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Human Rights (Fed) - Employment. Matos v. Canada (Attorney General)
In Matos v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a JR, here against a Federal Public Sector Labour Relations and Employment Board (FPSLREB) finding against discrimination (here, a 'non-discrimination' right embodied in the collective agreement, not from the CHRA).
Here the court considered whether employment accomodation always mitigates adverse impact:IX. The Respondent’s Accommodation Argument
[58] As noted, the CBSA also says that Mr. Matos did not suffer any adverse impact because of its actions because he was reasonably accommodated by being provided with a non-enforcement position.
[59] With respect, this argument conflates the test for a prima facie case with the burden on the respondent to justify their conduct or practice within the framework of the exemptions available under section 15 of the Canadian Human Rights Act, one such exemption being that the complainant or grievor had been reasonably accommodated. Whether a respondent has adequately accommodated an employee does not figure into a determination of whether a prima facie case of discrimination has been established: Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 22. Moreover, this argument does not assist the CBSA as the Board found that Mr. Matos had not been adequately accommodated.
[60] The respondent further contends that any error in the Board’s assessment of the question of adverse impact was immaterial, as it found that, in any event, Mr. Matos had been reasonably accommodated by the CBSA, with the result that there was no discrimination.
[61] With respect, as noted in paragraph 59 of these reasons, this is not what the Board found.
[62] After accepting the CBSA’s evidence with respect to the physical requirements of front-line BSO positions in its alternative analysis, the Board noted that the fitness requirement had previously been found to be a bona fide occupational requirement for front-line BSO positions, and that it agreed with that finding: at para. 180, citing Lessard-Gauvin v. Canada (Attorney General), 2018 FC 809.
[63] That said, the Board went on to find that the employer’s case would nevertheless fail in Mr. Matos’ case because the CBSA had "“refused to engage in an individualized assessment of the grievor’s functional limitations and to seek accommodations for him rather than simply and mechanistically applying policy and moving him into an accommodated post”": at para. 183. This is what it was required to do: Moore, above at para. 49; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 ("“""Meiorin”"), at para. 65.
[64] That is, the employer must show "“that it could not have done anything else reasonable or practical to avoid the negative impact on the individual”": Meiorin at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489, 72 D.L.R. (4th) 417, at pp. 518–19; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 130.
[65] This is consistent with subsection 15(2) of the Canadian Human Rights Act, which states that for a "“refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment”" to be a bona fide occupational requirement, "“it must be established that accommodation of the needs of an individual [..] affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost”".
[66] The fact that the Board had found that the CBSA had failed to justify its conduct under section 15 of the Act is further made clear in the Board’s discussion of the damages to which Mr. Matos was entitled. At paragraph 195 of the decision, the Board accepted the CBSA’s submission that Mr. Matos had experienced little or no harm, stating that "“I would, in the alternative, ""if I am mistaken in my finding on the matter of a prima facie ""case of discrimination, award a nominal $1000.00 …”" [my emphasis].
[67] The only way that the Board could get to an award of damages after finding that a prima facie case of discrimination had been established would be if it was satisfied that the employer had failed to justify its conduct. This is precisely what the Board had found.
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