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The duty to accommodate revisited: H.T. v. ES Holdings Inc. o/a Country Herbs

dutytoaccommodate1The duty to accommodate presents itself to employers in many forms. While the most common accommodation involves a disability, often there are other grounds for accommodation that an employer must address as illustrated in H.T. v. ES Holdings Inc. o/a Country Herbs.

Background

The applicants, J.T. and H.T., are minors and Christian Mennonites who celebrate a religious holiday called Himmilfaurt. [i] The applicants, siblings, were terminated when they did not report to their scheduled shift that fell on their religious holiday. The applicants subsequently filed a human rights application alleging discrimination based on creed and association, as the applicants submitted that J.T. was not scheduled to work that day, but was terminated solely because of his association with H.T. The application was later amended to include the ground of reprisal.

The respondent alleged that the applicants were terminated in keeping with the company’s attendance policy.

The working relation had begun amicably. Both applicants began working for the respondent in April of 2014, just shortly before the incident of May 29, 2014. S.T., the mother of the applicants, testified that about three weeks before Himmilfaurt, there was some discussion as to whether or not J. T. was required to work her scheduled shift. Although H.T. testified that he was not scheduled to work the shift, the respondent testified to the contrary. After requesting the time off, because a clear response was not given to the applicants as to whether or not they were required to work that shift, S.T. suggested that both J.T. and H.T. address their accommodation needs with the respondent a second time. During the hearing, although the substance of the second conversation was in dispute, what remained undisputed was that a second conversation had taken place.

The respondent, Ms. Singh, testified that she responded to the request for time off by stating, “she had to be fair to everyone and she had at least another 10 employees with whom she would have the same issue, and therefore she had to follow the policy of no time off on a Thursday.” [ii] Further, the respondent testified that when she contacted the Labour Board, she was advised that as it was not a statutory holiday, she was not required to give the employees the day off.[iii]

Analysis and decision

The Tribunal, in its analysis, referred to the “Meiorin” case specifically in regard to the “bona fides requirement” and the “prima facie case of discrimination” stating:

…that the Supreme Court of Canada’s decision in British Columbia Public Service Employee Relations Commission v. British Columbia Government Service Employees’ Union, [1999] 3 S.C.R. 3 (“Meiorin”), is the key to my assessment of whether the imposition of the attendance policy on the applicants was discriminatory. The Supreme Court of Canada found in Meiorin that the bona fides of the requirement in question is considered only after a prima facie case of discrimination has been made out. In other words, in this case, H.T. has the burden of establishing that the attendance policy discriminated against her because of her creed. The evidentiary burden then shifts to the respondent to show that it accommodated H.T. to the point of undue hardship.”[iv]

Relying upon this seminal case from the Supreme Court of Canada and after considering testimony from both sides, the Tribunal found the respondent’s expectations in regard to the attendance policy were discriminatory on the basis of creed.[v] The Tribunal also stated that the respondent must meet both a procedural and substantive obligation of the duty to accommodate. The Tribunal found that the respondent had failed to establish that it had fulfilled its duties.

Damages

Among other remedies, the respondent was made to pay a total of $17,500 to the applicants for injury to dignity, feelings and self-respect and reprisal, in addition to wage loss. The respondent was also ordered to participate in human rights training and to publicly display “Code” cards at their place of business.

Although accommodation in employment based on disability may be the most prominent request, employers will do well to remember that accommodation may apply to other prohibited grounds under Ontario’s Human Rights Code, and if so, there is likely the duty to accommodate to the point of undue hardship.

For additional information on religious accommodation please see: Workplace religious accommodation: A two-part obligation under Human Rights Code


[i] H.T. v. ES Holdings Inc. o/a Country Herbs 2015 HRTO 1067

[ii] Ibid., para. 23

[iii] Ibid., para. 25

[iv] Ibid., para. 55

[v] Ibid., para. 56

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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