Meeting 7: Round Up

The two applicants, Stephen and Keith Prigden, are twin brothers who were charged with non-academic misconduct and placed on probation for having caused injury to one of their professors by posting derogatory comments about her on a Facebook page designed to criticize her teaching. On the page, which was called "I no longer fear Hell, I took a course with Aruna Mitra", the brothers each posted a negative comment. 

• Steven wrote: Somehow I think she just got lazy and gave everybody a 65.... that's what I got. Does anybody know how to apply to have it remarked?
• Keith wrote: "Hey fellow LWSO homes...So I am quite sure Mitra is no longer teaching any courses with the U of C! Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn't able to do it... lucky us.  Well, anyways, I think we should all congratulate ourselves for leaving a Mitra-free legacy for future LSWO students!"

After an investigation run by the Interim Dean of the Faculty of Communication and Culture (along with a team of professors from the faculty, including professor Mitra's spouse), the brothers each received a letter advising them that their conduct constituted non-academic misconduct. Only Keith was placed on probation. Both were required to write letters of apology to the professor and to refrain from posting or circulating defamatory materials about the professor; moreover they were advised that these sanctions could be taken into account in any future cases of misconduct and that failure to comply with the sanctions and conditions could result in further discipline, up to and including expulsion.

The brother appealed the decision to a Reviews Committee, which found that the Prigdens had both participated in non-academic misconduct. Keith was placed on probation for 4 months and Keith, for 6. Their application to appeal to the Board of Governors was rejected.

Issues

1. Does the Charter apply to the disciplinary proceedings taken by the Respondent University?
2. Were the Applicant's Charter rights infringed?
3. Were the Applicant's Charter rights justifiably infringed?
4. Did the Board of Governors err in refusing to hear the Applicants' appeals?
5. Were the Applicants denied a fair hearing?
6. Did the Review Committee provide adequate reasons for its decisions
7. Did the Review Committee err in concluding that the activities of the Applicants constituted non-academic misconduct?

Decisions

1. Yes
2. Yes
3. No
4. Yes
5. No
6. No
7. Yes

Reasons

1. The judge likened the situation described in this case to the one described in Elridge, where the issue was the failure of the hospital to provide interpreters in its provision of a service legislated by the government. So too is a University legislated by government to provide educational services to students.  "The University is the vehicle through which the government offers individuals the opportunity to participate in the post-secondary educational system. When a university committee renders decisions which may impact, curtail or prevent participation in the post-secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible education system as entrusted to it under the PSL act. The nature of these activities attracts Charter scrutiny.
    
2. The Judge used the Irwin test to determine that the applicant's Charter rights had indeed been infringed: "The effect of the Review Committee was to sanction the Applicants and prohibit them from publicly espousing their critical views regarding Professor Mitra while studying at the University of Calgary. The purpose of the order is to restrict the Applicants' freedom of expression. The second step of the Irwin test is also satisfied. The order has a direct effect on the Applicant's freedom of expression and violates section 2(b) of the Charter. "75
    
3. The Court used the Oakes test to determine that the infringement was unjustifiable under section 1 of the Charter. Part 1:  "I accept that the objectives of maintaining a learning environment where there is respect and dignity for all and in protecting its reputation as an institution are meritorious and accord with the values of a free and democratic society" (81). Part 2: "However, I am satisfied that the measures adopted by the Review Committee of disciplining the Applicants for making critical comments regarding Professor Mitra on the Facebook wall were excessive. I cannot accept that expression in the form of criticism of one's professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environments. I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action. The circumstances of this case are very different from those in Ross where racist comments were being made by a teacher to young children in an educational context. The University has not shown that the Review Committee's application of the Policy can be justified using a section 1 analysis. I am satisfied that the applicants' section 2(b) Charter Rights to free expression were infringed by the Review Committee's decisions, that such infringement cannot be justified under section 1 of the Charter, and that these decisions must be set aside.  (81-82).
    
4. According to Section 31 (1) (a) of the PSL:Act, all disciplined meted out by the general faculties counsel are subject to appeal to the board.
    
5. The only procedural defect identified by the court was the presence of professor Mitra's spouse on the committee that originally disciplined the brothers. However,  that committee was not the subject of the present hearing, although it could be subject to a subsequent hearing.
    
6. "The reasons given by the Review Committee are inadequate as they do not disclose the rationale for the decision but simply state a conclusion. There is no explanation provided to the Applicants to enable them to understand how their actions constituted non-academic misconduct or any guidance as to how they should govern themselves in the future. Moreover, it would be impossible for other students at the University to utilize the Review committee's response as a benchmark for their own behaviour on camps. The lack of any explanation as to how the Review Committee determined that the Applicants' actions constituted non-academic misconduct makes meaningful review of its decision difficult." (107)
    
7. "The issue on this application is whether the Applicants engaged in non-academic misconduct. For the purposes of the Policy, the issue is whether the statements caused "injury" to Professor Mitra, within the meaning of the Policy. As Professor Mitra was not called as a witness at the hearing, there is no direct evidence from her that she was injured as a result of the statements. The only evidence before the Review Committee that addresses whether any injury was caused is hearsay and second hand hearsay provided by Dr. Tettey that he received a complaint from Professor Mitra, who indicated that she had been told by unidentified colleagues and associates of that website which in their and her estimation seemed to bring her into disrepute and placed her professional stature in some unspecified manner.  While damage may be presumed in some circumstances as part of the law of defamation, there is no basis to presume injury or damage in this context where the very issue to be determined in respect of the Policy is whether Professor Mitra suffered injury as a result of the comments posted by the Applicants". (112) 

Order

The Review Committee's decision is quashed.

Background

• The CBSA was created in 2003. Its predecessors were the CCRA (Canada Customs and Revenue Agency), created in 1994  (up to 2003) and the National Revenue (Customs and Excise).  
• In 1993, the CHRT ruled that National Revenue (Customs and Excise) had discriminated against an employee (Brown) when it refused to accommodate her request to work day shifts so that she could arrange childcare. In this case, Brown v. National Revenue (Customs and Excise), the tribunal ordered the employer to apologize to the employee (which it did) and to amend its policies to include accommodation for family status (which it announced in the letter of apology but never implemented).  The Tribunal ordered that in its policy, Family status was to be interpreted as "a parent's right and duty to strike a balance between work obligations and child rearing coupled with a clear duty on any employer to facilitate and accommodate that balance".  The employer applied for judicial review of the decision, which was ultimately dismissed by Federal Court in 1998.  
• In 2000, the Labour Relations Division of the CCRA hosted an employment equity strategic session in which they exhibited a draft policy which included the recognition of the burden placed on women by their having to care  for children, elders and home maintenance and by a corporate culture which does not recognized this.
• In 2003, the CBSA completed an Equity Compliance Review in which it recognized their duty to "accommodate women in balancing their work and personal life through supportive policies and management."
• Neither the policy ordered by the Tribunal in 1993, nor the draft policy proposed in 2000, nor the measures put forth in the Equity Compliance review have been implemented.
• A Commission Investigator recommended in 2004 that the Commission consider another employee's complaint of discrimination on the basis of family status.  Notwithstanding this recommendation, the Commission declined to take the case in 2007. The complainant, Ms. Johnstone,  appealed the commission's decision to Federal Court, which remitted the case back to the commission for reconsideration. Thereafter, the commission referred the complaint to the Tribunal. The following facts pertain to her complaint and to her case, heard in 2010.

Facts

Ms. Johnstone and her husband Jason Noble both work full-time for Canada Border Services; she is a Canada Border Services Officer (BSO) whereas he is a supervisor.  Like all full-time employees of Canada Border Services, they work on a schedule of 5 days on, three days off on rotating shifts which are irregular and unpredictable.

When they had kids, the schedule made it impossible for Ms. Johnstone and Mr. Noble to find third-party childcare services, which typically operate five days a week on a static schedule.   They were able to find three separate family members willing to help on three set days.  Therefore,  Ms. Johnstone requested  that she be permitted to work three set days a week,13 hours a day (with start time to be determined by employer). This arrangement would allow her to keep her full-time status and related benefits.    

On both occasions, the employer refused to accommodate Ms. Johnstone, citing the employer's unwritten policy that full-time employees seeking accommodation because of childcare responsibilities would have to switch to part-time status.  Also mentioned were health and safety concerns (such a long shift would cause the employee to be fatigued and incapable to performing at an optimum level).   No efforts were made to assess Ms. Johnstone's case on its individual merits. 

This unwritten policy, however,  was not applied universally; some employees with young children were accommodated without having to drop to half-time status. Moreover, employees who requested accommodation for religious or medical reasons were afforded accommodation without having to drop to half-time status. Finally, there were employees in the same position as Ms. Johnstone and in other areas, who had 13-hour shifts and to whom health and safety concerns did not seem to apply.

The Tribunal found that the senior managers who testified had not been sufficiently educated or trained in human rights matters and that their knowledge was therefore insufficient.

Arguments

The employer argued that family status meant "being related to someone", not "having childcare responsibilities".  It maintained that having children was a choice whereas being related to someone was not. Employees who chose to have children were not covered by the act, in its opinion. Even if family status was a human right, then it would be undue hardship to accommodate Ms. Johnstone because this would open the floodgates for massive numbers of employees requesting similar accommodation, which would put the employer's schedule into a state of chaos. Finally, it is unsafe for anyone to work 13-hour shifts; an officer's fatigue would negatively affect her ability to perform her job duties.  

Issues

• Was there a prima facie case of discrimination on the basis of family status?
• Did the Employer justify its discrimination against the employee as being a bona fide occupational requirement?

Decisions

• Yes
• No

Reasoning

• The Tribunal used the definition of family status given in Brown (2003) according to which childcare responsibilities are a human right and employees exercising that right should not have to face discrimination at work.  It ruled that in this case, the Employer had imposed half time status upon a full-time employee, with resulting loss of pension and benefits and missed opportunities (training, promotions, special team participation, lower pay for overtime) for reasons of family status.
• The employer failed to assess Ms Johnstone's case individually on its merits. Rather, it applied an unwritten and arbitrarily applied policy dealing with employees with childcare responsibilities that conflicted with the work schedule.  It accommodated some, but not all,  women with childcare responsibilities. Furthermore, it had a policy for accommodating employees with medical disabilities or religious obligations which prevented them from attending work.  Moreover, the Health and Safety concerns raised as a undue hardship argument were not persuasive, as many part-time employees in similar positions as Ms. Johnstone worked 13-hour shifts. 

Order

The Tribunal made three orders

Systemic remedy: Wages and benefits

Ms. Johnstone is to be compensated for her lost wages and benefits, including overtime pay at the full-time rate, and that she be able to contribute to her pension from January 2004 to present (not including the time she took off to do this case)

General Damages for pain and suffering

She is to be paid $15,000 for injury to her person, her confidence, her professional reputation for the arbitrary and insensitive way in which her case was handled by the employer 

Special Compensation

She is to be paid $20,000 in special compensation for willful and reckless conduct. This remedy addresses the fact that the employer, by "ignoring so many efforts both externally and internally to bring about change with respect to its family status policies of accommodation, has deliberately denied protection to those in need of it"

Facts

Parry Sound v OPSEU is about a probationary employee fired shortly after taking maternity leave. She filed a grievance, and the issue was one of jurisdiction. The employer argued that she could not grieve the dismissal due to the collective agreement which held that probationary employees “may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties.”

The Board of Arbitration ruled that it had jurisdiction to hear the case. The Court reversed the ruling of the Board, stating that the board can hear human rights complaints only if it had jurisdiction to hear a grievance, which in this case it did not.  The Court of Appeal reversed the ruling of the Court. Rather than stating that the Court was incorrect, it referred to the Employment Standards Act (ESA) which forbids employers from dismissing employees for pregnancy leave and states that the ESA is enforceable as if it were part of the collective agreement  

The SCC supported the ruling of the Court of Appeal but was split.

Issue

• Does a Board of Arbitration have the jurisdiction to hear a discrimination complaint from a probationary employee who is otherwise unentitled to grieve termination?

Decision

• Yes

Reasons

• The majority ruled that the human rights code and other relevant statutes are written into every collective agreement and that Arbitrators have the jurisdiction to arbitrate claims arising from these statutes. The minority disagreed; it said that the Human Rights Code is NOT implicitly incorporated into all collective agreements, that  employers and unions have the right to define which employees and disputes are covered by a collective agreement and that this employee and her dispute were excluded from the grievance process explicitly by the collective agreement.  It said “absent legislative action, courts should not on their own initiative interfere with the terms of a collective agreement.”   
• The majority ruled that the Court of Appeal properly raised the ESA argument; the minority said that this was improper because the Union/the complainant chose not to raise the issue.
• The majority ruled that the complainant could grieve her human rights complaint through the grievance process.  The minority ruled that she could not - however, she was entitled to file a complaint with the Human Rights Commission.

Facts

Christan Cavanaugh was hired for the position of Banquet Manager at Sea to Sky Hotel in late November 2008, a job requiring long and unpredictable hours. At the job interview, she told her boss (the General Manager) that she had a one-year old child but that she had child care arrangements (third-party and family help) during the week and that the father took the baby on weekends.  

For the first three months, she was on probation. The employer had a number of concerns with her performance during this time, including dress code, demeanour, timeliness, all of which were raised with Cavanaugh informally. The General Manager asked the manager of the Beer and Wine store to provide Cavanaugh with informal training without letting her know that he had requested this intervention. After three months, management decided to continue to employ Cavanaugh despite her performance issues which, they hoped,  would likely improve over time.  

On March 1st, Cavanaugh organized a banquet at the hotel but left work to pick up her daughter in the middle of "take-down" and without first informing her superiors.  She had, however,  arranged for the Chef to do the take-down (clearing away tables etc...). After picking up her daughter and doing some grocery shopping, Cavanaugh returned to work to check on the take-down process. The General Manager found her in the kitchen, talking to the Chef and ordered her to do her job.  She complied.

On March 3rd, the General Manager had a meeting with Ms. Cavanaugh. He shared his concerns about leaving work without authorization and bringing a baby to work. He asked her why the child's father hadn't been taking take of the child that day (since it was a weekend night).  When she told him that her personal circumstances had changed, he demanded to know why she had not informed him.

On March 4th, Ms. Cavanaugh met with the General Manager again. This time, he questioned her ability to fulfill her job duties, which required 20-hour a day availability. Ms. Cavanaugh responded that her daughter was a priority for her, that she could not commit to 20-hour days, but that she had fulfilled her duties thus far and would continue to fulfill them in the future (in person or not).   After this meeting, the General Manager met with other managers to discuss the situation; everyone agreed that Cavanaugh was better suited to a part-time job with specified hours.

On March 8th,  Ms. Cavanaugh was terminated when she refused to accept "more suitable and specified part-time work" at the hotel.

Issues

1. Did Ms. Cavanaugh's termination amount to prima facie discrimination?
2. Did the employer establish a BFOR?

Decisions

1. Yes
2. No

Reasons

1. The Tribunal used the following traditional three-part test for prima facie discrimination.  It found that Cavanaugh 1) established that she was a member of a group protected under the enumerated ground of family status; 2) that she experienced some adverse effect in her employment, in the form of termination and 3) that family status was a factor in the adverse treatment. Three facts made the third point clear 1) the Hotel continued to employ Cavanaugh after her probationary period (despite performance issues) which shows that the March 1st incident was key 2) the General Manager showed great concern about the change in child-care arrangements 3) requiring Cavanaugh to accept an alternative position with "more structured hours" and "less demanding work is consistent with the interpretation that the employer was concerned the single mother's childcare commitments required her to take on a less challenging role at work.
2. The Respondent did not try to justify the discrimination; it simply denied that family status had anything to do with its decision to terminate Cavanaugh. Had it tried to justify the termination based on family status, it would have failed, ruled the tribunal, to meet the BFOR test because it had no proof that Cavanaugh could not fulfil her requirements and it made no attempt to accommodate her in the workplace.    

Facts

The applicant, Vicki Anderson, was an editor for Global Television News and a member of the Rocky Mountain Mystery School (RRMS), a religious organization. She had already arranged her summer holidays with Global when she was chosen by RMMS to participate in an important religious initiation ceremony which would bring her closer to God and elevate her status within the organization (allowing her to teach for money). The pilgrimage, as she called it, was set to take place in Japan outside Anderson's vacation time. The Third Step Ritual Master Initiation was, apparently, a once-in-a-life-time opportunity and it was therefore extremely important for to her to go to Japan at that time.   

Vicki approached her manager and told her that she had the opportunity to partake in a religious pilgrimage in Japan.  Rather than give specific information about her religion, her beliefs and the singular importance of this initiation, she tried to explain her religious requirements in terms she might understand, using an analogy to pilgrimages made by Muslims to the Mecca or the calling of catholic bishops to become cardinals.  She requested six additional days off work . Her request was denied because she had failed to request the time-off within the time limits set forth in the Collective Agreement and because all the other editors were taking pre-approved vacation at the same time she needed to go to Japan.   In frustration, Anderson told her manager that if Global forced her to chose between her job and her religion; she was going to have to quit her job.

Rather than filing a grievance, Vicki asked the Union to intervene formally on her behalf, which it did. In the meantime, she prayed for a miracle, which came (according to her) in the form of a sports injury to her wrist.  With her dominant hand in a cast, Anderson was unable to perform her editorial duties.  The modified duties proposed by her employer (answering phones) caused her intolerable levels of pain, and Anderson received a note from her family doctor advising the employer that she would not be returning to work until August 7th.

The end date of this medical leave coincided with the end date of the vacation time she had been denied. The employer was dissatisfied with the family doctor's note and required that Anderson to receive an independent medical assessment. The latter revealed that she would be able to perform limited physical tasks and unlimited mental tasks.  Therefore, the employer met with the union to set forth an accommodation package in which Anderson would return to work immediately to act as a coordinator ("traffic cop")  in the editing room, a job requiring no "hands-on" work.   The employer relayed these modified duties to the Union, who relayed them to the employee, who claimed not to understand them. The employer then instructed the employee to return to work and encouraged her to seek clarification on the modified job duties as required.  The employee, instead, wrote her manager to advise that she had elected to return to work on the date prescribed by her family doctor (i.e. Aug 7th). After asking a coworker to clean out her locker, as she foresaw that she was going to be fired, Anderson bought a ticket to Japan, travelled to Mount Fiji, and participated in the religious initiation. When she returned, she was terminated for three reasons: 1) she quit 2) she failed to return from medical leave without a valid excuse 2) she was insubordinate. In Arbitration, it claimed that the employer is not responsible for subsidizing the vocational training of religious leaders.

Issues

1. Were the employer's reasons for termination valid?
2. Did the employer accommodate the employee's disability?
3. Did the employer accommodate the employee's religious requirements?
4. Did the employee cooperate fully with the employer when asking for religious accommodation?

Decisions

1. No
2. Yes
3. Yes
4. Yes

Reasons

1. Anderson clearly indicated to the employer, in writing, that she intended to return to work on the seventh. She was not given medical leave, so she could not have failed to return from it.  She was, however, insubordinate "from a disability perspective and in the absence of special circumstances" when she failed to return to work as ordered. (33) For example, she pretended not to understand her new traffic cop duties (even though they were well explained), she failed to come to work to assess whether she could or could not tolerate those duties and she failed to go back to her family doctor for a reassessment, relying instead on a letter written about the first set of modified duties (not the second).
2. The employer made an individual assessment of her situation, took steps to gather independent medical advice, suggested modified duties that complied to the physical limitations set forth in that assessment and clearly explained those duties to the Union, who in turn explained them to the employee. 
3. The arbitrator used a two-part test, gleaned from case-law, and composed of the following questions 1) Has religious freedom been triggered? (See note #1)  2) Was the employer's interference with the employee's religious freedom enough ("in a manner that is more than trivial or insubstantial") to constitute an infringement under the Charter?  The arbitrator found that the answer to both questions was yes. Moreover, the arbitrator found that if Anderson  had attended work as ordered, she would have missed out on a singular opportunity to practice her religion. The opportunity to become a Master would not present itself again in the future.  The work obligation was therefore a substantial infringement of her religious freedom (39)
4. She was insubordinate "from a disability perspective and in the absence of special circumstances" (33) when she failed to return to work as ordered. For example, she pretended not to understand her new traffic cop duties (even though they were well explained), she failed to come to work to assess whether she could or could not tolerate those duties and she failed to go back to her family doctor for a reassessment, relying instead on a letter written about the first set of modified duties (not the second).The employee's refusal to cooperate in the accommodation process does not show that the employer failed to accommodate her disability.

Order

Given the employee’s failure to inform the employer about her religious belief or practice, including her failure to grieve its denial of her religious leave, and given her insubordinate manipulation of the disability issue in order to achieve her religious ends, the Arbitrator refused to order compensation. However, the Arbitrator ordered that Anderson’s termination be reversed.

Notes

1. Thus, at this first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that 1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and 2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.
2.  Having reviewed the evidence, I find it proved that Ms. Anderson sincerely believed in the practice that she undertook in Japan, namely the Third Step Ritual Master Initiation. This Initiation had a nexus with her religion, namely the RRMS. In May, when Ms. Anderson was informed that it was time to take the next step as a Third Step Ritual Master, she considered that offer to do this service for God as his representative on earth to be a great honour and privilege. This was something that she had been hoping for in making her commitment to God more devout. In her e-mail to Ms. Clark of May 29, Ms. Anderson wrote, in part, that: “This is a deeply profound pilgrimage that I must take.” Additionally, the actual Third Step Ritual Master Initiation that she undertook was consistent with what she wrote in her email. In its argument, the Employer referred to the information on the RMMS website that a Third Step Ritual Master never works for free, that one is prohibited to work for free and that Jesus took pay for his services in food, water, clothes and shelter. From the evidence, it was evident that there was a spiritual essence and sincerity in Ms Anderson’s undertaking of the Initiation, with its nexus to her religion. In that regard, there was no suggestion that she was motivated by any vocational or pecuniary consideration. Moreover, the possibility that Ms. Anderson may receive an undefined payment for potentially “working” as a Third Step Ritual Master does not otherwise transform the spiritual essence and sincerity of Ms. Anderson’s Initiation into something that is essentially vocational. In that regard, she was not engaged in the performance of a vocational duty on behalf of the RMMS at any material time.