Edmonton (City) v Civic Service Union Local 52

ARBITRATION

BETWEEN:

CITY OF EDMONTON

- and -

CIVIC SERVICE UNION LOCAL 52

Concerning grievances over health and wellness benefits

__________________________________________________________________

AWARD

__________________________________________________________________

BEFORE:

Andrew C.L. Sims, Q.C....................................................... Arbitrator

Teresa Haykowsky.............................................................. Nominee for City of Edmonton

David Williams..................................................................... Nominee for CSU Local 52

REPRESENTATIVE OF CITY OF EDMONTON

Dwayne W. Chomyn, Q.C. ................................................. Counsel

Adam Norget....................................................................... Counsel

Danica McLellan.................................................................. Student-at-law

Tyson Joyce........................................................................ Advisor, Director, Disability

Management, Wellness and

Mental Health

REPRESENTATIVE FOR CIVIC SERVICE UNION LOCAL 52

Natalia Makuch ................................................................... Counsel

Laura Jeffreys ..................................................................... Labour Relations Officer

Joe Childs............................................................................ Director of Labour Relations

Brad Goertz......................................................................... Labour Relations Officer

HEARD in Edmonton, Alberta on July 13, 2020 with written submissions on October 8,

October 18 and December 1, 2020

AWARD ISSUED on February 15^th, 2022

Our file: 8273

AWARD

The City of Edmonton has a Health and Wellness Benefit Plan. It provides income replacement

to employees who have to take days off due to illness. The percentage of salaries paid for

particular days off depends on the employee’s accumulated days off, ranging from 100%, to 90%

and then 75%. The basic issue stems from the proposition that persons suffering from chronic or

recurring disabilities are more likely to draw on this coverage, both in total, and in terms of the

number of intermittent absences. The City also has an Attendance Management process which

intersects with the Health and Wellness Plan. The provisions of these policies, that affect

benefits, are said to have a disproportionality adverse effect on those with disabilities, resulting in

discrimination.

The employees within this bargaining unit are represented by Civic Service Union Local 52. The

parties agreed on the facts and supporting documents relevant to this issue. The agreed facts

also canvass the situation of five employees (each referred to by a pseudonym to protect their

privacy) said to provide examples of what the Union says is the adverse effect upon them of this

policy due to the City’s policies and their respective disabilities.

The initial June 5, 2017 grievance reads:

Policy Dispute

Application of Health and Welfare Benefits

Pursuant to Article 16.16 of the Collective Agreement, the Union hereby initiates a policy grievance

with respect to the City of Edmonton’s general practice in applying Article 25 of Part I of the

Collective Agreement, as well as Articles 1.03 and 1.05 of Part II – Health and Welfare Benefits.

The Union takes the position that the City’s practice with respect to reducing the rate at which sick

benefits are paid:

•

Under Health and Welfare Benefits to provisional employees after the fourth incident of

absence (Article 25); and/or

Under the Income Protection Plan after more than 85 days’ absence (Article 1.03) or after

the third incident of absence (Article 1.05);

Is discriminatory contrary to Article 5.03 of the Collective Agreement as well as the Alberta Human

Rights Act, RSA 2000, cA-25.5

Articles Violated

•

Article 5.03;

Article 25;

Articles 1.03 and 1.05, Part II – Health and Welfare Benefits;

Any other articles of the Collective Agreement that may apply;

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•

The Alberta Human Rights Act, RSA 2000, CA-25.5; and

Any other legislation relating to the matter.

A declaration that the City of Edmonton has violated the Collective Agreement, the Alberta

Human Rights Act, RSA 2000, cA-25.5, and any other applicable legislation, and that it

immediately cease doing so;

•

That the City accommodate employees whose absences relate to a disability by not

counting absences related to their disabilities for the purposes of applying Articles 25, 1.03

and 1.05, Part II – Health and Welfare Benefits of the Collective Agreement in reducing

the rate at which sick benefits are paid; and

Any other remedy as appropriate.

Article 16 provides for a pre-arbitration dispute resolution process, with a consultation on June 30,

2017, and a formal review on November 27, 2017. On January 10, 2018, in responding to the

Employer’s review and in forwarding the grievances to arbitration, the Union wrote, in part:

In the interim of changing discriminatory language and practices, the Union requests that the City

accommodate employees with disabilities by excluding all absence related to disability for the

purpose of 1.03, 1.05, Attendance Management and all other calculations which would

disadvantage a disabled employee faster or more severely than a non-disabled employee.

The Union maintains that both the language in the Collective Agreement and the City of

Edmonton’s general practice in applying Article 25 of Part I of the Collective Agreement, as well as

Articles 1.03 and 1.05 of Part II – Health and Welfare Benefits, with respect to reducing the rate at

which sick benefits are paid:

•

Under Health and Welfare Benefits to provisional employees after the fourth incident of

absence (Article 25); and/or

Under the Income Protection Plan after more than 85 days’ absence (Article 1.03) or after

the third incident of absence (Article 1.05)

are discriminatory contrary to Article 5.03 of the Collective Agreement as well as the Alberta

Human Rights Act, RSA 2000, cA-25.5

Pursuant to Article 16 of the Collective Agreement, the Union hereby concludes Formal Review and

advances this policy matter directly to Arbitration. In this case, timeliness is particularity important

due to the increasingly long list of individual grievances related to the issue, wherein individuals are

experiencing financial hardship resulting from the pay reduction associated with the 4^thincident

benefit reduction.

It repeated the list of relevant articles and added, as a desired resolution:

•

That the City make whole individual members who are experiencing a reduction in pay due to

absences related to disability.

A January 23, 2020 update of the Union policy grievance listed affected employees. The Union

also filed individual grievances on behalf of those employees said to have been affected, but by

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agreement they were held in abeyance pending a decision on this policy grievance. They also

agreed:

9. … employees for whom Individual Grievances have been filed do not represent a complete

sample of the employees to whom the provisions of the Collective Agreement apply, but rather are

submitted as a snapshot of a number of individuals who also have outstanding individual

grievances relating to the Collective Agreement articles in dispute.

At the hearing, the parties further agreed that:

The purpose of the income protection provisions is to provide income replacement.

The City addresses employer absence using attendance management and disability management

programs.

It is possible that an employee with a disability may not have any absences from work as a result of

their disability. It is possible that some employees without disabilities may have absences from

work greater than some employees with disabilities.

This raises questions as to whether the City’s policies reflect one or two purposes. (1) Are the

“attendance management and disability management programs” to be assessed, on human rights

grounds, separate from; (2) or as an integral part of, the income replacement plan. Changes

announced by the City on March 3, 2014 (see Agreed Facts 2-39) purported to integrate

somewhat the administration of the two plans; a step which goes to the heart of the Union’s

secondary argument.

Part II of the Collective Agreement under the heading “Health and Welfare Benefits” contains two

income replacement plans. The “Income Protection Plan” is the short-term disability plan in

Article 1. The second, in Article 2, is a Long-Term Disability Plan covered by an insurance policy,

which is not directly in issue but tangentially relevant because a person’s eligibility for the long-

term benefits does not arise until their short-term income protection is exhausted.

The Part II Article 1 provisions are relatively complex. The following summary, from the Union’s

brief, is helpful.

Part II, Article 1.03

•

After a permanent employee has received income protection benefits at 100% of his or

her wages for 85 workdays in a year, those benefits decrease to 90% for the remainder of

the year for any subsequent periods of illness.

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After a permanent employee has received income protection benefits at 90% of his or her

wages for 85 working days in a year, those benefits decrease to 75% for the remainder of

the year for any subsequent periods of illness.

•

An employee who had been receiving Income Protection benefits at the 90% rate will

return to 100% of his or her wages in the subsequent payroll year if the employee returns

to work for ten consecutive days.

An employee who had been receiving Income Protection benefits at the 75% rate will

return to 90% of his or her wages in the subsequent payroll year if the employee returns to

work for ten consecutive days.

An employee off work and receiving Income Protection benefits for 85 consecutive days is

eligible to apply for long-term disability benefits if he or she remains off work (this is not

explicit in the parties’ Collective Agreement but it is how they have interpreted the

Agreement). Long term disability benefits are member-funded and administered through a

third-party insurance provider (Canada Life).

Part II, Article 1.05

•

Permanent employees are entitled to income protection benefits at 100% of their wages

for three “incidents” of illness, but for the fourth and subsequent incidents of illness, the

employee’s pay is reduced to 75% (the “fourth incident reduction”). However, if the fourth

incident is longer than 5 days, the first 5 days are paid at 75% and the remainder of the

absence is paid at 100%. This only applies to the fourth incident as the fifth and

subsequent incidents are paid at 75% for the entire period of absence.

An exception to the fourth incident reduction is that if an employee had three or less

incidents of absence in the previous payroll year, Income Protection benefits are payable

at 75% of the member’s regular rate of pay on the fifth and each subsequent incident of

absence in the payroll year, as opposed to the fourth.

•

Upon the Department Head’s recommendation, the Plan Administrator may waive the

benefit reduction that results upon the fourth incident. However, in the Union’s view, the

Plan Administrator is not exercising this discretion in a way that fulfils the City’s duty to

accommodate.

Subject to the Plan Administrator’s approval, an employee receiving on-going therapeutic

treatment for a life-threatening disability, may have the entire number of such treatment

sessions considered as one incident in a payroll year (emphasis added).

Provisional employees as referred to in the grievance, are described in the agreed facts as

follows:

Article 25 (Part I)

40. Whereas Article 1.05 applies to probationary and permanent employees, as outlined in Article

1.01, sick leave for provisional employees is addressed by Article 25 of Part I of the Collective

Agreement.

41. Article 3.21 defines “Provisional Employee” as follows:

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The words "provisional employee" when used in this Agreement shall

mean an employee engaged in employment within the jurisdiction of

the Union who has completed one thousand seven hundred and fifty-

five (1,755) hours of temporary service for the City in a position

coming within the scope of this Agreement in a period of three (3)

consecutive years. Temporary service shall only be recognized if the

reason for termination from said service is as a result of being laid

off or such other reasons approved by the City. A break in

employment of twelve (12) consecutive months shall cancel

provisional status, as will termination of employment by the City or

voluntary resignation by the employee.

42. Under Article 25 of Part I, provisional employees are entitled to sick leave with pay for “two (2)

times the average daily hours of work of the employee for each month worked during the previous

calendar year, to a maximum of ten (10) times the employee’s average daily hours of work in any

one (1) calendar year.” Article 25 provides that provisional employees are entitled to sick leave with

pay for four “incidents” of absences in a calendar year at 100% of the employee’s regular rate of pay.

However, for the fourth and subsequent incidents of absence in a calendar year, the provisional

employee’s pay is reduced to 75% of their regular rate of pay.

The issues created by the reduction to 75% after 4 incidents for chronically disabled employees is

thus similar to the issue for permanent employees.

The Union argues that the City’s provisions for reducing short-term disability benefits for

employees, by the use of formulae based on the total number and frequency of absences, have a

disproportionately adverse effect on employees with chronic disabilities. It argues that this

adverse impact is clear on the face of the provisions in question, but it is also due to, and

apparent from, the way the City administers the benefits. That, in the Union’s view, is because

the individual discretion necessary under human rights law, and also provided for in the policy is

not being exercised. The latter aspect is due to, and best illustrated by, the change in the City’s

approach in 2014-2015 (described below and referred to in Agreed Facts 38 and 39).

The Union’s approach has two aspects. First, it argues that if persons with a disability exceed 85

days, they should not see a reduction in benefits, unlike other employees. Second, it argues the

fourth incident reduction and the related return from 10 days provision applies adversely to

employees with a disability unlike the way it impacts other employees. While this may seem like

a minor difference, the case law suggests it is a distinction that needs to be drawn.

The City’s position is described as follows:

1. Neither the language in the Collective Agreement nor the City’s application of the Collective

Agreement gives rise to prima facie discrimination as alleged;

2. If the language or the application of the Collective Agreement is prima facie discriminatory as

alleged, then:

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a. the purported discriminatory impact is saved by section 11 of the AHRA and

attendance for work constitutes an appropriate bona fide occupational requirement in the

circumstances;

b. to the extent the Collective Agreement incorporates a level of discrimination in its

wording or in its application, any findings in regard to the City’s duty to accommodate can

only be determined by examining the specific circumstances of each case on an

individualized basis.

This case is complicated by the decision to proceed with the policy grievance and to defer the

individual grievances, each alleging a failure to accommodate their particular disability; something

that requires an individualized assessment on a case-by-case basis. The Union says the

particular cases are included in the agreed facts to show the absence of an individualized

assessment process and as examples of the results, all as part of the proof of a prima facie case.

The Employer says the grievance before us does not raise that issue. To a degree, this is related

to an issue discussed below. That is, whether the City policies and collective agreement

obligations in issue illustrate one purpose or two; income maintenance alone or attendance

management that seeks to provide a disincentive to avoidable absences. Either way these

questions touch on the proof of a prima facie case and the justification applicable if a prima facie

case is made out.

Post-Hearing Questions

Following the conclusion of argument, the Board posed a few questions. After reflecting,

Employer counsel wrote to the Board on August 10, 2020, concerned that the responses given

may have seemed at cross-purposes. An opportunity to clarify was sought and allowed on terms

and subject to any Union reply. Submissions from both sides were received and have been

considered.

The Board’s letter said, in part:

The Employer maintains it was a surprise to the City to hear the Union’s position over the exercise

of discretion and it may, as a result, have been at cross purposes in its submissions.

…

The Union argues that this was a matter brought up in the hearing and the Employer should have,

made its submissions at the time or asked for an adjournment to do so. Once the hearing is

closed, it argues, it is too late to allow further argument.

In weighing this request, we have considered:

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(a) The Board’s own need for clarity on the matters in issue, particularly as the scope of

the grievance in issue;

(b) The interests of fairness

(i) to the City in feeling it has had the opportunity to provide a full answer to the

grievance in respect to this issue of discretion;

(ii) the Union, in not allowing an opportunity to open up a hearing after it has

closed for submissions that, in the Union’s view, were clearly raised from the

outset;

(c) The need to preserve the integrity of the arbitration process generally;

(d) The potential for any harm or inappropriate advantage by granting the request;

(e) Our wish to not at this point be seen as ruling on the proper scope of the grievance or

the merits of the arguments made.

Weighing these factors, we have decided we should allow this opportunity to provide an

explanatory letter, provided it is short and limited to this one point, is not a repetition of arguments

already made, and contains no additional assertion of facts.

The Employer’s submissions were received on October 8, 2020 and the Union’s reply on October

18, 2020. The Employer replied further on December 1, 2020.

The Employer argued that this grievance is not about whether or how the City exercises its

discretion to waive benefit reductions. If the grievance is expanded to cover different issues, it

asserted that its position had been prejudiced, denying it a fair process. The Union disagreed.

During argument, the Board was referred to the framework for analysis in human rights as well as

Charter cases dealing with discrimination due to disability. On October 16, 2020 the Supreme

Court released the Fraser (infra) decision which made reference to some of those earlier cases.

At the invitation of the Board, both parties sought an opportunity to address that decision’s

impact, if any. Those submissions were received and they too have been considered.

In a further post hearing development, the Alberta Court of Appeal released its decision on an

appeal involving prima facie proof of discrimination in a family status case. The decision affirmed

the Queen’s Bench decision under appeal, and referred to a number of prior cases the parties

had already addressed and upon which we have already received submissions.

Before embarking on the legal analysis, we reproduce the agreed facts.

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Agreed Facts

The agreed facts as they relate to the plan and its application generally (leaving aside for now the

examples) reads:

13. The terms of the Collective Agreement include the Income Protection Plan (“IPP”), commonly

referred to as “short-term disability benefits” (“STD”), outlined in Article 1 of Part II of the Agreement,

under which the Employer self-insures its employees for short-term disability benefits. As per Article

1.01, members of the Income Protection Plan include probationary employees who have “completed

ninety (90) calendar days of continuous civic employment since the last date the employee

commenced employment as a probationary employee” or permanent employees.

14. The Income Protection Plan provides for absences for work due to personal non-occupational

disability. Article 3.07 (Part I) of the Collective Agreement defines “disability” as follows:

The word “disability” when used in this Agreement shall mean, unless

otherwise specified, the inability of a member to perform all of the regular

duties of their occupation by reason of a non-compensable illness or injury.

15. In practice, CSU 52 members access the Income Protection Plan for various reasons, including

those relating to colds, flu, and other conditions that do not necessarily constitute a “mental disability”

or a “physical disability” as defined in ss. 44(1)(h) and (l) of the Alberta Human Rights Act, RSA 2000,

c A-25.5.

16. Members claiming IPP benefits generally do not need to provide the Employer with

documentation in support of absences of less than 5 days, but the Employer reserves the right to

require such documentation at its discretion. For absences of 5 days or more, members are required,

to provide supporting medical documentation. This documentation may take various forms, including

an Absence Report Form and/or a Short Term Disability claim application, depending on the nature

and expected duration of the absence.

17. Pursuant to Article 2.03 (Part II) of the Collective Agreement, members are only eligible to apply

for Long Term Disability benefits (“LTD”) upon the expiration of their Income Protection Plan benefits.

LTD benefits are subject to approval under the LTD Plan, which is member-funded and administered

by a third-party insurance provider (Canada Life).

18. The specific percentage to which a member’s benefits are reduced under Articles 1.03 and 1.05

of Part II of the Collective Agreement or Article 25 of Part I of the Collective Agreement depends on

the circumstances outlined in the Collective Agreement. For the purposes of this Policy Grievance

the parties agree that it is the reduction itself, rather than the specific amount of this reduction, that

is at issue. As such, for simplicity’s sake, in this Agreed Statement of Facts, the parties agree that

the below descriptions of the language in the grieved provisions is intended to capture the general

operation of the language but does not necessarily address all the possible scenarios for reductions

to certain percentages, as outlined in the Collective Agreement.

Article 1.03 (Part II)

19. Pursuant to Article 1.03 of Part II of the Collective Agreement, a member has access to IPP for

85 times his or her “average daily hours of work” paid at 100% (or 90% if the member has less than

one year consecutive service) per payroll year. Though this may not always amount to 85 days of

absence, for simplicity’s sake, in this Agreed Statement of Facts and in these proceedings the parties

agree to refer to 85 times the “average daily hours of work” as “85 days”.

20. There is no upper limit on the number of non-consecutive days a member can claim IPP in a

given payroll year. A member can be on IPP for more than 85 days if they are off on multiple

occasions (for example, two absences of 50 days each). After receiving a total of 85 days of IPP

benefits in a payroll year, a member’s benefits are reduced for any subsequent period of illness.

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21. If the member originally qualified for benefits at 100% of his or her wages, the benefits are

reduced to 90% for any subsequent period of absence. If the member originally qualified for benefits

at 90%, those benefits are reduced to 75%.

22. After a member has surpassed 85 days in receipt of IPP benefits in a payroll year, any days off

on IPP in the next payroll year will be paid at 90%, unless the member returns to work for 10

consecutive work days, in which case any subsequent days off on IPP in the next payroll year will

once again be paid at 100%.

23. If a member receives IPP benefits for 85 consecutive days and remains off work, he or she is

eligible to apply for LTD benefits, subject to approval under the LTD plan.

24. The Collective Agreement does not include a mechanism for relieving against the pay reduction

outlined in Article 1.03.

Article 1.05 (Part II)

25. Under Article 1.05 of Part II, members are entitled to income protection benefits at 100% of their

wages for three “incidents” of absence in a payroll year. An incident is defined as “[e]ach period of

absence from work due to non-occupational disability which exceeds three (3) hours”. For the fourth

and subsequent incidents of absence, the member’s pay is reduced to 75% of their regular rate of

pay. If, however, a member had three or fewer incidents of absence in the previous payroll year, then

the reduction in sick leave pay to 75% of the member’s regular rate of pay applies on the fifth, and

each subsequent, incident of absence, instead of on the fourth.

26. An exception to the standard operation of Article 1.05 (Part II) as set out in paragraph 25 above

is that, in the event that the fourth incident of absence is for a disability that results in an absence of

greater than five consecutive days of work, only the first five days of the absence are payable at 75%

of the member’s regular rate of pay and the balance are payable at 100% (or 90% if that rate of pay

applied at the commencement of the disability). This practice only applies to the fourth incident. Fifth

and subsequent incidents are not re-set to 100% after 5 days of absence.

27. Article 1.05 also includes a general provision allowing the Plan Administrator to waive the benefit

reduction that results upon the fourth incident upon the Department Head’s recommendation.

However, as indicated in the City’s March 3, 2014 letter to the Union (Exhibit 6):

… although the agreement states that the recommendation of the

Department Head shall be provided, the City has not been enforcing

this requirement since Department management employees have no

access to the medical evidence upon which the decision is based.

In practice, this discretion would most appropriately lie with the Employer’s Disability Management

team, which would not require the employee’s Department Head’s recommendation.

28. Additionally, under Article 1.05, and subject to the Plan Administrator’s approval, absences

separated by days at work can be counted as a single incident in a payroll year, in a process known

as “linking,” if those absences are to allow the member to receive “ongoing therapeutic treatment for

a life-threatening disability”.

29. In order to request that incidents of absence be linked, a member must complete and submit a

Linking of Sick Incidents Requests form to the Employer’s Disability Management Services

department. …

30. Attached as Exhibit 8 is an excerpt of a draft codification, drafted June 2019, entitled “Linking

of Sick Incidents,” of a Standard Operating Procedure Manual the Employer is currently developing

for its Disability Management Consultants (the “SOP Excerpt”). This document outlines the

Employer’s process for responding to member requests to have incidents of absence linked for the

purposes of the pay reduction described in Article 1.05 and/or for attendance management reasons.

This document reflects the process that the Employer followed at the time of the filing of the Policy

Grievance.

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31. As outlined in paragraph 3 of the SOP Excerpt, the Employer allows “incidents of absence due

to chronic, recurrent disability(ies)” to be “combined for attendance management purposes,” meaning

all absences related to that condition are counted as one incident of absence. In practice, the

Employer also allows absences to be combined for attendance management purposes in the case

of an employee who is receiving ongoing therapeutic treatment for a life-threatening disability. As

further outlined in paragraph 3 of the SOP Excerpt, the Employer allows absences supported by

evidence that employees “were receiving ongoing therapeutic treatment for a life-threatening

disability” to be “combined into one incident to avoid a reduction to 75% sick pay on the 4th incident

of absence in a payroll year.”

Agreed fact #30, as well as the forms and procedures, make it clear that the City, in exercising

discretion to relieve against the benefit reduction consequences of several absences by linking is

the same “for the purposes of the pay reduction described in Article 1.05 and/or for attendance

management reasons”. The implicit assumption that this exercise of discretion for the non-

disciplinary attendance management process should be the same as any discretion exercised to

avoid a discriminatory impact where an employee suffers a benefit loss because of their mental or

physical disability goes to the heart of the Union’s second objection.

Agreed facts 32-37 refer to and append a series of forms, proposed, current, or former used in

the City’s processes. They are:

Waiver of Incidents – Life Threatening

Waiver of Incidents – Attendance Management Purposes

Waiver of Incident Approved – Attendance Management Only (for applications that only meet

criteria #2)

Waiver of Incident Approved (for applications that meet criteria #1)

Waiver of Incident Denied (for applications that do not meet either criteria 1 or 2)

Linking of Sick Incidents Request form (2009)

Linking of Sick Incidents Request form (2011)

38. …the City used to permit linking in situations where employees showed they:

a. were receiving on-going therapeutic treatment for a life-threatening disability; or

b. have a chronic disability that is resistant to medical treatment; or

c. were attending pre- and/or post operative appointments related to a surgical procedure.

39. In 2014, in advance of a new round of collective bargaining, the City provided notice to the Union

that it “intends to change its practice at the conclusion of this round of negotiations such that this

criteria, on its own, will no longer warrant waiver of the benefit reduction”. Subsequently, the City did

change its practice upon the implementation of the current Collective Agreement. A letter from the

City to the Union, dated March 3, 2014, providing notice of this change.

Agreed facts 40-42, relating to Provisional Employees, are set out above.

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Human Rights Anti-Discrimination Rules

As is now commonplace, there is both a statutory prohibition and a contractual restriction on

discrimination against employees on the basis of physical or mental disability. The collective

agreement provides:

5.03 No Discrimination

There shall be no discrimination against any employee by either party by virtue of that employee’s

race, age, marital status, religious belief, colour, gender, physical disability, mental disability,

ancestry, place of origin, source of income, family status, sexual orientation, political affiliation or

place of residence. Any additional grounds added to the Alberta Human Rights Act shall be

deemed to automatically be included in this section.

The Alberta Human Rights Act provides:

Discrimination re employment practices

7(1) No employer shall

(a) refuse to employ or refuse to continue to employ any person, or

(b) discriminate against any person with regard to employment or any term or condition

of employment,

because of the race, religious beliefs, colour, gender, gender identity, gender expression,

physical disability, mental disability, age, ancestry, place of origin, marital status, source of

income, family status or sexual orientation of that person or of any other person.

…

(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or

preference based on a bona fide occupational requirement.

Reasonable and justifiable contravention

11 A contravention of this Act shall be deemed not to have occurred if the person who is alleged to

have contravened the Act shows that the alleged contravention was reasonable and justifiable in

the circumstances.

The relevant definitions, in s. 44(1), are:

(h) “mental disability” means any mental disorder, developmental disorder or learning

disorder, regardless of the cause or duration of the disorder;

(l) “physical disability” means any degree of physical disability, infirmity, malformation or

disfigurement that is caused by bodily injury, birth defect or illness and, without

limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack

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of physical co-ordination, blindness or visual impediment, deafness or hearing

impediment, muteness or speech impediment, and physical reliance on a guide dog,

service dog, wheelchair or other remedial appliance or device;

Charter versus Human Rights Analysis

Human rights anti-discrimination rules, particularly in relation to disability, have evolved over time.

This is shown by transformational cases such as Withler (infra) and Meiorin (infra). Anti-

discrimination law has also developed alongside the emerging law on s. 15 of the Charter of

Rights and Freedoms.

The parties’ two principle arguments are as follows. The Employer says the benefits involved

here fall into the “pay for work” exception and therefore there is no discrimination involved under

the principles set out in Orillia Soldiers (infra) and subsequent cases. The Union says the facts

here disclose a prima facie case of adverse effect discrimination based on disability, shifting the

onus to the City to justify its policies or practices. The Employer’s position is described in its

December 1, 2020 submission:

The Fraser Decision is Not Materially Relevant

With respect to the question of relevancy, as you noted in your email to the parties, the Fraser

decision concerns the Charter. Specifically, the legal framework to be applied in section 15 cases.

This grievance is not a Charter case. A different legal test is applied to section 15 cases than to

discrimination cases under the Alberta Human Rights Act, as is clear by the analysis undertaken in

Fraser into the type of evidence required to prove disproportionate impact.

Both arguments raise, tangentially at least, the degree to which the tests under human rights

legislation, and under a s. 15 Charter analysis, have converged.

Fraser (infra) involves the Charter and a legislated benefit. It addresses adverse impact

discrimination involving pension plan buyback rights for certain groups of female RCMP officers.

It did not involve disability discrimination, but the framework for analysis between disability and

gender discrimination is much the same.

Fraser v. Canada (Attorney General) [2020] S.C.C. 28

The Union argues that the Fraser (supra) decision supports its analysis. However, before

reviewing the Supreme Court of Canada authorities more generally, and the parties’ specific

arguments, we consider what the Court has said on the convergence of, or relationship between,

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the Charter and the human rights analysis. There is no question early analysis developed in

different ways. This was addressed directly by the Supreme Court of Canada in the B.C.

Firefighters (Meiorin) case.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin

Grievance) [1999] 3 S.C.R. 3

The pre-Meiorin distinctions and the procedural and remedial consequences they entailed led to

uncertainty and criticism of the law. This led to a transformational decision. The case involved

gender based discrimination due to the use of aerobic tests that women were usually less able to

meet than their male counterparts.

The Court described the revised test for discrimination at paragraph 19 – 24. At paragraph 25 it

began an analysis of why a new approach was necessary, citing seven justifications for change.

While there has since been considerable reference to Meiorin (supra), it remains as a basic

framework for analysis. See:

Moore v. British Columbia (Education) [2012] 3 S.C.R. 360

Fraser (supra) at para. 49

One of the reasons that led the Court to adopt a new approach was:

(g) Dissonance between Human Rights and Charter Analysis.

Of this the Court said, at paragraphs 47-49:

47 The conventional analysis differs in substance from the approach this Court has taken to s.

15(1) of the Canadian Charter of Rights and Freedoms. In the Charter context, the distinction

between direct and adverse effect discrimination may have some analytical significance but,

because the principal concern is the effect of the impugned law, it has little legal importance…

48 Where s. 15(1) of the Charter is concerned, therefore, this Court has recognized that the

negative effect on the individual complainant's dignity does not substantially vary depending on

whether the discrimination is overt or covert. Where it is possible to make a Charter claim in the

course of an employment relationship, the employer cannot dictate the nature of what it must prove

in justification simply by altering the method of discrimination. I see little reason for adopting a

different approach when the claim is brought under human rights legislation which, while it may

have a different legal orientation, is aimed at the same general wrong as s. 15(1) of the Charter.

49 … I acknowledge that there may in some cases be differences in the respective origins of

directly discriminatory standards and neutral standards with adverse effects. However, this Court

long ago held that the fact that a discriminatory effect was unintended is not determinative of its

14

general Charter analysis and certainly does not determine the available remedy: Law, supra, at

para. 80, per Iacobucci J.; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp.

174-75, per McIntyre J.; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at

para. 62, per La Forest J. In cases such as O'Malley, supra, and Bhinder v. Canadian National

Railway Co., [1985] 2 S.C.R. 561, this Court endeavoured to entrench the same principle in its

analysis of human rights legislation. In my view, care should be taken to ensure that this goal is not

compromised by a bifurcated method of analysing claims made pursuant to such legislation.

Meiorin (supra) at paras. 47-49

Since then the Court has not departed from this basic and unified analysis.

49 In the human rights context, the Court has not used different legal tests for direct and indirect

discrimination since Meiorin (paras. 50-54; see also British Columbia (Superintendent of Motor

Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, at paras. 18-19;

Moore v. British Columbia (Education), [2012] 3 S.C.R. 360, at para. 61). A unified approach, in my

view, is equally justified under the Charter.

50 To prove discrimination under s. 15(1), claimants must show that a law or policy creates a

distinction based on a protected ground, and that the law perpetuates, reinforces or exacerbates

disadvantage. These requirements do not require revision in adverse effects cases. What is

needed, however, is a clear account of how to identify adverse effects discrimination, because the

impugned law will not, on its face, include any distinctions based on prohibited grounds (Withler, at

para. 64). Any such distinctions must be discerned by examining the impact of the law (Alliance, at

para. 25). (emphasis added)

Fraser (supra) at paras. 49-50

Disability Relief

One can never describe being or becoming disabled as “fair”. For some people with disabilities,

unless they have independent or family financial resources, they must rely for support on charity

or the state. Such support usually pales in comparison to the rewards of active employment.

Employment involves the exchange of work for pay. But the ability of those who have disabilities

to obtain, perform, or keep employment is often limited, sometimes by capacity, sometimes by the

attitude or indifference of others, sometimes by physical barriers and not infrequently by a

combination of them all.

Over time, some employees have increasingly benefitted from income protection provided

through employment. Often this has been through the bargaining power of unions, at others as a

necessary incentive to attract employees to an enterprise. The most common supports are

health and welfare plans and pensions. Aside from limited statutory obligations like the Canada

Pension Plan or Workers Compensation, an employer in Alberta is not obliged by law to provide

such benefits, and when they do, the amounts involved or length of time that such benefits last

15

depends on what is offered or negotiated by way of contract, not because of any statutory

obligation.

Such plans cost money and unions and employers alike are conscious of the fact that their cost

comes out of the overall pay packet. Some negotiate rich plans, some lean plans, and some

none at all. Such plans are customarily universal, not just directed at those with a disability.

However, when negotiated, they can provide a measure of protection for those who have or

develop some disability.

Over the last 50 years or so new laws emerged to prohibit discrimination in employment, and the

benefits of employment, for those suffering from mental or physical disability. Employers (and

unions) are now prohibited from discriminating in employment. That prohibition, while it applies

anti-discrimination rules to the health and welfare and pension plans referred to above, adds

nothing to require them to be provided. It is only that, if and once provided, they must be

provided in a non-discriminatory way.

Anti-discrimination legislation thus placed some of the responsibility for alleviating the

consequences of disability onto employers, primarily by removing barriers to the ability to work.

However, this too is limited by the “bona fide occupational qualification” limitation and the limiting

mechanisms that the prohibition only applies “to the point of undue hardship”, or under Section 11

of the Human Rights Act, where the alleged contravention was reasonable and justifiable in the

circumstances.

Yet more recently, employers have begun adopting “Attendance Management” programs. Such

programs seek to monitor and flag employee attendance and to intervene if higher than normal

absenteeism occurs. They try to do so in a way that avoids being categorized as disciplinary

action, thus avoiding just cause provisions. The City of Edmonton has such a program. Its

details, and the degree it is integrated with the short-term disability benefits, are discussed below.

One further influence on the area of discrimination based on disability, income replacement

programs, and attendance management, is the introduction of privacy laws that restrict an

employer’s right to obtain and use an employee’s medical information, but in practice medical

information goes to the heart of many of these cases. In response, employers like the City of

Edmonton have structured their decision makers into separate silos. There are professionals

acting behind ethical walls who obtain and evaluate the medical information relating to

employees. Others are only advised of the information needed to manage their programs and no

16

more. The information provided often depends on the question posed. We refer to this privacy

issue below in relation to Agreed Fact 27.

In a broad sense, many of the cases referred to below deal with a recognition that income

replacement policies are not of themselves mandatory and that anti-discrimination laws related to

disability do not alter that fundamental proposition. However, they are still purposive laws,

designed to remove employment practices based on stereotypical views that provide barriers to

or within the employment of persons with disabilities.

The Building Blocks of Anti-Discrimination Laws

An analysis of human rights statutory protections begins with the question, “what is

discrimination”. In 1989 the Supreme Court answered this way:

What does discrimination mean? The question has arisen most commonly in a consideration of the

Human Rights Acts and the general concept of discrimination under those enactments has been

fairly well settled. There is little difficulty, drawing upon the cases in this Court, in isolating an

acceptable definition. In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd.,

[1985] 2 S.C.R. 536, at p. 551, discrimination (in that case adverse effect discrimination) was

described in these terms: "It arises where an employer ... adopts a rule or standard ... which has a

discriminatory effect upon a prohibited ground on one employee or group of employees in that it

imposes, because of some special characteristic of the employee or group, obligations, penalties, or

restrictive conditions not imposed on other members of the work force". It was held in that case, as

well, that no intent was required as an element of discrimination, for it is in essence the impact of the

discriminatory act or provision upon the person affected which is decisive in considering any

complaint. At page 547, this proposition was expressed in these terms:

The Code aims at the removal of discrimination. This is to state the obvious. Its main

approach, however, is not to punish the discriminator, but rather to provide relief for the

victims of discrimination. It is the result or the effect of the action complained of which is

significant. If it does, in fact, cause discrimination; if its effect is to impose on one person

or group of persons obligations, penalties, or restrictive conditions not imposed on other

members of the community, it is discriminatory.

…

There are many other statements which have aimed at a short definition of the term discrimination.

In general, they are in accord with the statements referred to above. I would say then that

discrimination may be described as a distinction, whether intentional or not but based on grounds

relating to personal characteristics of the individual or group, which has the effect of imposing

burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which

withholds or limits access to opportunities, benefits, and advantages available to other members of

society. Distinctions based on personal characteristics attributed to an individual solely on the basis

of association with a group will rarely escape the charge of discrimination, while those based on an

individual's merits and capacities will rarely be so classed.

17

Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 at pp. 173-175

See also:

Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219 at para. 22 et. seq.

The question of just what constitutes discrimination was the subject of several cases reviewed in

a Charter case:

Withler v. Canada (Attorney General) [2011] 1 S.C.R. 396

The Court said at paragraph 30-31:

30 The jurisprudence establishes a two-part test for assessing a s. 15(1) claim: (1) Does the law

create a distinction based on an enumerated or analogous ground? (2) Does the distinction create

a disadvantage by perpetuating prejudice or stereotyping? (See Kapp, at para. 17.)

31 The two steps reflect the fact that not all distinctions are, in and of themselves, contrary to s.

15(1) of the Charter (Andrews; Law; Ermineskin Indian Band, at para. 188). Equality is not about

sameness and s. 15(1) does not protect a right to identical treatment. Rather, it protects every

person's equal right to be free from discrimination. Accordingly, in order to establish a violation of s.

15(1), a person "must show not only that he or she is not receiving equal treatment before and

under the law or that the law has a differential impact on him or her in the protection or benefit

accorded by law but, in addition, must show that the legislative impact of the law is discriminatory"

(Andrews, at p. 182; Ermineskin Indian Band, at para. 188; Kapp, at para. 28).

Withler (supra) at paras. 30-31

The Court went on to identify two ways in which substantive inequity or discrimination may be

established:

35 The first way that substantive inequality, or discrimination, may be established is by showing

that the impugned law, in purpose or effect, perpetuates prejudice and disadvantage to members of

a group on the basis of personal characteristics within s. 15(1). Perpetuation of disadvantage

typically occurs when the law treats a historically disadvantaged group in a way that exacerbates

the situation of the group.

…

36 The second way that substantive inequality may be established is by showing that the

disadvantage imposed by the law is based on a stereotype that does not correspond to the actual

circumstances and characteristics of the claimant or claimant group. Typically, such stereotyping

results in perpetuation of prejudice and disadvantage. However, it is conceivable that a group that

has not historically experienced disadvantage may find itself the subject of conduct that, if

permitted to continue, would create a discriminatory impact on members of the group.

18

Withler (supra) at paras. 35-36

Starting at paragraph 41, the Court discussed “The Role of Comparison under Section 15: The

Jurisprudence”. After canvassing the difficulties the search for the right comparator group entails,

the Court set out, starting at para. 61 “The Proper Approach to Comparison”.

61 The substantive equality analysis under s. 15(1), as discussed earlier, proceeds in two stages:

(1) Does the law create a distinction based on an enumerated or analogous ground? and (2) Does

the distinction create a disadvantage by perpetuating prejudice or stereotyping? (See Kapp, at

para. 17.) Comparison plays a role throughout the analysis.

62 The role of comparison at the first step is to establish a "distinction". Inherent in the word

"distinction" is the idea that the claimant is treated differently than others. Comparison is thus

engaged, in that the claimant asserts that he or she is denied a benefit that others are granted or

carries a burden that others do not, by reason of a personal characteristic that falls within the

enumerated or analogous grounds of s. 15(1).

…

65 The analysis at the second step is an inquiry into whether the law works substantive inequality,

by perpetuating disadvantage or prejudice, or by stereotyping in a way that does not correspond to

actual characteristics or circumstances. At this step, comparison may bolster the contextual

understanding of a claimant's place within a legislative scheme and society at large, and thus help

to determine whether the impugned law or decision perpetuates disadvantage or stereotyping. The

probative value of comparative evidence, viewed in this contextual sense, will depend on the

circumstances.

Withler (supra) at para. 65

At paragraph 67 the Court made a significant point concerning the “package nature” of benefit

programs (in that case a statutory program).

67 In cases involving a pension benefits program such as this case, the contextual inquiry at the

second step of the s. 15(1) analysis will typically focus on the purpose of the provision that is

alleged to discriminate, viewed in the broader context of the scheme as a whole. Whom did the

legislature intend to benefit and why? In determining whether the distinction perpetuates prejudice

or stereotypes a particular group, the court will take into account the fact that such programs are

designed to benefit a number of different groups and necessarily draw lines on factors like age. It

will ask whether the lines drawn are generally appropriate, having regard to the circumstances of

the persons impacted and the objects of the scheme. Perfect correspondence between a benefit

program and the actual needs and circumstances of the claimant group is not required. Allocation

of resources and particular policy goals that the legislature may be seeking to achieve may also be

considered.

Withler (supra) at para. 67

19

Case law recognizes that discrimination takes many forms. The distinction between “direct” and

“adverse effect” discrimination was influential in the early development of the framework for

analysis, and in the development of remedies.

18 A distinction must be made between what I would describe as direct discrimination and the

concept already referred to as adverse effect discrimination in connection with employment. Direct

discrimination occurs in this connection where an employer adopts a practice or rule which on its

face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks

employed here." … On the other hand, there is the concept of adverse effect discrimination. It

arises where an employer for genuine business reasons adopts a rule or standard which is on its

face neutral, and which will apply equally to all employees, but which has a discriminatory effect

upon a prohibited ground on one employee or group of employees in that it imposes, because of

some special characteristic of the employee or group, obligations, penalties, or restrictive

conditions not imposed on other members of the work force. For essentially the same reasons that

led to the conclusion that an intent to discriminate was not required as an element of discrimination

contravening the Code I am of the opinion that this Court may consider adverse effect

discrimination as described in these reasons a contradiction of the terms of the Code. An

employment rule honestly made for sound economic or business reasons, equally applicable to all

to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons

differently from others to whom it may apply.

Ontario (Human Rights Commission) v. Simpson Sears Ltd. [1985] 2 S.C.R. 536

This has been used consistently since in cases involving anti-discrimination provisions in human

rights legislation, collective agreement provisions and Charter cases.

Another significant distinction, particularly important to the early development of remedies, is the

notion of “systemic discrimination”, described in the Action Travail (infra) decision and also in

Andrews (supra)

In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1

S.C.R. 1114, better known as the Action Travail des Femmes case, where it was alleged that the

Canadian National Railway was guilty of discriminatory hiring and promotion practices contrary to s.

10 of the Canadian Human Rights Act, S.C. 1976-77, c. 33, in denying employment to women in

certain unskilled positions, Dickson C.J. in giving the judgment of the Court said, at pp. 1138-39:

A thorough study of “systemic discrimination” in Canada is to be found in the Abella

Report on equality in employment. The terms of reference of the Royal Commission

instructed it “to inquire into the most efficient, effective and equitable means of promoting

employment opportunities, eliminating systemic discrimination and assisting individuals to

compete for employment opportunities on an equal basis.” (Order in Council P.C. 1983-

1924 of 24 June 1983). Although Judge Abella chose not to offer a precise definition of

systemic discrimination, the essentials may be gleaned from the following comments,

found at p. 2 of the Abella Report.

Discrimination … means practices or attitudes that have, whether by design or

impact, the effect of limiting an individual’s or a group’s right to the opportunities

generally available because of attributed rather than actual characteristics …

20

It is not a question of whether this discrimination is motivated by an intentional

desire to obstruct someone’s potential, or whether it is the accidental by-product

of innocently motivated practices or systems. If the barrier is affecting certain

groups in a disproportionately negative way, it is a signal that the practices that

lead to this adverse impact may be discriminatory.

Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219

There are other building blocks. First, what is necessary to prove a prima facie case of

discrimination? Second, once proven and the onus shifts to justify any bona fide occupational

qualification or defense of undue hardship, what does that look like? As noted above, Meiorin

(supra) decided that it was time to reconstruct the framework for analysis. The case involved

gender differences, not disabilities, and arose under the B.C. Human Rights Code not s. 15(1) of

the Charter. The Court set out seven reasons for a change:

(a)

Artificiality of the Distinction Between Direct and Adverse Effect Discrimination

Different Remedies Depending on the Method of Discrimination

(b)

(c)

Questionable Assumptions that Adversely Affected Group Always a Numerical

Minority

(d)

Difficulties in Practical Application of Employer’s Defenses

Legitimizing Systemic Discrimination

(e)

(f)

Dissonance Between Conventional Analysis and Express Purpose and Terms of

Human Rights Code

(g)

Dissonance between Human Rights Analysis and Charter Analysis

The reformulated and unified test was set out as follows:

54 Having considered the various alternatives, I propose the following three-step test for determining

whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned

standard by establishing on the balance of probabilities:

1) that the employer adopted the standard for a purpose rationally connected to the

performance of the job;

2) that the employer adopted the particular standard in an honest and good faith belief

that it was necessary to the fulfilment of that legitimate work-related purpose; and

3) that the standard is reasonably necessary to the accomplishment of that legitimate

work-related purpose. To show that the standard is reasonably necessary, it must

be demonstrated that it is impossible to accommodate individual employees

sharing the characteristics of the claimant without imposing undue hardship upon

the employer.

55 This approach is premised on the need to develop standards that accommodate the potential

21

contributions of all employees in so far as this can be done without undue hardship to the employer.

Standards may adversely affect members of a particular group, to be sure. But as Wilson J. noted in

Central Alberta Dairy Pool, supra, at p. 518, "[i]f a reasonable alternative exists to burdening

members of a group with a given rule, that rule will not be [a BFOR]". It follows that a rule or standard

must accommodate individual differences to the point of undue hardship if it is to be found reasonably

necessary. Unless no further accommodation is possible without imposing undue hardship, the

standard is not a BFOR in its existing form and the prima facie case of discrimination stands.

Meiorin, (supra) at 54

The test for what constitutes prima facie discrimination was described in a case involving alleged

mental and physical disability discrimination. A school board cancelled a special education

program that had previously enabled a student with dyslexia to attend a public school. The

school board’s mandate under the School Act was to ensure that “all learners … develop their

individual potential and acquire the knowledge, skills and attitudes needed to contribute to a

healthy, democratic and pluralistic society and a prosperous and sustainable economy”. Moore

(infra) at para. 5. After reviewing the relevant tests and distinctions, the Court found that there

was discrimination in the cancelling of the program, a cancellation which the Court found was not

shown to be reasonably necessary to accomplish the stated objective and had not been shown to

be justified.

Moore v. British Columbia (Education) [2012] 3 S.C.R. 360

In the course of its reasoning the Court referred to some of the earlier building blocks in the

framework for analysis. Of the term “systemic discrimination”, the Court in Moore noted at

paragraphs 59-60:

59 In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission),

[1987] 1 S.C.R. 1114, this Court first identified 'systemic discrimination' by name. It

defined it as "practices or attitudes that have, whether by design or impact, the effect of

limiting an individual's or a group's right to the opportunities generally available because

of attributed rather than actual characteristics" (p. 1138). Notably, however, the

designation did not change the analysis. The considerations and evidence at play in a

group complaint may undoubtedly differ from those in an individual complaint, but the

focus is always on whether the complainant has suffered arbitrary adverse effects based

on a prohibited ground.

60 The inquiry is into whether there is discrimination, period. The question in every case

is the same: does the practice result in the claimant suffering arbitrary - or unjustified -

barriers on the basis of his or her membership in a protected group. Where it does,

discrimination will be established.

Moore (supra) at paras. 59-62

22

Both parties accept Moore’s (supra) statement of what is required for proof of a prima facie case

of discrimination, as set out at para. 33:

33 As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants

are required to show that they have a characteristic protected from discrimination under the Code;

that they experienced an adverse impact with respect to the service; and that the protected

characteristic was a factor in the adverse impact. Once a prima facie case has been established,

the burden shifts to the respondent to justify the conduct or practice, within the framework of the

exemptions available under human rights statutes. If it cannot be justified, discrimination will be

found to occur.

Moore (supra) at para. 33

This test is also found in an Alberta case:

Telecommunications Workers Union v. TELUS Communications Inc. [2014] A.J. 467 (Alta C.A.) at

para. 28

We note, from TELUS, that a prima facie case does not require employer knowledge of the

disability to establish a prima facie case of adverse effect discrimination.

29 Demonstrating an employer's knowledge of an employee's disability is unnecessary, in a case

alleging adverse-effect discrimination. By definition, adverse-effect discrimination is the uniform

application of a seemingly neutral employment policy to all employees, regardless of whether some

employees have protected characteristics. The impugned policy applies to a disabled employee

whether or not the employer knows about the disability. The basic three-part test is sufficient to

accommodate cases where an employer's knowledge is relevant to a prima facie case, and thus

"knowledge" should not be added as a fourth element of the prima facie case test.

TELUS (supra) at para. 29

Recently, the Alberta Court of Appeal clearly confirmed that Moore (supra) establishes the test for

a prima facie case. In a family status case, the Court held that it was an error in law to add a

“fourth element” of proven self-accommodation to Moore’s three part test. It said:

[99] We conclude that Johnstone and like cases importing a fourth requirement of self-

accommodation into the Moore test for prima facie discrimination are wrong, and inappropriately

hold family status claimants to a higher standard than other kinds of discrimination. The Supreme

Court of Canada has set the test for prima facie discrimination, without limitation, and without

evidentiary embellishments. In Alberta, the debate must end: the test for prima facie discrimination

ought to be exactly the same whether in the context of direct or adverse effects discrimination

based on prohibited grounds, or in cases advanced under human rights legislation or under a

collective agreement or otherwise, or before the courts on review. Different tests, or evidentiary

gradations of the same test, beget inequality.

23

United Nurses of Alberta v. Alberta Health Services [2021] ABCA 194 at para. 99, leave to appeal

to the Supreme Court of Canada denied January 27, 2022.

We note that this judgment affirmed the reviewing Court’s decision which the parties already put

before us. An important point made by the Court of Appeal in UNA (supra) is that its result does

not alter the ultimate decision, it only refines the evidentiary threshold before the onus shifts from

the person alleging discrimination to the opposing party.

Compensation vs. Other Issues

The Employer’s main argument is that there is simply no discrimination in this case. It says the

law recognizes that benefits based on time worked (or not worked) may vary without creating

discrimination. Its position is very similar to the following observation in the Federal Court of

Appeal decision in Fraser (infra):

In Orillia Soldiers, the Ontario Court of Appeal held that providing a different level of employment

benefits to employees absent from work by reason of disability is not discriminatory as it is not

discriminatory to provide differential compensation (including benefits) based on whether an

employee is actively at work. Here, as in Orillia Soldiers, the different pension treatment that the

appellants impugn is premised on the hours worked by the RCMP members. Orillia Soldiers would

thus indicate that making a distinction based on hours worked is not discriminatory.

Fraser v. Canada (Attorney General) [2019] F.C.A. 541

The Employer argues that the case law draws a clear distinction between discrimination relating

to an employee’s compensation and discrimination on the basis of other issues inherent in an

individual’s employment, such as employment status and seniority. The Employer bases this

assertion on the Ontario Court of Appeal decision in:

Ontario Nurses Assn. v. Orillia Soldiers Memorial Hospital [1999] 42 O.R. (3d) 692

Under the collective agreement involved, nurses on unpaid leave of absence remained as

employees but did not accumulate seniority and service. While an employee was off on long-

term disability benefits, the Employer ceased to be required to contribute premiums to the benefit

plans on behalf of the employee. A majority of the arbitration board held that the cessation of

pension contributions did not offend the Human Rights Code as a denial of a benefit based on a

handicap (disability). Following a judicial review, the matter went to the Court of Appeal which

upheld the arbitration board’s finding with respect to the premium contribution issue.

24

The collective agreement required the employer to contribute to the plan for the first 30 days for

an employee on an unpaid leave of absence, and for the first 30 months for an employee off on

long-term disability. The Court summarized the parties’ conflicting arguments at paragraphs 14

and 15:

14 The position of the ONA is straightforward. Nurses on unpaid leave of absence are treated

differently from other employees on active service. They are, however, all employees. Where the

reason for the absence is a handicap as defined in the Human Rights Code, this group of

employees is being discriminated against on the basis of a ground prohibited by the Code. Having

established a prima facie violation of s. 11 of the Code, the onus is on the employer to show that

the needs of this group of workers cannot be accommodated without undue hardship.

15 The position of the employers is similarly straightforward. They argue that the Code right to

equal treatment with respect to employment without discrimination does not include the provision of

pay, benefits and other advantages when the employee is not performing work. Where the

employer does provide pay, benefits or other advantages for employees who do not perform work,

the employer must do so in a manner that does not discriminate on a prohibited ground, such as

handicap. In the cases before the court, the benefits and advantages provided to disabled

employees are the same as, or superior to, the benefits and advantages provided to other

employees who do not perform work. Accordingly, there is no violation of the Code.

The Court went on at para. 16 to say that “in large part, this case is about determining the

appropriate group for comparison.” In the Union’s view, the comparator group was the “all

employee” group versus those unable to be on active service because of their disability. The

Employer’s view was that the appropriate comparison was to “all employees not providing the

Employer with work”. Arbitrator Mitchnick, in the original award, approved the following

proposition from Versa Services (infra):

Versa Services concerned a collective agreement requiring employees on long-term disability to

pay the cost of benefits if they wished to maintain coverage. The employer paid some or all of the

premiums for employees on active service. Arbitrator Brown held that the right to employer benefit

contributions was in the nature of compensation and it was lawful for the employer to treat

employees differently for purposes of compensation depending on whether or not they were

working.

Re Versa Services and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees

Union, Local 647 (1994), 39 L.A.C. (4^th) 196, affirmed by an endorsement of the Divisional Court,

delivered February 7, 1995 (Brown)

It is this basic principle upon which the Employer relies.

The Court of Appeal in Orillia Soldiers (supra) considered the Supreme Court of Canada

decisions in Brooks v. Safeway (infra) and Gibbs v. Battleford (infra) along with the Ontario Court

of Appeal decision in War Amputations of Canada v. Canada (1997) 36 O.R. (3d) 709 (Ont. C.A.).

25

It concluded at para 31:

31 In the case presently before the court, the purpose of the employer contributions to benefit

plans is to provide an additional form of compensation in exchange for work. Having chosen to

provide this form of compensation, the employer could not discriminate on a prohibited basis.

However, the employer could distinguish based on the reason for providing the compensation:

work. On its face, discrimination would exist if the employer provided different levels of

compensation for work because of handicap. Likewise, it would constitute discrimination if the

employer provided different levels of compensation for not working because of handicap. But, in

this context it makes no sense to compare working employees with those not working. As Sopinka

J. said, comparing the benefits allocated to employees pursuant to different purposes is not helpful

in determining discrimination.

Orillia Soldiers (supra) para. 31

The Court in Orillia Soldiers (supra) then turned to the proposition that the case involved adverse

effect discrimination. It quoted the then leading authority on constructive or adverse effect

discrimination; Simpson-Sears (supra) as quoted above.

It is sufficient to say here that it led the Court to conclude that any adverse effect discrimination

had to be viewed by analyzing the need for and ability to accommodate. It provided an example

at paras. 54-55:

54 An example may assist in understanding the problem. Assume that an employer changes from

paying its employees wages based on hours worked to paying on the basis of the number of pieces

produced. Assume further that the disabled employees are simply unable to produce as many

pieces as the able-bodied employees and as a result their wages are reduced. Arguably, this

constitutes constructive discrimination. The facially neutral standard of paying by the number of

pieces produced results in a restriction on the ability of the disabled employees to earn the same

wages as the able-bodied employees. In accordance with s. 11(1)(a), the employer could justify the

different result by showing that this standard was reasonable and bona fide in the circumstances.

However, in accordance with s. 11(2), the board of inquiry or court is only entitled to find that the

standard is reasonable and bona fide if it is satisfied that the needs of the group cannot be

accommodated without undue hardship considering the "cost, outside sources of funding, if any,

and health and safety requirements, if any". Nevertheless, I do not read s. 11(2) as imposing upon

the employer the burden of simply topping up the wages of the disabled employees. That, in my

view, is not the type of accommodation contemplated by s. 11(2) and in fact is inimical to the

principles underlying the Code. To quote again from Sopinka J. in Eaton at pp. 272-73:

The discrimination inquiry which uses "the attribution of stereotypical characteristics"

reasoning as commonly understood is simply inappropriate here. It may be seen rather as

a case of reverse stereotyping which, by not allowing for the condition of a disabled

individual, ignores his or her disability and forces the individual to sink or swim within the

mainstream environment. It is recognition of the actual characteristics, and reasonable

accommodation of these characteristics which is the central purpose of s. 15(1) in relation

to disability. (Emphasis added)

26

55 Simply topping up the wages of the disabled employees and paying them as if they are not

disabled is nothing more than reverse stereotyping as described by Sopinka J. Rather, it would

seem to me that the employer in this hypothetical must attempt to accommodate the group.

Orillia Soldiers (supra) at para. 54

The Court reinforced this point with an extract from the Abella Report (see para. 55). At

paragraphs 56-58 the Court spoke of the appropriate remedies for adverse effect discrimination.

Orillia Soldiers (supra) has since been followed extensively and some examples are discussed

below.

The Employer also cites a Saskatchewan Court of Queen’s Bench decision in support of the need

to distinguish between discrimination relating to compensation and discrimination in respect to

other matters.

Real Canadian Superstore v. United Food and Commercial Workers, Local 1400 [1999] S.J. 777

(Smith, J.)

The ruling overturned an arbitrator’s finding that a disabled employee had been discriminated

against when he had been absent for work due to a car accident (causing disability) and had his

pro-rata share of a bonus payment reduced. The Court described the issues before it as follows:

8 It is clear and undisputed that Mr. Zdunich's injuries resulting from the automobile accident

constitute a "disability" within the meaning of s. 2 of the Code. The issue is whether prorating his

bonus entitlement to reflect his absence from work due to these injuries constitutes "discrimination"

within the meaning of s. 16(1). The majority of the board, (the employer nominee dissenting), found

that "the application of the calculation of the bonus provision on the basis of hours worked has

adversely affected the Grievor because of his disability that prevented him from working," and that

this "adverse effect" constituted discrimination in the terms and conditions of employment on the

basis of disability, contrary to s. 16(1) of the Code. It is this finding that is challenged by the

employer in the application before me.

At paragraph 19 the Court considered the question of the appropriate comparator group and also

the fact this was a question of compensation for work.

… the Board did not continue the analysis, at this point, to ask whether there has been differential

treatment between the grievor and other part-time employees, as a result of his disability. Had it

done so, its answer, in my view, could only have been that there has not. It is clear from the

decisions in Brooks and Gibbs that whether there is disparate treatment on a prohibited basis must

also be determined in relation to the underlying rationale of the rule, policy or benefit at issue. The

grievor's entitlement to a bonus for the period in question, like that of all other part-time employees,

was pro-rated on the basis of the hours actually worked during the relevant period, in comparison

with full-time hours. In relation to the treatment of the hours he had not worked as a result of his

disability leave, he was treated the same as all other part-time workers who had been on leave or

27

absent from their usual hours of work. The correlation between hours actually worked (by the

grievor as well as all other part-time employees) and entitlement to bonus is rationally related to the

underlying purpose of the bonus provision to provide a short-term increase in wages, or

compensation for work performed, payable to employees. Thus, while it is true, as the Board noted,

that the grievor's disability had an "adverse effect" upon his entitlement to the bonus, it is wrong to

conclude that such effect was disparate in comparison with the effect of the policy on other

members of the comparator group and was therefore discriminatory.

The Court then ruled that the arbitrator had switched from its comparator group analysis to a “but

for” test, contrary to the rulings in Gibbs and Brooks.

25 Rather than make a finding of disparate discriminatory effect of the application of the bonus

provision in comparison with other members of an appropriately determined comparator group,

what the Board appears to have done is to switch, at this point in its award, to a completely

different logical analysis, having nothing to do with comparator groups, to argue that the grievor

suffered an "adverse effect", in relation to the bonus provided, because he received a lower bonus,

as a result of his disability, than he would have received but for his disability. This argument is

clearly based upon the application of a simple "but for" test: i.e., has the grievor been treated less

favourably by the application of this policy than he would have been but for his disability?

Application of this test, however, does not require a comparison between the grievor's treatment

and that of all other part-time employees, or any other members of a comparator group. Rather, the

comparison drawn is between the grievor's entitlement to bonus on application of the rule and what

he would have received, on application of the same rule, but for his disability. (emphasis added)

The Employer argues that the Union’s argument is based on a similar, but erroneous, “but for”

approach. The Court’s conclusion is set out as follows:

41 While one can certainly conceive of a social policy that carries this particular principle of

accommodation beyond issues of participation to issues of compensation, for example, it is not, in

my view, reasonable to interpret the provisions of The Saskatchewan Human Rights Code that are

before me as if they were intended to reflect such a policy. I have already commented on the far-

reaching consequences of applying such a logic. Certainly the decisions of the Supreme Court of

Canada in Brooks, Chambly, and Gibbs, all decisions dealing with allegations of discrimination in

relation to employment benefits, and all calling for determination of an appropriate comparator

group of other employees in light of the purpose of the benefit at issue in order to make a finding of

adverse discriminatory effect, do not mandate such an interpretation. To do so would imply that the

legislation at issue reflects an intention to place on individual employers the responsibility, not only

of making adjustments to the workplace to accommodate the special needs of disabled persons to

participate, as much as is reasonably possible, in the workplace, but also the responsibility to make

up any resulting shortfall in employment benefits including compensation, or wages to such

employees when such accommodation proves limited or impossible. I do not believe that this

legislative intention can be found. (emphasis added)

The Employer refers to a series of arbitration cases that follow the approach in Orillia Soldiers

(supra), drawing a distinction between compensation and the removal of barriers to employment

or employment benefits based on a prohibited ground of discrimination.

28

In Fernandes (infra) the tribunal said in conclusion at para. 32:

32 I conclude that the exclusion of time spent on WCB, or other leave due to disability, from hours

worked for the purposes of calculating the Win Win bonus is not discriminatory. The Win Win

bonus, even more than the health benefits and service accrual in issue in Orillia, is clearly tied to a

coworker's active participation in work. Like the stock vesting in issue in Toivanen, the Win Win

bonus is a benefit to which a coworker becomes entitled through work. IKEA is entitled to exclude

coworkers absent from the workplace, for whatever reason, from the Win Win program.

Fernandes v. IKEA Canada [2007] B.C.H.R.T.D. 259 (Lyster) at para. 23, 29-30 and 32

The award in Porcupine (infra), like Orillia Soldiers (supra), relied on the Ontario Divisional Court

decision in Versa Services (supra) and held, at para. 29:

29 The Divisional Court ruling in Versa Services clearly establishes that the Code is not

contravened by an employer providing benefits to the active workforce while excluding from this

entitlement those who are not actively employed, so long as employees unable to work due to

handicap are treated no less favourably than are those absent from work for some other reason. In

short, there would be no contravention of the Code if the instant collective agreement denied

benefits to all employees absent for twelve months or more for any reason.

Porcupine and District Children’s Aid Society and CUPE Local 2196 (1996) 56 L.A.C. (4^th) 116

(Brown) at paras. 29 and 30

Safeway (infra) basically relied upon and affirmed the earlier ruling in Real Canadian Superstore

(supra)

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union Local 454 [2005] S.J. 119

at para. 8

An Alberta decision judicially reviewed an arbitration board decision finding of no discrimination.

Clarke, J. said at para. 18-19:

18 The law seems clear that providing different levels of compensation to different groups of

employees is not itself discriminatory; prohibited discrimination only occurs when the distinction is

based on a ground prohibited by Article 6 of the Collective Agreement or s. 7 of the Human Rights

Act, supra, see ONA v. Orillia Soldiers' Memorial Hospital (1999) 169 D.L.R. (4th) 489 O.C.A. par.

26. I agree with the Board's conclusion that there was no direct discrimination against the Grievor in

this case. The payment of benefits to her was on the basis of the position she held according to the

terms of the Collective Agreement and not on the basis of her disability.

19 In assessing whether there was any adverse effect discrimination with respect to the provision

of the disability coverage to the Grievor, the Board considered the appropriate comparator group

for the Grievor to be all part-time employees rather than all employees in the bargaining unit. In

reaching that conclusion you have to look at the purpose of the disability coverage. The disability

coverage is to provide an income replacement form of insurance for an employee's basic earnings.

It is part of the overall compensation by the Respondent. Having chosen to provide that coverage

under the Collective Agreement, was it appropriate for the Respondent to distinguish the level of

29

that coverage between full-time and part-time employees? As the Grievor is a part-time employee

within the meaning of the Collective Agreement the appropriate comparator group for her is the

part-time group as opposed to the full-time group. The level of benefits provided to the Grievor was

not driven by her disability but rather by her part-time position. It cannot be said that the provision

of disability coverage in this agreement was in any way discriminatory towards the Grievor. Even if

the Applicant's position were accepted that the proper comparator group was the entire bargaining

unit the Grievor in this case, was treated no differently than all employees in the bargaining unit. All

employees received their disability benefits based on their basic weekly or monthly earnings. That

is the same for all employees and in that regard the Grievor was treated no differently than any

other employee. In this regard, I agree with the Board's conclusion reached at p. 37 of its decision.

United Nurses of Alberta Local 33 v. Capital Health Authority [1999] A.J. 1556 (Clarke J.)

See also:

Brosso v. Kingston (City) [2019] O.H.R.T.D. 513 (Codjae)

Finning Canada and IAMAW Local 99 [2016] 125 C.L.A.S. 107 (McFetridge)

We noted at the outset of this section that the Federal Court of Appeal in Fraser (supra)

mentioned Orillia Soldiers (supra). The Supreme Court’s majority decision does not. The Court

was not however, silent on the underlying issue. The dissenting judgment of Justices Brown and

Rowe, in response to the majority decision, says, at para. 198:

[198]

Herein lies the significance of our colleague’s relegation of considerations of arbitrariness

or unfairness to the s. 1 analysis. It is not, in general, discriminatory (in an arbitrary or unfair

sense) for an employer to prorate benefits according to hours worked (see, e.g., Royal Commission

on Equality in Employment, Report of the Commission on Equality in Employment (1984), at pp.

27-28). Employers are expected to treat employees equally within the context of an employment

relationship that is predicated on an exchange of work for compensation. Prorating compensation,

including benefits, according to work is not arbitrary or discriminatory when it responds to

employees’ actual capacities and circumstances (Taypotat, at para. 20)

And at para. 200:

[200]

Conversely, we posit simply that employers must be able to compensate employees

based on hours worked. This is our central point, which our colleague does not attempt to answer.

However, in making this point the dissenting Justices were careful to add a caveat at paragraph

201:

[201]

While prorating pension benefits according to hours worked is not in itself discriminatory; it

might be so on this Court’s jurisprudence if some groups of employees were to receive more

favourable treatment than others where such treatment reinforces, perpetuates, or exacerbates

disadvantage. (emphasis added)

30

Fraser (supra) at para. 201

The majority in the Supreme Court of Canada decision clearly took a different view, but without

expressly joining issue on the Orillia Soldiers (supra) decision.

This recognizes the potential for discriminatory policies existing within a plan where benefits are

based on hours worked or a similar factor.

Prima Facie Case of Discrimination Based on Disability

The Union too refers us to several cases dealing with allegations of discrimination based on

disability. The Ottawa Hospital (infra) decision dealt with alleged discriminatory treatment under a

short-term disability plan. The plan in question provided for 100% coverage for the first 15 weeks

of disability. It further provided that, if the person returned and worked for 3 weeks, they were

again eligible for 15 weeks coverage. However if, within the 3 weeks, the employee was again

unable to work, for the same or a related cause, they were only eligible for any balance of the

original 15 weeks coverage. The dispute thus related to persons who, despite suffering a

disability, were still able to work part-time. Arbitrator Keller put the parties’ difference this way:

… if two employees, each of whom has a normal work week of 37 ½ hours are disabled, the one

who is not able to work at all will receive 562 ½ hours of income replacement while the other

employee will receive less, the amount depending on how many hours that employee worked.

Ottawa Hospital and OPSEU Local 464 (2008) 93 C.L.A.S. 148 (Keller) at para. 5

The Union argued that the disabled employees able to work part-time were, as a result, subject to

discrimination when compared to the fully disabled employees. The arbitrator reviewed the

leading authorities at the time and distilled them down to the following principles:

A – If the effect of the action is to impose on one person or group of persons obligations, penalties

or restrictive conditions not imposed on others in the community, it is discriminatory.

B – No intent to discriminate is required. The only question is whether discrimination resulted.

C – Partial discrimination is still discrimination.

D – A finding of discrimination where only a subset of disabled employees is mistreated is

permissible.

Ottawa Hospital (supra) para. 9

31

The arbitrator’s view was that, if disabled, an employee was entitled to 100% income for 15

weeks; this rather than a set number of hours paid as a benefit. On the first aspect of the Union’s

argument, he ruled:

19

In the instant case, employees who are not able to work at all continue to have access to the

disability scheme as described in the brochure as quoted above. The employer has acknowledged

that disabled employees who work part time during the period of disability may not have access to

the recurrence provision of the disability scheme. The result, in my view, is to create a distinction

between the two classes of disabled employees as was done to the two classes of disabled

employees in the Battlefords & District Co-operative Ltd.case. As a result, I find, as the Court did in

the Battlefords & District Co-operative Ltd. case, that the recurrence provision of the plan results in

discriminatory treatment between disabled employees who are not capable of working at all and

those who are able to work part time.

Ottawa Hospital (supra) para. 19

The Employer in that case argued that the disability plan was only one way of accommodating an

employee’s disability, and that there were others. On this the arbitrator held:

The difficulty I find with this argument is that the same is true for disabled employees who are not

able to work at all and those who are able to work part time. To the extent that the plan exists as

one of the means of accommodating disabled employees it must do so, in my view, equally to both

classes of disabled employees.

Ottawa Hospital (supra) para. 20

The arbitration decision was appealed to the Ontario Divisional Court and upheld.

Ottawa Hospital v. OPSEU Local 464 [2009] 247 O.A.C. 201 (Ont. Div. Ct.)

The Court rejected the Employer’s arguments on review, and explained its reasons for doing so

not by rejecting the broad notion of benefits based on hours worked, but on discriminatory and

unjustified distinctions within the plan’s rules. It said at paras. 12-15:

13 However, this distinction does not hold, at least in the case of a person who is being

accommodated and working with a partial disability and who suffers from another illness and

requires sick leave and who cannot access the short term disability benefits, no matter how long he

or she has been working with the partial disability.

14 For example, a full-time worker who experiences a disability (such as chronic fatigue) that

reduces capacity to 90% of regular hours but does not preclude all work cannot meet the

requirement of “three regular work weeks”. Workers in this position will run out of benefits after 15

weeks, and no matter how many hours they work or how long, they will never re-qualify for short-

term benefits even if they subsequently suffer from an unrelated short term disability (such as a

32

broken leg) and cannot work for several weeks. In contrast, employees whose disability allows

them to return to work full-time can, after only 3 weeks, re-qualify for full short term disability

benefits. This results in a sub-set of employees with ongoing disabilities being treated adversely

when compared to other employees with respect to access to an important aspect of the disability

scheme. The reason for the distinction is their disability, which prevents them from meeting the

criterion of three weeks full-time work.

15 The purpose of the re-qualification provision is allow a worker who has accessed the short term

disability benefits previously, and has returned to work, to take advantage of the short term

disability benefits again in the event of a new short term disability. The denial of any opportunity to

re-qualify for those who return part-time and who experience another illness such as the one

described above is inconsistent with the purpose of the plan.

The Union refers to two cases that follow the Ottawa Hospital (supra) decision.

Rouge Valley Health System and ONA (Ng) (2014) 119 C.L.A.S. 87 (Trachuk)

Perth and Smiths Falls District Hospital and CUPE Local 2119 (2017) 130 C.L.A.S. 239 (Petryshen)

They too dealt with the HOODIP sick pay plan. That plan provided that employees who returned

to work for three weeks would once again become entitled to the plan’s sick leave benefits.

However, if the Employee only returned to modified duties (although full-time) they were treated

as not actively at work and as a result denied that reinstatement of benefits. Both cases

considered both the Orillia Soldiers (supra) decision and the Ontario Hospital (supra) decision, as

did other arbitration awards alluded to such as:

McCormick Home (Parkwood Hospital) and London and District Service Workers Union Local 220

[1996] O.L.A.A. 933 (Surdykowski)

City of Kingston and CUPE Local 109 [2016] 26000 (Surdykowski)

In both Rouge Valley (supra) and Perth and Smiths Falls (supra) the arbitrator found that the

different treatment of disabled employees returning to work on modified duties (in contrast to

those not on modified duties) established a prima facie case of discrimination contrary to the

Ontario Human Rights legislation and was not saved as a bona fide occupational qualification.

The Union places particular emphasis on Arbitrator Kaplan’s decision in a case closely analogous

to the one at hand. The individual grievor there suffered a chronic and probably lifelong illness for

which she was required to take an infusion, in a medical facility, every six weeks, necessitating

anywhere from 2-3 hours to two days off work. No issue was taken as to her condition or the

bona fides of her needs. For years the grievor had taken the necessary time off work and been

paid sick leave.

33

Things changed when the sick leave plan, again HODIP, was subjected to a negotiated

amendment described in the award as follows:

The change, as set out below, provided that no sick pay benefit was payable for the first fifteen

hours of absence for the sixth and subsequent period of absence in the same fiscal year. The 1980

HOODIP brochure ("the brochure"), incorporated into the collective agreement, provides that one

period of absence may include more than one absence "provided that such absences are from the

same cause of total disability and are separated by a period of less than three weeks."

North Bay Regional Health Centre and ONA (2014) 242 L.A.C. (4th) 424 (Kaplan) at para. 2

In this case it is not clear that the restriction was negotiated; in North Bay it clearly was. The

Union argued that the grievor was entitled to be accommodated, and the law does not permit

discrimination between classes of disabled employees. Employees who required the infusion

every three weeks would receive sick pay for the time off, while those only requiring it every six

weeks were denied coverage. This, the Union argued, was proof of prima facie discrimination.

The Employer argued at para. 11:

That was the bargain the parties had reached, and that was the entitlement the grievor received. A

review of the collective agreement indicated that unless there was an exception, for example,

bereavement leave, pregnancy leave, etc., employees did not receive pay for work they did not

perform. The grievor received pay in accordance with the agreement the parties reached. This was

not discriminatory; this was in compliance with the collective agreement and the brochure.

And at para. 12:

12

The application of that rule was universal, whether the illness was Code-qualified or not. Put

another way, the reason for the absence did not matter, Code-related or nothing to do with the

Code. If it was a sixth absence, and did not meet the requirements of the three-week rule, it did not

qualify for compensation. The cases made it clear that differential impact did not necessarily mean

discrimination contrary to the Code. Simply put, entitlement to sick pay was not determined by the

underlying cause. Arguably, the Code was not even engaged; nor was the duty to accommodate. In

any event, that duty did not require employers to pay for work that was not performed.

Rejecting the Employer’s arguments, the arbitrator held that there was discrimination, saying at

para. 14:

14

There is no doubt that Article 12.07 was agreed upon in order to reduce sick leave costs by

discouraging excessive absenteeism and, in that way, provide continuity of care for patients and

save money for the healthcare system. There is equally no doubt that there was no intention,

through its introduction, to discriminate against disabled employees. However, the effect of the

qualifying trigger of the three-week rule in the brochure is to do exactly that. It creates the

anomalous and unacceptable circumstance where two employees suffering from disabilities that

34

attract the protection of the Code are treated completely differently because of the application of an

arbitrary and unfair rule. That one person requiring treatment for the same disability every three

weeks would qualify for sick pay but another person, working side by side with the first person, but

who required treatment every four weeks, does not, would, if upheld, make a complete mockery of

the Code and the duty to accommodate. (emphasis added)

This paragraph is significant in the way it identifies the objective behind the policy (or at least one

aspect of the policy). Looking at the purpose behind the introduction of the exclusion of the first

15 hours of the 6^thor subsequent exclusion, which affected the grievor and made the 3 week rule

applicable to her, he described it as to reduce sick leave costs and to discourage excessive

absenteeism. That is subtlety different from the simpler policy or purpose to provide income

replacement benefits alone. We note this because the Meiorin (supra) analysis, while not

mentioned specifically, requires an identification of the purpose of the Employer’s policy that

causes the adverse effect.

At paragraph 16 the arbitrator continued:

16

Moreover, in my view, the true character, or underlying rationale, of the entitlement provision

in the brochure is to ensure that a person with different absences for the same disability not be

denied sick pay by what would otherwise be a mechanical/formulaic calculation of absences.

Indeed, the entire sick leave plan exists, albeit not exclusively for this purpose, as one of the means

of accommodating disabled employees and it can hardly fairly do so through application of an

arbitrary and completely unjust three-week rule.

And at para. 17:

In this case, however, the Code has been violated because the grievor was discriminated against

through the application of an arbitrary three-week rule that has nothing to do with the obvious and

legitimate objectives of Article 12.07 and the brochure. The application of the three-week rule

discriminates against the grievor by treating her differently than other employees with a disability.

No consideration of, or investigation into, was given to the duty to accommodate, a legal obligation

that is clearly engaged by the incorporation of the Code in the Note to the provision.

The arbitrator declined to quash the 6 incidents – 3 week period rule and instead sent it back to

the parties to negotiate, a remedial option we discuss below. At paragraph 20 he repeated his

view of the purpose of the amendment to the policy that introduced the rule:

20

It is trite to say that each case involving the duty to accommodate has to be individually

considered. But that truism applies here. The parties amended Article 12.07 for a reason: to reduce

the costs of providing sick pay and to discourage excessive absenteeism. Article 12.07 is directed

at heavy sick pay users, not persons suffering from a chronic disability. (emphasis added)

35

He also added at paragraph 21:

Clearly what is required is reasonable accommodation, not perfect accommodation. This is an

ongoing and dynamic process that must be considered and implemented within context - in this

case, the nature of the disability and the treatment that has been prescribed - and that, of course,

may change over time requiring reevaluation and adjustment. It is important to note that there is no

request or assertion of entitlement for payment of wages in return for no work. This case is about

the legality of the three-week rule prohibiting access to sick pay and its specific application to the

grievor. The next step is application of the duty to accommodate given the finding that the three-

week rule is discriminatory.

Limits to Reasonable Accommodation

The Employer argues that, as this is not a Charter case, it is entitled to rely upon the defense

sections of the Alberta Human Rights Act. They provide:

7(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference

based on a bona fide occupational requirement.

10.1 It is not a contravention of this Act to plan, advertise, adopt or implement a policy, program or

activity that

(a) has as its objective the amelioration of the conditions of disadvantaged persons or

classes of disadvantaged persons, including those who are disadvantaged because of

their race, religious beliefs, colour, gender, gender identity, gender expression, physical

disability, mental disability, age, ancestry, place of origin, marital status, source of income,

family status or sexual orientation, and

(b) achieves or is reasonably likely to achieve that objective.

11 A contravention of this Act shall be deemed not to have occurred if the person who is alleged

to have contravened the Act shows that the alleged contravention was reasonable and justifiable in

the circumstances.

Section 11 the Employer argues is equivalent to the test described in Meiorin (infra)

54 Having considered the various alternatives, I propose the following three-step test for determining

whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned

standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the

performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith

belief that it was necessary to the fulfilment of that legitimate work-related

purpose; and

36

(3) that the standard is reasonably necessary to the accomplishment of that legitimate

work-related purpose. To show that the standard is reasonably necessary, it must

be demonstrated that it is impossible to accommodate individual employees

sharing the characteristics of the claimant without imposing undue hardship upon

the employer.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin

Grievance) [1999] 3 S.C.R. 3

It is necessary however to note the next paragraph in that case which deals with individual

accommodation.

55 This approach is premised on the need to develop standards that accommodate the potential

contributions of all employees in so far as this can be done without undue hardship to the

employer. Standards may adversely affect members of a particular group, to be sure. But as Wilson

J. noted in Central Alberta Dairy Pool, supra, at p. 518, "[i]f a reasonable alternative exists to

burdening members of a group with a given rule, that rule will not be [a BFOR]". It follows that a

rule or standard must accommodate individual differences to the point of undue hardship if it is to

be found reasonably necessary. Unless no further accommodation is possible without imposing

undue hardship, the standard is not a BFOR in its existing form and the prima facie case of

discrimination stands.

The collective agreement in that case included the following provisions (Section 15.03(a) at para.

23).

Counsel referred to section 15.03(a) of the Collective Agreement that says … all Employees

covered by this Agreement shall be entitled to benefits subject to the following provisions and

conditions:

•

It is recognized by both the Company and Union that excessive use of sick time is not the

intent of this benefit. As such the parties agree and support the implementation of an

Attendance Management Program. This program may include:

o

Employees being asked to substantiate excessive days of illness with a doctors

certification (sic) at the employees expense;

Other measures as required on a case by case basis. These issues will be

discussed between the employee and manager as part of on-going attendance

management meetings.

The duty not to discriminate based on disability and the related duty to accommodate to the point

of undue hardship involves difficult decisions about just how much accommodation is necessary.

The same is true in ascertaining whether any discrimination is reasonable and justifiable under

Section 11 of the Human Rights Act. The case law describes this as involving an individualized

assessment of the circumstances. This is largely due to the fact that the limits of accommodation

involve assessing the duties and capacities of the individual as well as their employer and

sometimes a union.

37

The Courts have had to address what might be seen as an exception to this where the otherwise

discriminatory practice or rule is an integral part of an overall plan. Similar issues arise in

circumstances where a Union has negotiated limits, suggesting it concurs with the view that what

it negotiates amounts to a reasonable limitation. Finning (supra) reviews these considerations,

relying on the Supreme Court of Canada decision in:

McGill University Health Centre v. Sexton [2007] 1 S.C.R. 161

McGill Health stands for several propositions concerning the duty to accommodate those with

disabilities and the limitations inherent in that duty. In particular it emphasizes the role a

negotiated collective agreement can play in at least presumptively defining those limits. Arbitrator

McFetridge in Finning (supra) summarized the point as follows:

The plans represent a balance between the goal of providing a reasonable level of income

protection for ill and injured employees and the cost of doing so. Without some such income

protection plan, employees who cannot work, would be without income. Some limits on the cost of

providing this benefit are necessary to make such a plan affordable for the Employer.

121

The Employer has a duty to accommodate ill and injured employees to the point of undue

hardship but that duty does not extend to paying employees their full wages for an indefinite period

when they are unable to perform their duties. In Syndicat des employés de l’Hôpital général de

Montréal c. Sexton, 2007 SCC 4, 59 C.H.R.R. D/259 (S.C.C.) [hereinafter McGill University Health

Centre] the Court commented at para 15: Since the right to accommodation is not absolute,

consideration of all relevant factors can lead to the conclusion that the impact of the application of a

prejudicial standard is legitimate. And at para 38: The duty to accommodate is neither absolute nor

unlimited. The employee has a role to play in the attempt to arrive at a reasonable compromise.

122

In McGill University Health Centre the Court addressed the scope of the duty to

accommodate and whether an employer and union can agree on the substance of this duty in

advance in a collective agreement. The issue in the McGill Health Centre Case was the termination

of an employee who had been absent for over three years and was unfit to return to work for the

foreseeable future. The collective agreement contained a term that permitted the termination of

employees who were absent due to illness or injury for more than 36 months. The Court found it

significant that the parties themselves arrived at the period of time that a sick employee could be

absent before they would lose employment. The Court commented at para 19:

The fact that such a period of time has been negotiated and included in the collective

agreement indicates that the employer and the union considered the characteristics of the

enterprise and agreed that, beyond this period, the employer would be entitled to

terminate the sick person’s employment. The consensus that has been reached is

significant, because it was reached by the people who are most familiar with the particular

circumstances of the enterprise, and also because these people were representing

different interests. It can therefore be assumed that the clause has been negotiated in the

mutual interest of the employer and the employees.

123

However, the Court went on to say at para 20:

38

The period negotiated by the parties is therefore a factor to consider when assessing the

duty of reasonable accommodation. Such clauses do not definitively determine the

specific accommodation measure to which an employee is entitled, since each case must

be evaluated on the basis of its particular circumstances. (emphasis added)

Finning (supra) paras. 120-123

The question in Finning involved a difference as to whether time spent performing modified work

should or should not count towards the 80 work days during which an employee could collect

short term income protection, and before becoming eligible for long term disability benefits.

Arbitrator McFetridge ruled firstly, that the collective agreement, properly interpreted, did not

provide “a pot of days off” but only income protection for that period which applied while modified

work was assigned. It was therefore a negotiated limitation to the benefit. He then ruled:

126

It is always difficult when dealing with employee benefit plans to know where to draw the

line with respect to undue hardship. A contextual analysis is especially important where, as here,

the employer is a large business enterprise with multiple branches and a large unionized workforce

that has represented these employees for many years. It is noteworthy that here, as in McGill

Health Centre, the terms of the STD Plan were negotiated between the parties and incorporated

into the collective agreement. It can be assumed that the employer and the union considered the

characteristics of the enterprise and agreed to the terms set out in the STD Plan were reasonable.

Here, as in McGill University Health Centre, the consensus that was reached is significant because

it was reached by the people who are most familiar with the particular circumstances of the

enterprise, and also because these people were representing different interests.

127

What was negotiated represents a reasonable balance between the needs of ill and injured

employees and a solution that is affordable for the Employer. The parties agreed that the Employer

would fund an income protection plan that, for an initial period of up to 105 calendar days, would

provide disabled employees with up to 80 work days at up to 100% of their normal income. They

agreed that income protection would be limited to this specific period of time and by a requirement

that disabled employees would perform medically appropriate duties, would be paid their pre-injury

rate for the hours they worked and that the income they received by doing so would off-set their

STD benefits. They also agreed that disabled employees would not be paid more than 100% of

their normal income. They agreed that early return to work is to be encouraged. And finally, they

agreed that claims that continued beyond 105 calendar days would be referred to an employee

funded LTD Insurance Plan.

128

What they achieved through collective bargaining may not be a perfect solution but, in the

words of Sopinka J. in Renaud v. Central Okanagan School District No. 23, [1992] 2 S.C.R. 970

(S.C.C.), it represents a reasonable compromise. Here the reasonable compromise was reached

by the people most familiar with the particular circumstances of the enterprise and satisfies me that

the Employer has met its obligation to show that the alleged contravention was reasonable and

justified in the circumstances.

Finning (supra) paras. 126-128

We note the cautionary closing paragraph in Finning:

39

131

This grievance was brought forward as a policy grievance after the individual grievances

were resolved on a without prejudice basis. As stated in paragraph 20, neither the Union nor the

Employer led any evidence regarding the individual members effected by this issue and

consequently, the allegations of discrimination were presented by way of hypothetical examples. It

is possible that the hypothetical examples left some ground uncovered and as stated in McGill

University Health Centre: The importance of the individualized nature of the accommodation

process cannot be minimized. The scope of the duty to accommodate varies according to the

characteristics of each enterprise, the specific needs of each employee and the specific

circumstances in which the decision is to be made. Another case may contain individual

circumstances which might lead to a different conclusion.

We also note that Arbitrator McFetridge, in Finning Canada (supra), accepted that the Section 11

defense applied in the circumstances before him. He said at paragraph 117, after finding no

prima facie case had been made out and after he found the provisions in issue was an integral

part of a negotiated plan.

117

In the alternative, if I am wrong and prima facie discrimination does exist, I am satisfied

that it is reasonable and justifiable under the Meiorin and Grismer analysis and section 11 of the

Alberta Human Rights Act.

Conclusions on General Level of Income Protection Benefits

The Employer’s primary argument is that, when compensation under an income replacement plan

is based on time worked, it is not discriminatory to apply the same limits to all employees,

whether their absences are due to their disability or not. In general, we agree.

This is a negotiated plan. Such plans, if and when negotiated, do not require an Employer (or a

Union) to provide a plan that maintains the income for persons with disabilities in perpetuity, or

beyond the temporal limits that apply to all other employees. The underlying rationale of Orillia

Soldiers (supra) represents the current state of the law for negotiated plans. In calculating the

number of days off, it does not matter that any particular day’s absence is caused by or unrelated

to a disability. The limits to income replacement (under this short-term plan) apply equally to all

employees (subject to any specific accommodations) whether their absences are due to a

disability or not.

However, the case law also provides that there may still be prohibited discriminatory aspects

within such a plan. This can occur if it imposes a burden upon, or reinforces a stereotype against,

some or all with disabilities in comparison to other persons experiencing absences, not due to a

disability. See: Ottawa Hospital (supra) and North Bay (supra).

40

In the case at hand, there are two situations where an employee may suffer such a detrimental

consequence. First, the fourth absence rule reduces the level of benefits to 75% for the first 5

days of the fourth incident, and for all absences thereafter. Second, once a reduction has been

made, “resetting” the 100% rate the next year requires a 10 working day return to work. An

employee with a disability could well trigger the fourth or fifth incident reductions only because

their disability caused repetitive absences within the year and not because they came anywhere

near the 85 day limit. Similarly, those whose disability necessitates an absence every two weeks

may find themselves unable to achieve, or delay them, in reaching the 10 day return requirement.

A couple of examples will suffice. Some ongoing disabilities may require attendance for medical

treatment every two months, the employee having no option but to take a series of days off work

for that purpose. That may only require 6 partial days off work, but it may well be something the

disabled employee has no capacity to avoid or change. An employee who is absent for six

occasions, but not due to disability, may have options available to reduce their absences that

those with a disability may not have. Indeed, it is the basic assumption of the attendance

management process that such absences can be discouraged and avoided.

Similarly, an employee who, as a result of disability, has to take 3 hours off each two weeks

during work time following a year where their level of coverage was reduced to 90%, or 75%, may

not be able to “reset” their coverage to 100% because they need to be off, albeit briefly, each 10

working days.

These are only hypothetical examples, not designed to set parameters. Such potential realities

require an examination of the discretion under Article 1.05 and of the Attendance Management

policies as they have developed.

Discretion and the Attendance Management Policy

Prior to 2014 the City used a mechanism, in certain identified situations and perhaps others, to

prevent employees absent from work due to their disabilities accumulating total absences that

would otherwise have triggered a reduction in benefits due to 4 or more incidents (down to 75%).

This was by “linking” those absences so, if for the specified reasons, they would only count as

one incident. Largely, this is what changed and led to this and the various individual grievances.

The Union complains that no discretion, under the income replacement plan, is being exercised in

respect to employees who are absent due to a disability. Alternatively, they say, the Employer

has fettered any discretion in a way that prevents consideration of 4 or more absences due solely

41

to a disability, prevents or restricts any individualized assessment and reduces any linking. In the

result, employees in such situations are prima facie subject to discriminatory treatment because

of the fourth incident reduction in benefits and the inability to meet the return for 10 consecutive

days conditions.

Behind the Union’s complaint is the City’s decision to merge the process and terms of the income

replacement plan (a negotiated benefit) and the City’s Attendance Management program (a

unilaterally introduced set of policies) including the changes to the way the City has chosen to

administer the income replacement plan.

The two policies have different objectives; income protection is one, but attendance management

to improve an individual’s attendance and save costs is a second.

Attendance management policies draw a distinction between culpable and non-culpable

absenteeism. They may identify situations where discipline should be considered or where non-

culpable absence has reached the point of undue hardship or such as makes continued

employment unworkable. However, the purpose of attendance management is to promote

regular attendance, reinforce the notion that every employee has a responsibility to maintain

regular attendance at work and, as a result of that save costs. What attendance management

policies do not do is impose penalties for non-attendance without recourse to a grievance

procedure, whether challenging just cause or challenging the appropriateness of the response to

excessive non-culpable discipline.

Attendance management policies, including the one here, are based on the underlying premise

that employees have an ability to regulate and improve their attendance; something generally true

but often not so for the chronically disabled. Again this is a factual question that cannot be

assessed by a formulaic view that all absences, as to their frequency, can be reduced or altered.

The income protection under the collective agreement is to compensate, to the negotiated level,

employees who are absent for reasons of illness. Being away due to illness can apply to all

employees; those without disabilities, and those with disabilities who are absent for unrelated

reasons. Absences by employees with disabilities can occur for many reasons, sometimes

caused by or related to their disability and sometimes totally unrelated to that disability. They too

may suffer coughs and colds, or simply fail to attend, but again that is again a question that can

only be explored through individualized assessment and, if appropriate, an exercise of remedial

discretion.

42

We now review the changes the City has made over the treatment of days off for those whose

absences might be a result of disability. We do so not for the total days off per year count, but for

the repetitive absence question.

Article 1.05 of the income maintenance plan reads:

1.05 Each period of absence from work due to non-occupational disability which exceeds three (3)

hours, shall be counted as one incident of absence for the purposes of this Plan.

On the fourth (4^th) and each subsequent incident of absence in a payroll year, Income Protection

benefits shall be payable at seventy-five percent (75%) of the member’s regular rate of pay.

However, if a member had three (3) or less incidents of absence in the previous payroll year,

Income Protection benefits shall be payable at seventy-five percent (75%) of the member’s regular

rate of pay on the fifth (5^th) and each subsequent incident of absence in a payroll year.

In the event that the fourth (4^th) incident of absence is for a disability that is of greater than five (5)

consecutive days of work, only the first five (5) days of such disability shall be payable at seventy-

five percent (75%) of the member’s regular rate of pay, and the balance of days for that disability

shall be payable at either the one hundred percent (100%) or ninety percent (90%) entitlement

whichever was applicable to the member at the commencement of that disability.

These are the benefits, or benefit reductions, summarized above. What are particularly significant

here are the next two paragraphs:

Upon the recommendation of a Department Head, the Plan Administrator shall have the discretion

to waive the benefit reduction.

Subject to approval by the Plan Administrator, a member who is receiving on-going therapeutic

treatment for a life-threatening disability, and as a result is absent from work for periods in excess

of three (3) hours to undergo such treatment sessions, may have the entire number of such

treatment sessions considered as one (1) incident of absence in any payroll year.

The second last paragraph is negotiated, but only to the extent that there is a discretion to be

exercised, but not as to the manner of its exercise. We do not read the following paragraph as

limiting or defining the sole circumstance in which discretion may be applied.

Agreed fact 27 attests to how and why the City changed this contractually agreed upon

discretionary clause.

27. Article 1.05 also includes a general provision allowing the Plan Administrator to waive the benefit

reduction that results upon the fourth incident upon the Department Head’s recommendation.

However, as indicated in the City’s March 3, 2014 letter to the Union:

… although the agreement states that the recommendation of the

Department Head shall be provided, the City has not been enforcing

43

this requirement since Department management employees have no

access to the medical evidence upon which the decision is based.

In practice, this discretion would most appropriately lie with the Employer’s Disability Management

team, which would not require the employee’s Department Head’s recommendation.

We are not here concerned with the absence of the contracted for Department Head’s

recommendation, although we question the assumption that the Employer can unilaterally alter a

contractual term based on its own assumption of where the discretion “most appropriately” lies.

What it cannot do, simply by changing the identity of the decision maker, is to implicitly alter the

manner the discretion is to be exercised so as to free it from its no discrimination obligations. It

cannot, in the exercise of discretion under Article 1.05 impose a burden, or reinforce a stereotype

against, some or all with disabilities in comparison to other persons experiencing absences, not

due to a disability. Such a discretion, when called for under this collective agreement, must be

exercised in accordance with Article 5.03 of the agreement and under the Human Rights Act; that

is in a non-discriminatory way.

The scope of the discretion under the second last paragraph is sufficiently wide that, following an

individualized assessment of the reason the individual had a series of absences, it can be used to

waive any benefit reduction that would otherwise be discretionary, under the first through third

paragraphs.

If City policies were to result in the discriminatory treatment it would need to forgo or modify those

policies to avoid a discriminatory adverse impact on persons due to their disability. That is what

Meorin says. The discretion under Article 1.05 of the agreement is sufficient to allow this so long

as it is not fettered. Thus, where such a discriminatory impact may exist, the solution may simply

be to provide for an individualized assessment and, if appropriate, the exercise of discretion to

prevent that discriminatory impact.

The Union asserts, as a general proposition, that persons with chronic disabilities experience

greater absentee rates, and more instances of absenteeism, than those without disabilities. In

general this is intuitively true. However, the mere existence of a chronic disability does not,

without further inquiry, entitle the individual to the waiver of an absence until there is inquiry as to

whether it is necessary. This includes the question of other means of accommodation. For

example, a diabetic may well need to attend dialysis, but accommodation may only be necessary

if off hours facilities are not available, and the person’s schedule cannot be rearranged so that the

dialysis can be conducted without impact on the person’s full work week. Individualized

assessment allows recognition that the employee too has obligations, and whether they have met

their own part of the duty.

44

The agreed facts and the forms the City use, or are developing, provide background to the Article

1.05 discretion and the process of linking absences. What they fail to demonstrate is any point at

which the existing discretion is to be used to prevent persons suffering multiple incidents due to

their disability having their benefit levels reduced due to unavoidable absences. In fact, they

suggest the contrary. This is not to suggest an entitlement to payment for the day off, only to

exclude the day from the 4 or 5 day calculations for the benefit reduction.

The forms, as they evolved, are set out in facts 32-37. The agreed facts continue (once again for

convenience).