C.D. v. Wal-Mart Canada, 2009 HRTO 801

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.D.

Applicant

-and-

Wal-Mart Canada Corp.

Respondent

INTERIM DECISION

Adjudicator: Alan Whyte

Date: June 9, 2009

Citation: 2009 HRTO 801

Indexed as: C.D. v. Wal-Mart Canada

1This Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) was filed on May 19, 2009 and alleges discrimination on the basis of family status in employment. This Interim Decision addresses the applicant’s Request for Interim Remedy (the “Request”) which was filed on May 29, 2009, and which seeks an Order that she be scheduled the Monday to Thursday, 9 AM to 5 PM shift pending the outcome of this Application. Declarations were filed by both parties as required by the Tribunal's Rules.

2The applicant is a cashier at one of the respondent’s stores in Hamilton. Her grandchild, of whom she has custody, is 13 years of age and has special needs as a result of a number of disabilities.

3Because of her grandchild’s special needs, the applicant has requested and the respondent has granted accommodation over the last seven years in the form of a Monday to Thursday work schedule, 9 AM to 5 PM. This permits the applicant to care for her grandchild after work and in the evening, and to attend medical appointments on Fridays.

4The applicant alleges that on February 23, 2009 she was advised by the store manager, Donna Cardinal, that in eight weeks she would be required to work evenings and weekends, and that her 9 AM to 5 PM shifts would no longer be in place. She alleges that, as of April 4, 2009 she has been working primarily a Monday to Thursday 9:30 AM to 3:30 PM shift and has been advised she will need to be available to work on Fridays and possibly two nights per week. Since April 4, 2009, she has consistently been given less than 28 hours of work per week.

5Twenty-eight hours of work per week is the threshold required in order to maintain full-time status with the respondent. With full-time status comes medical benefits, which the applicant relies on to pay for her grandchild's expensive medications.

6The applicant states in her declaration that because she has not been working 28 hours per week on a regular basis, her benefits will be cut off as of the week of July 4, 2009.

7The respondent’s declaration, which is authored by Donna Cardinal, contains a brief review of the facts pertaining to the hours of work issue from the point of view of the respondent, suggests that the applicant needs to demonstrate some flexibility with respect to her work hours, and concludes with the following sentence “In the meantime, while this matter remains before the Tribunal, this confirms that we will not remove C.D.'s full-time status in the event she does not meet the full-time status threshold”.

8The respondent’s undertaking not to remove her from full-time status answers the applicant's concern about loss of her medical benefits. However, it does not address the concern that the changed work schedule will adversely impact on her ability to care for her grandchild and his well-being.

9The respondent takes the position that permitting the applicant to retain full-time status pending the outcome of this Application satisfied the need for any interim remedial order. The respondent submits that

a balance needs to be struck between Wal-Mart’s ability to introduce reasonable scheduling expectations in line with its business requirements and Ms. D.D.'s family obligations.

It also suggests that the issue of the applicant’s hours of work are the central issue in this case which should not be addressed by the Tribunal by way of an interim remedy.

THE LAW RELATING TO INTERIM REMEDIES

10Rule 23 of the Tribunal’s Rules deals with interim remedies. Rule 23.2 states that the Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

11In Blanchette v. Oakville (Town), 2009 HRTO 703, the Tribunal identified several principles relating to the granting of interim remedies, which can be summarized as follows:

• since the purpose and object of the Code is remedial, the power to award interim remedies should focus on furthering that remedial objective;

• an applicant seeking an interim remedy has a significant onus to meet to demonstrate that the request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code;

• the three ingredients found in Rule 23.2 are not successive hurdles, but, rather, the decision to grant or refuse the Request must consider the collective impact of all factors and the provision as a whole;

• with respect to the first criterion, the applicant needs to show that she has an arguable case and that the claim is neither frivolous nor vexatious, although there may be circumstances where a higher onus is required, such as where the granting of the interim relief will effectively put an end to the dispute;

• the second criterion involves the balancing of the relative harm or convenience in granting or refusing the request-the question is whether the harm the applicant will suffer if the request is not granted outweighs the harm to the respondents if the request is granted;

• the third criterion recognizes the discretionary nature of interim relief and requires the Tribunal to decide whether the Request is necessary to further the remedial purposes are the Code and is fair in all the circumstances.

Decision

12In this case, the applicant has put forward an arguable case for family status discrimination in her employment. It is plausible that the applicant will be able to show that the change to her scheduled hours of work has a discriminatory effect on her having regard to her family obligations.

13According to the applicant, her grandchild has very significant disabilities which manifest themselves by way of antisocial and even violent behaviours. The applicant is her grandchild’s sole source of support (both financial and personal support) as there are no other family members available. The applicant has tried different childcare options in the past which have been unsuccessful. I am satisfied the evidence before me is clear that the applicant must provide care for her grandchild after school, in the evenings and on Fridays.

14The respondent provided little evidence regarding the inconvenience that it would suffer if the request for interim remedy was granted. Essentially, it points to its right as an employer to schedule its employees in order to meet its business needs.

15Although the number of staff in the respondent’s Hamilton store where the applicant works is not known, it is likely that there are a number of staff working in the applicant's role as cashier who can be scheduled to meet the respondent's business needs, at least on an interim basis while this Application is before the Tribunal. It is significant that the respondent was able to accommodate the applicant's need for a Monday to Thursday, 9 AM to 5 PM schedule for seven years. It should also be noted that since the change in the applicant's work schedule in early April, the bulk of the shifts worked by the applicant have been Monday to Thursday, albeit for a reduced number of hours.

16For these reasons, I find that the balance of convenience is in favour of the applicant in this case.

17I also find that it is fair in an overall sense to require the respondent to maintain the applicant's former work schedule pending the outcome of this Application. For the period of time leading up to the hearing, and the Tribunal will consider the parties’ desire to have this matter scheduled expeditiously if such a request is made, any inconvenience to the respondent in maintaining the applicant's former work schedule is minimal as compared with the possible harm to the applicant and her grandchild.

18Accordingly, the Tribunal orders that the respondent:

• continue to treat the applicant as a full-time employee for the purposes of her entitlement to benefits until the Application is concluded either by way of settlement, adjudication or until further Order of the Tribunal; and

• to maintain the applicant’s former work schedule and, specifically, not schedule the applicant to work after 5 pm, on Friday or on weekends.

19It is not clear whether the applicant intended to name Donna Cardinal as an individual respondent to this Application. She was not specifically named as such in the Application, however, in subsequent documents she is shown as a respondent. The applicant is directed to advise the respondent and the Tribunal in writing within five days of this Interim Decision whether it is her intention to name Donna Cardinal as an individual respondent in this matter, and if it is her intention to do so, that request should be made by way of a Request for Order During Proceedings.

20I am not seized of this matter.