The Queen in Right of Ontario as represented by the Ministry of Community and Social Services v. Grievance Settlement Board et al. [Indexed as: Ontario (Ministry of Community and Social Services) v. O.P.S.E.U.]

50 O.R. (3d) 560

[2000] O.J. No. 3411

Docket No. C33367

Court of Appeal for Ontario

Carthy, Austin and Moldaver JJ.A.

September 18, 2000

Employment -- Labour relations -- Grievance arbitration -- Discrimination -- Religion -- Duty to accommodate -- Employer can fulfill its duty to accommodate religious requirements of employees by providing appropriate scheduling changes without having to demonstrate that leave with pay will result in undue economic or other hardship.

The employer's "religious observance policy" stated that accommodation for religious holidays requiring absence from work would be provided by up to two paid days and thereafter through scheduling changes such as the compressed work week scheduling option, which permitted employees to take one day off per three-week altered work cycle. T was an observant member of the Worldwide Church of God. Adherent members of that faith are required to observe 11 holy days over the calendar year. In 1995, T sought permission from the employer to take the 11 days off without pay. Under the policy, he was entitled to two days off without pay. With respect to the remaining nine days, he was offered various options, including the use of his five mandatory social contract days for religious observance and the use of days off available to him as a result of his decision to take advantage of the compressed work week scheduling option. That option permitted employees, over a 15- day work period, to compress their assigned hours of work into 14 days by working extended shifts. The resulting spare day could then be used for religious observance purposes. In 1995, T had 15 such days available to him. That option did not provide him with a complete solution because under the compressed work week regime, employees were expected to take the single day off in the three-week altered work cycle. Given that some of T's religious holidays extended over several consecutive weekdays, the single day off from the compressed work week schedule would not suffice. The employer stated that T would be permitted to bank the 15 days and use them as required to fulfill his religious obligations. T took the position that the 15 days available to him from the compressed work week schedule and the five mandatory social contract days were his to do with as he saw fit, and he was not prepared to use them for religious observance purposes. He filed grievances alleging discrimination in employment on the basis of creed.

The Grievance Settlement Board allowed the grievances in part and ordered that T be reimbursed for four of the nine holy days in question. The Board found that the employer had not engaged in prohibited discrimination by requiring T to use the five mandatory social contract days for religious observance purposes. It held that the protected right in question was the right to have recognized holy days off for religious observance without suffering any financial loss. The use of the five mandatory social contract days would occasion no financial hardship to T because he had no choice but to take them. The Board characterized the 15 days available to T under the compressed work week scheduling option as vacation benefits and held that requiring him to use his vacation benefits would have the effect of imposing a financial burden on him to observe his holy days. It held that T was not obliged to use the 15 days for religious observance purposes unless the employer could show that it would suffer undue economic or other hardship by permitting him to take the required days off without pay. Since the employer had led no such evidence, the Board held that T was entitled to be reimbursed for four of the nine days that he was required to be absent from work for religious observance purposes.

The Divisional Court dismissed the employer's appeal. The employer appealed.

Held, the appeal should be allowed.

The employer was clearly mindful of its obligation to recognize and respect the right of every employee to practice his or her religion without discrimination. To this end, the policy provided for measures designed to accommodate the individual needs of members of minority religions. Foremost amongst these was the employer's willingness to institute scheduling changes so that employees could fulfill their religious obligations without having to lose wages or encroach on pre-existing earned entitlements such as vacation time. The compressed work week option was one such measure. The Board's classification of the days off, available from this scheduling option, as "vacation benefits" was patently unreasonable. Employers can satisfy their duty to accommodate the religious requirements of employees by providing appropriate scheduling changes without first having to show that a leave of absence with pay would result in undue economic or other hardship. If the proposed scheduling change occasions significant hard ship or inconvenience to the employee, other forms of accommodation must be explored.

To the extent that T could have used the days off available under the compressed work week schedule to observe his religious holy days, the policy did not have a discriminatory effect upon him. However, the single days off available from that option did not provide T with a full measure of accommodation as he was required to take a single day off within the three-week work cycle, and some of his religious holidays extended over several consecutive weekdays. To that extent, the policy had a discriminatory effect on T.

By informing T that he would be permitted to bank the 15 days available to him and use them as required to fulfill his religious obligations, the employer fully met its duty to accommodate.

APPEAL from a judgment of the Divisional Court dismissing an appeal from a decision of the Grievance Settlement Board ((1997), 1997 24961 (ON GSB), 65 L.A.C. (4th) 345) upholding grievances in part.

British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 652 (SCC), [1999] 3 S.C.R. 3, 66 B.C.L.R. (3d) 253, 176 D.L.R. (4th) 1, 244 N.R. 145, [1999] 10 W.W.R. 1, 68 C.R.R. (2d) 1, 46 C.C.E.L. (2d) 206, 99 C.L.L.C. 230-038, apld Central Okanagan School District No. 23. v. Renaud, 1992 81 (SCC), [1992] 2 S.C.R. 970, 95 D.L.R. (4th) 577, 92 C.L.L.C. 17,032; Chambly, Commission scolaire régionale v. Bergevin, 1994 102 (SCC), [1994] 2 S.C.R. 525, 62 Q.A.C. 241, 115 D.L.R. (4th) 609, 169 N.R. 281, 4 C.C.E.L. (2d) 165, 94 C.L.L.C. 17,023; Ontario Human Rights Commission v. Simpsons Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, 52 O.R. (2d) 799n, 12 O.A.C. 241, 23 D.L.R. (4th) 321, 64 N.R. 161, 17 Admin. L.R. 89, 9 C.C.E.L. 185, 86 C.L.L.C. 17,002, 9 C.C.E.L. 185, consd Other cases referred to O.P.S.E.U. (Kimmel/Leaf) v. Ontario (Ministry of Government Services) (1991), 1991 13475 (ON GSB), 21 L.A.C. (4th) 129 Statutes referred to Employment Standards Act, R.S.O. 1990, c. E.14

M. Wilson and B. Ratelband, for appellant. Raj Anand, for respondents.

The judgment of the court was delivered by

[1] MOLDAVER J.A.: -- This appeal arises out of a labour relations dispute between the Crown in Right of Ontario ("the Employer") and the Ontario Public Service Employees Union ("the Union"). The dispute centres around the Employer's "religious observance policy" ("the policy") and its impact on public service employees of minority religious faiths who seek time off work to observe their religious holy days. At issue is whether the policy had a discriminatory effect on a particular employee who requested 11 days off with pay to fulfill his religious obligations and, if so, whether the Employer took reasonable steps to accommodate the employee in the circumstances.

Background Facts

[2] The facts giving rise to the dispute are set forth in an agreed statement of fact filed as an exhibit before the Grievance Settlement Board ("the Board"). The agreed statement is reproduced in the Board's reasons (reported at (1997), 1997 24961 (ON GSB), 65 L.A.C. (4th) 345 [abridged]) and I see no need to replicate it. I propose, instead, to summarize the salient facts.

[3] In 1995, the Province of Ontario employed approximately 80,000 public service employees. Included in this large workforce were members of many different religious faiths whose holy days did not coincide with, or were more extensive than, the two holy days observed by most members of the Western Christian faith, Christmas and Good Friday.

[4] Anthony Tratnyek was one such employee. In 1995, he worked as a program analyst with the Ministry of Community and Social Services and was classified as a "Systems Officer 2". The terms and conditions of his employment were governed by a collective agreement between the Union and the Employer.

[5] Mr. Tratnyek is an observant member of a bona fide religious denomination known as the Worldwide Church of God. Adherent members of that faith are required to observe 11 holy days over the calendar year.

[6] For the 1995 calendar year, Mr. Tratnyek sought permission from his Employer to take the 11 days off with pay. The policy (effective October 6, 1991) allowed for two days off with pay for religious observance purposes to reflect the two statutory holidays of Christmas and Good Friday provided for in the Employment Standards Act, R.S.O. 1990, c. E.14. For classified employees, like Mr. Tratnyek, who required further accommodation to fulfill their religious obligations, the policy provided for scheduling changes where possible. One such scheduling alternative involved the use of days off (one day every three weeks) available to employees who chose to complete their assigned hours of work in accordance with the "compressed work week" scheduling option contained in the collective agreement. If such scheduling accommodations proved unavailable or inadequate, the policy permitted employees to use earned entitlements, such as vacation credits and overtime, or they could seek unpaid leave.

[7] The provisions of the policy to which I have just referred are outlined in summary form in the agreed statement of fact. The actual provisions are set forth in a document entitled "ONTARIO PUBLIC SERVICE -- RELIGIOUS HOLIDAYS POLICY FACT SHEET" found at tab 11, p. 130 of the appellant's exhibit book. For the sake of completeness, the relevant provisions are reproduced below:

ONTARIO PUBLIC SERVICE

RELIGIOUS HOLIDAYS POLICY FACT SHEET

• Accommodation for religious holidays requiring absence from work as identified on the "Religious Holidays List" will be provided by up to TWO paid days for classified employees.

• This will be provided through existing provisions in collective agreements:

• Articles 55 and 83 (Special and Compassionate Leave) for OPSEU members;

• To ensure consistency with the collective agreements and legislation, this policy will apply to classified employees only.

• Accommodation for unclassified staff and additional accommodation for classified employees will be provided through scheduling changes where possible.

• This can be done, for example through re-arranging shifts or by using Compressed Work Week days.

• If the above provisions are not possible or sufficient the employee will be able to use earned entitlements or unpaid leave.

• Earned entitlements include vacation credits, overtime, lieu time, management compensation option etc. If credits are not sufficient or the employee prefers not to use them, then unpaid leave will be approved.

(Emphasis added)

[8] The policy made no mention of social contract days because it pre-dated the memorandum of understanding entered into between the Union and the Province on March 12, 1994. By its terms, the memorandum required public service employees to take off a minimum of five social contract days without pay for the fiscal year commencing April 1, 1995 and ending March 31, 1996.

[9] In accordance with the policy, Mr. Tratnyek's request for 11 days off with pay was denied. He was informed by his supervisor that he could take the 11 days off but he would be paid for only two of them. As for the remaining nine days, various options were presented to him. One such option, which provided a partial solution, involved the use of his five mandatory social contract days for religious observance purposes. Another involved the use of days off available to Mr. Tratynek as a result of his decision to take advantage of the compressed work week scheduling option. In 1995, he had 15 such days available to him. [See Note 1 at end of document] That option, however, did not provide Mr. Tratnyek with a complete solution because under the compressed work week regime, employees were expected to take the single day off in the three-week altered work cycle. Given that some of Mr. Tratnyek's religious holidays extended over several consecutive weekdays, the single day off from the compressed work week schedule would not suffice. Accordingly, in an effort to accommodate Mr. Tratnyek's particular needs, he was informed by his supervisor that he would be permitted to bank the 15 days and use them as required to fulfill his religious obligations.

[10] Of the various proposals presented to Mr. Tratnyek, none proved acceptable to him. With respect to the two just mentioned, he took the position that the 15 days available from the compressed work week schedule and the five mandatory social contract days were his to do with as he saw fit, and he was not prepared to use them for religious observance purposes.

[11] With neither side willing to bend, Mr. Tratnyek filed two separate grievances under the collective agreement, both dated May 4, 1995. In the first, he claimed that his Employer had discriminated against him under Part A, articles A and 55 of the collective agreement; in the second, that his Employer had discriminated against him under Part A, articles A and 30 of the agreement. In each instance, he sought to be reimbursed for the days off required to observe his religious holy days.

Relevant provisions of the collective agreement

[12] The relevant provisions of the collective agreement read as follows:

Article A.1.1

There shall be no discrimination practiced by reason of . . . creed . . . as defined in Section 10(1) of the Ontario Human Rights Code (OHRC).

Article 30.1

Leave-of-absence with pay may be granted for special or compassionate purposes to an employee for a period of:

(a) not more than six (6) months with the approval of his Deputy-Minister. . . .

Article 55.1

A Deputy-Minister or his designee may grant an employee leave-of-absence with pay for not more than three (3) days in a year upon special or compassionate grounds.

Position of the parties before the Grievance Settlement Board

[13] In accordance with the terms of the collective agreement, the grievances were referred to the Grievance Settlement Board for resolution.

[14] At the hearing, presided over by Vice-Chair Gorsky, the Union took the position that articles 55.1 and 30.1 contemplated leave with pay for "special purposes" and "special grounds". According to the Union, those terms included the observance of religious holy days and were it not for the policy, which allowed for only two days paid leave under article 55.1, there would have been no basis for denying Mr. Tratnyek's request for three days paid leave under that article and eight days paid leave under article 30.1. The Union therefore took direct aim at the policy.

[15] In the Union's submission, the policy had a discriminatory effect on Mr. Tratnyek because it put him in the position, unlike his co-workers of the Western Christian faith, of having to choose between losing wages or encroaching on his pre-existing earned entitlements and observing his religious holy days. Hence, the Employer's duty to accommodate was triggered.

[16] According to the Union, the Employer had not met its duty to accommodate by giving permission to Mr. Tratnyek to use the 15 days available from the compressed work week option as and when needed for religious observance purposes; nor, in its submission, was Mr. Tratnyek required to use the five mandatory social contract days. Rather, it was the Union's position that in the circumstances, the Employer could only fulfill its duty to accommodate by permitting Mr. Tratnyek to take the 11 days off with pay, unless it could show that this would result in undue economic or other hardship. Given that the Employer had failed to lead any evidence of economic or other hardship, the Union submitted that Mr. Tratnyek was entitled to be reimbursed in full for the days needed to observe his religious holy days.

[17] The Employer, on the other hand, took the position that the policy was not discriminatory in either its purpose or effect. To the contrary, by providing employees such as Mr. Tratnyek with up to two days paid leave under article 55.1 of the collective agreement, the policy reflected the two statutory holidays of Christmas and Good Friday, provided for in the Employment Standards Act. In addition, it provided for scheduling changes to meet the needs of employees requiring further accommodation.

[18] In the alternative, if the policy was discriminatory in its effect, the Employer maintained that it had fulfilled its duty to accommodate by presenting Mr. Tratnyek with options that enabled him to fulfill his religious obligations without having to lose pay or encroach on his pre-existing earned entitlements such as vacation time. [See Note 2 at end of document]

Decision of the Board

[19] On August 28, 1997, Mr. Gorsky released lengthy written reasons in which he allowed the grievances in part and ordered that Mr. Tratnyek be reimbursed for four of the nine holy days in question. In coming to this conclusion, he rejected the Union's submission that the Employer had engaged in prohibited discrimination by requiring Mr. Tratnyek to use the five mandatory social contract days for religious observance purposes (at pp. 65-66):

On the special facts of this case there was no discrimination against the Grievor which required accommodation as described in Chambly [infra] for five days which are represented by the five involuntary social contract days that he could have used for the purpose of observing five of his holy days without any financial loss or other detriment. There was no "distinction, exclusion or preference" based on creed that had "the effect of nullifying or impairing" the "right to full and equal recognition and exercise of a human right or freedom" because he had those days available through existing involuntary social contract days. Unlike the facts in Chambly and Kimmel/Leaf [supra], the Grievor would not lose a day's pay to observe five of his holy days. Nor was there any indication that he would suffer any other kind of significant detriment if he did so.

[20] As for the remaining four days for which the Employer was ordered to reimburse Mr. Tratnyek, Mr. Gorsky was satisfied that the policy, though facially neutral, did not meet the test for substantive equality. He explained the distinction between formal and substantive equality in these terms (at p. 36):

There are circumstances when equal treatment without discrimination on a prohibited ground can only result from affording a protected minority certain rights which are not granted to the majority. Because some religions or branches thereof have only two mandatory days when a member would be expected to absent him/herself to engage in religious observance does not mean that equal treatment without discrimination will follow if every other religion or denomination thereof is given two days off with pay to observe some of their holy days.

[21] According to Mr. Gorsky, in order to determine whether the policy achieved substantive equality, it was first necessary ". . . to understand what rights are being protected in the case of the majority religion" (p. 68). In the circumstances, he identified the protected right as the ". . . right to have recognized holy days off for religious observance without suffering any financial loss" (p. 68). That, in his view, was the right to which members of minority religions were entitled (p. 68) and it provided the yardstick against which to measure the policy to see if it achieved the goal of substantive equality.

[22] Having identified the protected right, Mr. Gorsky recognized that the means chosen to give effect to it need not reach the level of perfection (at p. 68):

The exercise whereby this is accomplished is not one of perfection. If members of minority religions are able to observe their holy days without having to use available days in a way that would result in financial hardship or in some significant inconvenience, then that is what they must do.

(Emphasis added)

[23] Manifestly, Mr. Gorsky applied that test in determining that Mr. Tratnyek was required to use the five mandatory social contract days for religious observance purposes. In his view, the use of those days occasioned no financial hardship to Mr. Tratnyek because "[he] had no choice but to take [them]. They were non-working, non-paid days that existed outside of his volition" (p. 66).

[24] Mr. Gorsky took a different view, however, of the 15 days available to Mr. Tratnyek under the compressed work week scheduling option. In his opinion, those days did not come within the same category as the five mandatory social contract days (at pp. 66-67):

To the extent that the Grievor has been subjected to adverse effect discrimination so as to be entitled to accommodation by the Employer, in the absence of a demonstration that granting the days requested for religious observance with pay would have imposed undue hardship on the Employer, the Grievor would not be required to use vacation days, unpaid leave etc. in order to be able to observe his holy days: Chambly and Kimmel/Leaf. "Vacation benefits including vacation pay and the time period during which a vacation may be taken . . . have generally been regarded by arbitrators as earned benefits forming part of the total wage package negotiated by the parties and included in the agreement." Brown and Beatty Canadian Labour Arbitration Third Edn. para. 8:3210. Requiring the Grievor to use his vacation benefits would have had the effect of imposing a financial burden on him to observe his holy days, something members of the majority religion were not required to do.

(Emphasis added)

[25] Without further analysis or explanation why the 15 days in issue should be characterized as "vacation benefits" as opposed to days off available from a scheduling adjustment, Mr. Gorsky chose to place them in the "vacation benefits" hopper and treat them as "earned benefits" (p. 68). In view of this, he held that Mr. Tratnyek was not obliged to use the 15 days for religious observance purposes unless the Employer could show that it would suffer undue economic or other hardship by permitting him to take the required days off with pay. Since the Employer had led no such evidence, it followed, in his view, that Mr. Tratnyek was entitled to be reimbursed for four of the nine days that he was required to be absent from work for religious observance purposes.

Decision of the Divisional Court

[26] The Employer appealed the decision of the Board to the Divisional Court. In a brief endorsement dated September 16, 1999, the court dismissed the appeal for the following reasons:

We are satisfied that the government policy in respect of leave for the observance of religious holidays was, in its effect, discriminatory in relation to the grievor and the Board was correct in so finding.

The applicant's obligation in the circumstances is to accommodate reasonably, short of undue hardship. As Sopinka J. noted in Renaud:

". . . the words "short of undue hardship" import a limitation on the employer's obligation so that measures that occasion undue interference with the employer's business or undue expense are not required.

The applicant, who bears the onus in this respect, failed to adduce any evidence that the accommodation of this grievor would cause undue hardship.

In the circumstances we are all of the view that the decision of the Grievance Settlement Board is neither patently unreasonable nor incorrect. Costs to the applicant fixed at $2,500.

Issues on Appeal

[27] The Employer appeals from the decision of the Divisional Court and raises the following issues:

1. Did the Divisional Court err in finding that the policy had a discriminatory effect on Mr. Tratnyek?

2. If the policy had a discriminatory effect, did the Divisional Court err in finding that the Employer had failed in its duty to accommodate Mr. Tratnyek?; and

3. What is the appropriate standard of review of the Board's decision?

Analysis

Issue 1: Did the policy have a discriminatory effect on Mr. Tratnyek?

[28] I am guided in my approach to this issue by the principles set forth by McLachlin J. at para. 68 in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 652 (SCC), [1999] 3 S.C.R. 3 at p. 38, 176 D.L.R. (4th) 1:

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. Courts and tribunals must bear this in mind when confronted with a claim of employment- related discrimination. To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible. A standard that does not allow for such accommodation may be only slightly different from the existing standard but it is a different standard nonetheless.

(Emphasis in original)

[29] In my view, the principles enunciated by McLachlin J. in this passage were not meant to apply solely to claims of employment-related discrimination stemming from workplace standards. Rather, they were meant to be applied universally in all cases of employment-related discrimination. Just as they provided a yardstick against which to measure the workplace standards designed by the employer in the British Columbia Public Service case, so too do they provide a yardstick against which to measure the policy of the Employer in the present case.

[30] Applying those principles to the impugned policy, I am satisfied that the Employer was clearly mindful of its obligation to recognize and respect the right of every employee to practise his or her religion without discrimination. To this end, the policy provided for measures designed to accommodate the individual needs of members of minority religions. Foremost amongst these was the Employer's willingness to institute scheduling changes so that employees could fulfill their religious obligations without having to lose wages or encroach on pre-existing earned entitlements such as vacation time.

[31] The compressed work week option was one such measure. It permitted employees, over a 15-day work period, to compress their assigned hours of work into 14 days by working extended shifts. The resulting "day to spare" could then be used for religious observance purposes.

[32] Referred to specifically in the policy, this scheduling option provided a viable means of accommodation for employees requiring extra days off over and above the two paid leave days already provided for. It enabled them to schedule their required hours of work in a way that relieved them from having to choose between losing wages or encroaching on pre-existing earned entitlements and observing their religious holy days.

[33] Contrary to the position of the Board, I see no basis for classifying the days off, available from this scheduling option, as "vacation benefits". Indeed, I have come to the conclusion that the Board's finding in this regard was not only wrong, it was patently unreasonable.

[34] I test this conclusion against the following analogous example. An employee, scheduled to work an eight-hour shift on Mondays, requests permission to take a particular Monday off for religious observance purposes. The employer agrees but, in turn, requests that the employee make up the time by working an eight-hour shift on the preceding Friday, a day which the employee would normally have off pursuant to his or her regular work schedule. The employee is able to comply with the employer's request without significant inconvenience or hardship.

[35] Applying the reasoning of the Board, having worked the eight-hour shift on Friday, the resulting day off on Monday would be classified as a "vacation benefit" and the employer would not have met its duty to accommodate. To the contrary, requiring the employee to use the Monday for religious observance purposes would amount to prohibited discrimination, thereby placing the employer in the position of having to grant the employee the Monday off with pay absent proof that to do so would result in undue economic or other hardship.

[36] Surely, this cannot be right. Labeling as "vacation benefits" days off available from scheduling changes of this nature, that simply involve re-arranging an employee's assigned hours of work, is, in my view, patently unreasonable. If correct, it would mean that employers could not fulfill their duty to accommodate by offering convenient scheduling changes, while at the same time requiring employees to complete their assigned hours of work, without first having to show that granting a leave of absence with pay would result in undue economic or other hardship. That, in a nutshell, is the position advanced by the Union and accepted by the Board. In my view, it does not accord with the principles that inform the duty to accommodate.

[37] A review of the relevant authorities leads me to conclude that employers can satisfy their duty to accommodate the religious requirements of employees by providing appropriate scheduling changes, without first having to show that a leave of absence with pay would result in undue economic or other hardship. Indeed, in some instances, scheduling changes may provide the fairest and most reasonable form of accommodation. Central Okanagan School District No. 23 v. Renaud, 1992 81 (SCC), [1992] 2 S.C.R. 970, 95 D.L.R. (4th) 577 is a case on point.

[38] The facts in Renaud are straightforward. Mr. Renaud, a Seventh-day Adventist, was employed as a school custodian. The work schedule set out in the collective agreement required that one custodian work an afternoon and evening shift on Fridays. Mr. Renaud refused to work that shift because the dictates of his faith prevented him from working between sundown Friday and sundown Saturday. The employer was willing to accommodate Mr. Renaud by replacing his Monday to Friday shift with a Sunday to Thursday shift. The union, however, refused to go along with this proposal and Mr. Renaud was subsequently terminated for failing to complete his regular Friday night shift.

[39] Mr. Renaud filed a complaint against the school board and the union under the applicable human rights legislation. His complaint was upheld by the member designate of the British Columbia Human Rights Council, but the award was later overturned on judicial review. After appealing unsuccessfully to the British Columbia Court of Appeal, on further appeal to the Supreme Court of Canada, Mr. Renaud succeeded in having the award restored.

[40] Before the Supreme Court of Canada, it was accepted that the work schedule in the collective agreement had a discriminatory effect on Mr. Renaud and that his employer and the union therefore had a duty to accommodate his religious needs. At issue was the nature and extent of that duty and whether it had been met in the circumstances.

[41] Writing on behalf of a unanimous court, Sopinka J. upheld the member designate's finding that the employer and the union had failed to meet their duty to accommodate Mr. Renaud. Importantly, in the course of his reasons, he specifically endorsed the member designate's finding that the employer's proposal for accommodation, namely, the special Sunday to Thursday shift, was not only reasonable but the most reasonable form of accommodation in the circumstances. At p. 994 S.C.R., p. 592 D.L.R., Sopinka J. wrote:

Finally, in view of the fact that the duty to accommodate of the union was shared jointly with the employer, it was not incumbent on the member designate to determine whether all other reasonable accommodations had been explored by the employer before calling upon the union. Nevertheless, it appears to me that the member designate was of the view that the special shift proposal was not only reasonable but the most reasonable. This view is fully supported by the evidence.

(Emphasis added)

[42] Sopinka J.'s acknowledgement that the proposed shift change represented the most reasonable form of accommodation points out the fallacy of the Board's approach in the present case. Applying the reasoning of the Board to the facts in Renaud, one could argue that the Fridays off made available to Mr. Renaud by allowing him to complete his assigned hours of work between Sunday and Thursday should be classified as "vacation benefits", and the employer therefore would not have met its duty to accommodate through the scheduling change. The employer would thus be placed in the position of having to grant Mr. Renaud Fridays off with pay absent proof that to do so would result in undue economic or other hardship. Viewed this way, Renaud demonstrates that the Board's approach is not only wrong, it is patently unreasonable.

[43] Another authority on point is Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321. Like Renaud, that case involved an employee whose religious beliefs prevented her from working on Friday nights and Saturdays. As a full-time retail sales clerk, the employee was required to work two Saturdays out of three and her refusal to do so led to her discharge. By way of accommodation, the employer offered her part-time employment, which she accepted. The issue before the Supreme Court of Canada, relevant to the instant case, was whether the employer had met its duty to accommodate.

[44] Writing on behalf of a unanimous court, McIntyre J. concluded that the various options proposed by the employer, including part-time employment, fell short of satisfying the duty to accommodate. At pp. 559-60 S.C.R., p. 338 D.L.R., he outlined the steps taken by the employer towards accommodation, as well as the steps it had not taken:

In this case the respondent-employer called no evidence. While the evidence called for the complainant reveals some steps taken by the respondent towards her accommodation, there is no evidence in the record bearing on the question of undue hardship to the employer. The first reaction to the complainant's announcement that she would not be able to continue to work on Saturdays was the response that she would have to resign her job. Within a few days, and before she had left her employment, the employer on its own initiative offered part-time work, which was accepted. In addition the employer agreed to consider Mrs. O'Malley for other jobs as they became vacant. All of the vacancies of which Mrs. O'Malley had notice required Saturday work except one and for that one she was not qualified. There was no evidence adduced regarding the problems which could have arisen as a result of further steps by the respondent, or of what expense would have been incurred in rearranging working periods for her benefit, or of what other problems could have arisen if further steps were taken towards her accommodation.

(Emphasis added)

[45] I have emphasized the words "or of what expense would have been incurred in rearranging working periods for her benefit" because, in my view, they support the proposition that employers can fulfill their duty to accommodate by providing appropriate scheduling changes without having to demonstrate that leave with pay will result in undue economic or other hardship.

[46] Just as scheduling changes can provide reasonable accommodation in some cases, in others they will not. If the proposed scheduling change occasions significant hardship or inconvenience to the employee, other forms of accommodation must be explored. In some instances, scheduling changes may not be available at all: Chambly, Commission scolaire régionale v. Bergevin, 1994 102 (SCC), [1994] 2 S.C.R. 525, 115 D.L.R. (4th) 609 is a case on point.

[47] In Chambly, three teachers of the Jewish faith were given a day off without pay to observe the religious holy day of Yom Kippur. They grieved under the collective agreement, alleging religious discrimination, because they had not been paid. Given that the entire annual salary of school teachers was based upon 200 working days, the school board could not accommodate the teachers by permitting them to work, for example, on a Saturday or Sunday. In other words, scheduling alternatives were not available.

[48] Writing for the majority, Cory J. considered this to be an important factor in arriving at his conclusion that the board was required to reimburse the teachers for the day they had taken off without pay. At pp. 542-43 S.C.R., p. 624 D.L.R., he wrote:

With regard to accommodation, it must be remembered that the entire annual salary of the teachers in this case was based upon 200 working days. It is of course impossible for Jewish teachers to make up for a lost day by working, for example, on Saturday, Sunday, Christmas or Easter. A teacher can only teach when the school is open and the pupils are in attendance. If five days or a week's work was missed, there is no doubt that it would constitute a significant loss to the teacher. There is no difference in principle in the loss of one day's pay. Family budgets and financial commitments are based upon the total annual salary. The loss of a whole day's pay, when that cannot be made up, is of very real significance to teachers and their families.

(Emphasis added)

[49] Apart from illustrating the point that scheduling options may not always be available, this passage lends support to my conclusion that employers can fulfill their duty to accommodate by offering appropriate scheduling changes, without first having to show that granting a leave of absence with pay would result in undue economic or other hardship. Indeed, the emphasized sentences in this passage lead me to believe that the result in Chambly would have been different had reasonable scheduling changes been available and presented to the teachers. On behalf of the respondent, Mr. Anand conceded as much in oral argument.

[50] Returning to the case at hand, it is apparent on the facts that Mr. Tratnyek chose to take advantage of the compressed work week option. It is equally apparent that had he chosen to do so, he could have used the days off available from that option for religious observance purposes without hardship or inconvenience.

[51] As indicated, the compressed work week option is an accommodation mechanism that forms an integral part of the policy. Properly characterized, it is a full-time scheduling alternative provided for in the collective agreement available to employees like Mr. Tratnyek who require more than two days off from work to fulfill their religious commitments. Depending on the circumstances, this scheduling option may represent the most reasonable form of accommodation. If feasible, it enables employees to observe their religious holy days without loss of pay and without having to encroach on pre- existing earned entitlements, while at the same time completing their assigned hours of work, thereby relieving the employer from having to pay them for days on which they provide no service.

[52] Viewed this way, I am satisfied that to the extent Mr. Tratnyek could have used the days off available under the compressed work week schedule to observe his religious holy days, the policy did not have a discriminatory effect upon him. To the contrary, it promoted equality and fairness in the workplace by recognizing his right to be different and providing him with a means of fulfilling his religious commitments without adverse consequences.

[53] It will be recalled, however, that the single days off available from that option did not provide Mr. Tratnyek with a full measure of accommodation. Under the compressed work week regime, employees were required to take the single day off within the three-week work cycle. Given that some of Mr. Tratynek's religious holidays extended over several consecutive weekdays, the single day would not always suffice. To that extent, and that extent alone, I am prepared to accept, for the purposes of this appeal, that the policy did have a discriminatory effect on Mr. Tratnyek because the days off available from the compressed work week option did not fully remove the barriers that would otherwise prevent him from observing his religious holy days without losing pay and without having to encroach on pre-existing earned entitlements. Accordingly, I am not persuaded that the Divisional Court erred in concluding that the policy had a discriminatory affect on Mr. Tratnyek.

Issue 2: If the policy had a discriminatory effect, did the Divisional Court err in finding that the Employer had failed to meet its duty to accommodate Mr. Tratnyek?

[54] The Employer recognized that the single days off from the compressed work week option were insufficient to meet Mr. Tratnyek's individual needs. In an effort to accommodate those needs, the Employer informed Mr. Tratnyek that he would be permitted to bank the 15 days available and use them as required to fulfill his religious obligations. In doing so, I am satisfied that the Employer fully met its duty to accommodate and the Divisional Court erred in concluding otherwise. Accordingly, the appellant succeeds on the second issue.

Issue 3: What is the appropriate standard of review of the Board's decision?

[55] The Board characterized the days off under the compressed work week option as "vacation benefits". I have concluded that that finding was not only wrong, it was patently unreasonable. Accordingly, it is unnecessary to finally decide whether the standard of review is correctness or something more onerous. Regardless of the test, the decision of the Board cannot stand.

Disposition

[56] In the result, I am of the view that the award of the Board cannot stand. Accordingly, I would allow the appeal, set aside the order of the Divisional Court and grant the Employer's application for judicial review. The Employer is entitled to its costs throughout.

Appeal allowed.

Notes

Note 1: The March 25, 1995 interoffice memorandum sent to Mr. Tratynek by his supervisor is somewhat misleading. It erroneously refers to the days off available from the compressed work week schedule as "earned entitlements". Under the policy, those days are referred to as "scheduling changes" and the policy draws a clear distinction between "scheduling changes" and "earned entitlements" such as vacation time.

Note 2: For the purposes of this appeal, I am prepared to accept that absent proof that other forms of accommodation would result in undue economic or other hardship, the duty to accommodate will not be met by requiring employees to use pre-existing earned entitlements such as vacation time: see O.P.S.E.U. (Kimmel/Leaf) v. Ontario (Ministry of Government Services) (1991), 1991 13475 (ON GSB), 21 L.A.C. (4th) 129.