Digests

Canada (Human Rights Commission) v. Canadian National Railway (Terra Transport)

T-1503-98

MacKay J.

16/6/00

17 pp.

Judicial review of Canadian Human Rights Review Tribunal's decision allowing appeal from Canadian Human Rights Tribunal's decision employer (CN), union engaging in discriminatory practice within Canadian Human Rights Act, s. 10(b)--Applicant Cramm working for CN since 1974--In 1980 badly injured in accident at work--Not returning to work until 1984--In 1988 CN announcing railway in Newfoundland to be closed--Cramm continuing to work for CN until 1990--As result of decision to close railway certain provisions of collective agreements operative--Employment Security and Income Maintenance Agreement (ESIMA) giving employees affected by shut- down right to employment security and certain job security benefits dependent upon Cumulative Compensated Service (CCS)--General rule in clause G(i) definition that CCS for one month credited when employee working for at least 11 days in month--Clause G(iii) providing CCS credit for time off duty, not exceeding 100 days each year, for employees rendering compensated working service in calendar year, but who are not working because of circumstances described including injury, illness--Requirement to render compensated service in calendar year treated as requirement employee work for pay for one day in calendar year--Cramm not qualifying for employment security because had less than 96 months CCS required--Had he accumulated CCS under clause G(iii) during absence because of injury, would have been entitled to employment security--Alleging calculation of CCS in ESIMA discriminatory on basis of disability--Application dismissed--(1) Standard of review turning on nature of issue before reviewing court--Issues: whether Review Tribunal erred (i) in finding CCS, as provided for in ESIMA, not tending to differentiate adversely against employees on basis of disability; (ii) neglecting to consider whether CCS, as provided in ESIMA, in fact differentiated adversely against Cramm on basis of disability--Each ultimately question of law, but first issue raising general question of law for which appropriate standard of review correctness--Second issue raising narrow issue within special competence of Review Tribunal, with which Court not intervening unless unreasonable--(2) Person alleging discrimination on basis of disability must show treated differently than others with different abilities--Critical issue selection of appropriate comparator group--Tribunal comparing Cramm's situation to that of employees who are not disabled, had not taken unpaid time off work on basis of illness, disability, or who had taken less than 100 days of unpaid leave--Review Tribunal compared Cramm's situation with those who were off work for equivalent time for one of other reasons listed in clause G(iii) i.e. illness, authorized maternity leave, attendance at committee meetings or as witness or as uncompensated jury duty--In Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, Sopinka J. emphasizing importance of considering purpose of employment rule said to be discriminatory--Purpose of clause G(iii) to permit absences for specified reasons to count toward CCS, within certain limits--Defined classes of employees to whom clause G(iii) applies provide appropriate comparator groups in this case--Review Tribunal finding Cramm not treated differently than any other individual, group who had not worked for same time as he for reasons set out in G(iii)--Disability not resulting in any different treatment than applicable to those not working for designated reasons for same amount of time--Review Tribunal correctly selecting appropriate comparator--Nature of rule in question, based on underlying principle of employment contract that one is paid for services performed, essential element in assessing purpose of rule in question--Review Tribunal not erring by considering nature of employment contract in determination rule, clause G(iii), not having discriminatory adverse effect upon those absent from work by reason of injury, consequent disability in that sense--Correct in concluding prima facie case of discrimination on grounds of disability not established--Review Tribunal not dealing with individual claim apart from finding agreement not adversely affecting disabled employees, including Cramm, on grounds of disability--If agreement not constituting prima facie case of discrimination on basis of disability for employees as group, not discriminating against Cramm on basis of individual disability--Because no evidence of Cramm's circumstances setting him apart from others disabled who also missed work for similar time, no reason for Review Tribunal to consider case as different from those of other employees absent from work for same time by reason of injury, illness or other specified reasons--Review Tribunal correct in not separately considering situation of Cramm, on basis of assessment agreement not constituting prima facie case of adverse effect discrimination on grounds of disability--Agreement not becoming discriminatory because of individual circumstances--Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 10(b).