A-911-90
The Attorney General of Canada (Applicant)
v.
Gihane Mongrain (Respondent)
A-914-90
Gihane Mongrain (Applicant)
v.
Department of National Defence (Respondent)
and
Canadian Human Rights Commission
(Respondent)
INDEXED AS: CANADA (MINISTER OF NATIONAL DEFENCE) v.
MONGRAIN (CA.)
Court of Appeal, Hugessen, Desjardins and Décary
JJ.A.—Montréal, September 11; Ottawa, September
20, 1991.
Human rights — Offer of extension of term employment
withdrawn when employee seeking to exercise right to mater
nity leave without pay — Canadian Human Rights Act deeming
discrimination for pregnancy sex discrimination — Review Tri
bunal under Canadian Human Rights Act empowered to over
turn first instance tribunal only where error of law or manifest
error in assessment of facts — Onus on complainant to make
out prima facie case of discrimination — Doctrine of bona fide
occupational requirement (BFOR) applying only to direct dis
crimination — Where BFOR exists, no duty of accommodation
— Discrimination by adverse effect existing, independently of
intent to discriminate, where apparently neutral requirement
having prejudicial effect on persons in protected categories —
Duty to accommodate affected employees if possible without
undue interference in operations, excessive cost.
Public service — Labour relations — Employee engaged
under successive term appointments from January 1981 to
April 1983 applying for maternity leave without pay — Leave
granted for duration of one-month term — Employer offering
further term subject to availability — Offer withdrawn when
employee stating intent to take maternity leave as provided for
in collective agreement — Availability to work normal term of
employment offer but discriminatory when offeree pregnant —
Duty to accommodate in absence of undue hardship for
employer.
These were section 28 applications against a decision of a
Review Tribunal constituted under the Canadian Human
Rights Act. That decision reversed the decision of the first
instance tribunal that the applicant had not been discriminated
against by reason of pregnancy. The Attorney General seeks
review of the finding of discrimination: and Ms. Mongrain, the
complainant at the first instance, seeks review of the decision
not to order her reinstatement.
Ms. Mongrain worked for the Department of National
Defence, teaching French as a second language. She had been
employed under successive term appointments since January 5,
1981. As of April 12, 1985, her current term was scheduled to
expire on April 30, 1985. That day, she applied for maternity
leave without pay commencing April 22. On the same day, she
was offered, and accepted, a new term for the period April 30
to May 24, 1985. On April 18, she was offered an appointment
in extension of that one, to August 2, 1985. The letter of offer
included, for the first time, an "availability" clause stating that
the offer was conditional on her reporting for work on May 27,
failing which the offer would be cancelled. That clause
appeared only in offers to people known by the employer to be
pregnant. On April 19, the employee was granted maternity
leave for April 22 to May 24. On April 30, she wrote to accept
the offer of an extension to August 2, but stated her intention to
exercise her right to maternity leave under the collective agree
ment. The collective agreement provides for maternity leave
without pay for up to 26 weeks. The employer replied that the
offer of a term from May 24 to August 2 was withdrawn on the
grounds that she would not meet the condition of availability
set out in that offer.
After attempting other avenues of redress, Ms. Mongrain
filed a complaint with the Canadian Human Rights Commis
sion. Section 3 of the Canadian Human Rights Act defines sex
as a prohibited ground of discrimination and stipulates that dis
crimination because of pregnancy or childbirth is deemed to be
discrimination on grounds of sex. The Human Rights Tribunal
dismissed the complaint, apparently considering that the
employer had no intention of discriminating and that the avail
ability clause was a bona fide occupational requirement
(BFOR). The Review Tribunal found that there was prima
facie evidence of discrimination and no BFOR. It overturned
the decision of the first instance tribunal, but did not order
reinstatement, finding that Ms. Mongrain would not, in any
event, have been offered further employment. Against that
decision these section 28 applications are brought.
Held, the applications should be dismissed.
A complainant before a Human Rights Tribunal must pre
sent prima facie evidence of discrimination, and then the onus
moves to the respondent. Although the appeal tribunal was
mistaken in saying that the complainant had only to affirm rea
sonable grounds to believe she had been discriminated against,
that error does not invalidate the decision because, in any
event, the appeal tribunal did find that Ms. Mongrain had made
out a prima facie case of discrimination. The factual basis for
her complaint is not in dispute.
The powers of a review tribunal under the Act to intervene
in the first instance decision are analogous to those of a court
of appeal in the judicial hierarchy; that is, it may only overturn
the decision if there is either an error of law or a manifest error
in the assessment of the facts. In this case the review tribunal
correctly identified both kinds of error in the first level deci
sion. On the uncontested facts, the action of the employer had a
discriminatory effect on the complainant—what is known as
discrimination by adverse effect. The respondent's plea of
bona fide occupational requirement is not relevant, the BFOR
doctrine having no application to discrimination by adverse
effect.
The notion of a BFOR applies only to cases of direct dis
crimination, that is, where the discriminatory action is based
directly upon a prohibited ground. Such discrimination can be
justified only by the employer's establishing a BFOR and, if it
does, there can be no question of a duty of accommodation,
since the discriminatory practice is justified in its application
to the entire class of employees. The duty to accommodate
arises only in case of discrimination by adverse effect, where
there is a rule which appears not to be based on a prohibited
ground but which, in spite of its apparent neutrality, has preju
dicial effects on certain persons in the categories protected by
human rights legislation. Invariably, the group suffering
prejudice is smaller than that to which the rule applies and
may, indeed, be composed of a single complainant. No issue of
justification arises, and the rule is maintained in place as
regards all except the person(s) on whom it would have a dis
criminatory effect. For those persons the employer has a duty
to adopt such measures of accommodation as will not interfere
unduly with the operation of the undertaking or entail exces
sive cost.
Here, the availability clause and the rule that employees be
ready to report to work are normal terms of the employment
relationship. Their application to pregnant employees who
wished to exercise their right to maternity leave without pay,
however, had a discriminatory effect. The onus is on the
employer to show it has met its duty of accommodation, in so
far as that does not create undue hardship for the employer. It
is difficult to imagine how granting the employee further leave
without pay could have created any hardship for the employer.
The refusal of the review tribunal to order reinstatement was
based on a finding of fact to the effect that, even if Ms. Mon-
grain had been kept on the availability list, she would not have
had contracts subsequent to the one containing the discrimina
tory clause. Since there was evidence to support this finding,
and it is consistent with the findings of fact at the first
instance, the Court may not intervene under paragraph
28(1)(c).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss.
3 ( 1 ),( 2 ), 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Public Service Employment Act, R.S.C., 1985, c. P-33, s.
25.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
s. 2(g).
CASES JUDICIALLY CONSIDERED
APPLIED:
Central Alberta Dairy Pool v. Alberta (Human Rights
Commission), [1990] 2 S.C.R. 489; (1990), 33 C.C.E.L. 1.
CONSIDERED:
Latif v. Canadian Human Rights Commission, [1980] 1
F.C. 687; (1979), 105 D.L.R. (3d) 609; 79 CLLC 14,223;
28 N.R. 494 (C.A.).
REFERRED TO:
Ontario Human Rights Commission et al. v. Borough of
Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d)
14; 82 CLLC 17,005; 40 N.R. 159.
APPEARANCE:
Gérard Mongrain on behalf of respondent/appli-
cant, Gihane Mongrain.
COUNSEL:
J. LeVasseur for applicant/respondent, Minister
of National Defence.
François Lumbu for respondent, Canadian
Human Rights Commission.
SOLICITORS:
Deputy Attorney General of Canada for appli-
cant/respondent, Minister of National Defence.
Canadian Human Rights Commission, Ottawa,
for respondent, Canadian Human Rights Com
mission.
ON BEHALF OF RESPONDENT/APPLICANT:
Gérard Mongrain, St-Jean -sur -Richelieu,
Quebec.
The following is the English version of the reasons
for judgment rendered by
HUGESSEN J.A.: These are two applications brought
under section 28 [Federal Court Act, R.S.C., 1985, c.
F-7] from a decision of a Review Tribunal estab
lished under the Canadian Human Rights Act. 1 The
subject decision set aside an earlier decision made by
the original Tribunal established under that Act, and
allowed the complainant's appeal, declaring that she
had been the victim of discrimination based on the
fact that she was pregnant. The Attorney General is
asking us to review the decision of the Review Tribu
nal and restore the decision of the original Tribunal
which had dismissed the complaint of discrimination.
The complainant, Ms. Mongrain, is asking us to
review that portion of the decision of the Review Tri
bunal which refused to order that she be reinstated in
her employment.
Ms. Mongrain, the complainant, had been
employed as a teacher of French as a second lan
guage at the St-Jean military base since January 5,
1981. However, she had never been appointed for an
indeterminate period, but rather for successive fixed
periods. As a result, and in accordance with section
25 of the Public Service Employment Act, 2 she lost
her status as an employee upon the expiry of each
period. Nonetheless, she was an "employee" within
the meaning of the Public Service Staff Relations
Act: 3
2....
"employee" means a person employed in the Public Service,
other than
(g) a person employed on a casual or temporary basis, unless
the person has been so employed for a period of six months
or more,
As such, she benefited from the provisions of the
collective agreement which applied in the situation.
1 R.S.C., 1985, c. H-6.
2 R.S.C., 1985, c. P-33.
3 R.S.C., 1985, c. P-35, s. 2(g).
At the beginning of April 1985, Ms Mongrain was
working under an appointment which had taken
effect on July 24, 1984 and was to terminate on April
30, 1985. On April 12, 1985 she informed her imme
diate superior that she wished to be absent from her
work starting on Monday, April 22, 1985, because of
her pregnancy, since her delivery date was expected
to be in May.
On that same day, April 12, 1985, the employer
had offered the complainant an "extension" of her
employment, for a fixed period: from April 30, 1985
to May 24, 1985. This offer was accepted that same
day.
On April 18, 1985 the employer again offered the
complainant another "extension", this time for the
period from May 24, 1985 to August 2, 1985. How
ever, this offer was accompanied by an "availability"
condition, which read as follows:
[TRANSLATION] Please confirm to us your availability to
report to work on May 27, 85. It goes without saying that if
you are not available on that date, this offer will be automati
cally cancelled. We shall then ask you to inform us of the date
on which you would be available to take up duties, should we
require your services. [Record, at page 1053.]
It is common ground, first, that this is the first time
that an express condition of this nature was inserted
in an offer of employment by the employer, and sec
ond, that this condition appeared only in offers to
people who were, to the employer's knowledge, preg
nant. On the other hand, the employer established to
the satisfaction of the Tribunal that it would have
imposed this condition on any employee who had
stated his or her intention not to report to work for
the entire term of the contract.
On April 19, 1985, the complainant submitted a
formal request for leave covering the entire period
from April 22, 1985 to May 24, 1985, the end of the
contract she had just accepted. This request was
granted that same day. Part of the leave granted, rep
resenting sick days and other similar benefits, was
paid, but another part, by far the larger, running from
April 29, 1985 (before the end of the then current
period of employment) to May 24, 1985 (the end of
the next period of employment), was unpaid mater-
nity leave. This leave was granted under section
15.06 of the collective agreement:
15.06 Maternity leave without pay
(a) An employee who becomes pregnant shall notify the
employer at least fifteen (15) weeks prior to the
expected date of the termination of her pregnancy
and, subject to section (b) of this clause, shall,
eleven (11) weeks before the expected date of the
termination of her pregnancy be granted leave with
out pay for a period ending not later than twenty-six
(26) weeks after the date of the term of her preg
nancy subject to clause 15.07(d). [Record, at page
829.]
In fact, Ms. Mongrain was absent from her work
and was not paid under this clause for the entire
period in question.
On April 30, 1985 Ms. Mongrain replied to the
offer that had been made to her in the letter of April
18, 1985. She accepted the offer for the entire period
in question, from May 24, 1985 to August 2, 1985,
but she added the following:
[TRANSLATION] However, I intend to exercise my right to mater
nity leave, as set out in section 15.06 of my collective agree
ment. [Record, at page 1055.]
On May 22, 1985, the employer replied:
[TRANSLATION] We acknowledge receipt of your letter of
April 30, 1985. As you indicate in your letter, "I intend to
exercise my right to maternity leave, as set out in section 15.06
of my collective agreement", it appears that we would have to
understand that you will not report for work to teach on May
27, 1985 and so that you will not be available at the required
time, as set out in our offer of employment of April 18, 1985.
Since this offer was conditional on your being present at
work as of that day and on subsequent days, we find that we
must withdraw this offer beyond May 24, 1985 because you
are not available, in accordance with the previous offer of term
employment from April 30, 1985 to May 24, 1985. [Record,
page 1056.]
After a number of fruitless attempts to exercise
remedies before other bodies (grievance under the
Public Service Staff Relations Act, appeal under the
Public Service Employment Act), Ms. Mongrain filed
a complaint with the Canadian Human Rights Com
mission. That complaint read as follows:
[TRANSLATION] I have reasonable grounds to believe that the
Department of National Defence discriminated against me
because of my pregnancy, in violation of section 7 of the Cana-
dian Human Rights Act. The employer withdrew the offer of
employment it had made me for the period from May 24, 1985
to August 2, 1985, citing my unavailability. However, this very
employer renewed the contract of another employee who was
unavailable for another reason. I therefore believe I was treated
differently because of my pregnancy. [Record, at page 1045.]
It will be useful to reproduce sections 3 and 7 of
the Canadian Human Rights Act here:
3.(1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability and conviction for which a pardon has been granted
are prohibited grounds of discrimination.
(2) Where the ground of discrimination is pregnancy or
child-birth, the discrimination shall be deemed to be on the
ground of sex.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individ
ual, or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
This complaint was heard, first, by a Human
Rights Tribunal composed of a single member. On
June 30, 1988, after four days of hearing in January
and February 1988, that Tribunal dismissed the com
plaint. It is difficult to summarize the reasons of the
initial Tribunal in a few lines, but I believe that I do it
justice by saying that its primary reason was that the
complainant had no right to be rehired at the end of
her last period of employment, on May 24, 1985, and
that the employer had no intention of discriminating
against her. The Tribunal also seems to have seen in
the availability clause quoted above a "bona fide
occupational requirement" (BFOR) within the mean
ing of the Act.
Up to this point in the story, Ms. Mongrain had
been acting in concert with two of her women col
leagues who had been in a situation more or less
identical to hers. However, after their complaints
were dismissed at first instance by the Human Rights
Tribunal, the two others abandoned the fight. Ms.
Mongrain was therefore the only one who took the
matter before a Review Tribunal as provided in the
Canadian Human Rights Act.
The Review Tribunal, composed of three people,
held hearings during March 1989 and made a deci
sion dated June 26, 1990, but apparently filed only on
October 12 of that year. It is that decision which is
the subject-matter of the two section 28 applications.
The Review Tribunal decided "that the original
Tribunal was clearly and plainly wrong in its assess
ment of the evidence" (Record, at page 1555). More
particularly, the Review Tribunal was of the opinion
that the original Tribunal had erred by not giving
effect to the testimony given by representatives of the
employer who stated that another employee, Ms.
Landry, who was not pregnant, had not been treated
in the same manner as the complainant, and that the
availability clause had been imposed for the first time
in the complainant's case, and solely in respect of
pregnant employees. The Review Tribunal was of the
opinion that there was prima facie evidence of dis
crimination and that the employer had not proved that
the availability clause was a "bona fide occupational
requirement" 4 or that it had fulfilled its duty of
accommodation.
The Review Tribunal concluded that the complain
ant had been the victim of indirect discrimination, or
discrimination by adverse effect. However, being of
the opinion that even if the complainant had not been
the victim of discrimination, she would still not have
received an offer of employment after August 2,
1985, the Review Tribunal refused to order that she
be reinstated and ordered that the employer pay her
compensation in the amount of $3,500 for pain and
suffering.
The applicant, the Attorney General, attacks the
decision of the Review Tribunal on four grounds. 5
4 The expression, "exigence professionelle réelle", which is
repeated several times in the decision of the appeal tribunal,
undoubtedly means "exigence professionelle normale" as in
the case law or "exigence professionnelle justifiée" ["bona fide
occupational requirement"] as in s. 15 of the Act.
5 A fifth ground dealing with the order to pay damages is set
out in the memorandum of the Attorney General, but was not
argued at the hearing.
First, the Attorney General submits that the
Review Tribunal erred in law in respect of the burden
of proof. There is no doubt that the Attorney General
is correct on this point, because the Review Tribunal,
citing on this point the decision of this Court in Latif
v. Canadian Human Rights Commission, 6 had
expressed the opinion that it was sufficient for the
complainant to affirm reasonable grounds for belief
that she was a victim of a discriminatory practice,
and that at that point the burden of proof shifted to
the employer. This is a double error: first, Latif does
not deal at all with the burden of proof before the
Human Rights Tribunal, but rather with the obliga
tion the Commission had at that time to investigate a
complaint; second, it has long been established in the
case law that the burden on the complainant before
the Human Rights Tribunal is to establish prima facie
evidence?
However, while the error is real, it is of no conse
quence, for two reasons.
First, the question of the burden of proof simply
does not arise in the circumstances. The Review Tri
bunal was required to rule on the record established
before the initial Tribunal, where both parties had the
opportunity to present all the evidence they wished to
present. Moreover, the facts in this case are really not
contested, and it is not a question of one party or the
other succumbing because it failed to present evi
dence on some point.
Second, although the Review Tribunal erred in its
interpretation of Latif, it is obvious on reading its
decision that, despite the error, it in fact decided that
the complainant's evidence was sufficient to establish
a prima facie case:
We are of the opinion that, as soon as the original Tribunal
heard the employer's testimony to the effect that Ms Landry
had been treated differently from the complainants, it should
have found the allegations of discrimination in the complaint
to be substantiated, or at least made a finding of prima facie
6 [1980] 1 F.C. 687 (C.A.).
7 For example, see Ontario Human Rights Commission et al.
v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at p. 208.
evidence, which would have shifted the burden of proof onto
the employer. The employer would then have had to establish a
bona fide occupational requirement which applied to all its
employees, in accordance with the precedents noted above.
[Record, at page 1559.]
Accordingly, this first ground should not be
upheld.
It is appropriate to consider the Crown's second
and third arguments together; they are worded as fol
lows in its memorandum:
[TRANSLATION] ... the Review Tribunal erred in law
(2) by intervening in the absence of any manifest error by the
original Tribunal;
(3) by failing to ask whether the original Tribunal had erred in
concluding that there was no discrimination, and by conclud
ing that the employer had committed a discriminatory act;
[Applicant's Memorandum of fact and law, at page 10.]
It is correct to state that the powers of a Review
Tribunal established under the Canadian Human
Rights Act are analogous to those of a court of appeal
in the ordinary judicial hierarchy. Accordingly, the
Attorney General is correct in stating that the Review
Tribunal could only intervene if there were an error
of law or manifest error in assessing the facts. In any
event, however, the Review Tribunal in the case at
bar correctly identified the two kinds of error which
enable it to intervene.
The uncontested facts clearly show that the
employer's policy had an adverse effect on the com
plainant. This was therefore what is commonly called
"indirect" discrimination, and the conclusions of the
original Tribunal dealing with the absence of intent to
discriminate on the part of the employer (direct dis
crimination) were simply not relevant in resolving
the case.
This is how the Review Tribunal explained why it
decided to intervene in the decision at first instance:
In conclusion, it seems very clear to us that the reason
behind the availability clause was the fact that the complain
ants, and the appellant in particular, were pregnant. In addition,
we should not forget that the authorities are very exacting,
given the goals and very nature of human rights legislation,
and do not require that the discrimination being complained of
be intentional or premeditated, but only that it exist. This is
referred to as adverse effect discrimination.
In light of the foregoing, and from the testimony given at the
first hearing and the arguments we have heard, we conclude
that the original Tribunal was clearly and plainly wrong in its
assessment of the evidence, which led it to an incorrect finding
with regard to the assessment of the principles of the legisla
tion and precedents bearing on the case before us. [Record, at
page 1560.]
I myself find it impossible to say that in acting as it
did the Review Tribunal exceeded the bounds of its
authority in such a manner as to permit this Court to
intervene under section 28.
Finally, the Attorney General's fourth argument
deals with the alleged error in the decision of the
Review Tribunal, when it refused to consider the
availability clause as a "bona fide occupational
requirement" and concluded that the employer had
not fulfilled its duty to accommodate.
The dual nature of this argument, which deals both
with the existence of a BFOR and with the duty to
accommodate, attests to a degree of confusion
between these two concepts. In fact, the two are
entirely distinct from each other.
The concept of a BFOR applies only to cases of
direct discrimination, that is, where the discrimina
tory act is based directly on a prohibited ground.
Thus, for example, a rule which excluded pregnant
women from certain kinds of employment could be
justified only if the employer were able to establish
that there was a BFOR. If this is established, there
can then be no question of accommodation, because
the directly discriminatory rule has been justified.
On the contrary, the duty to accommodate comes
into play only in cases of indirect discrimination, or
discrimination by adverse effect. In these cases the
rule is not apparently based on an unlawful ground.
However, despite its apparent neutrality, the rule pro
duces adverse effects on certain people who are in
protected categories. The employer then has the duty
to try to accommodate the people in question.
Madam Justice Wilson, writing for the Supreme
Court, explained the rule as follows:
Where a rule discriminates on its face on a prohibited
ground of discrimination, it follows that it must rely for its jus
tification on the validity of its application to all members of the
group affected by it. There can be no duty to accommodate
individual members of that group within the justificatory test
because, as McIntyre J. pointed out, that would undermine the
rationale of the defence. Either it is valid to make a rule that
generalizes about members of a group or it is not. By their very
nature rules that discriminate directly impose a burden on all
persons who fall within them. If they can be justified at all,
they must be justified in their general application. That is why
the rule must be struck down if the employer fails to establish
the BFOQ. This is distinguishable from a rule that is neutral on
its face but has an adverse effect on certain members of the
group to whom it applies. In such a case the group of people
who are adversely affected by it is always smaller than the
group to which the rule applies. On the facts of many cases the
"group" adversely affected may comprise a minority of one,
namely the complainant. In these situations the rule is upheld
so that it will apply to everyone except persons on whom it has
a discriminatory impact, provided the employer can accommo
date them without undue hardship. In O'Malley McIntyre J.
clarifies the basis for the different consequences that follow a
finding of direct discrimination as opposed to a finding of
adverse effect discrimination. He states at p. 555:
The duty in a case of adverse effect discrimination on the basis
of religion or creed is to take reasonable steps to accommodate
the complainant, short of undue hardship: in other words, to
take such steps as may be reasonable to accommodate without
undue interference in the operation of the employer's business
and without undue expense to the employer. Cases such as this
raise a very different issue from those which rest on direct dis
crimination. Where direct discrimination is shown the
employer must justify the rule, if such a step is possible under
the enactment in question, or it is struck down. Where there is
adverse effect discrimination on account of creed the offending
order or rule will not necessarily be struck down. It will sur
vive in most cases because its discriminatory effect is limited
to one person or to one group, and it is the effect upon them
rather than upon the general work force which must be consid
ered. In such case there is no question of justification raised
because the rule, if rationally connected to the employment,
needs no justification; what is required is some measure of
accommodation. The employer must take reasonable steps
towards that end which may or may not result in full accom
modation. Where such reasonable steps, however, do not fully
reach the desired end, the complainant, in the absence of some
accommodating steps on his own part such as an acceptance in
this case of part-time work, must either sacrifice his religious
principles or his employment. [Emphasis added.]
For these reasons, I am of the view that Bhinder is correct in
so far as it states that accommodation is not a component of the
BFOR test and that once a BFOR is proven the employer has
no duty to accommodate. It is incorrect, however, in so far as it
applied that principle to a case of adverse effect discrimination.
The end result is that where a rule discriminates directly it can
only be justified by a statutory equivalent of a BFOQ, ie, a
defence that considers the rule in its totality. (I note in passing
that all human rights codes in Canada contain some form of
BFOQ provision.) However, where a rule has an adverse dis
criminatory effect, the appropriate response is to uphold the
rule in its general application and consider whether the
employer could have accommodated the employee adversely
affected without undue hardship. 8
In the instant case, it is clear that this was not
direct discrimination. The availability clause and the
rule that employees be prepared to work are not only
perfectly neutral in appearance, but are also implied
conditions in any offer of employment and contract
of service.
The problem in this case arises from the fact that
the application of the rule to pregnant employees who
want to exercise their right to take unpaid maternity
leave produces a discriminatory effect. The employer
then `must show that it complied with its duty to
accommodate:
The onus is upon the respondent employer to show that it made
efforts to accommodate the religious beliefs of the complainant
up to the point of undue hardship. 9
The Review Tribunal was of the opinion that it
would "have difficulty understanding how this
accommodation could have resulted in undue hard
ship for the employer." [Record, page 15591
8 Central Alberta Dairy Pool v. Alberta (Human Rights
Commission), [1990] 2 S.C.R. 489, at pp. 514-517.
9 Alberta Dairy Pool, supra, at p. 520.
I am of the same opinion. In fact, all that Ms. Mon-
grain was requesting was leave without payl 0 of
exactly the same nature as the leave that she had
already been granted. In these circumstances, it is
impossible for me to imagine what sort of hardship,
even slight, this could cause to the employer, and
none emerged from the evidence. I would therefore
not intervene in the decision.
In her section 28 application, Ms. Mongrain asks
us to review that part of the decision of the Review
Tribunal which refused to order that she be rein
stated.
This refusal is based on a finding of fact which the
Review Tribunal expressed as follows:
In view of the evidence that, even if Ms Mongrain had been
kept on the availability list, she would not have had another
contract after the one containing the availability clause...
[Record, page 1561.]
Whether or not this conclusion is justified, it is
supported by certain of the evidence adduced before
the Tribunal. It is also consistent with the findings of
fact made by the initial Tribunal. In these circum
stances, it is simply impossible for us to intervene
under paragraph 28(1)(c).
For these reasons, I would dismiss the two section
28 applications.
DESJARDINS J.A.: I concur.
DÉCARY J.A.: I concur.
10 The interest of the complainant, a term employee, in
requesting leave, even unpaid, derives from a policy of the
employer that casuals who have completed five years of conti
nuous work are entitled to permanent status. It will be recalled
that the complainant was in her fifth year of employment.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.