Judgments

[1996] 2 F.C. 305

T-1293-95

Sheldon S. Richmond et al. (Applicants)

v.

Attorney General of Canada (Public Service Commission of Canada, Department of National Defence, Revenue Canada, Customs & Excise) (Respondent)

Indexed as: Richmond v. Canada (Attorney General) (T.D.)

Trial Division, Gibson J.—Ottawa, January 31 and February 13, 1996.

Public Service — Labour relations — Application for judicial review of Adjudicator’s decision respecting grievances referred for adjudication under Public Service Staff Relations Act, s. 92 — Applicants claiming “other leave with pay” under collective agreements to observe Jewish religious holidays — Employer denying claim but approving applications for annual leave — Must accommodate employees up to degree of undue hardship — Where offer of accommodation not reasonable, “other leave with pay” provisions mandatory to ensure compliance with non-discrimination provisions of collective agreements — No need to resort to other leave with pay provisions as reasonable offer made by employer — Offer of accommodation need only be reasonable to satisfy duty to accommodate — Obligation met by employer.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 92 (as am. by S.C. 1992, c. 54, s. 68), 96(2).

CASES JUDICIALLY CONSIDERED

APPLIED:

Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; (1994), 115 D.L.R. (4th) 609; 21 Admin. L.R. (2d) 169; 4 C.C.E.L. (2d) 165; 22 C.H.R.R. D/1; 94 CLLC 17,023; 169 N.R. 281; 62 Q.A.C. 241.

CONSIDERED:

Canada (Attorney General) v. Wiseman, [1995] F.C.J. No. 692 (T.D.) (QL).

REFERRED TO:

National Energy Board v. Public Service Staff Relations Board (Can.) et al. (1994), 178 N.R. 377 (F.C.A.); Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 11 Admin. L.R. (2d) 59; 93 CLLC 14,022; 150 N.R. 161; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; (1994), 114 D.L.R. (4th) 385; [1994] 7 W.W.R. 1; 22 Admin. L.R. (2d) 1; 46 B.C.A.C. 1; 92 B.C.L.R. (2d) 145; 14 B.L.R. (2d) 217; 4 C.C.L.S. 117; 168 N.R. 321; 75 W.A.C. 1; Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; (1993), 102 D.L.R. (4th) 609; 14 Admin. L.R. (2d) 1; 93 CLLC 14,032; 152 N.R. 1; 63 O.A.C. 1.

APPLICATION for judicial review of a decision of the Public Service Staff Relations Board respecting grievances referred for adjudication under section 92 of the Public Service Staff Relations Act. Application dismissed.

COUNSEL:

Catherine H. MacLean for applicants.

Harvey A. Newman and Micheline Langlois for respondent.

SOLICITORS:

Nelligan Power, Ottawa, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.: These reasons relate to an application for judicial review of a decision of the Public Service Staff Relations Board, rendered by Thomas W. Brown, board member, on May 15, 1995 [[1995] C.P.S.S.R.B. No. 43 (QL)], respecting 27 grievances referred for adjudication pursuant to section 92 of the Public Service Staff Relations Act.[1]

An agreed statement of facts was filed before the Public Service Staff Relations Board (the Adjudicator). The most relevant elements of the agreed statement of facts, as incorporated in the Adjudicator’s decision, are as follows:

 1.  A total of 27 grievances have been referred to adjudication on the issue of accommodation of religious beliefs. Of these, 14 relate to request for “other leave with pay” in 1992; the final 13 grievances refer to similar requests in 1993.

 2.  The Grievors, their occupational group, the Departmental employer, and the years to which the request for “other leave with pay” were made are as follows:

[16 Grievors are listed including the named applicant, Sheldon Richmond. Mr. Richmond was, at the relevant time, employed by the Public Service Commission. One other grievor was employed by the Department of National Defence. The others were employed by Revenue Canada.]

 3.  All the grievances were submitted in a timely fashion for 1992 and 1993 respectively.

 4.  With respect to the 1992 grievances, the Grievors submitted applications for “other leave with pay” in order to observe the Jewish religious holidays Rosh Hashana (September 28 and 29, 1992) and Yom Kippur (October 7, 1992). Each of these days were scheduled work days for the Grievors. The applications were denied by the employer. The Grievors subsequently submitted applications for annual leave with pay for the three days. These applications were approved.

 5.  With respect to the 1993 grievances, the Grievors submitted applications for “other leave with pay” in order to observe the Jewish religious holiday Rosh Hashana (September 16 and 17, 1993). Both of these days were scheduled work days for the Grievors. Yom Kippur did not fall on a scheduled work day in 1993. The applications were denied by the employer. The Grievors subsequently submitted applications for annual leave for the two days. These applications were approved.

 6.  At no point did the Employer deny the Grievors the opportunity to absent themselves for [sic] the workplace in order to observe the religious holidays in question. Rather, the Grievors were offered various options to permit their respective absences without loss of pay. These options included use of annual leave, compensatory leave, and working extra hours (“make-up time”). The Employer’s position is consistent with the Treasury Board Policy entitled “Leave with Pay for Religious Observance”….

 7.  Mr. Richmond is a member of the Computer Systems (CS) Group and is governed by the CS Collective Agreement.

Dr. Livingstone [one of the other grievors] is a member of the Defence Science (DS) Group and is governed by the PIPSC Master Agreement.

The remaining 14 Grievors are members of the Auditing (AU) Group and are governed by the AU Collective Agreement.

 8.  Rosh Hashana, which is observed over a period to two consecutive days, and Yom Kippur are together known as the “High Holidays” and are recognized as the most significant of the holy days on the Jewish religious calendar.

 9.  The Grievors rely on the respective “No Discrimination” articles in each of the relevant collective agreements as the basis for their grievances. The respective articles, … are identical in wording and read as follows:

“There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation or membership or activity in the union.”

10. In particular, the Grievors assert that they have been discriminated against on the basis of their religious affiliation by the Employer’s refusal to grant them Leave With Pay for Other Reasons in order to observe the above-noted religious holidays. The respective Articles [relating to leave with pay for other reasons] …are similar but not identical in wording. Each has the effect of stipulating that the Employer, at its discretion, may grant leave with pay for purposes other than those specified in the collective agreement.

The texts of the leave with pay for other reasons articles in the three collective agreements are set out in Appendix 1 to these reasons.

After setting out the arguments advanced on behalf of the grievors and the employer at considerable length, the Adjudicator concluded in the following terms [at pages 67-73]:

The facts in this case are not in any way in dispute, having been set out entirely in the Agreed Statement of Facts. What is in dispute is the manner in which certain clauses of the applicable collective agreements should be interpreted and applied to the established facts. The “No-discrimination” clause has application in all of these grievances and the employer agrees with the grievors that they should not in any way be discriminated against because of their Jewish faith—they should not be prevented from fulfilling their religious obligations, which in the instant grievances means that they should be allowed time off from work on each of the Jewish high holidays of Rosh Hashana and Yom Kippur to fulfil their religious obligations on those days.

In the grievances before me, each grievor was allowed time off for the holidays of Rosh Hashana and Yom Kippur. They complain, however, that they had to cover for the time off by taking vacation leave and believe that their employer should have instead granted them leave with pay “for other reasons”, a type of discretionary leave which is available under their collective agreements. By taking vacation leave, while they did not lose any pay, their vacation leave credits were depleted and because of this they have been discriminated against, they claim, because Christian employees are allowed to take their religious holidays, such as Christmas and Easter, without loss of pay and without loss of leave credits.

Counsel for the grievors bases himself principally on the decision in Chambly … by the Supreme Court of Canada, which clearly establishes that employees who are members of a religion which is in a minority vis-a-vis the religious beliefs of other employees of an employer must be accommodated by the employer, up to the degree of undue hardship for the employer, when allowing them time off to fulfil their religious obligations. In the instant cases, counsel for the grievors argued, that means that the employer must grant the grievors leave with pay under the clause in the collective agreement which is available to the employer to grant leave with pay “for other reasons”. In this way, the grievors would be granted time off and would not suffer any loss of leave credits—just as is the case for other employees to take time off without loss of pay or leave credits to meet their religious obligations on their holy days. It is not sufficient, counsel for the grievors argued, that the employer make available other arrangements for the grievors under its “policy”, which would not involve any loss of leave credits or wages.

Counsel for the employer stated that the essence of the argument of counsel for the grievors is that the only way in which the employer can accommodate the grievors is by granting them leave with pay “for other reasons” under the clause in their collective agreements which provides for such type of leave. It must be pointed out immediately, counsel stated, that such leave is discretionary on the part of the employer—it “may” grant such leave at its discretion. What the grievors want me to do, counsel argued, is to ignore this discretion and order the employer to grant such leave. Counsel argued that nowhere in the Supreme Court decision in Chambly … is there mention that leave with pay for “other reasons” must be granted to accommodate an employee.

Having considered the relevant jurisprudence, I am satisfied that a need to accommodate has been established by the Supreme Court of Canada but that there is no need to accommodate “up to the point of undue hardship” if there is another means of accommodation available. In the instant cases, the employer had in place a policy with regard to leave for religious observances; there could be “the use of annual or compensatory leave, shift exchanges in the case of shift workers, variable hours of work (compressed work week) or individual arrangements for make-up time, if operationally feasible”. However, none of the grievors asked for accommodation other than through leave with pay “for other reasons”.

A careful reading of the Chambly … decision does not reveal any need for an employer to suffer hardship in order to accommodate an employee in fulfilling his or her religious obligations. There was identified, however, a need to accommodate an employee in such circumstances and this accommodation must provide for time off without loss of pay. Loss of pay, I believe, formed the very foundation for the Court’s decision in Chambly … to restore the award of the majority of the arbitration board granting the teachers in question leave with pay in that the Court was of the opinion that the employer refused to reasonably accommodate them when it only allowed them to take time off without pay.

In the instant grievances, there was no loss of pay for the grievors. They were all granted the leave they ultimately requested, namely vacation leave, when they were refused their first request, that is, leave with pay “for other reasons” under a clause in the collective agreement allowing for such leave at the employer’s discretion. As counsel for the employer has suggested, there may be circumstances where the employer might grant such leave to accommodate an employee in fulfilling his or her religious obligations, but when there are other arrangements made available to an employee to take the necessary leave without loss of pay, I believe that it would violate the collective agreement for me to order that discretionary leave be granted in light of the employer’s scheme in place to accommodate an employee by other arrangements such as those provided for in the employer’s “policy”. In this regard, I refer to subsection 96(2) of the Public Service Staff Relations Act. There is no absolute right to “leave with pay for other reasons” for employees who wish to take time off to observe their religious obligations. The courts have recognized only that an employer must accommodate such an employee by allowing him time off without loss of pay. The requirement that the accommodation must be up to the point of undue hardship comes into play only if there are no other arrangements less onerous to the employer available to accommodate an employee—then the employer must burden itself up to the point of undue hardship.

Accordingly, for all these reasons, I am satisfied that the employer did not violate the “No discrimination” provision of the relevant collective agreements in relation to the grievors. In addition, the grievors have failed to satisfy me that the employer acted arbitrarily, discriminatorily, unreasonably or in bad faith when it denied the grievors’ requests for other leave with pay to celebrate the Jewish high holidays.

In view of the foregoing, I find that the grievances before me cannot be sustained and are denied. [Underlining added by me for emphasis.]

In the applicants’ application record, the applicants request that the decision of the Adjudicator be set aside and that the matter be remitted back to the Public Service Staff Relations Board to be decided in accordance with the reasons of this Court. In the same document, the issues in dispute before this Court are described as: whether the Adjudicator erred when he determined that the employer had not violated the “No Discrimination” provisions of the collective agreements; and whether the Adjudicator erred when he determined that the employer had not acted in a discriminatory manner or unreasonably when it denied the applicants’ requests for other leave with pay to celebrate the Jewish High Holidays.

The issue of the appropriate standard of review was briefly argued before me. Both counsel referred me to Canada (Attorney General) v. Wiseman,[2] a recent decision of Cullen J. of this Court. Mr. Justice Cullen concluded [at page 19]:

In my opinion, having considered the criteria referred to above and the cases from the Supreme Court dealing with the standard of review, I find that the decision of the arbitrator in the case at bar should be accorded considerable or significant curial deference, particularly since it concerns a matter squarely within the scope of the arbitrator’s jurisdiction and special expertise. Although I was unable to come up with a pat phrase—such as “patently reasonable”—to describe the kind of decision that demands judicial intercession, it is sufficient to say that only decisions not supportable by the evidence are subject to intervention.[3]

The decision of the Arbitrator in this matter was dependent to a significant degree on his interpretation of the decision of the Supreme Court of Canada in Commission scolaire régionale de Chambly v. Bergevin[4] as can be seen from the quotation from his decision above. Given that fact and the fact that the issue before the Adjudicator was essentially the interpretation of anti-discrimination clauses and the employer’s obligation in the face of those clauses, the decision as much related to human rights law as it did to the interpretation of collective agreements per se and labour legislation. As the Adjudicator was unlikely to have special expertise in human rights law and the interpretation of judicial decisions in that area of law, I have doubts that the degree of deference that Mr. Justice Cullen concluded was appropriate on the facts before him, is required here. I make no determination on that question because I am satisfied that, whatever the degree of deference owed to the decision of the Adjudicator, the decision that he reached was correct.

Counsel for the applicants urged that the Adjudicator erred in concluding that there would be a violation of the collective agreements in question if he were to order that discretionary leave be granted in light of the employer’s scheme in place to accommodate by other arrangements. The Adjudicator had found that where the employer had made an offer of accommodation, to find that the employer must grant leave with pay would alter the collective agreements, by changing a discretionary authority to a mandatory one, and would therefor violate subsection 96(2) of the Public Service Staff Relations Act which provides as follows:

96. …

(2) No adjudicator shall, in respect of any grievance, render any decision thereon the effect of which would be to require the amendment of a collective agreement or an arbitral award.

I am satisfied that in certain circumstances, the Arbitrator could find resort to the leave with pay provisions of the collective agreements to be required in order to comply with the non-discrimination provisions of the collective agreements, and that in those circumstances the collective agreements would not be violated, nor would subsection 96(2) be transgressed. In this regard, I agree with the position advanced on behalf of the applicants. The Adjudicator was required to interpret the collective agreements as a whole and not in abstract, apart from the non-discrimination provisions. Thus, where an offer of accommodation from the employer was not reasonable, the Adjudicator might be obliged to read the otherwise discretionary “other leave with pay” provisions as mandatory in order to ensure compliance with the non-discrimination provisions. Indeed the essential finding in the Chambly decision was that a similar clause ought to be interpreted in this manner, where resort to the clause was the sole method of ensuring compliance with the non-discrimination provisions in that collective agreement.

However, in this case, the Adjudicator was correct in concluding that a reasonable offer had been made by the employer, and there was no need to resort to the other leave with pay provisions. On the facts before the Adjudicator, it was clear that the employer had offered the applicants a range of options to accommodate their religious obligations. Among those options was the opportunity to work extra hours, to “make up” the time taken as leave. This option effectively provided the applicants with the opportunity to meet their religious obligations without loss of pay and without reliance on “banked” leave credits. On the basis of this option alone, I conclude that the Adjudicator was correct in deciding that the employer had extended a reasonable offer to accommodate, albeit one that stopped short of undue hardship for the employer.

In the Chambly decision, Mr. Justice Cory concluded [at page 546]:

It is important to remember that the duty to accommodate is limited by the words “reasonable” and “short of undue hardship”. Those words do not constitute independent criteria. Rather they are alternate methods of expressing the same concept.

Like the Adjudicator, I interpret this statement to mean that an offer of accommodation need only be reasonable to satisfy the duty to accommodate. No obligation existed on the employer to accommodate in the specific manner demanded by the applicants. The sole obligation on the employer was to provide reasonable accommodation. I am satisfied that the adjudicator was correct in concluding that on the facts before him, the employer had met that obligation.

For the foregoing reasons, this application for judicial review will be dismissed.

APPENDIX 1[5]

1. The CS Agreement:

17.13 Leave With or Without Pay for Other Reasons

At his discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement.

2. The PIPSC Master Agreement:

17.14 Other Leave With Pay

At its discretion, the Employer may grant leave with pay for purposes other than those specified in this Agreement, including military or civil defence training, emergencies affecting the community or place of work, and when circumstances not directly attributable to the employee prevent his reporting for duty.

3. The AU Agreement:

At its discretion, the Employer may grant:

21.13 Leave With or Without Pay for Other Reasons

(a)  Leave with pay when circumstances not directly attributable to the employee prevent his reporting for duty. Such leave shall be unreasonably withheld;

(b)  Leave with or without pay for purposes other than specified in this Agreement.

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