COURT FILE NO.: 750/02

DATE: 20030915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MCRAE, THEN AND FERRIER JJ.

B E T W E E N:

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORATION AND GENERAL WORKERS UNION OF CANADA (CAW – CANADA) AND ITS LOCAL 80

Applicants

• and -

HONEYWELL LIMITED AND SUSAN TACON

Respondent

Lewis N. Gottheil, for the Applicants

Christopher G. Riggs, Q.C. and

Mark H. Mason, for the Respondent

HEARD: September 15, 2003

McRAE J.: (Orally)

1The arbitrator presided at a hearing where the only issue presented by the applicant was whether the impugned conduct occurred. The issue of accommodation was only raised at the hearing as an alternative consideration by the employer. As a result, however, the arbitrator did address the issue of accommodation. She found that the applicant was a schizophrenic, who on eleven previous occasions failed to take her medication resulting in disruptive behaviour at the workplace.

2On those occasions, the company and the union had an established, if informal, protocol. The employer sent her home and referred her to the company doctor who managed to get her back on her medication. While not at the workplace during these absences she was not paid. This motivated her return to taking her medication and her prompt return to work. However, the union resiled from this informal arrangement as it was contrary to the collective agreement. The final incident leading to dismissal was a marked escalation in conduct from her previous episodes. It was so serious that safety in the workplace was jeopardized.

3The arbitrator was faced with a situation where the only argument by counsel for the applicant was that the conduct alleged did not occur. She and witnesses on her behalf attempted to convince the arbitrator that there was no basis for a finding of misconduct. Before us, it was conceded that there was misconduct. The applicant now says that she was not culpable because of her medical condition. She led no evidence on this issue before the arbitrator, although the company doctor, Dr. Goodall testified that stopping medication was symptomatic of the illness.

4In these circumstances the finding of the arbitrator that she was subject to discipline was not patently unreasonable.

5In spite of the way the case was presented to the arbitrator, the arbitrator did address the issue of accommodation.

6We are satisfied that she addressed the test as outlined by the Supreme Court of Canada in the Meiorin case.

“16. The distinction between the two classes of discrimination was important because different defences and remedies applied to each class. If direct discrimination was found, the defendant could justify the discriminatory standard on the basis that it was a bona fide occupational requirement (“BFOR”). A standard was held to be a BFOR if the defendant proved that: (1) it was imposed honestly and in good faith; and (2) it was reasonably necessary for the safe and efficient performance of the work and did not impose an unreasonable burden on those to whom it applied. Absent these two elements, the standard was struck down, and the defendant was obliged to change the discriminatory standard. It could not escape by making exceptions for, or “accommodating”, particular groups.

17. Very few standards discriminated directly, however. Most fell into the second category of indirect discrimination, or discrimination by effect. Here the test was less stringent. The defendant could justify the discrimination by establishing that: (1) there was a rational connection between the defendant’s goal and the standard in question, and (2) the defendant could not further accommodate the plaintiff without incurring undue hardship. This allowed employers and service providers to continue to apply standards which in effect caused discrimination, as long as they took steps, short of undue hardship, to accommodate individuals affected by the discrimination.”

7It is agreed that the first two elements of the test have been met. With respect to the third element the employer was required to demonstrate “that it is impossible to accommodate” individual employees sharing the characteristics of the complainant without imposing undue hardship on the employer”. The arbitrator carefully balance both the interests of the employee and the employer and concluded that it was impossible to accommodate the employee without posing undue hardship on the employer.

8Counsel for the applicant urges us to consider a means of accommodation that was not claimed before the arbitrator. It would be inappropriate for this Court to give effect to a claim that was not raised before the arbitrator. Furthermore, if we were to do so, it would simply result in her reinstatement as an employee subjecting the employer to the undue hardship as found by the arbitrator.

9For those reasons, the application is dismissed with costs fixed a $3,500.

MCRAE J.

THEN J.

FERRIER J.

Date of Reasons for Judgment: September 15, 2003

Date of Release: September 17, 2003

COURT FILE NO.: 750/02

DATE: 20030915

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT