COURT FILE NO.: 509/95
DATE: 20020919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DUNNET, MEEHAN and LAX JJ.
B E T W E E N:
ONTARIO HUMAN RIGHTS COMMISSION
David Lepofsky, Anthony D. Griffin and Wayne Van Der Meide for the Appellants
Appellant
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G. MICHAEL ROOSMA and ROBERT WELLER Complainants
- and –
FORD MOTOR COMPANY OF CANADA LIMITED and THE NATIONAL AUTOMOBILE AND AGRICULTURAL IMPLEMENT WORKERS OF CANADA, CAW LOCAL 707 Respondents
Paul B. Schabas and Allison A. Thornton for the Respondent Ford Motor Company of Canada Limited
Steven Barrett and Vanessa Payne for the Respondent CAW Local 707
HEARD: May 6, 7, 8, 9 and 10, 2002
DUNNET J.:
INTRODUCTION
[1] The Ontario Human Rights Commission (“the Commission”) seeks to appeal the decision of a Board of Inquiry (“the Board”) released July 14, 1995 dismissing two complaints brought in 1985 against Ford Motor Company of Canada Limited (“Ford” or “the company”) and The National Automobile and Agricultural Implement Workers of Canada, CAW Local 707 (“the Union”) alleging constructive discrimination based on the complainants’ religion. The employment of the complainants was terminated in 1987 and 1988.
THE FACTS
The evidence of the complainants
[2] In 1983, the complainant, G. Michael Roosma, began working on the assembly line at Ford’s automobile plant in Oakville, Ontario (“the Oakville plant”). The following year, Roosma and the complainant, Robert Weller, who had been an assembly line worker at Ford for six years, were working together as gas tank installers.
[3] The assembly line at the Oakville plant operated a day shift and a night shift from Monday through Friday. It did not operate on the weekends. The complainants were required to work two weeks of day shifts and two weeks of night shifts on a rotating basis. There were approximately 1250 workers on each shift.
[4] The time allotted to install gas tanks was one minute, but the complainants actually took forty seconds and could do approximately sixty-five cars in one hour.
[5] In 1984, Roosma and Weller became interested in the Worldwide Church of God (“WWC”), which observed the Sabbath from sunset on Friday to sunset on Saturday. The tenets of the WWC provided at that time that adherents were prohibited from working on the Sabbath. The complainants sought to be permanently excused from working the Friday night shift.
[6] They spoke to their supervisor who told them that he would check things out and get back to them. He returned to their place on the assembly line and said he was sorry, but he could not assist them.
[7] Then they spoke with the production supervisor, Frank Wiley, and raised the possibility of working on the labour gang (pool of indirect workers) or working extra hours or on Sundays. Wiley explained that he could not accept their suggestions because they did not have enough seniority to work in those alternative capacities.
[8] The complainants also met with the vice-president of the Union, Bill Van Gaal, who responded to their suggested alternatives by referring to the collective agreement. He said their proposals were not workable because of their seniority.
[9] Roosma told Ted Stawikowski, the labour relations coordinator, that he would be willing to pay the cost of replacing him with another worker. Stawikowski replied that he was sorry, but he was unable to assist.
[10] The complainants continued to be assigned to alternating two-week shifts of days and nights. They determined not to work on their Sabbath and told company representatives in advance that they would not be doing so.
[11] Both were aware of Ford policy regarding absenteeism. Workers who took two unauthorized days off in a twenty working-day cycle would be subject to an interview. If it was determined that a Friday night absence was unauthorized, progressive discipline would be instituted. The first step was a verbal warning, then a written warning, and suspensions lasting from one day to twenty-eight days and finally, termination. A grievance could be lodged at any of these disciplinary steps.
[12] After receiving a number of suspensions, the complainants approached the Union’s plant chairman, Jim Donegan, who said that, in his view, a grievance would not be successful.
[13] They sought the assistance of shop stewart Davey Hall and committeeman Don Ferguson in finding workers who would agree to switch shifts to enable them to avoid working on their Sabbath.
[14] Occasionally, the complainants were able to make those arrangements. This created two problems. First, they had to compensate other workers with money or gift certificates for working their Friday night shifts. Second, they were working eighteen hours in a twenty-hour period and became so exhausted that they did not pursue the arrangement.
[15] The complainants managed to avoid being disciplined by obtaining unpaid leaves of absence or working the Friday night shift until sunset and leaving, with permission, if the work force was at full complement.
[16] Roosma testified that he was prepared to train people on his own time and without pay in order to facilitate being replaced by another worker. Weller testified that he was willing to move to the bottom of the seniority ladder and take a job with lower pay.
[17] For Roosma, three years lapsed before all of the steps of progressive discipline had been imposed and he was terminated. In the interim, there were periods of illness and 102 working days when he was off and receiving workers’ compensation benefits.
[18] Weller asked the Union to lodge a grievance arising out of his termination and the Union agreed. However, the foundation for the grievance was not Weller’s religious beliefs, but a claim that one of his absences was for medical reasons and another, lateness, was unfounded.
[19] Roosma conceded that he did not know much about the job classification system at Ford and had not sought dispensation from his church concerning Friday night sabbath observance. Weller maintained that he wanted Ford and the Union to “bend” the collective agreement or to amend it in order to accommodate him.
The evidence of the company
[20] Ted Stawikowski entered Ford’s employ in 1976 as an accountant and later as a cost analyst. He also held offices as labour relations coordinator and supervisor of plant safety and security. At the time of the Board hearing, he was supervisor of salaried personnel and training.
[21] Stawikowski described the Oakville plant as one of Ford’s oldest assembly plants, having been built in 1953. In view of its age, seniority was very important to the workers. It was the cornerstone of the collective agreement “or the gospel, so to speak”.
[22] Ford had significant concerns about the level of absenteeism at the Oakville plant, especially on Friday nights. This had a direct impact on worker morale and the efficiency and quality of work.
[23] Ford’s primary method of dealing with absenteeism was through the absentee allowance, individuals who were trained on twenty to thirty different jobs.
[24] In addition, there was a relief worker in the morning and one in the afternoon whose function was to give a specified number of workers a brief relief from their job during the course of the production line running. In some cases because of absenteeism, Ford would have to shut down the line for mass relief, resulting in a significant loss in production.
[25] Ford also used double-backs to deal with absenteeism. These were workers who were asked to remain and work the next shift for premium pay. Aside from the added cost of the double-back, fatigue and inexperience led to safety problems and additional repairs affecting the quality of the product.
[26] When the complainants approached Stawikowski, he told them that he did not think they could be accommodated because of the number of workers absent on Fridays, but he would investigate the possibility. He went to his supervisor, Sean Melnyk, who took the matter up with the industrial relations manager, Mark Bialkowski. The response was that the complainants could not have Friday nights off because of the ongoing absenteeism problem.
[27] Stawikowski had eight to ten meetings with Melnyk and Bialkowski to discuss possible accommodations of the complainants. They spoke about the possibility of swapping shifts, working straight days versus straight afternoons, working in the labour gang, working Sundays, and the prospect of the complainants paying Ford the half-time differential so that other workers might take their jobs.
[28] Stawikowski also met with Hall and was aware that Melnyk met with Ferguson concerning the complainants’ requests.
[29] In late 1984 or early 1985, the complainants stopped coming into work on the Friday night shift. In January 1985, they filed human rights complaints against Ford and later that year, the complaints were amended to add the Union.
[30] Ford did not begin to discipline the complainants for unauthorized absences until June 1985. Roosma was discharged in November 1987 and Weller in August 1988. Weller was terminated for persistent lateness and absenteeism regarding a medical disability.
[31] Stawikowski emphasized that it would be virtually impossible for Ford to calculate the cost per absence of the complainants from the Friday night shift. As gas tank installers, they were involved in a critical operation with significant safety implications. It would be a matter of speculation as to which “bumpings” from job to job was required to enable their jobs to be covered. It was clear, however, that the cost of a Friday night absence would be greater than any other shift during the week, because the incidence of absenteeism was highest on Friday afternoons and nights.
[32] David G. Rehor, Vice-President and Treasurer of Ford, gave evidence about the company’s financial position. He identified the advent of serious competition from Japanese exports and was of the view that the competitive environment was unlikely to change in the future. He described the specific forecast of the Oakville plant as uncertain.
The evidence of the Union
[33] James Donegan was the plant chairman for 24 years before his retirement in 1988. He was responsible for the overall administration of the collective agreement and the functioning of the Union within the Oakville plant.
[34] His first knowledge of the complainants’ situation occurred in late 1984 or early 1985. Ferguson and Hall told him that two workers were seeking complete alterations to their schedule and looking for exceptions to the seniority provisions, in order to absent themselves permanently on Friday night shifts for religious purposes.
[35] Donegan spoke with Bialkowski and mentioned some of the suggestions that had been put forward by the complainants, such as replacing them on Friday nights with students, or placing them on a labour gang or other steady day jobs. Bialkowski responded that Ford could not embark on a part-time help arrangement for two individuals who did not have sufficient seniority to be moved to steady day jobs in the plant.
[36] Donegan felt that they had to seek ways to try to make arrangements to grant time off using the manpower that was available including, down the road, any possible leaves of absence that may occur for religious grounds. He also mentioned that they should explore possibilities at the floor level.
[37] Donegan reported to the Union In-Plant Committee and the Executive Board on his discussions with the company concerning the complainants’ situation. Members of the Committee were not in favour of making exceptions to the seniority provisions, but agreed with the idea of seeking a solution at the floor level, as long as the other workers were not adversely affected.
[38] In July 1985, Donegan met with the complainants for three hours. They discussed having two students replace them on Friday nights and the complainants could make up the time by working on Sunday nights. Donegan replied that it would not be acceptable to the Union membership to single them out for special treatment when other workers were being disciplined for taking Friday nights off. Further, to be placed on a steady day job would be impossible, given their low seniority. Donegan and Ferguson said they would see what they could do with respect to leaves of absence and voluntary arrangements.
[39] The complainants asked the Union to lodge grievances against Ford for disciplining them and for not accommodating their requests. Donegan’s response was that Ford could not guarantee every Friday night off and Ford had a right under the collective agreement to impose discipline. The Union could not lodge a grievance without a remedy.
[40] Donegan’s evidence is that Ferguson and Hall talked with him on an on-going basis about floor level arrangements that were tried and the problems that kept arising when other workers decided not to stay with the arrangement.
[41] He described the problem with summer students replacing the complainants on Friday nights. Summer student replacements were hired at the Oakville plant because of the large number of workers (over 40%) whose vacation entitlement exceeded the three-week shutdown period. One of the reasons for devising the summer student system was the backlog of full-time applicants for work in the Oakville plant, which numbered in the thousands. They included workers who had been laid off and who qualified for special preferential hiring. Seniority was a primary criterion for hiring from the preferential list.
[42] Donegan knew that such an accommodation would generate grievances from others, specifically, those who were being disciplined or who might consider a temporary replacement program desirable for them as well. The Union had already considered a temporary part-time help arrangement and had rejected it in a vote of the membership in 1978.
[43] Further, had the complainants been placed in a steady day job or on Sunday work, they would have been subject to displacement by someone with greater seniority, who was either looking for that kind of work within the bargaining unit or off work on medical disability.
[44] Donegan had received complaints from as many as eight or ten workers that the Union was “going overboard” to try and make special arrangements for the complainants. Other workers regularly asked to have Friday nights off and were just as regularly denied because of manpower and absentee problems.
[45] The sensitivity of those required to work on Friday nights, particularly during periods of extended overtime, was such that the use of double-backs or absentee allowances could only provide a temporary solution.
[46] In Donegan’s view, the right to assign workers to jobs based upon management’s perception of their individual skills and abilities raised concerns of favoritism and created a significant morale problem.
[47] When it was suggested that Donegan was exaggerating when he described seniority as the most important thing to workers, Donegan replied:
You can have somebody say, “Forget about seniority. Give me the money”, but seniority basically from the Union’s standpoint is fundamental and it is very, very important to us. It is the cornerstone of the labour movement. We spend more time on seniority than we have on money, and that is a fact.
[48] Donegan agreed that seniority entitlement is governed by the collective agreement, including article 7.01, which provides:
7.01 In continuance of the policy established and maintained since the inception of their bargaining relationship, the Company and the Union acknowledge that the provisions of this agreement shall apply to all employees without discrimination, and in carrying out their respective obligations under this agreement, neither will discriminate against an employee on account of race, creed, colour nationality, age, sex, ancestry, or place of origin, or against any handicapped employee.
[49] The Union’s view, as expressed by Donegan, was that article 7.01 required the Union to administer the collective agreement fairly by not treating anyone differently in carrying out its obligations.
[50] John Yates and Mike Smorong were absentee allowances in the complainants’ work area. Yates described the gas tank job as not one of the better jobs in the plant, because Roosma’s part was hard on the shoulder and Weller’s was “a little quick”.
[51] Smorong said that when the complainants were not at work on Friday nights and he and Yates were not available to take over their jobs, there were problems creating hazardous situations “pretty much every Friday”. Yates said that this was particularly the case when students were brought in to do the gas tank job.
[52] Smorong also said that workers were upset because the complainants’ absence meant that could not expect to get the Friday night off. He told Roosma that he too would not mind going into the labour gang at this stage of his career, but that he did not think it was fair to do away with the seniority bidding system. Roosma responded that he did not care about the seniority system.
[53] John Anthony worked on the gas tank assembly job from 1984 to 1988. He said that there was a good deal of grumbling from other workers on the shift when he took over for Weller. This took the form of objecting to the fact that other workers could not get Friday night off. Anthony had applied for jobs on the labour gang, but despite his seniority from 1966, he did not qualify.
[54] Davey Hall, who started working at the Oakville plant in 1964, testified that there were some complaints from other workers concerning arrangements that were made for the complainants. After voluntary switches did not work out, Hall attempted to find other workers who would be willing to double-back to cover the complainants’ positions on Friday nights.
[55] Hall was called to the line to meet with the complainants on a regular basis to discuss their situation and the prospect of making arrangements for a Friday night absence. He took the initiative to take matters up with the general foreman or superintendent if the supervisor denied a particular request.
[56] The Vice-President of the Union (later President), Bill Van Gaal, started working for Ford in the Oakville plant in 1963. When the complainants first came to him in 1984, Van Gaal explained that they did not have enough seniority to bid into jobs on the labour gang or steady day jobs, and there was no regular work in the plant on Sundays. He advised them to work through the plant by first approaching their supervisors and moving up through the corporate structure to seek some suitable arrangement. He suggested a number of possible courses of action, including double-backs and shift swaps. He invited them to return at any time if they required assistance.
[57] Van Gaal asked Roosma if there was any away that he could go to his church and ask for special dispensation to allow him to work on Friday nights and Roosma advised him that there was no way he could or would do so.
[58] At a committee meeting in February 1986, Van Gaal brought a motion to have the Union put in leave of absence requests for the complainants on Friday nights and, if they were not successful, to lodge grievances on their behalf. The motion was defeated.
[59] At a general membership meeting of the Union in March 1986, where attendance was described by Van Gaal as significantly more than usual, notice had been given that a discussion would be held concerning the complainants’ desire to be accommodated and letters of invitation had been sent to the complainants. They did not attend.
[60] After considerable discussion, the following motion was unanimously carried:
We represent the workers as required, and in no event do we assign rights to them that are not available to other workers. Nor do we enter into arrangements that would have the effect of undermining the rights of other workers.
[61] When Van Gaal was asked if that was the result he preferred, he answered:
I would have preferred, in the end, to have seen Rob and Mike get what they wanted, without infringing on anybody else but as far as adhering to the terms of the collective agreement and protecting the seniority of senior people in the plant, yes, that was first and foremost.
The evidence of the Commission’s cost expert
[62] Brian Crockatt of the accounting firm of Lindquist, Avey, MacDonald, Baskerville, gave opinion evidence on the cost of replacing the complainants.
[63] Crockatt found that for 1985, the cost of twenty afternoon shifts for the complainants was $12,710 using Ford’s “full costs” basis and $1132 using the “incremental costs” basis, which he preferred. He suggested that, in any event, the financial impact on Ford was negligible.
THE DECISION OF THE BOARD
[64] The hearing before the Board took 71 days and spanned five years. During the hearing, the Board and the parties took a view of the assembly line in operation at the Oakville plant. At the outset of the decision, the Board stated:
This has been an extraordinarily long and complex case producing seventy-six volumes of transcript, thousands of pages of exhibits and numerous interim written rulings.
The prima facie case against the company and the Union
[65] Ford conceded that a prima facie case of constructive discrimination against the company existed. The Board acknowledged that s. 10 of the Ontario Human Rights Code, 1981 imposes a burden on the employer of proving accommodation short of undue hardship, where a prima facie case of constructive discrimination on the basis of creed has been made out.
[66] The Board found that the Union was a party to the collective agreement that required the complainants to work on Friday nights according to the shift rotation schedule. In addition, the Union pointed to the collective agreement in explaining how it was limited within its own sphere of influence in the ways it might accommodate the complainants’ desire to be relieved of the Friday night work requirement. Accordingly, there was equally a prima facie case made out against the Union.
Ford’s duty of accommodation
[67] In its decision, the Board refers to the rationale underlying the duty to accommodate, as stated in Central Okanagan School Dist. No. 23 v. Renaud (“Renaud”) (1992), 16 C.H.R.R. D/425 (S.C.C.) at para. 32:
The duty to accommodate developed as a means of limiting the liability of an employer who was found to have discriminated by the bona fide adoption of a work rule without any intention to discriminate. It enabled the employer to justify adverse effect discrimination and thus avoid absolute liability for consequences that were not intended.
[68] The Board notes that in Renaud, the Supreme Court of Canada rejected the de minimus test of undue hardship set out by the Supreme Court of the United States in Trans World Airlines Inc. v. Hardison (“Hardison”), 432 U.S. 63 (1977) as being in direct conflict with the explanation of undue hardship in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears (“O’Malley”) (1985), 7 C.H.R.R. D/3102 (S.C.C.):
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…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 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… In Canada, boards of inquiry under human rights legislation have adopted this concept and it was formulated by the board of inquiry in this case by Professor Ratushny as:
…the very general standard of whether the employer acted reasonably in attempting to accommodate the employee in all of the circumstances of the case as well as in the context of the general scope and objects of the Code.
The question is not free from difficulty. No problem is found with the proposition that a person should be free to adopt any religion he or she may choose and to observe the tenets of that faith. The general concept of freedom of religion has been well established in our society and was a recognized and protected right long before the human rights codes of recent appearance were enacted. Difficulty arises when the question is posed of how far the person is entitled to go in the exercise of his religious freedom. At what point in the profession of his faith and the observance of its rules does he go beyond the mere exercise of his rights and seek to enforce upon others conformance with his beliefs. To what extent, if any, in the exercise of his religion is a person entitled to impose a liability upon another to do some act or accept some obligation he would not otherwise have done or accepted? … To put the question in the individual context of this case: In the honest desire to exercise her religious practices how far can an employee compel her employer in the conduct of its business to conform with, or to accommodate, such practices? How far, it may be asked, may the same requirement be made of fellow employees…
Accepting the proposition that there is a duty to accommodate imposed on the employer, it becomes necessary to put some realistic limit upon it. The duty in the case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer…(O’Malley, supra, at paras. 24774-77).
[69] The Board correctly states that the content of the duty to accommodate was augmented by the Supreme Court of Canada in Renaud, supra, at para. 19:
…More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term “undue” infers that some hardship is acceptable; it is only “undue” hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words “reasonable” and “short of undue hardship”. These are not independent criteria but are alternate ways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case.
[70] The Board then defined its role as to determine undue hardship within the context of the work place as it was structured at the time:
…my role in determining whether the Company stands to suffer undue hardship through undue influence in the operation of its business does not extend to re-evaluating its legitimate business decisions and strategies. According to the O’Malley decision, supra, I am to construe and flexibly apply the Code 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” … Having found that the Ford Motor Company’s emphasis on quality is the result of a legitimate business strategy, it is not up to me to determine whether I think that emphasis is warranted.
[71] The Board refers to the factors constituting undue hardship, which were considered by Wilson J. in Alberta Human Rights Commission v. Central Alberta Dairy Pool (“Central Alberta Dairy Pool”) (1990), 72 D.L.R. (4th) 417 (S.C.C.) at 439:
… financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. The list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.
In the case at bar, the board of inquiry found as a fact that concerns of cost, disruption of a collective agreement, employee morale and interchangeability of work force did not pose serious obstacles to accommodating the complainant’s religious needs by permitting him to be absent on Monday April 4, 1983…I emphasize once again that there is nothing in the evidence to suggest that Monday absences of the complainant would have been routine…
[72] The Board also refers to the relevance of the collective agreement in determining the degree of hardship involved for an employer or a Union interfering with its terms:
While the provisions of a collective agreement cannot absolve the parties from the duty to accommodate, the effect of the agreement is relevant in assessing the degree of hardship occasioned by interference with the terms thereof. Substantial departure from the normal operation of the conditions and terms of employment in the collective agreement may constitute undue interference in the operation of the employers’ business (Renaud, supra, at para. 26).
[73] The Board recognizes the requirement to consider the duty to accommodate in the context of a bona fide occupational qualification (“BFOQ”) exception or defence and finds that it must be reasonable in the circumstances.
[74] It is interesting to note that in Central Alberta Dairy Pool, supra, at 445, Sopinka J., who gave the minority judgment on behalf of La Forest and McLaughlin JJ., agreed with the Board’s interpretation of a BFOQ, as expressed in a preliminary ruling in this matter:
In Roosma v. Ford Motor Co. (1988), 9 C.H.R.R. D/4743, a Board of Inquiry chaired by Professor P. P. Mercer (now Dean of the University of Western Ontario law School), dealt with the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, which deals separately with direct and adverse effect discrimination and makes the BFOQ applicable to both. The relationship between the BFOQ and the duty to accommodate in the case of adverse effect discrimination was aptly expressed as follows (at p. D/4747):
A neutral “requirement, qualification or consideration” which gives rise to constructive discrimination is only allowed to operate as an exception where it is reasonable and bona fide in the circumstances. And it is only reasonable in the circumstances, consistent with O’Malley, if accommodation cannot be accomplished without undue hardship.
[75] In evaluating Ford’s efforts to accommodate, therefore, the Board considered whether the efforts were reasonable in the circumstances. The Board examined the disruption of the collective agreement, problems of morale, the interchangeability of the work force and facilities, the size of the operation, and safety considerations, including the magnitude of the risks and the identity of those who would bear them.
[76] The Board also considered it relevant to examine the competitive position of Ford and the Oakville plant, in particular. He noted that the North American automobile industry is intensely competitive and domestic automobile manufacturers, including Ford, had lost market share to off shore competitors, especially the Japanese. As a result, Ford had closed a dozen North American plants since 1978 and had developed a fundamental concern over quality and a concurrent emphasis on reducing costs.
[77] The Board then examined the high rate of absenteeism at the Oakville plant, especially the Friday night shift, where the incidence of mass relief was significantly higher than on the other shifts. Double-backs were used virtually exclusively to deal with Friday night absenteeism. Churning (the movement of workers within the plant) was particularly pronounced, with quality and cost implications.
[78] The position of absentee allowance was the most obvious and forthright means of dealing with absenteeism. However, absentee allowances were meant to cover for workers absent for a variety of reasons and were not to be a permanent replacement for workers who could not work a particular shift. When absentee allowances were not available, two employees were doubled-up on the same job and this created a higher incidence of repairs.
[79] It was possible to have a relief man take over one of the complainant’s jobs. However, mass relief was likely to follow when the relief could not do the job, resulting in significant cost to Ford. There was evidence as well that where the relief was delayed or denied, there was a detrimental effect on morale.
[80] With respect to workers doubling-back or volunteering to stay, the Board found that the complainants themselves testified to the extreme fatigue created by working longer hours. In this situation, the implications went beyond matters of quality to encompass genuine concerns about safety.
[81] The Board concluded that the overwhelming impression on the evidence was that the complainants’ need to be freed from the obligation of working every Friday night exacerbated an already difficult absenteeism problem. They were both competent workers who performed their jobs admirably as regular operators and the various attempts to replace them were attended by significant difficulties.
[82] Citing Crockatt’s analysis as unduly restrictive, the Board determined that the notion of “cost” in the circumstances of this case was informed by a range of variables that made quantification difficult. The reasons give, as an example, the evidence of what happened on Friday, January 25, 1985:
One double-back who worked for four hours, a second who worked for six hours, a third who worked for two hours, Mr. Smorong who spent four hours in training, and the supervisor, Mr. Sokic, who was involved for two hours. Thus, instead of the two regular operators, there were five different people involved, three of whom were paid time and a half, and these included the absentee allowance who, had he not been on this job, could have been somewhere else.
The daily manpower report (Exhibit 100) indicates that there were in fact ten more absences in the area than had been budgeted for with only six double-backs including the three who spent a certain portion of the shift working in the complainants’ place. Of these three, one knew the job, a second did not and no one is sure about the third. However, with the fact being that on that date there were already eight absences besides the complainants in excess of the number budgeted for and that five people, three of them were paid at time at a half, were on the job for a total of eighteen hours, Mr. Crockatt’s estimate that the incremental cost to the Company was $15.70 appears unrepresentative and unrealistic. I generally find that the Company’s estimate is to be preferred over Mr. Crockatt’s; Mr. Crockatt appears to have treated as relevant only those costs which he could specifically quantify but in my view he has not captured all the relevant costs.
[83] On two occasions, the complainants were allowed to work until sunset on Friday nights. None of the problems concerning Friday night absenteeism were alleviated, since the company would not know what other absences it had to deal with and would still need to have workers available to cover the complainants’ jobs for the rest of the shift.
[84] The Board explains that the notion of cost extends not only to the wage and benefit rate of those replacing the complainants, but also to the real cost of resulting declines in both quality and production. “Although these are difficult to measure, the evidence discloses that they were real”.
[85] The Board proceeded to conduct an evaluation of the degree of hardship of the various possibilities of accommodation. Swapping shifts was a possibility that actually occurred; however, the complainants themselves referred to the experience as “very exhausting”. Both Ford and the Union attempted to identify willing workers, but the replacement workers did not wish to continue the voluntary arrangement, especially on Friday nights.
[86] The problems with double-backs were the premium cost factor, fatigue and the voluntary nature of the arrangement. The option of using the absentee allowances was impractical. Their function ran counter to the notion of assigning them as permanent replacements on Friday nights. The pressing problem of Friday night absenteeism would be exacerbated with the attendant quality and cost difficulties of not having the regular operators on the job.
[87] There is no issue that the complainants were granted leaves of absence in order to observe their religious high holidays. However, routine leaves of absence would have created a significant further deterioration in employee morale.
[88] There was evidence of a significant quality problem with student workers. The Union was also opposed to hiring temporary or part-time workers because of the infringement on the rights of regular workers. In addition, persons on medical disability would be unable to return to full time employment.
[89] After a thorough examination of these factors, the Board reached the conclusion that further accommodation of the complainants would represent an undue hardship for Ford:
The complainants were excellent workers in important jobs on an assembly line that is a highly complex and interdependent operation. Their request was to be relieved of all work on the one shift that already experienced the highest absenteeism and for which manpower problems were the greatest. The Company did not reject the complainants’ request for accommodation without considering the matter, but the Commission argues that their process of deliberation was inadequate because it did not fully explore all the possibilities. In the circumstances, however, I find that the Company did what it reasonably could according to the test established by the Supreme Court of Canada in O’Malley, supra, and confirmed in Renaud, supra. The Company’s evidence on its ability to accommodate and the circumstances relevant to its determination of that ability, is virtually uncontradicted and given its substantive reasons for not accommodating, I believe the Company’s method of deliberation on the request for accommodation was sufficient. The circumstances constraining the Company were sufficiently apparent that detailed enquiry into the possibilities of accommodation was unnecessary.
As the O’Malley case, supra, makes clear, the determination of undue hardship is made on a case-by-case basis. In my view, on the basis of the evidence before me, this case is unlike any others that have been decided. In particular, the other cases such as Gohm, supra, [Gohm v. Domtar Inc. (No. 4) (1990), 12 C.H.R.R. D/161 (Ont. Bd. Of Inq.)] described in detail above, have not involved the real prospect of imposing obligations on co-workers or detracting from their rights.
The Union’s duty of accommodation
[90] The Board found that the Union met regularly with the complainants and with representatives of Ford in an attempt to seek some form of accommodation.
[91] The Board recognized that the mere fact of being bound by a collective agreement does not enable the parties to avoid their responsibilities under the Code. However, the disruption of the Union’s hard won position under the collective agreement was relevant to the Board’s determination as to whether the Union had properly discharged its responsibility to accommodate.
[92] The Oakville plant was very old with many workers of high seniority and a substantial number of workers with medical restrictions. The Union, like the employer, was well aware of the circumstances that confronted the complainants’ need to have every Friday night off.
[93] In this context, the Board concluded that the Union’s emphasis on upholding the terms of the collective agreement was understandable and sufficiently explained the Union’s unwillingness to grieve on behalf of the complainants when it fairly concluded that the collective agreement did not provide for a reasonable possibility of such grievances succeeding.
[94] Consequently, the Union’s efforts satisfied the requirements in the context of its collective bargaining relationship with Ford of seeking the accommodation of the complainants to the limits of undue hardship.
THE GROUNDS OF APPEAL
[95] The Commission asserts that the Board erred in law:
by failing to apply the correct legal standard when assessing whether accommodation of the complainants’ creed would cause the respondents undue hardship;
in assessing the relevant factors relating to the question of undue hardship;
in rejecting as unfeasible several workable proposals for accommodating the complainants’ creed without undue hardship;
in failing to consider the feasibility of several accommodating options which the Commission raised at the hearing;
by not finding that the highly-profitable, amply-resourced Ford could accommodate the complainants’ creed without undue hardship, even assuming as correct Ford’s annual before-tax cost estimate of accommodation as $6355 per complainant; and
by not finding that the Union breached its duty to accommodate through its unalterable insistence on strict compliance with the collective agreement, regardless of its impact on the complainants' human rights.
STANDARD OF REVIEW
[96] Under s. 42(3) of the Code, an appeal from a Board decision to the Divisional Court may be made on questions of law or fact or both and the Divisional Court has wide powers to affirm, reverse or substitute its opinion for that of the Board.
[97] The standard of review of general questions of law, including the interpretation of the governing human rights statute, is correctness. The standard of review of the Board’s findings of fact and the application of the law to those findings of fact is reasonableness. See Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (C.A.) at 36.
[98] In Emrick Plastics v. Ontario (Human Rights Commission) (1992), 90 D.L.R. (4th) 476 (Ont. Div. Ct.) at 486 this Court stated:
The court’s job is not to second-guess the tribunal. The court should only interfere with findings of fact made by a human rights tribunal if the appellant establishes that the tribunal made a palpable and overriding error, which affected its assessment of the facts.
[99] An “unreasonable decision” means, as Iacobucci stated in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56:
…one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.”
THE DUTY TO ACCOMMODATE AFTER RENAUD
[100] In Entrop, supra, at 44, Laskin J.A. stated:
…late last year, after this appeal was argued, the Supreme Court of Canada, in two ground-breaking decisions – British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (“Meiorin”), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (“Grismer”), [1999] 3 S.C.R. 868, 181 D.L.R. (4th) 385 – erased the distinction between direct and adverse effect discrimination and prescribed a single three-step test, which the employer must meet to justify a prima facie case of discrimination.
[101] The test, as enunciated in these cases, requires the employer to justify a prima facie discriminatory standard by establishing on a balance of probabilities:
that the employer adopted the standard for a purpose rationally connected to the performance of the job;
that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship upon the employer.
[102] In Meiorin, supra, at para. 66, the Supreme Court of Canada suggested that when considering whether an occupational standard which discriminates against some employees can be justified, it may be useful to consider separately the procedure, if any, which was adopted to assess the issue of accommodation and the substantive content of either a more accommodating standard which was offered, or alternatively, the employer’s reasons for not offering any such standard.
[103] Also, in Meiorin, supra, at para. 63, the Court repeated the factors listed by Wilson J. in Central Alberta Dairy Pool, supra, at 439 that may be considered when assessing an employer’s duty to accommodate to the point of undue hardship. Speaking for the Court, McLachlin J. emphasized that the various factors should be applied with common sense and flexibility in the context of the factual situation presented in each case.
THE COMMISSION’S POSITION
[104] The Commission’s position is that some people have to be treated differently to achieve equality. In its consideration of the complainant’s claims, the Board made reversible errors in finding that the respondents had met the burden of establishing that they could not accommodate the complainants short of undue hardship.
[105] The Commission submits that the Board failed to make factual findings of what steps Ford and the Union took to accommodate the complainants. The Board failed to make findings of credibility on evidence that conflicted and made findings of fact supported by no evidence – for example, its finding that Ford had attempted to find workers to swap shifts.
[106] The Commission also submits that the Board applied a de minimus test and failed to appreciate that “undue hardship” required serious and substantial efforts on the part of the respondents. Further, the Board failed to consider the procedure that was adopted to assess the issue of accommodation and the substantive content of a more accommodating standard or Ford’s reasons for not offering any such standard, as mandated in Meiorin, supra.
[107] The Commission asserts that the Board failed to consider the issue of undue hardship during the period after the gas tank operation was reduced to a one-person job, following which Weller was assigned to other assembly line duties.
[108] In my view, the submission that the Board did not specifically address the issue of undue hardship in relation to the change in operation of the gas tank job does not alter the fact that the Board’s reasons specifically address possible forms of accommodation and why each would amount to an imposition of undue hardship on Ford and other workers.
[109] As the Board notes, the complainants were at all times working in important jobs on a highly complex and interdependent operation. The issues to be determined by the Board did not change because Weller was assigned to other jobs on the assembly line. Wherever the complainants were working, they had to be covered when absent. Indeed, the evidence is that there were many critical jobs with safety concerns on the assembly line.
[110] The Commission maintains that the Board erred in law by giving undue weight to industry competitiveness and by giving no weight to Ford’s size, resources and profitability. The Board also erred in giving weight to the competitive position of the Oakville plant and failed instead to apply the hardship standard to Ford of Canada.
[111] The reasons of the Board state:
[344] At the same time that there has developed a fundamental concern over quality, there has been a concurrent emphasis on reducing costs. A powerful indicator of that emphasis is seen in Mr. Rehor’s evidence that the number of employees in Ford’s North American operations fell by one-third in the decade between 1980 and 1990. This dual emphasis on quality and cost also increases the competitiveness among Ford’s own plants. There is clear and uncontradicted evidence that the Oakville Plant compared unfavourably with the Kansas City Plant from the standpoint of both quality and cost. It is also significant that, although the Oakville Assembly Plant is part of Ford of Canada’s operations, the real decisions concerning the budget and production standards are made at Ford’s headquarters in Detroit; for operational purposes Ford of Canada is little more than a holding company.
[112] Although there was some evidence that Ford was profitable between 1984 and 1988, that evidence does not detract from the findings made by the Board that within the highly competitive automobile industry the Oakville plant had a significantly high absenteeism rate and had fallen behind other plants producing the Ford Temo/Topaz vehicle during the years when the complainants were working in the assembly plant. Auto industry competitiveness was only one of many factors that made the form of accommodation being sought by the complainants impossible for Ford to deliver without undue hardship.
[113] The Commission asserts that in rejecting Crockatt’s evidence, the Board implicitly reversed the burden of proof, since Ford had the onus of showing that the complainants’ accommodation would necessarily trigger new costs amounting to undue hardship.
[114] I find that the Board rejected Crockatt’s calculations as unreliable, because they failed to take into account a number of factors relevant to the incremental costs of accommodation that would be borne by Ford. The Board, however, did not base its reasons exclusively on the financial cost criterion.
[115] The Commission also points out that Ford failed to call as witnesses any production managers to testify on the impact on production of the complainants’ absences. Stawikowski, however, had been a cost analyst with Ford and had familiarity with the work floor and overall operation of the Oakville plant. He gave extensive evidence on the production effects of Friday absences and produced documents, which had been independently prepared, to substantiate those effects.
[116] The Commission states that the Board wrongly treated high Friday night absenteeism in the abstract as a pivotal factor and failed to take into sufficient account the fact that with proper management, it would be easier to accommodate a planned absence than an unexpected absence.
[117] The Commission also states that the Board erred in concluding that a permanent leave of absence for the complainants on Friday nights would cause significant deterioration in worker morale, because the record contained only trivial and speculative evidence on the point. In addition, the Board failed to consider whether worker morale concerns were based on attitudes inconsistent with the Code.
[118] Essentially, the Commission’s position is that the Board erred in rejecting reasonable alternatives for the complainants’ accommodations, including shift swaps, double-backs, temporary part time workers, absentee allowances or moving them to other jobs. Further, the Board failed to consider whether other options or a combination of options was reasonable.
[119] The evidence is that the company and the Union deliberated on various options and did provide assistance to the complainants in covering Friday night shifts where possible. For example, there was intervention in trying to arrange voluntary shift swaps and intervention where the complainants were not disciplined, notwithstanding they left their jobs at sundown.
[120] On the issue of double-backs, the Board made the explicit finding that fatigue experienced by workers doing double-back shifts went beyond quality considerations and raised real concerns about safety. Accordingly, they were employed as needed, but were not a desirable or sustainable permanent solution.
[121] As an example, the Board described the situation on March 1, 1985:
…one of the jobs was covered by the absentee allowance and the other job was covered by two double-backs. The two double-backs had no training, and therefore, the leader and the relief man were tied up for some time at the beginning of the shift in order to train the two double-backs in the job. The Company’s records indicate that on that evening, there were 11 absences in the area, including the two complainants, and three workers had to be borrowed from the A shift as double-backs. None of the absences had been authorized in advance.
[122] On the issue of temporary part-time workers, the evidence led by the respondents and accepted by the Board was that there were concerns about the quality of student work. The Union had serious principled objections to temporary part-time help. It was not permitted under the collective agreement and there was a considerable waiting list of workers who had been laid off at other Ford plants and were looking for permanent positions, whom the Union had a legitimate interest in protecting.
[123] The absentee allowance could not be used as a reliable source of replacement worker. Donegan testified that despite a significant increase in the number of absentee allowances over the past twenty years, there was a constant stream of complaints coming from workers in the labour gang whose operations were regularly shut down so that they could be moved into production jobs to cover for absent workers.
[124] The Commission states that Ford rejected out of hand the suggestion that the complainants be moved to positions not requiring Friday night work, such as steady day jobs or the labour gang. The Board found that these solutions were tabled and rejected for rationale reasons. The full- time day jobs at the Oakville plant were held by workers whose seniority dated from 1955. Many had medical conditions, which would make a return to shift work a hardship. Accommodating the complainants in this way would have displaced much more senior positions.
[125] Donegan was asked whether he had considered making exceptions from the seniority provisions of the collective agreement for workers in the position of the complainants. He said that the possibility had been examined, but rejected because of the implications.
[126] The Commission asserts that based on the complainants’ evidence, workers were routinely moved from job to job around the plant. The Board found as a fact, however, that the problem of churning was particularly pronounced in the Oakville plant, as workers had to be relocated in order to fill the gaps due to Friday night absenteeism. There were quality and cost implications, because workers were required to perform unfamiliar tasks.
[127] Churning also led to a negative impact on worker morale. No worker wanted to be assigned to a difficult or unfamiliar job because there were not enough workers on the line. There was uncontradicted evidence that high Friday night absenteeism had a compounding effect. If high Friday night absences were anticipated, other workers would choose to absent themselves in order to avoid oppressive conditions that existed when there were not enough workers on the line. Ford was trying to combat a Friday night absenteeism problem which existed, and which was exacerbated if it allowed such absences to occur on a regular basis.
[128] The Commission states that in rejecting any departure from seniority, the Board failed to take into account the Code’s primacy and the respondents’ failure to seek out a senior worker’s consent to the complainants’ job movements out of line with seniority, if needed.
[129] The Commission also maintains that Ford was not lenient in its treatment of the complainants’ unauthorized Friday night absences. However, there was evidence that Ford granted some leaves of absences and did not penalize the complainants for leaving early. There was no evidence that the complainants were singled out for unfavourable treatment.
[130] In my view, the reasons of the Board adequately describe the effects that Friday night absences had on production, worker morale and quality. Notes prepared by Bialkowski reflect that when the complainants were on their jobs, virtually no repairs were required, but when they were absent, the repairs generated from their positions by replacement workers averaged ten to thirty.
[131] Although the documentary evidence did not calculate with certainty the costs incurred by Ford as a direct result of the actual absences by the complainants, there was uncontroverted evidence that Friday night absences did increase the costs of repair and create safety and quality concerns.
[132] The Commission criticizes the fact that Ford relied upon the evidence of Union witnesses, all of whom were Ford employees; yet the operation of the Oakville plant included both Union and management roles. Therefore, it was not necessary for the respondents to prove by separate evidence and separate witnesses every factor that made the accommodation sought by the complainants impossible. The Board had more than sufficient evidence to assess the veracity of Ford’s position that it could not accommodate the complainants short of undue hardship.
IS THE UNION A PARTY TO THE DISCRIMINATION?
[133] The extent of a Union’s obligation to accommodate and how the discharge of that duty is to be reconciled and harmonized with the employer’s duty were considered by the Supreme Court of Canada in Renaud, supra, at paras. 35-40.
[134] First, a Union may cause or contribute to the discrimination by participating in the formulation of the work rule that has the discriminatory effect on the complainant. This will generally be the case if the rule is a provision in the collective agreement. It has to be assumed that all provisions are formulated jointly by the parties and that they bear responsibility equally for their effect on employees.
[135] Second, a Union may be liable for the failure to accommodate religious beliefs of an employee if the Union impedes reasonable efforts of an employer to accommodate. If reasonable accommodation is only possible with a Union’s cooperation and the Union blocks the employer’s efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination.
[136] In the analysis, the court must consider the representative nature of a Union. Any significant interference with the rights of other employees will ordinarily justify a Union in refusing to consent to a measure which would have the effect of substituting discrimination against other employees for the discrimination suffered by the complainant.
[137] In the first case, as co-discriminator with the employer, the Union shares the obligation to take reasonable steps to remove or alleviate the discriminatory effect. In the second, the Union’s duty arises only when its involvement is required to make the accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found.
[138] Here the Union’s position is that it did not become a party to the discrimination, because it did not participate in the formulation of the work rule that had an adverse effect on the complainants, nor did it impede any reasonable efforts by Ford to accommodate.
[139] The Union submits that in Renaud, supra, Sopinka J. was referring to matters specifically contained within the provisions of the collective agreement. There the work schedule, which required the complainant, a school custodian and Seventh Day Adventist, to work a Friday night shift, was set out in the collective agreement. The Court found that both the employer and the Union had an impact on setting those conditions and both were responsible for remedying any adverse effects. By incorporating the work schedule in the collective agreement and insisting on its adherence, the Union contributed to the discrimination and its conduct was a factor in the formulation of the discriminatory rule and its operation.
[140] In this case, the Union argues that the Board failed to cite any article in the collective agreement to support its conclusion. Further, the collective agreement does not require a shift rotation. Rather, the shift rotation was unilaterally imposed by Ford pursuant to its exclusive right to manage the work place.
[141] Article 20 of the collective agreement deals with “Hours of Work and Overtime, etc.” Article 20.01 states that the normal work week for each employee consists of 40 hours. Article 20.03 states that if the company decides to change the shift rotation cycles, the industrial relations manager concerned shall discuss the matter in advance with the appropriate local.
[142] In a letter of January 31, 1971 attached to a supplemental agreement to the collective agreement, the industrial relations manager of the Oakville plant wrote to the Union stating:
The possibility that a change in existing shift rotation cycles at the Oakville Assembly Plant could have advantages for all concerned was considered by the parties in the course of discussion during the current negotiations. In order to explore this possibility further, the company advised the representatives of Local 707 UAW that the company will change the shift rotation cycles of the Oakville Assembly Plant from the present 4-week cycle to a 2-week cycle within 30 days after the effective date of the new Collective Agreement...”.
[143] In my view, article 20 refers to hours of work and explicitly refers to shift rotation cycles. They were recognized in the collective agreement and were considered by the parties during negotiations for the collective agreement. Donegan testified in cross-examination that the shift rotation was a condition of employment required under the collective agreement. The Union did not challenge this evidence. Therefore, it was open to the Board to find that the Union was a party to the collective agreement requiring the complainants to work according to the shift rotation schedule. The finding is not unreasonable. Further, the Union was an active participant in the process involving the complainants and expressed opposition to certain accommodations based on seniority and temporary part-time workers.
THE UNION’S DUTY TO ACCOMMODATE
[144] In examining the Union’s duty to accommodate, the Board found that the proposals significantly interfered with the rights of other workers and/or entailed substantial departures from the normal operation of the terms of the collective agreement. As was stated in Renaud, supra, at para.38, the Union was entitled to rely upon prejudice to other workers that would have resulted from the proposed accommodations.
[145] The evidence demonstrates that in the Oakville plant, seniority was considered the foundation or cornerstone of the collective agreement and governed many of the terms and conditions of employment. The Union did not rely on seniority in the abstract, but rather, its position and the Board’s findings were based on the actual impact the accommodations would have on the rights of other workers it represented in the plant.
[146] The seniority of many employees dated back to the plant’s inception in 1953. Forty-two per cent of active employees had over twenty years’ seniority and seventy-three per cent of active workers had over ten years’ seniority. There were few day jobs or labour gang positions in the plant. Those positions were filled by persons with seniority dating back to the 1950’s. The positions were less physically demanding than assembly line work and were highly coveted by workers in the plant’s aging work force.
[147] The Union, mindful of its obligation to protect the rights of all the workers, determined that it could not put forward accommodations that would have allowed two junior workers with little seniority to bypass all other senior workers, in order to obtain highly-coveted, less physically demanding positions into which other workers had been waiting for twenty to thirty years to transfer. In these circumstances, I find that the Union’s unwillingness to advocate for accommodations which significantly prejudiced other workers was not unreasonable.
[148] Further, the evidence is that such an encroachment on seniority rights would have negatively affected worker morale. The reasons suggest that the Board was cognizant of the fact that workers’ objections based on attitudes inconsistent with human rights are a relevant consideration, including objections based on the view that the integrity of the collective agreement is to be preserved, irrespective of its discriminatory effect on religious grounds. There is no reason to believe, on the evidence in this case, that the concern of other workers about the effect of a breach of seniority rights was based either on hostility toward the complainants or on attitudes inconsistent with human rights.
[149] The concerns arose in the context of a work place in which workers laboured forty-eight hours per week in physically demanding jobs in which there was a significant absenteeism problem on Friday nights that created significant dislocation and in turn higher rates of absenteeism. It was already extremely difficult for a worker to obtain authorization to be absent on a Friday night, no matter what the reason.
[150] The Commission submits that the Union should have grieved the complainants’ discipline under the non-discrimination clause of the collective agreement (article 7.01).
[151] The evidence of the Union, which the Board accepted, was that the Union did not believe there was any reasonable prospect that such grievances would succeed. There was no provision in the collective agreement that would entitle any worker to every Friday night off in perpetuity and the Union did not believe there was any remedy for a grievance (a solution to the problem of accommodating the complainants that would not substantially depart from the normal operation of the collective agreement or significantly impact the rights of other workers).
[152] Further, when the complainants were eventually terminated, they had already filed human rights complaints against Ford and the Union several years before, and the Commission had advised the Union it was recommending that a board of inquiry be appointed. The Union submits that nothing would have been gained by duplicating the proceedings and inviting inconsistent results.
[153] Therefore, the Union properly discharged its duty to accommodate through its efforts to assist the complainants. The Union concedes that parties to collective agreements cannot contract out of the protections contained in human rights statutes. Here, in determining whether to support the accommodations, the Union was entitled to have due regard to the fact that the accommodations would have significantly encroached on the seniority and job security rights of other workers and prejudiced their legitimate interests.
CONCLUSION
[154] The Commission seeks, essentially, to have this court conduct a rigorous scrutiny of factual findings and to overturn those findings made by a Board in a 143 page decision that reviewed the circumstances of the complainants, the employer and the Union, in a highly regulated work place.
[155] The court’s role is not to duplicate the Board’s function. The Board had the advantage of hearing and weighing the evidence as well as observing the assembly line in the Oakville plant. The Board found that each possible form of accommodation that might relieve the complainants of every Friday night off came with significant additional costs and obligations affecting other workers, as well as safety and quality concerns. The requests exacerbated an ongoing serious Friday night absenteeism problem in a highly complex operation.
[156] In my view, the Board’s findings clearly meet the “reasonableness” standard. The Board provided extensive reasons supporting its conclusion of undue hardship. The evidentiary foundation for those conclusions, which was largely uncontradicted, is described in meticulous detail. The Board was alive to the importance of balancing the rights of the worker who is subject to discrimination and the right of the employer to proceed with the lawful conduct of its business. There is no palpable and overriding error in the Board’s findings.
[157] Further, the Board applied the proper legal test. In examining whether Ford had discharged its burden of proving that accommodation was not possible short of undue hardship, the Board determined that the general purpose of the Oakville plant structure was aimed at a rational and legitimate business objective, namely to achieve a quality product.
[158] Ford’s deliberations on how it might accommodate the complainants and its reasons for not providing other forms of accommodation were reviewed in detail. The Board assessed undue hardship, taking into account the financial cost, the interchangeability of the operation, the importance of having the regular operator on each job, the impact of the collective agreement, safety considerations and the substantive effect of accommodation on other workers.
[159] In Commission Scolaire Régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525 at 551, Cory J. recognized that some cases may demonstrate circumstances which would make reasonable accommodation impossible:
For example, if the religious beliefs of a teacher required his or her absence every Friday throughout the year, then it might well be impossible for the employer to reasonably accommodate that teacher’s religious beliefs and requirements.
[160] The options suggested by the Commission involved significant incursions into the seniority rights of other workers in the Oakville plant. The seniority level was unusually high in this particular work place. Donegan testified that the average age was probably in the high forties or above, and breaches of seniority were considered very seriously by the workers.
[161] The Board found that the Union made ample efforts to assist the complainants by maintaining regular contact with them, as well as an ongoing dialogue with Ford to seek some form of accommodation.
[162] As the Supreme Court of Canada recognized in Renaud, supra, the Board was sensitive to the realities of collective bargaining and the labour relations system and took into account the fact that the imposition of a duty to accommodate upon a Union will often require that other employees will bear the burden of accommodation.
SHOULD THIS COURT INTERFERE WITH THE RESULT?
[163] In any event, the particular circumstances of this case militate against engaging in a re-evaluation of the evidence on an appeal.
[164] The complaints were filed seventeen years ago. More than fourteen years have passed since the complainants worked in the Oakville plant. Many of their co-workers may be retired and some may even be deceased.
[165] Further, the Oakville plant has evolved during the past fourteen years, now producing a completely different vehicle with attendant changes in automation, assembly line jobs and staffing.
[166] In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 102, Bastarache J. made the following statement about delay in administrative proceedings:
There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings… .
[167] Bastarache J. held at para. 122, supra, that the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the court’s attempt to determine whether the community’s sense of fairness would be offended by the delay.
[168] In this case, none of the delay is attributable to the respondents. The complainants, who were directly affected, have had a full hearing before the Board and they have not elected to take part in this appeal.
[169] As Laskin J.A. said in Gottardo Properties (Dome) Inc. v. Toronto (City) (1998), 162 D.L.R. (4th) 574 (Ont. C.A.) at para. 48, there is a public interest in affording deference to the findings of a trier of fact in order to “preserve the confidence of litigants in those proceedings…and to reduce needless duplication of judicial effort…”.
[170] On the particular facts of this case, I find there is no compelling basis to reverse the decision below.
DISPOSITION
[171] Accordingly, the appeal is dismissed. Counsel have asked for the opportunity to resolve their costs. If counsel cannot agree, costs are to be addressed in writing within 20 days.
RELEASED:
DUNNET J.
COURT FILE NO.: 509/95
DATE: 20020919
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DUNNET, MEEHAN and LAX JJ.
B E T W E E N:
ONTARIO HUMAN RIGHTS COMMISSION
Appellant
- and -
G. MICHAEL ROOSMA and ROBERT WELLER
Complainants
- and -
FORD MOTOR COMPANY OF CANADA LIMITED and THE NATIONAL AUTOMOBILE AND AGRICULTURAL IMPLEMENT WORKERS OF CANADA, CAW LOCAL 707
Respondents
REASONS FOR JUDGMENT
DUNNET J.
RELEASED: September 19, 2002