Trail-Hall v. Inter-Cultural Neighbourhood Social Services, 2010 HRTO 118

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clair Trail-Hall Applicant

-and-

Inter-Cultural Neighbourhood Social Services, Andrea Seepersaud and Sonia Rashid Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Jennifer Scott Date: January 19, 2010 Citation: 2010 HRTO 118 Indexed As: Trail-Hall v. Inter-Cultural Neighbourhood Social Services

APPEARANCES BY

Clair Trail-Hall, Applicant ) Glen Morrison, Representative Andrea Seepersaud, Respondent ) Jordan Goldblatt, Counsel Inter-Cultural Neighbourhood Social ) Did not appear Services and Sonia Rashid, ) Respondents )

Procedure

1This is an Application filed November 18, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on May 9, 2008, and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference (“CRC”) was conducted on November 25, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are more than one year old by the time they reach the Tribunal. Clair Trail-Hall gave evidence in support of her Application. The respondent, Andrea Seepersaud, testified on her own behalf. Inter-Cultural Neighbourhood Social Services (“ICNSS”) and Sonia Rashid did not participate in the hearing.

3The applicant concedes there is no basis for attributing personal liability to Ms. Seepersaud and Ms. Rashid as both were acting in the course of their employment when dealing with the applicant’s request for accommodation of her religious beliefs. The sole issue before the Tribunal is whether ICNSS discriminated against the applicant.

Nature of the Dispute

4The applicant, Clair Trail-Hall, claims discrimination in employment on the basis of creed pursuant to sections 5 and 9 of the Code against ICNSS. The applicant alleges that her request for accommodation of her religious practices was a factor in the decision by ICNSS not to renew her employment contract.

Decision

5The Application is dismissed. What follows are my reasons.

Background

6The applicant is a Seventh Day Adventist. As part of her religious beliefs, she is not permitted to work on her Sabbath which is from Friday at sundown to Saturday at sundown.

7ICNSS was a multi-service agency that provided programs and services for a variety of clients including newcomers to Canada, landed immigrants, refugees, mothers with young children, young persons and seniors. At the time of the CRC, ICNSS was no longer operating.

8ICNSS received federal, provincial, municipal funding and also received funding from foundations and private individuals. ICNSS engaged in private fundraising activities including running bingo games.

9The respondent, Andrea Seepersaud, was the Executive Director of ICNSS and Sonia Rashid was the Human Resources Coordinator in 2007 and 2008, the relevant time period for this Application. In 2007/2008, ICNSS had 80-85 employees and 300-350 volunteers.

10On January 19, 2007, the applicant commenced employment with ICNSS as a program support worker for the seniors’ program and program coordinator for the Springboard project on a fixed term contract for the period January 19, 2007 to March 31, 2007. The applicant worked 35 hours per week.

11The applicant’s work hours were shared between two different projects. She worked 14 hours for the seniors’ program funded by the Horizon project and 21 hours for the Springboard project covering another employee’s parental leave.

12The applicant was given a second contract of employment for the period April 1, 2007 to March 31, 2008.

13The funding for the Horizon project ended on December 31, 2007.

14Some time in February 2008, the applicant’s co-worker returned from her parental leave.

15The applicant concedes her employment at ICNSS was tied to funding: if there was no funding, there was no job.

16In early February 2008, Ms. Rashid approached the applicant to coordinate the bingo program. ICNSS believed the applicant had capacity in her workload because her co-worker had returned from parental leave.

17On or about February 11, 2008, the applicant was given a contract purporting to amend her second employment contract dated April 1, 2007. The amending contract changed her program coordinator position from the Springboard project to the bingo program and reduced her hours from 35 to 21 per week. All other terms remained the same as in the April 1, 2007 contract including maintaining her program support worker position and the expiry date of March 31, 2008. Although the amended contract was not signed, the applicant agrees her work hours were reduced to 21 hours per week in February 2008.

18By electronic message dated February 14, 2008, the applicant wrote to Ms. Rashid with questions about the proposed changes to her employment contract. The first question related to her entitlement to four vacation days in March and the second question related to the bingo program. The applicant asked about the availability of volunteers and whether there was a back-up person to run the bingo games because she was not able to work on Saturdays for religious reasons. Ms. Rashid responded to the e-mail message that day and advised the applicant that there would be no change to her vacation entitlement and that she understood her concern about working on Saturdays. Ms. Rashid advised the applicant that her job was to coordinate the bingos and she could recruit volunteers to attend the actual games.

19On February 22, 2008, the applicant raised further questions with Ms. Rashid about the bingo games after speaking to another employee who told her she would be required to be present at the bingos. The applicant indicated to Ms. Rashid that there was one game left in February and four games in March, each requiring five hours per game. That would leave her with only 16 hours per week to devote to the seniors’ program. The applicant was also concerned that if she worked the 10:00 p.m. bingos during the weekdays, she would not be able to leave the location until 2:00 a.m. and was concerned for her safety. The applicant repeated her advice that she was not able to work Friday evenings and Saturdays for religious reasons.

20Ms. Rashid responded to all of the applicant’s concerns the same day by return e-mail. Ms. Rashid believed the applicant would not have to work to 2:00 a.m. during the week and stated there would be volunteers and staff members who would leave with her, in response to her safety concern. With respect to working Friday nights and Saturdays, Ms. Rashid advised the applicant that as the coordinator, she had to ensure that someone reliable was able to work in her place and that they would be able to contact her if an emergency arose.

21On February 25, 2008, the applicant advised Ms. Rashid that the bingo coordinator position was in violation of her religious beliefs and she declined the position.

22By letter dated March 20, 2008, the applicant was advised that her employment contract ended on March 31, 2008 and would not be renewed.

Alleged Discrimination

23The applicant alleges that her request for accommodation of her religious beliefs was a factor in the decision by ICNSS to not extend her contract of employment on April 1, 2008.

24The applicant’s religious beliefs prevent her from working Friday nights and Saturdays. There is no dispute regarding the sincerity of her beliefs and practices. There is also no dispute that she advised ICNSS of these beliefs.

25ICNSS, through Ms. Rashid, advised the applicant that she would not have to be present at the bingo games on Friday nights and Saturdays. She was told that she could recruit volunteers for the games and had to ensure someone reliable was present at the games. The applicant was also advised by Ms. Rashid that she would have to be available to be contacted if an emergency arose.

26In my view, it is not reasonable accommodation to tell an employee who cannot work on Friday nights and Saturdays that she must be available for an emergency. An employee either can or cannot work on her Sabbath. There is no middle ground. Accommodating the applicant’s religious beliefs would have been relatively straightforward in this case as another employee or volunteer could have been the emergency contact person on Friday nights and Saturdays.

27That being said, the issue before me is whether (a) the applicant was required to work on her Sabbath; and (b) her request for accommodation of her religious beliefs was a factor in the decision to not extend her contract on April 1, 2008.

28It is clear from the applicant’s e-mail of February 22, 2008 that there was one bingo game in February and four games in March. There is no evidence before me that any of these games took place on a Friday night or Saturday. There is also no evidence before me that the applicant coordinated any of these games let alone worked at any of these games. I find that the applicant was not required to work on her Sabbath in February and March 2008, prior to the expiry of her employment contract on March 31, 2008.

29The applicant alleges that her request for accommodation of her religious beliefs was a factor in the decision not to extend her employment contract on April 1, 2008.

30The applicant submits the Tribunal should presume her contract would have been extended because the environment at ICNSS was a fluid one and contracts were routinely extended. This presumption cannot be made when the evidence is clear that the applicant’s employment was tied to specific funding: the Horizon project and the parental leave. There is no dispute that both the Horizon funding and the parental leave had expired by March 31, 2008. There is no evidence that additional sources of funding became available after March 31, 2008 or that new employees were hired. Indeed, sometime between March 2008 and the date of the CRC in November 2009, ICNSS ceased operating.

31The applicant submits further that she was solicited for the bingo coordinator position and it was only when she asserted her right to religious accommodation that her employment was terminated. The evidence does not support this argument. The applicant was asked to do the bingo coordinator position, but only until the end of her employment contract on March 31, 2008. Had ICNSS intended to extend the applicant’s employment past March 31, 2008 for the bingo coordinator position, it would have done so in February 11, 2008 amending contract when the bingo coordinator position was introduced. The February 11, 2008 amending contract kept the expiry date of March 31, 2008.

32The applicant suggests that her contract would have been extended to allow her to perform the bingo coordinator position. This ignores the fact that the bingo coordinator position was in addition to the support worker position, a position that had 14 hours per week dedicated to it. That left seven hours for the bingo coordinator position. It is not reasonable to suggest that ICNSS would have extended the applicant’s contract so that she could perform a seven hour per week job, a job that had historically been shared among a variety of employees and volunteers. There was one particular volunteer who had been coordinating the bingo games for 12 years.

33Finally, the applicant submits the proceeds of bingo would have funded her new position as described in the February 11, 2008 amending contract. Even if I were to accept this statement in the absence of any evidence, I would still find that, had ICNSS intended this, it would have extended the applicant’s contract in the amending contract. It did not do so.

34I find that the applicant’s employment contract with ICNSS expired on March 31, 2008. It was not extended on April 1, 2008 because there was no funding available. The Horizon funding had expired on December 31, 2007 and her co-worker had returned from parental leave in February 2008.

35The applicant has not established on a balance of probabilities that her request for accommodation of her religious beliefs was a factor in the decision not to extend her contract on April 1, 2008. As a result of my findings, the Application is dismissed.

Order

36In light of the above conclusions, I do not find a violation of sections 5 and 9 and of the Code by the respondents. This Application is dismissed.