grounds.
64First, it declared that the intention to discriminate was not a necessary element of the discrimination prohibited by the Code. It stated, at p. 331 [D/3106, para. 24768]:
I do not consider that to adopt such an approach does any violence to the Ontario Human Rights Code, nor would it be impractical in its application. To take the narrower view and hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create . . . injustice and discrimination by the equal treatment of those who are unequal . . . Furthermore, as I have endeavoured to show, we are dealing here with consequences of conduct rather than with punishment for misbehaviour.
65In dealing with the issue of discrimination itself, the Court went on, at pp. 332–33 [D/3106, paras. 24772 and 22774], to say:
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 where 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 [the] 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 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. From the foregoing I therefore conclude that the appellant showed a prima facie case of discrimination based on creed before the board of inquiry.
No question arises in the case of direct discrimination. Where a working rule or condition of employment is found to be discriminatory on a prohibited ground and fails to meet any statutory justification test, it is simply struck down: see the Etobicoke case supra. In the case of discrimination on the basis of creed resulting from the effect of a condition or rule rationally related to the performance of the job and not on its face discriminatory, a different result follows. The working rule or condition is not struck down, but its effect on the complainant must be considered, and if the purpose of the Ontario Human Rights Code is to be given effect, some accommodation must be required from the employer for the benefit of the complainant. The Code must be construed and flexibly applied to protect the right of the employee who is subject to discrimination and also to protect the right of the employer to proceed with the lawful conduct of his business. The Code was not intended to accord rights to one to the exclusion of the rights of the other. American courts have met this problem with what has been described as a "duty to accommodate," short of undue hardship, on the part of the employer . . .
66With respect to the issue of the onus of proof, the Court said, at p. 338 [D/3108, para. 2482]:
To whom should it be assigned? Following the well-settled rule in civil proceedings, the plaintiff bears the burden. He who alleges must prove. Therefore, under the Etobicoke rule as to burden of proof, the showing of a prima facie case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. 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. Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee's position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer, for it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in a position to show its absence.
67In the O'Malley case, supra, the Court referred to its previous decision in Ontario Human Rights Commission v. Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14, 3 C.H.R.R. D/781. That case involved a challenge to the employer's mandatory retirement policy. A Board of Inquiry found that the firefighters had been discriminated against because of their age and that the employer had failed to satisfy the burden of proof that the discrimination was based on a bona fide occupational qualification. In a unanimous decision the Supreme Court of Canada restored the decision of the Board of Inquiry, finding that the employer did not satisfy either the subjective or objective elements of the test. It said, at p. D/783 [para. 6894], the following:
To be a bona fide occupational qualification and requirement a limitation, such as a 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 without endangering the employee, his fellow employees and the general public.
68In the case before me, the Board did not suggest that Policy I101 was a bona fide occupational qualification. There was no evidence that the policy was necessary to the efficient and economical performance of the job. The Board relied solely on their interpretation of the Police Act regarding the obligations of police officers to perform all of the duties of their position. Therefore, if there is a finding that the Board infringed the rights of the complainant by directly discriminating against her on a prohibited ground by adhering to Policy I101, the law, according to the Supreme Court of Canada, dictates that policy must be struck down.
69In the Borough of Etobicoke case, supra, the employer argued that the parties had engaged in "statutorily-required" collective bargain and, in that process, the parties agreed on a mandatory re[t]irement age. In effect, the employer took the position that the parties had agreed to contract out of the provisions of the Code and that the Court should consider the agreement as proof of a bona fide occupational qualification. The Court rejected that argument and said, at p. D/785 [para. 6905]:
Although the Code contains no explicit restriction on such contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void as contrary to public policy.
70I have had regard to three decisions of Boards of Inquiry involving similar allegations of discrimination in similar situations as illustrative of the application of the general principles enunciated by the Supreme Court.
71Dealing specifically with the issue of the obligation on the respondent to accommodate in Heincke v. Brownell(1990), 1990 CanLII 12452 (ON HRT), 14 C.H.R.R. D/68 (Ont. Bd.Inq.), the Board of Inquiry found that the complainant had been discriminated against because of her sex when her employer refused to accommodate her request to be transferred from her job as a spray painter because she was pregnant. The employer, because he thought there might be harmful fumes in other sections of the plant as well as the paint room, required her to take a leave of absence without pay until the delivery of her baby. That decision was confirmed by the Divisional Court which agreed that there was no objective basis for the employer's concerns and that its actions constituted constructive or adverse discrimination on the basis of sex contrary to the Code that could not be justified as reasonable and bona fide in the circumstances.
72A similar result was found in a complaint under the Canadian Human Rights Act, R.S.C. 1985, c. H-6, concerning allegations of discrimination and failure to accommodate a pregnant employee [Brown v. M.N.R., Customs and Excise(1993), 1993 CanLII 16426 (CHRT), 19 C.H.R.R. D/39 (Can.Trib.)]. In that case, the complainant argued that a neutral employer rule requiring all customs investigators to work alternating shifts adversely affected her because it did not allow for accommodation to her special needs during and after pregnancy. As well, she argued that the employer was guilty of direct discrimination in the application of that rule in that, in the past, employees had been accommodated when they requested day shifts for medical and non-medical reasons.
73In a case similar to the one before me, a pregnant police office[r] in Fort Frances alleged that she had been discriminated against contrary to the Code when the employer refused restricted duties and required her to wear her full uniform during her pregnancy. The Board of Inquiry found for the complainant on the latter allegation but against her on the former. The Divisional Court confirmed the Board's decision (Ontario Human Rights Commission v. Fort Frances (Town) Commissioners of Police, supra). The facts of that case are strikingly similar to the one before me involving the same issues; that is, a refusal to accommodate a pregnant police officer's request for modified duties, an enforced unpaid leave of absence as a result of that refusal and alleged retaliation. The Court reaffirmed the positive obligation of the respondent to accommodate but, on the particular facts of the case before it, dismissed the appeal.
74Finally, there is the application of the human rights jurisprudence in a labour relations context. In the case of Re Orangeville Police Services Board and Orangeville Police Association (February 11, 1994), unreported (P. Knopf), two pregnant police officers requested alternative work assignments in positions of "minimal risk." The collective agreement contained provisions respecting maternity leave, which included the following:
23.5 From the time the member is no longer able to perform the essential duties of a police officer they will be awarded leave of absence without pay but with benefits and seniority to continue. Where possible alternative assignments will be provided. [sic]
75The issue before the arbitrator was whether the employer had violated that provision when it refused to accommodate the requests of the pregnant officers for alternative duties. Early in the grievers' pregnancies the Association gave notice of its desire to have these pregnancies accommodated and made specific requests regarding firearms training, pistol holster and uniforms. Those requests were met by the employer. The Association also undertook to advise the employer of the positions it felt would be appropriate to meet the requests for accommodation. Interestingly, it targeted many of the same positions at issue in the instant case: Court Officer, Community Relations Officer, identification work for the Criminal Investigation Unit, Station Duty Officer and Crime Stoppers. That board of arbitration further found that, on several occasions, the employer had accommodated officers with medical problems by assigning them to a variety of alternative duties not involving physical work.
76The employer's argument in that case was also similar to the one made by the respondents in this case. It argued that it could not relieve against the statutory duty of a police officer to perform all of the duties assigned. All of the positions targeted by the griever and the Association, it contended, required officers to be prepared to act if it became necessary to prevent a crime or apprehend someone suspected of committing a criminal offence. They therefore were not necessarily jobs offering "minimal risk." It further argued that its only obligation to accommodate was found in s. 47 of the Police Act, which only refers to a physical or mental handicap that renders a member incapable of performing their duties. The effect of that statutory obligation, it argued, was that the Ontario Human Rights Code did not apply to the collective agreement. With respect to the examples of previous accommodation, the employer took the position that those accommodations were only offered because specific duties that they were capable of performing became available at a convenient time.
77The arbitrator found that the employer had violated art. 23.5 by failing to accommodate the griever's requests for alternative duties and stated that the Code "applies, prevails and has primacy over all other acts of the legislation."
78As stated previously, there was very little dispute on the facts leading to this complaint. The complainant, Julie Lord, met with her superior officer to advise him she was pregnant and to ask for "light duties." He acknowledged that the complainant had grounds to be concerned but relied on the policy at the Board. That policy stated in clear terms that the Board did not offer modified or "light duties." No other rationale was offered for its decision to refuse the complainant's request.
79The Board relied on the provisions of the Police Act as a complete defence to its actions. Its policy was promulgated in conformance with the Police Act. It claimed, in complying with the requirements of that Act, it had no choice but to demand the complainant to perform the full range of her duties. It argued that its entire obligations under the Code were defined in s. 47 of the Police Act and that it was required to go no further.
80The public policy of the Code is set out in its preamble, which is to recognize the dignity and self-worth of every person and to provide for equal opportunity and rights to every person, without discrimination. It is trite law that the provisions in the Code apply, prevail and have primacy over other acts of the legislature. That has been confirmed in numerous decisions from almost every level of decision-making body, including the Supreme Court of Canada. The only exceptions to the prohibition of discrimination is found within that Code and cannot be expanded by exceptions or exclusions found in another Act. The Police Act itself acknowledges that, in dealing with the accommodation of handicapped members, it is to comply with the Code. To suggest that s. 47 is the sum total of the Board's obligations under the Code is to, in effect, ignore the law.
81The second ground the respondents rely on, namely Policy I101, is equally untenable. It interpreted that policy rigidly against the complainant without any consideration as to whether it could actually comply with its obligations under the Act and the Code simultaneously. It ignored its own introduction to the Policy and Procedure manual which stated that the orders contained within were specific directions and guidelines which, in turn, were to be applied with common sense and sound judgment. In my view it exercised neither in dealing with the complainant's request for light duties. Given my rejection of the respondents' argument concerning the Police Act, it follows that this argument is also rejected.
82On the facts of the case I am satisfied that the complainant has made out a prima facie case of both direct and adverse effect discrimination contrary to the Code. With respect to the direct discrimination, I find no distinction in practical terms between the term "restrictive duties" and ”˜light duties." Constable Horton was unable to perform his duties as a police officer while he was under suspicion of committing an offence. Constable Lord was unable to perform the full range of her duties as a police officer during the latter half of her pregnancy. Neither officer claimed they were mentally or physically unable to perform their work. One was assigned to alternate duties, one was not. I can find no explanation for the different treatment afforded those examples except an unwillingness on the part of the Board to recognize the necessity to accommodate pregnant officers. That, in my view, constitutes direct discrimination.
83as the Supreme Court of Canada has ruled, once a complainant has made out a prima facie case of direct discrimination, the onus shifts to the respondent to justify that discrimination. Usually, that takes the form of an argument that the policy or action complained of was a bona fide occupational requirement. In this case, there was no evidence of that before me. The Board did not rely on business or economic reasons for its policy. It suggested that it would be difficult to meet its statutory obligations if it were forced to permit officers to ignore their statutory duties. I am not prepared to accept that vague, subjective and speculative statement as evidence of the need for Policy I101. It falls short of the objective evidence necessary to sustain such a defence. In view of my findings, Policy I101 must be struck down.
84That effectively answers the complainant's concerns respecting the policy. However, as I stated previously, the complainant has also made out a prima facie case for adverse effect discrimination. I feel compelled to address this aspect of the complaint out of concern that striking down the policy will not change the respondents' position on the issue of accommodation.
85Policy I101, on its face, seems to apply equally to all members of the force. However, in its application, it adversely affects a group, namely female officers who are pregnant, in that it fails to recognize the special needs of that group. Having determined that the policy constitutes adverse effect discrimination, the onus shifts to the respondents to show that they attempted to accommodate the complainant to the point of undue hardship.
86In the case before me, there was no evidence of any effort to accommodate the needs of the complainant. There was, however, evidence of various positions within the force that require less physical exertion and less exposure to danger, at least to the extent anyone can guarantee a risk-free environment. The respondents took the position that those job enrichment programs were awarded to senior officers on the basis of merit and ability. As well, Staff Sergeant Little testified the appointment to those positions was limited to a specific term. The evidence is not consistent with that assertion. The length of the assignment varied from officer to officer and from program to program. No reason was offered for that difference. Further, while I accept that the experience an officer brings to the position may be of assistance in performing the job, the fact is Constable Turkiewicz had only been with the Board for three years when he was transferred to Community Relations. I am satisfied, based on the evidence before me, that there would have been several options open to the Board in considering alternative duties for the complainant. The respondents made much of the fact that the officers on special assignment were recalled to regular duties and, while there, were expected to react appropriately to any situation. The evidence showed, however, that in filling vacancies, the Board has options. It can decide to operate the platoon short-handed. It can borrow an officer from another platoon, particularly the 1600 Platoon. It can offer the officers overtime. Lastly, it can borrow from the special assignment programs. But, even if it did select the last option, there is no doubt in my mind that there is enough flexibility to accommodate the needs of the complainant by looking at another program.
87There is also compelling evidence that, when it chooses to, the Board can assign an officer to numerous tasks that are generally outside of their normal duties. Enough of those duties were found to occupy Constable Horton for two years and seven months.
88The respondents took the position they had attempted to accommodate the complainant during her second pregnancy by offering her an alternative position, albeit at a lower rate of pay. That, in my view, was not only an inadequate response, but was unreasonable. In order to accept that job, she would have been required to resign her position on the force. She would have forfeited her seniority, rank and benefits, with no offer of reemployment, to take a temporary job at a significantly reduced rate of pay.
CONCLUSION
89It is therefore the finding of this Board of Inquiry that the complainant's right to equal treatment with respect to employment without discrimination because of sex has been infringed contrary to the Code. She has been the victim of both direct and adverse effect discrimination by virtue of Policy I101. I accept her evidence and the evidence of her physician that she would have worked until very close to her expected due date were it not for the actions of the respondents. She is entitled to lost wages, including losses flowing from her lost wages, and including interest. As well, she is entitled to an award of general damages.
DAMAGES
90As stated previously, the respondents took no issue with the calculation of wage loss provided by the Commission. That sum, $17,356.50, represents lost wages from November 25, 1991, to March 28, 1992. In addition, the Commission is claiming for the complainant $1,793.50 as lost SUB payments during the two-week waiting period for UIC benefits and the further sum of $4,136.63 for lost SUB top-up during her maternity leave. She was advised that her lost pension benefits totalled $5,544.04, which is the amount required to "buy back" pension credits. Added to that total amount, the Commission sought prejudgment interest, calculated according to the Courts of Justice Act, R.S.O. 1990, c. C.43, from April 9, 1992, to October 7, 1992. Since the respondents did not object, I accept those figures as accurate and order the respondent Board to pay to the complainant the sum of $35,306.91.
91The complainant and the Commission are also seeking an award in the amount of $10,000, plus interest, for a total of $12,246.30. The authority for a Board of Inquiry to make such an award is found in s. 40(1) [41(1)] which provides that " . . . where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish."
92Counsel for the respondents argued that there was no evidence of mental anguish, nor any evidence of any adverse effect on the complainant. I disagree. The evidence of her doctor was that she was tearful, had trouble sleeping and was anxious during her pregnancy as a direct result of the respondents' actions. She testified that she was increasingly concerned about her safety and the safety of her unborn child. As well, she had concerns about her future prospects with the Board, concerns that in my view are confirmed by Staff Sergeant Little's letter to London Life and the belated offer of "alternative" employment. There is ample evidence before me that the complainant suffered significantly as a result of the respondents' refusal to provide her with alternative work. When she should have been preparing for the joyous arrival of her first child, she was burdened with unnecessary problems and generally treated in a callous and cavalier manner.
93In this case, I am persuaded that a significant award is justified. There was no evidence before me that the Board or Chief Stewart made any effort to make themselves familiar with the law as it related to the situation at hand. Even more disturbing is the fact that neither of the respondents seemed to care that an employee of theirs was seeking what she believed to be her rights under the Code. There is no evidence before me that any discussion took place respecting the legal rights of the complainant to modified work, or even the possibility that light work was available in any event. In my view, the Board's actions were callous and intentional. They were not prepared to consider the complainant's request on any terms.
94The Commission asked for an order against the respondent Board and Chief Stewart individually and asked me to apportion the damages as between them. Again, I am persuaded on the facts of this case that this is an appropriate remedy. Chief Stewart, under the Police Act, is charged with the responsibility of administering the police force in accordance with the objectives, priorities and policies of the Board. As well, he is statutorily required to implement the employment equity plan established by the Act and its regulations. His actions, and the actions of the Board in this case, do not comply with those responsibilities. Indeed, their actions make a mockery of an employment equity plan that is intended to entice more women into the force. Chief Stewart did not attend the hearing and there is no evidence before me as to how he arrived at his decision to deny the complainant's request. The evidence of Staff Sergeant Little, however, was that his direction came from Chief Stewart and that one did not question his orders. Given the lack of any explanation from Chief Stewart for his decision, I am left with the inference that he did not have an explanation. He, as the Chief of the police force, should have taken a proactive and progressive role in advancing the policies of the Board, especially as they related to human rights issue[s]. He did not and, to some extent, he is personally responsible for the actions of the Board.
95In consideration of the foregoing, it is the order of this Board that the respondents pay to the complainant the sum of $10,000, as general damages, nine thousand of which is to be paid by the respondent Board, the remainder by Chief Stewart.