Ontario Public Service Employees Union (Bharti) v. The Crown in Right of Ontario (Ministry of Natural Resources and Forestry), 2015 CanLII 19330

GSB#2013-2789

UNION#2013-0362-0022

Under

Before

BETWEEN

Ontario Public Service Employees Union (Bharti)

Union

and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Ian Anderson

Vice-Chair

Billeh Hamud Ontario Public Service Employees Union Grievance Officer

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

November 12, December 4, 11, 2014.

Decision

1This Grievor, Viren Bharti, alleges that the Employer has discriminated against him on the basis of family status and religion by failing to accommodate his request that he be permitted to work in the Greater Ottawa Area. The Employer has brought a non-suit motion. For the reasons which follow, I allow the Employer’s motion and dismiss the grievance.

Background

2In 2005, the Grievor applied for the position of Terrestrial Assessment Program Biometrician (a statistician). The job posting indicated that the position was located in either Sault Ste. Marie (preferred) or Peterborough. The Grievor lived in Ottawa at the time of his application. The Grievor informed the Employer of his intention to sell his home in Ottawa and relocate his family to Sault Ste. Marie. The Grievor was awarded the position on February 28, 2005 with a start date of April 3, 2005. The Employer agreed to temporarily allow the Grievor to work from the Peterborough office until he sold his house in Ottawa and relocated to Sault Ste. Marie. The Grievor commuted from Ottawa to Peterborough in order to perform the job.

3In March, 2006, the Employer agreed to change the location of the job to Peterborough. The Grievor continued to commute from Ottawa to Peterborough to perform the job until December 2007. At that time the Grievor was assigned work on a temporary basis in Kemptville. From December 2007 until July 2008 the Grievor commuted from Ottawa to Kemptville in order to perform his job.

4The Grievor was told once again that he had to report to work in Peterborough commencing in July 2008. On the first day that he was to report to work in Peterborough he laid off work due to illness. He was ill until sometime in October of 2008. While the Grievor’s evidence with respect to the rest of his work history was not entirely clear, it appears that he then reported to work for a period of time in Peterborough, was then assigned work by the Employer in Ottawa, followed by a secondment to a position in Ottawa with the federal government which lasted for more than a year. By April, 2012, the secondment had ended and the Grievor was once again required to report to work in Peterborough. With the exception of absences due to illness or vacation, and a without prejudice temporary assignment to work in Ottawa from March to October, 2014, the Grievor has continued to be required to work in Peterborough ever since.

5Throughout, the Grievor has maintained a residence in the Greater Ottawa Area and commuted to Peterborough when required to report to work there.

6The Grievor is a Hindu. He is married and has two children, currently aged 14 and 20. His parents live with him, along with his wife and their two children. In this grievance, the Grievor asserts that the Employer’s requirement that he report to work in Peterborough constitutes a breach of the Human Rights Code, R.S.O. 1990, c. H.19. In particular, he asserts this requirement constitutes a failure by the Employer to accommodate his religious beliefs and certain eldercare obligations he has towards his parents. The accommodation he seeks is that he be permitted to work in the Greater Ottawa Area on a permanent basis.

Principles Governing Non-Suit Motions

7The Union called one witness, the Grievor, and then closed its case. As noted, the Employer brought a motion for non-suit. That is, the employer took the position that the Union had not proven its case.

8There is no dispute between the parties as to the principles applicable to a non-suit motion. Reference was made to: Ontario Public Service Employees Union (Vingar) v Ontario (Health and Long-Term Care), 2014 CanLII 30275 (ON GSB); Ontario Public Service Employees Union (Allin) v. Ontario (Ministry of Revenue), 2010 CanLII 38781 (ON GSB); and Ontario Public Service Employees Union (Thompson) v. Ontario (Liquor Control Board of Ontario), 2012 CanLII 67531 (ON GSB). The applicable principles may be summarized as follows:

i. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.

ii. In a non-suit motion, the issue is whether the party responding to the motion has made out a prima facie case.

iii. In determining whether a prima facie case has been made out, the test is whether the evidence presented by the party responding to the motion is sufficient to allow the Board to rule that it has proven its case on a balance of probabilities, if the Board assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence. No weight, however, should be given to the evidence of a witness on a point about which he or she has given contradictory accounts. (See Ontario Public Service Employees Union (Gareh) v. Ontario (Ministry of the Attorney General), 2002 CanLII 45791 (ON GSB) at paragraphs 8 - 10.)

iv. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.

v. Where a non-suit motion is granted, a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.

9The Union states that a non-suit motion is not the time to test the quality, reliability or credibility of the evidence. Accordingly, the Union asserts, I am required to assume that everything the Grievor said is true for the purposes of this motion. With respect, the second proposition does not follow from the first. The mere fact that the Grievor testified as to something does not make it admissible evidence which must be assumed to be true. Of particular application to this case, as will become apparent below, I am not required to accept as evidence hearsay statements or opinions offered by the Grievor.

10Further, I agree with the Employer that the mere fact that the Grievor asserts something is true, for example that the Sabbath is on Tuesday, does not make it so for the purposes of a non-suit motion. In Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 the Ontario Court of Appeal held that for the purposes of determining whether or not a plaintiff’s pleadings made out a prima facie case, alleged facts that were patently ridiculous or incapable of proof need not be accepted as true. Surely no less a standard should be applied on a non-suit motion, where the responding party has not simply plead a case but lead all evidence it asserts is necessary in order to prove its case.

11A distinction must also be made between facts and conclusions of fact. A false conclusion is not rendered true, for the purposes of a non-suit motion, simply because the Grievor has adopted that conclusion as his evidence. Similarly, a conclusion stated in the nature of a bald allegation in the absence of detailed evidence in support has no probative value: see Guarantee Co. of North America v. Gordon Capital Corporation (1999), 1999 CanLII 664 (SCC), 178 D.L.R. (4th) 1 (S.C.C.) at paragraph 31 discussing the sufficiency of evidence submitted on a motion for summary judgement.

Non-suit with respect to whether the Union has made out a prima facie case of discrimination on the basis of family status

12This Board had occasion to consider the test for a prima facie case of discrimination on the basis of family status in Ontario Public Service Employees Union (Thompson) v. Ontario (Liquor Control Board of Ontario), 2012 CanLII 67531 (ON GSB). In that case, the Board reviewed the emerging jurisprudence on this issue. Broadly stated, there were two approaches to when a prima facie case of discrimination on the basis of family status had been made out so as to shift the onus to the responding party to demonstrate that accommodation could not be provided without undue hardship. One approach held that it was sufficient to demonstrate any impact on a family obligation in order to make out a prima facie case and shift the onus. The other approach held that it was necessary to demonstrate serious interference with a substantial family obligation before the onus shifted. In Thompson, a panel of this Board held that the latter approach should be followed.

13Subsequent to Thompson, this issue was addressed by the Federal Court of Appeal in Johnstone v. Canada, 2014 FCA 110. Both parties in this proceeding agree that paragraph 93 of Johnstone sets out the applicable test:

I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare obligations is alleged, the individual advancing the claim must show (i) that a child is under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

14In my view, it is important to note that Johnstone did not simply adopt the test of serious interference with a substantial family obligation. Rather, it gave those terms a very specific meaning. In particular, it is necessary for a claim for accommodation in relation to a family member to be founded in a legal responsibility of the claimant towards that family member. This is made clear from the discussion at paragraphs 69 to 74 of Johnstone. At paragraph 74, the Court concluded by stating:

In conclusion, the ground of family status in the Canadian Human Rights Act includes parental obligations which engage the parent’s legal responsibility for the child, such as childcare obligations, as opposed to personal choices. Defining the scope of the prohibited ground in terms of the parent’s legal responsibility (i) ensures that the protection offered by the legislation addresses immutable (or constructively immutable) characteristics of the family relationship captured under the concept of family status, (ii) allows the right to be defined in terms of clearly understandable legal concepts, and (iii) places the ground of family status in the same category as other enumerated prohibited grounds of discrimination such as sex, colour, disability, etc.

15While Johnstone is a decision of the Federal Court of Appeal and not binding upon me, it is of persuasive value. I also note that Johnstone, and in particular this part of its reasoning, was considered and adopted by the Human Rights Tribunal of Ontario in Wing v. Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472 at paragraphs 53 to 56. While the decisions of the Tribunal are also not binding upon me, they too are of persuasive value, in particular having regard to the expertise of that Tribunal. In any event, I agree with the reasoning in Johnstone and adopt that approach.

16As a final note, I would observe that the obligation upon which the Union seeks to rely in this case is the provision of the necessaries of life. As will become apparent, this is the obligation which emerges from the application of the analytical framework in Johnstone.

The First Factor: has the Union demonstrated that the Grievor’s parents are under his care and supervision?

17In Johnstone, the Court elaborated on the meaning of this factor in the context of childcare as follows:

94The first factor requires the claimant to demonstrate that a child is actually under his or her care and supervision. This requires the individual claiming prima facie discrimination to show that he or she stands in such a relationship to the child at issue and that his or her failure to meet the child’s needs will engage the individual’s legal responsibility. In the case of parents, this will normally flow from their status as parents. In the case of de facto caregivers, there will be an obligation to show that, at the relevant time, their relationship with the child is such that they have assumed the legal obligations which a parent would have found.

18This factor is concerned with determining whether or not the claimant has a family status relationship with the person in question such that failure to meet that person’s needs would engage legal responsibility. Put differently, it is concerned with determining whether the claimant has a legal obligation towards the person, and therefore also the nature of that legal obligation. Whether the obligation is engaged is an issue addressed under the second factor.

19The Union has identified two sources of legal obligation on the part of the Grievor to his parents. The first is was that the Grievor was a “sponsor” of his parents, within the meaning of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).

20The Union points to section 132(1) of the IRPA. That section provides in relevant part: “…the sponsor’s undertaking obliges the sponsor to reimburse Her Majesty in right of Canada or a province for every benefit provided as social assistance to or on behalf of the sponsored foreign national …” during certain specified periods. The section does not create any obligation on the part of a sponsor to the sponsored individual.

21The Union also points to section 13.1 of the IRPA:

An undertaking given under this Act in respect of a foreign national - including a sponsorship undertaking - is binding on the person who gives it.

22The Union filed an unsigned “Application to Sponsor, Sponsorship Agreement and Undertaking” (form IMM 1344 (08-2014) E) from Citizenship and Immigration Canada. That form provides in relevant part:

I undertake to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada, if they are not self supporting. I promise to provide food, clothing, shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care, eye care, and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored person to live in Canada.

… If the sponsor, and if applicable, the co-signer do not provide support as required, the sponsored person can take legal action.

Elderly parents or grandparents who are sponsored are not expected to look for a job to care for themselves.

23The Employer notes that the document entered as an exhibit by the Union is blank and unsigned. The Employer argues that there is no evidence beyond the Grievor’s assertion that he signed such forms in relation to his parents. In my view, for the purposes of the non-suit motion brought by the Employer the Grievor’s assertion that he signed sponsorship forms in relation to his parents is sufficient evidence that he did sign such forms.

24It appears, however, that the obligation created by the immigration sponsorship form is to provide financial support. As will become apparent, the essence of the Grievor’s claim is not that the Employer’s rule prevents him from financially supporting his parents, rather it is that the Employer’s rule prevents him from personally administering that support to his parents. As such, the immigration sponsorship form does not create a legal obligation directly engaged by the facts in this case.

25The second of legal obligation identified by the Union is section 215(1) of the Criminal Code of Canada, R.S.C., 1985, C. C-46:

Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(b) to provide necessaries of life to their spouse or common-law partner; and

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and

(ii) is unable to provide himself with necessaries of life.¹

In Johnstone, a case involving obligations of a parent to child, section 215(1)(a) was found to provide the basis for the legal obligation. In this case, the relevant legal obligation, if any, is section 215(1)(c). It is important to note the differences in these obligations. The obligation to provide the necessaries of life to a child under the age of sixteen years of age arises from the relationship itself (parent - child) and is unqualified. By contrast, the obligation of an adult child to provide the necessaries of life to a parent does not arise from the relationship itself. Rather, it must be shown that the parent is a person under the charge of the adult child. Further, even if the parent is a person under the care of the adult child, the obligation to provide the necessaries of life is qualified. The obligation only exists if the parent is, “by reason of detention, age, illness, mental disorder or other cause” unable to withdraw themselves from the charge of the adult child; and if the parent is unable to provide themselves with the necessaries of life.

26I pause to note that in my view, this difference accords with what is necessary to establish in order to demonstrate “serious interference with a substantial family obligation” towards a young child as opposed to an adult parent. Simply put, young children are presumed to be dependent and unable to provide themselves with the necessities of life and their parents are required to provide them by virtue of being their parents. On the other hand, adults are presumed to be independent and able to provide themselves with the necessaries of life unless the circumstances establish the contrary.

27Some guidance as to the meaning of the legal obligation created by section 215(1)(c) is provided at paragraphs 33 - 34 and 40 to 44 of R. v. Peterson, 2005 CanLII 37972 (ON CA) (a case which is referenced in Johnstone).² For present purposes it suffices to note that in Peterson the Court observed that the term “charge” is used in a variety of legal contexts, but that common to all usages is “the exercise of an element of control by one person and a dependency on the part of the other” (see para. 42). At paragraph 44, the Court observed:

A further consideration in determining whether a person is in the charge of another is whether one person has explicitly assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly acknowledging to others in the community by words or conduct an assumption of responsibility.

28Thus, in order to satisfy the first factor of the test in Johnstone, the Union must establish that the Grievor’s parents are: (i) under his charge; (ii) unable to withdraw themselves from his charge by reason of detention, age, illness, mental disorder or other cause; and (iii) are unable to provide themselves with the necessaries of life. If these conditions are satisfied, then the nature of the obligation for the purposes of the second factor in the Johnstone analysis is the obligation to provide the “necessaries of life”.

29The first element which the Union must prove is that the Grievor’s parents are under his charge.

30The Employer argues that the Grievor’s legal obligation is not engaged because to the extent that there is evidence that his parents are under his care and supervision they are also under the care and supervision of his wife. I am not persuaded by this argument. If the Grievor’s parents are under his charge, the fact that they are also under the charge of his wife would not relieve him of his legal obligations towards them.

31The Employer argues that there is insufficient evidence to establish that the Grievor’s parents require care and supervision at all. Accordingly, the Employer argues that the Grievor has failed to establish that the first factor is satisfied. The Union for its part argues that the evidence establishes that the Grievor’s parents are under his care and supervision.

32It is at least arguable that the Grievor’s parents are under his charge. He testified that he supports them financially. The immigration sponsorship form which he completed in relation to each of them constitutes a public acknowledgement of responsibility towards them. While scant, I am prepared to conclude that there is sufficient evidence that they are financially dependent on him and that concomitantly he exercises control over them. Accordingly, for the purposes of this non-suit motion I find there is sufficient evidence that they are under his charge.

33The second element which the Union must prove in order to establish the legal obligation upon which it relies is that the Grievor’s parents are unable by “reason of detention, age, illness, mental disorder or other cause”, to withdraw themselves from the Grievor’s charge. The mere fact that the Grievor’s parents are under his care cannot provide the basis for inferring that they are unable to withdraw from his care. If it did, it would render the separate express requirement, set out in section 215(1)(c)(i), to prove their inability to withdraw from care meaningless. Unlike children, there is no presumption that adults require care.

34The Grievor’s evidence was that his father is 76 and his mother is 74. His mother speaks Bhojpuri. She has lived with the Grievor’s family since 2005 or 2006. His father speaks primarily Hindi, although he is able to speak Bhojpuri. He has lived with the Grievor’s family on a permanent basis since 2012. Neither of them work. The Grievor supports them financially.

35According to the Grievor, his father has a heart condition and diabetes and, he thinks, an element of dementia; his mother has the “same condition of dementia”. He states they forget to take their medication or whether they have eaten breakfast. They also have some mobility restrictions. Little medical evidence was filed in support of these claims. An “Application for Accessible Parking Permit” for the Grievor’s father was filed as an exhibit. The doctor completing the form has checked off a box indicating that the father is “severely limited in the ability to walk due to an arthritic, neurological, musculoskeletal or orthopaedic condition”. Also filed was a referral by a doctor for physiotherapy for the father indicating that he had sacral and hip pain and had fallen while walking down stairs. The referral requests that the father be seen for fall prevention and reinforcement of muscle strength. There is no other medical evidence, and therefore no medical evidence in support of the Grievor’s speculation that his parents have an element of dementia.

36The Grievor was asked what he did to assist his parents. He responded that first of all he is the interpreter for them. In the morning he assists them in their daily activities in the washroom, then he brings them downstairs for breakfast, which he prepares. He then feeds them. He also provides them with their medication. As noted, he stated that they tend to forget whether they have had their breakfast or taken their medication. Then he goes to work. He testified that he also manages their “adaptive equipment” by which he meant equipment in relation to blood pressure and diabetes. He also indicated that he massages their legs sometimes, noting that he is their only child or son living here. He drives them to doctors’ appointments and to religious activities.

37The evidence with respect to whether the Grievor’s parents require supervision or assistance in his absence was less than clear. The Grievor testified that in order to provide care to his parents in his absence for much of the period 2005 - 2013 his wife worked out of their house (preparing food for her catering business). At another point in his evidence, however, the Grievor testified about a job his wife obtained in 2012 or 2013 (the Grievor’s evidence was not consistent on this point) as a manager for a food company in Ottawa, which she still holds. Presumably this job requires the Grievor’s wife to work outside of their home. The contradiction between the asserted need for the Grievor’s wife to be in the house in order to provide care for the Grievor’s parents in his absence and the fact that since 2012 or 2013 she has been working outside of the house was never addressed. The Grievor testified about an “Indian woman” he sometimes pays to assist with his parents and he also testified that on occasion his son will stay home to do this. He did not, however, testify that there was always someone there when neither he nor his wife was at home.

38There was no direct evidence on the inability of the Grievor’s parents to withdraw themselves from care as the question was never asked. The evidence with respect to incapacity which would permit this inference to be drawn was, as noted, scant at best. While there is evidence that the Grievor’s parents require assistance with the activities of daily living during the course of the day when he is absent, that evidence was contradictory, as noted above. There is no evidence, that they cannot choose to live with someone else other than the Grievor’s statement that he is their only child in Canada. That statement is not determinative. Leaving aside whether they have other children in India, the question is whether there is anyone else who could take charge of them. As noted earlier, the obligation to support in this instance does not arise from the relationship of adult child to parent per se. Accordingly, in my view there is insufficient evidence that the Grievor’s parents are unable to withdraw from care. However, even if I am wrong in this conclusion, I am unable to accept that the third element has been proven.

39The third element which the Union must prove in order to establish the legal obligation upon which it relies is that the Grievor’s parents are unable to provide themselves with the necessaries of life. Once again, unlike the case with children, there is no presumption that an adult is unable to do so. I note the Union argued that if the Grievor does not assist his parents in getting dressed and providing them their breakfast they could “pass away”. In my view such an apocryphal outcome is unlikely: there is no evidence that the Grievor’s parents are completely unable to dress or feed themselves if food and clothes are at hand. However, I also do not think that the obligation only arises in such extreme circumstances. For example, the obligation might also arise if the Grievor’s parents were able to care for themselves as long as the necessaries of life are at hand but required supervision in doing so. As noted, however, the evidence on that point was contradictory. Accordingly, in my view there is insufficient evidence that the Grievor’s parents are unable to provide themselves with the necessaries of live.

40Accordingly, I am not satisfied that there is sufficient evidence, if assumed to be true, to permit the conclusion that the Union has established that the first factor in the Johnstone analysis. However, in the event that I am wrong in this conclusion, I turn to consider the second factor.

The Second Factor: has the Union demonstrated that the eldercare obligation at issue engages the Grievor’s legal responsibility for his parents, as opposed to a personal choice?

41In Johnstone, the Court elaborated on the meaning of this factor in the context of childcare as follows:

95The second factor requires demonstrating an obligation which engages the individual’s legal responsibility for the child. This notably requires the complainant to show that the child has not reached an age where he or she can reasonably be expected to care for himself or herself during the parent’s work hours. It also requires demonstrating that the childcare need at issue is one that flows from a legal obligation, as opposed to resulting from personal choices.

42A difficulty in this case is in identifying the need relied upon as engaging the Grievor’s legal obligation towards his parents. There were times the Grievor appeared to be asserting that the need in question was an obligation to personally administer to his parents. While I accept that this would be preferable from the perspective of the Grievor and his parents, the personal performance of filial duties does not rise to the level of a legal responsibility. It is “preference”, not a “requirement”: see Devany v. ZRV Holdings Ltd., 2012 HRTO 1590 at para 117. However, there were also times that the Grievor appeared to be asserting that the need in question was ensuring the provision of food, medication and the like to his parents. I have no difficulty in concluding that these needs would arise from the legal obligation to provide the necessaries of life as opposed to personal choices. Given this, I turn to consider the third factor in the Johnstone analysis.

The Third Factor: has the Union established that the Grievor has made reasonable efforts to meet those eldercare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible?

43In Johnstone, the Court elaborated on the meaning of this factor in the context of childcare as follows:

96The third factor requires the complainant to demonstrate that reasonable efforts have been expended to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible. A complainant will, therefore, be called upon to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work, and that an available childcare service or an alternative arrangement is not reasonably accessible to them so as to meet their work needs. In essence, the complainant must demonstrate that he or she is facing a bona fide childcare problem. This is highly fact specific, and each case will be reviewed on an individual basis in regard to all of the circumstances.

44Assuming the Grievor has eldercare obligations to his parents which are engaged, has the Union led sufficient evidence to demonstrate that the Grievor made reasonable efforts to meet those obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible? Based on differing views of the evidence, the Union argues it has and the Employer argues it has not. Accordingly, I turn to review the evidence.

45In chief, the Grievor was asked if anyone else could provide the care he performs to his parents. He testified that his wife cannot help his father with the bathroom because of the gender differences. With respect to the “adaptive equipment”, he testified his wife is not as comfortable with the English language as he is. His wife cannot speak his mother’s language and his children cannot speak either of his parents’ languages. He testified that he contacted a Community Care Access Centre, but they said they could not help with respect to a few “aspects”: the ‘“religious aspect”; the “food aspect”; and the “language aspect”. No further details were provided as to what the Grievor meant by this. The Grievor’s evidence with respect to the Community Care Access Centre was perilously close to a bald assertion of a conclusion devoid of any particulars. As noted, he had identified an “Indian woman” who sometimes comes and helps out, but testified she “cannot do my job towards my parents”, and he cannot afford to pay her to be there every day.

46In cross-examination, the Grievor was asked about periods of time when he was working in Peterborough, from 2005 to 2008. During those periods he testified that his wife had “mostly” worked from home in order to take care of his parents. He testified that she had “sacrificed too much for me”.

47The Grievor testified that his wife’s “area” was sociology and that she had previously done work for the federal government. Given this, his evidence that her lack of proficiency in the English language would preclude her from learning to operate the adaptive equipment is inherently implausible. I am not prepared to accept the Grievor’s hearsay evidence as to his wife’s capacity to learn as sufficient on this point. Further, it appears when the Grievor is absent from the house at work (whether in Ottawa or Peterborough) that at times his wife or his son do take care of his parents and at other times his parents manage to take care of themselves. Accordingly, the Union has not established there are no reasonable alternative solutions with respect to the provision of the necessaries of life to the Grievor’s parents.

48As referenced earlier, the Grievor appears to consider those solutions as unacceptable because he considers it his responsibility as his parents’ son to personally administer care to his parents. While this is a commendable aspiration, it finds no basis in section 215(1) of the Criminal Code. The legal obligation is to provide the necessaries of life, not to administer them personally.

49The obvious alternative solution is for the Grievor and his family, including his parents, to move from Ottawa to Peterborough. I am not unmindful that this would constitute a significant disruption to the lives of the Grievor and his family. This might not be reasonable in all circumstances. However, reasonableness in this case must be assessed against the fact that the Grievor was hired in 2005 on the basis of his undertaking to move from Ottawa and further that he subsequently made representations over the years that he was planning to move to Peterborough. Yet, ten years later, he has still not moved.

50There was no suggestion that the necessaries of life which the Grievor makes available to his parents (food, shelter, medication etc.) cannot be provided in Peterborough. Evidence as to the Grievor’s efforts to explore the possibility of moving to Peterborough was scant. As pointed out by counsel for the Employer, the Grievor repeatedly advised his managers that he was planning to move from Ottawa to Peterborough. One such statement is in an email dated May 8, 2008. The Grievor testified that he looked at houses in Peterborough in 2008. However, a mere two months before, in March, 2008, the Grievor sold his house in the Ottawa area and moved into another house in the Ottawa area.

51Renewed statements by the Grievor to the effect that he was planning to move to Peterborough are recorded in emails dated April 3, May 3 and October 8, 2012. The Grievor’s evidence was that he did put his house in Ottawa up for sale in the fall of 2012, with an asking price of $629,000, but that he took it off the market because the “market was down”. I have several difficulties with this evidence. First, it is not clear that the Grievor’s opinion evidence on the state of the market is admissible. Second, the state of the market in Ottawa is relevant, if at all, only relative to the state of the market in Peterborough. The fact that the market in Ottawa is “down” is of little or no significance if the market in Peterborough was also “down”. There was, however, no evidence as to the state of the market in Peterborough, let alone any evidence that the Grievor looked for a house in Peterborough in 2012. There is simply no evidence that the Grievor could not have purchased a comparable home in Peterborough for the same (if not less) money as he would have received for his house in Ottawa.

52The Grievor also suggested that if his family had moved in 2012, his wife stood to lose a “profit share” of “up to 25%” for a company for which she was working. The potential value of this profit share was never specified and the Union indicated that it did not seek to rely upon it in argument. The Union did, however, rely upon the fact that the Grievor’s wife would lose this job if the family moved to Peterborough in support of its argument that such a move was not a reasonable alternative. Once again, to the extent that the Grievor’s wife’s employment is relevant, it is not only the fact of the loss of the job in Ottawa but the prospect of finding an alternative job in Peterborough which needs to be considered. In this respect, it is important to note that the Grievor’s evidence was that his wife earned $14 per hour from her job in Ottawa. There was no evidence of any efforts by the Grievor’s wife to locate alternative employment in Peterborough.

53I note that the Employer argues that financial considerations of the sort raised by the Union are in any event irrelevant and cannot be a legitimate factor. The fact that it makes more economic sense for the Grievor to live in Ottawa, it argues, cannot be a basis for a legal obligation to accommodate him. Given that I have found that there is no evidence that it makes more economic sense for the Grievor to live in Ottawa than Peterborough, I need not address this argument further.

54I also note that at one point during his cross-examination it was put to the Grievor that the amount that he would save in commuting costs would approximately offset the loss of his wife’s income from her job in Ottawa. The Grievor answered: “But there is the financial cost of looking after the parents. And then we have the psychological impact on my parents as there is no temple in Peterborough.”

55The reference to the presence or absence of a temple in Peterborough was non responsive to the question put. Further, at no earlier point in the proceedings, including the Union’s various sets of particulars which were the subject of in an interim decision in this matter dated October 28, 2014, was this claim asserted. For these reasons, I do not consider it would be appropriate for me to consider this evidence. Even if I were to do so it would have no impact on my decision for two reasons. First, the presence or absence of a temple in Peterborough is relevant, if at all, only to the extent that it speaks to a requirement arising from the religious beliefs of the Grievor’s parents. The Grievor’s evidence as to his parent’s religious requirements and by implication their beliefs is hearsay and not admissible. Second, the Grievor’s evidence as to the psychological impact on his parents is in the nature of an opinion which he is not qualified to give.

56Accordingly, assuming, contrary to my findings above, the Grievor has eldercare obligations to his parents which are engaged, the Union has led insufficient evidence to demonstrate that the Grievor made reasonable efforts to meet those obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible.

57In the event that I am wrong, I turn to consider the fourth factor in the Johnstone analysis.

The Fourth Factor: has the Union established that that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the eldercare obligation?

58The Court in Johnstone elaborated on the meaning of this factor in the context of childcare as follows:

97The fourth and final factor is that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. The underlying context of each case in which the childcare needs conflict with the work schedule must be examined so as to ascertain whether the interference is more than trivial or insubstantial.

59For the purposes of this part of the decision, notwithstanding the conclusions set out above, I assume that the Grievor has a legal obligation to provide the necessaries of life to his parents, that it is engaged by the need of his parents to have supervised access to those necessaries of life, and that the Grievor made reasonable efforts to meet those obligations through reasonable alternative solutions and that no such alternative solution is reasonably accessible.

60The impugned employment rule is that the Grievor is required to work in Peterborough. Because the Grievor lives in Ottawa, this results in lengthy commuting time (approximately 6 hours round trip) which reduces the amount of time that the Grievor has to be with his parents after his normal working hours (ordinarily, 7.25 hours per day). Largely unexplained by the Union is why the Grievor’s absence from his parents during commuting hours constitutes an interference with his eldercare obligations but his absence from his parents during work hours does not. There was no evidence, for example, with respect to specific needs which fell outside of the Grievor’s working hours but within the hours which would be spent commuting. Nonetheless, for the purposes of the non-suit motion I would be prepared to conclude that being absent approximately 13.25 hours per day is significantly more challenging than being absent 7.25 hours per day and would interfere with the Grievor’s eldercare obligations in a way that is more than trivial or insubstantial. Accordingly, I would conclude that the Union has led sufficient evidence to establish the fourth factor.

61However, this conclusion is entirely derivative from the assumption that it would not be reasonable to expect the Grievor to move. The Employer’s rules do not require the Grievor to live far away from his workplace in Peterborough and the Grievor’s eldercare obligations do not require that he and his parents live in Ottawa. The Grievor and his parents can live anywhere, absent the assumption that it would be unreasonable to expect them to move. Any interference which the Grievor experiences with respect to eldercare obligations towards his parents as a result of his lengthy commuting time arises not from any conflict between the impugned rule and eldercare obligations, but from his personal preference for continuing to live in Ottawa notwithstanding that his job is in Peterborough.

Non-suit with respect to whether the Union has made out a prima facie case of discrimination on the basis of religious belief

62Both parties agree that the leading cases with respect to claims for religious accommodation is Syndicat Northcrest v. Amselem, 2004 SCC 47. In that case, Iacobucci J., writing for the majority, held that a claim for religious accommodation could be founded upon a sincerely held religious belief, whether or not that belief was objectively supported by religious dogma or scripture, while Bastarache J., writing for the minority, would have held that the belief had to be in fact rooted in religious precept. The Employer characterizes the majority opinion as giving rise to a subjective test and the minority opinion as giving rise to an objective test. It argues that the applicable test is as set out the minority opinion, but that there is insufficient evidence that the Grievor meets either that test or the subjective test set out in the majority opinion. The Union argues that the applicable test is as set out in the majority opinion.

63The Employer asserts that the minority opinion makes more sense from a labour relations perspective and that in any event the minority opinion was adopted by this Board in Ontario Public Service Employees Union (Barillari) v. Ontario (Ministry of Community and Social Services), 2006 CanLII 37572 (ON GSB). This argument may be briefly addressed. First, it is not open to this Board to choose the minority opinion of the Supreme Court of Canada over the majority view. Second, a careful reading of the Barillari decision shows that the Board did not do so. Rather, after a full hearing of the evidence the Board concluded that the asserted religious belief was not sincerely held: see paragraph 89 of that decision.

64The majority test in Amselem is set out in the following paragraphs:

56 Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.

57 Once an individual has shown that his or her religious freedom is triggered, as outlined above, a court must then ascertain whether there has been enough of an interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under the Quebec (or the Canadian) Charter.

59 It … suffices that a claimant show that the impugned contractual or legislative provision (or conduct) interferes with his or her ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial. The question then becomes: what does this mean?

60 At this stage, as a general matter, one can do no more than say that the context of each case must be examined to ascertain whether the interference is more than trivial or insubstantial. But it is important to observe what examining that context involves.

61 In this respect, it should be emphasized that not every action will become summarily unassailable and receive automatic protection under the banner of freedom of religion. No right, including freedom of religion, is absolute …. This is so because we live in a society of individuals in which we must always take the rights of others into account.

[Emphasis in original.]

65I note that there is no assertion in this case that the Grievor’s asserted religious belief infringes upon the rights of others. It is, therefore, not necessary to explore the balance of the majority’s reasons on that qualification.

66The majority’s application of its test to the facts before it in Amselem makes it clear that it is important to specifically identify the asserted religious belief. This is because the claimant must demonstrate that there is more than trivial or insubstantial interference with the specific belief asserted, as illustrated by the discussion at paragraphs 74 and 75 of Amselem. As will be discussed further below, the determination of whether or not there has been an infringement of the specific belief is based not upon the subjective belief of the claimant, but rather an objective analysis.

67The Grievor testified that he is a Hindu and that in Hinduism, there are 4 components of one’s life: Artha, which means managing finances for the family; Dharma, for which he stated the closest word in English is religion; Kharma (the Grievor provided no definition of this term); and Moksha, which means liberation after one passes away. He testified the male partner leads Artha, Kharma and Moksha, but that the female partner leads Dharma. The Grievor testified that the religious practice for which he seeks accommodation is Sandhya. This is the practice of worshipping twice a day: in the morning and the evening, preferably at sunrise and sunset. The act of worship, he testified, has many parts: prayers, reading, eating some food, singing hymns. This act of worship follows under Dharma and accordingly his wife leads it and, he testified, he believes his wife must be physically present during the performance of the act of worship. This was the sum total of the evidence on the Grievor’s religious beliefs.

68The Employer asserts that there is no evidence, apart from the Grievor’s bald assertion, that there is a nexus between his belief as to the practice of Sandhya and his religion of Hinduism. It contrasts this with the evidence before Arbitrator Albertyn in 407 ETR Concession Co., (2007) 158 LAC (4th) 289. In that case a pastor testified as to the nexus and scriptural documents were placed into evidence. The Union notes that the majority in Amselem clearly stated at paragraph 54 that expert evidence was not necessary:

A claimant may choose to adduce expert evidence to demonstrate that his or her belief is consistent with the practices and beliefs of other adherents of the faith. While such evidence may be relevant to a demonstration of sincerity, it is not necessary. Since the focus of the inquiry is not on what others view the claimant’s religious obligations as being, but rather what the claimant views these personal religious “obligations” to be, it is inappropriate to require expert opinions to show sincerity of belief. An “expert” or an authority on religious law is not the surrogate for an individual’s affirmation of what his or her religious beliefs are. Religious belief is intensely personal and can easily vary from one individual to another. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom we seek to protect.

69In my view, expert opinion evidence or corroboration is not required. In particular, if, as the majority in Amselem concluded at paragraph 56 of its reasons set out above, religious freedom extends to “subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials”, the evidence of others that the practice or belief is required cannot assist. Rather, the issue is the sincerity of the claimant’s beliefs.

70The majority in Amselem also provided guidance as to the nature of the inquiry into the sincerity of a claimant’s beliefs:

i. “It is important to emphasize, however, that sincerity of belief simply implies an honesty of belief.” (paragraph 51)

ii. “… the court’s role in assessing sincerity is intended only to ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice.” (paragraph 52)

iii. “Assessment of credibility is a question of fact that can be based on several non-exhaustive criteria, including the credibility of a claimant’s testimony … as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices.” (paragraph 53)

iv. “Because of the vacillating nature of religious belief, a court’s inquiry into sincerity … should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.” (paragraph 53)

71The Employer challenges the sincerity of the Grievor’s religious belief. The thrust of its argument is that his asserted belief is fictitious. It points to Loblaws Supermarkets Ltd., (2012) 223 LAC (4th) 387 (Jesin). In that case, the employer argued the grievor’s asserted religious belief (that he wished to observe the Sabbath by attending mass and spending Sundays with his family and refraining from working) was not borne out by his observed behaviour (he did not attend mass regularly and engaged in a number of secular activities on Sundays with no asserted religious value). Arbitrator Jesin agreed with the employer and accordingly found the grievor’s beliefs were not sincerely held.

72In this case, the Employer points to a number of documented instances in the period September 2012 to August 2013 in which the Grievor requested accommodation for religious practices. The Employer asserts there is an inconsistency between those requests and the Grievor’s asserted religious belief that he must pray morning and evening in the presence of his wife.

In September 2012 the Grievor had an exchange of emails with his supervisor in which the Grievor sought to be permitted to arrive at work late each day and to leave early on Fridays in order to avoid conflict with “our Friday evening and everyday morning sun worship”.
On October 8, 2012 in response to request for clarification from his supervisor with respect to his September request the Grievor indicated that he commuted from Ottawa to Peterborough on Mondays and returned to Ottawa on Fridays. He sought accommodation for worship at sunrise and sunset by being permitted to arrive late on Mondays and leave early on Fridays. In an email dated October 29, 2012, the Grievor’s request for accommodation had changed to arriving late on Mondays, working longer hours on Tuesdays, Wednesdays and Thursdays, and having Fridays off.
In an email dated August 26, 2013, the Grievor proposed that he be permitted “tele working” (i.e. working from Ottawa) on either Mondays or Fridays, with the other day off and longer work hours on Tuesdays, Wednesdays and Thursdays.

73The Employer also notes that since 2005 the Grievor has consistently pursued the objective of being permitted to work in or from Ottawa. While the Grievor now seeks to be permitted to work in or from Ottawa as a form of religious accommodation, he has advanced a variety of reasons in the past:

so that he might complete graduate studies work at universities in Ottawa
his personal health (or stress and wellness)
his care obligations for his parents
his finances (commuting costs and his wife’s income)
his view that it would be more productive for him to work from Ottawa
his safety on the roads

74The Employer invites me to find that accordingly the Grievor’s religious belief is not sincerely held.

75As noted by the Union, Loblaws was decided following a hearing of all of the evidence: it was not a non-suit motion. For the purposes of this non-suit motion, I am unable to find that the Grievor’s belief is not sincerely held. With respect to any inconsistency between the Grievor’s religious belief and the accommodation he sought in the various emails, I note that when asked about this matter, the Grievor indicated that he was seeking partial accommodation in light of the Employer’s refusal to grant fuller accommodation. For the purposes of this motion, I assume that the Grievor’s evidence on that point is true. If that is the case, surely the fact that an employee seeks partial accommodation in the face of a refusal to give full accommodation does not relieve the employer of the obligation to properly address the request for full accommodation. Similarly, the changing nature of the Grievor’s reasons for seeking to be permitted to work in Ottawa over time may provide a basis for reaching an adverse conclusion as to the Grievor’s credibility with respect to his presently asserted beliefs, but that is not an issue which I am to determine on this motion for non-suit. Given the direction by the majority in Amselem to focus on the religious beliefs of the Grievor at the time of the asserted need for accommodation based on those beliefs, I am unable to conclude for the purposes of this non-suit motion that his past reasons for seeking to live in Ottawa are inconsistent with his present beliefs.

76I turn to consider whether there is sufficient evidence that the Employer’s rule interferes with the Grievor’s religious beliefs in a manner that is more than trivial or insubstantial. The Employer made reference to OPSEU (Karduri) v. Seneca College (2014) 245 LAC 4th 264 (Jesin). That decision cited the opinion of Deschamps J., writing for herself and six other members of the Court, in S.L. v. Commission scolaire des Chênes, [2012] 1 SCR 235, 2012 SCC 7 for the proposition that while there is a subjective test for determining the existence of a religious belief, an objective test is to be applied in determining whether the religious belief has been infringed. I note that the concurring opinion of LeBel J., writing for himself and the other member of the Court, also makes it clear that an objective test is to be applied in determining whether a religious belief has been infringed. Thus, the Court was unanimous on that point.

77Seneca College quotes paragraph 24 of Deschamps J.’s opinion. I find it useful to quote from Commission scolaire des Chênes at somewhat greater length:

22… [I]n Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, … the elements of a definition of freedom of religion were outlined. In that case, Iacobucci J. explained that a person does not have to show that the practice the person sincerely believes he or she must observe or the belief the person endorses corresponds to a religious precept recognized by other followers. If the person believes that he or she has an obligation to act in accordance with a practice or endorses a belief “having a nexus with religion”, the court is limited to assessing the sincerity of the person’s belief (paras. 39, 43, 46 and 54).

23At the stage of establishing an infringement, however, it is not enough for a person to say that his or her rights have been infringed. The person must prove the infringement on a balance of probabilities. This may of course involve any legal form of proof, but it must nonetheless be based on facts that can be established objectively. For example, in Edwards Books, the legislation required retailers who were Saturday observers to close a day more than Sunday observers. In Amselem, the infringement resulted from a prohibition against erecting any structure on the balconies of a building held in co‑ownership, while the appellants believed that their religion required them to dwell in their own succahs.

24It follows that when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed. The subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion, including the belief in an obligation to conform to a religious practice. As with any other right or freedom protected by the Canadian Charter and the Quebec Charter, proving the infringement requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom. To decide otherwise would allow persons to conclude themselves that their rights had been infringed and thus to supplant the courts in this role.

78As noted above, for the purposes of this part of the analysis it is necessary to specifically identify both the religious practice or belief and the rules, events or acts said to interfere with that practice or belief.

79In this case, it is convenient to start by describing the employment rule said to interfere with the Grievor’s religious beliefs. The Grievor’s work obligation is 36.25 hours per week. Ordinarily, he would be required to meet that obligation by working during the hours of 8:00 AM and 5:00 PM, Monday to Friday. At times the employer has permitted the Grievor variations on this arrangement, for example that he work a compressed work week, with the result that he would work 7.77 hours per day during the hours of 8:00 AM and 6:00 PM, Monday to Friday with the third Friday off. It is not, however, the hours of work which the Grievor challenges. Rather it is the requirement that he work those hours at the Employer’s office in Peterborough.

80The Employer’s rules do not require the Grievor to live far away from his workplace in Peterborough and the Grievor’s religious beliefs do not require that he and his wife continue to live in Ottawa. Accepting for the purposes of this decision that the Grievor’s religious beliefs require him to pray daily with his wife in both the morning and the evening, the Grievor and his wife can do so anywhere. The interference which the Grievor experiences with practicing Sandhya on a daily basis arises not from any conflict between the impugned rule and his religious beliefs, but from the fact that he lives in Ottawa notwithstanding that his job is in Peterborough. Unless one were to conclude that it is unreasonable to expect the Grievor to move from Ottawa to Peterborough, there is no basis for concluding that the Employer’s rule interferes with the Grievor’s religious beliefs. For reasons stated above, it is my view there is insufficient evidence to demonstrate that it is unreasonable to expect the Grievor to move to Peterborough.

81For all of the foregoing reasons, the Employer’s non-suit motion is allowed and the grievance is dismissed.

Dated at Toronto, Ontario this 5th day of March 2015.

Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.

It appears, however, that the obligation under the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) is to provide financial support: see s. 33 of that Act. As noted, the essence of the Grievor’s claim is not that the Employer’s rule prevents him from financially supporting his parents. As such, [section 32](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html#sec32_smooth) of the Family Law Act does not create a legal obligation directly engaged by the facts in this case.

Footnotes

Section 215(2) creates an offence in relation to the breach of the legal duty set out in section 215(1). The issue for me is, however, is simply whether the legal duty under section 215(1) applies to the Grievor, not whether a breach of that duty would constitute an offence under section 215(2).
Peterson makes reference to section 32 of the Family Law Act, R.S.O. 1990 c. F.3, as amended. It provides: