Canada Safeway Ltd. v. Steel and Human Rights Commission (Man.), (1984) 27 Man.R.(2d) 79 (QB)

• Judge: Wright, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 28, 1984
• Jurisdiction: Manitoba
• Citations: (1984), 27 Man.R.(2d) 79 (QB)

Can. Safeway Ltd. v. Steel (1984), 27 Man.R.(2d) 79 (QB)

MLB headnote and full text

Canada Safeway Limited v. Steel (as a Board of Adjudication) and The Manitoba Human Rights Commission

Indexed As: Canada Safeway Ltd. v. Steel and Human Rights Commission (Man.)

Manitoba Court of Queen's Bench

Wright, J.

March 28, 1984.

Summary:

Canada Safeway Limited had a policy that prohibited male employees from having beards.

The Manitoba Food and Commercial Workers, Local 832, complained under the Manitoba Human Rights Act that the "no beards" policy was discrimination against male employees because of their sex. A board of adjudication held that the policy constituted discrimination on the basis of sex contrary to the Act and ordered that Canada Safeway Limited no longer require male food clerks to be clean shaven. Canada Safeway appealed.

The Manitoba Court of Queen's Bench allowed the appeal and held that the "no beard" policy constituted discrimination against men because of their sex but that the policy was a "reasonable occupational qualification" and therefore not contrary to the Act.

Civil Rights - Topic 902

Discrimination - General principles - Discrimination defined - The Manitoba Court of Queen's Bench discussed the meaning of "discrimination" as it related to human rights legislation - See paragraph 22.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - What constitutes - Section 6(1)(a) of the Manitoba Human Rights Act prohibited discrimination in employment because of, inter alia, sex - In interpreting the section the Manitoba Court of Queen's Bench stated that the literal meaning of the words of s. 6(1)(a) seemed to clearly indicate that if an employment rule applied to one sex but not the other, that should be sufficient to establish discrimination because of sex - See paragraph 39.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - What constitutes - The Manitoba Court of Queen's Bench stated that discrimination in employment because of sex can occur when there is an employment rule that applies to one sex but not the other - The court also stated that discrimination can occur when one sex is given an advantage over the other due to some particular characteristic common to one sex but not the other (for example a unique characteristic such as pregnancy or beards) - See paragraphs 38 to 44.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - The Manitoba Court of Queen's Bench discussed the meaning of discrimination in employment because of sex as prohibited by s. 6(1)(a) of the Manitoba Human Rights Act - See paragraphs 38 to 87.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - No beards policy - The Manitoba Court of Queen's Bench stated that the implementation of an employment rule restricting beards results in discrimination against men because of their sex contrary to s. 6(1)(a) of the Manitoba Human Rights Act - See paragraphs 38 to 87.

Civil Rights - Topic 981

Discrimination - Employment - General - Section 6(1)(a) of the Manitoba Human Rights Act prohibited discrimination in employment except in certain circumstances enumerated in s. 6(6) - The Manitoba Court of Queen's Bench discussed in detail its interpretation of the section - See paragraphs 8 to 121.

Civil Rights - Topic 992

Discrimination - Employment - Indirect discrimination - Employer's intention to discriminate - Relevancy of - Section 6(1)(a) of the Manitoba Human Rights Act prohibited discrimination in employment by employers - In interpreting the section, the Manitoba Court of Queen's Bench reviewed the law on the issue of whether an employer must "intend to discriminate" before his actions can be classified as discrimination - See paragraphs 23 to 37.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Reasonable occupational qualifications - Section 6(1)(a) of the Manitoba Human Rights Act prohibited discrimination in employment except in certain circumstances enumerated in s. 6(6) - In interpreting s. 6, the Manitoba Court of Queen's Bench stated that the exceptions in s. 6(6) for reasonable occupational qualifications have no application where refusal to hire or fire, or discrimination is because of race, nationality, religion, colour, or ethnic or national origin - See paragraph 15.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Reasonable occupational qualifications - Section 6(1)(a) of the Manitoba Human Rights Act prohibited discrimination in employment because of sex - Section 6(6) of the Act provided that s. 6(1)(a) did not apply where sex was a reasonable occupational qualification - The Manitoba Court of Queen's Bench stated that evidence of customer or consumer preferences could be examined in deciding what is a reasonable occupational qualification, notwithstanding that the evidence may reflect discriminatory preferences by the public - See paragraphs 88 to 116.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Reasonable occupational qualifications - No beards policy - Section 6(1)(a) of the Manitoba Human Rights Act prohibited discrimination in employment because of sex - Section 6(6) of the Act provided that s. 6(1)(a) did not apply where sex was a reasonable occupational qualification - The Manitoba Court of Queen's Bench held that a no beards employment policy was discrimination because of sex contrary to s. 6(1)(a) - The court held, however, that the policy was a reasonable occupational qualification permitted by s. 6(6) of the Act, having regard in particular to consumers' attitudes towards beards on employees in the retail food industry - See paragraphs 1 to 121.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Reasonable occupational qualifications - Sex - Section 6(1)(a) of the Manitoba Human Rights Act prohibited discrimination in employment except in certain circumstances enumerated in s. 6(6) - In interpreting s. 6, the Manitoba Court of Queen's Bench stated that where discrimination arises because of one of the exceptions in s. 6(6)(sex is one of those exceptions), then the employer may prove that sex is a "reasonable occupational qualification" and thus avoid the consequences of an otherwise discriminatory policy or practice - See paragraph 16.

Words and Phrases

Discrimination - The Manitoba Court of Queen's Bench discussed the meaning of the word "discrimination" as it related to human rights legislation - See paragraph 22.

Words and Phrases

Discrimination because of sex - The Manitoba Court of Queen's Bench discussed the meaning of the phrase "discrimination because of sex" as prohibited by the Manitoba Human Rights Act, S.M. 1974, c. 65; C.C.S.M., c. H-175, s. 6 - See paragraphs 38 to 121.

Cases Noticed:

Retail Store Employees' Union, Local 832 and Last v. Canada Safeway Limited (1980), 2 Man.R.(2d) 100, refd to. [para. 4].

Re Last; Manitoba Food & Commercial Workers Union, Local 832 v. Canada Safeway Limited (1981), 7 Man.R.(2d) 238; 120 D.L.R.(3d) 42 (Man. C.A.), appeal allowed (1981), 37 N.R. 394; 123 D.L.R.(3d) 512 (S.C.C.), refd to. [para. 5].

Ontario Human Rights Commission, Dunlop, Hall and Gray v. Borough of Etobicoke (1982), 40 N.R. 159; 3 C.H.R.R. para. 6893 (S.C.C.), refd to. [para. 16].

Wong v. Hughes Petroleum Ltd., 4 C.H.R.R. 1488, refd to. [paras. 22, 58].

General Electric Co. v. Gilbert (1976), 97 S. Ct. 401, refd to. [paras. 25, 56].

Griggs v. Duke Power Company (1971), 91 S. Ct. 849, folld. [para. 25].

Ontario Human Rights Commission et al. v. Simpson-Sears Ltd. (1982), 133 D.L.R.(3d) 611 (Ont. Div. Ct.), affd. (1982), 138 D.L.R. (3d) 133 (Ont. C.A.), dist. [para. 26].

Re Attorney-General for Alberta v. Gares (1976), 67 D.L.R.(3d) 635, refd to. [para. 34].

Canadian National Railway Company v. Bhinder and Canadian Human Rights Commission (1983), 48 N.R. 81; 4 C.H.R.R. 284, refd to. [para. 35].

Schmidt v. Austicks Bookshops Limited, [1977] I.R.L.R. 360, refd to. [para. 53].

Geduldig v. Aiello, 94 S. Ct. 2485, refd to. [para. 56].

Bliss v. Attorney General for Canada (1978), 23 N.R. 528, refd to. [para. 58].

Turley v. Alders Department Stores Ltd., [1980] I.C.R. 66 (E.A.T.), refd to. [para. 62].

Tellier-Cohen v. Creamery Board (1982), 3 C.H.R.R. Decision 166, refd to. [para. 64].

Phillips v. Martin Marietta Corporation (1971), 91 S. Ct. 496, refd to. [para. 66].

Sprogis v. United Airlines Inc. (1971), 444 F. 2d 1194, refd to. [para. 67].

Carroll v. Talman Federal Savings and Loan Association (1979), 604 F. 2d 1028, refd to. [para. 68].

Laffey v. Northwest Airlines Inc. (1976), 567 F. 2d 429, refd to. [para. 68].

Roberts v. General Mills Inc. (1977), 337 F. Supp. 1055, refd to. [para. 70].

Donohue v. Shoe Corporation of America (1972), 337 F. Supp. 1357, refd to. [para. 71].

Aros v. McDonnell Douglas Corporation (1972), 348 F. Supp. 661, refd to. [para. 72].

Doyle v. Buffalo Sidewalk Cafe Inc. (1972), 4 F.E.P. Cases 1140, refd to. [para. 73].

Fagan v. National Cash Register Company (1973), 481 F.2d 1115, not folld. [para. 75].

Willingham v. Macon Telegraph Publishing Company (1975), 352 F. Supp. 1018, affd. (1975), 507 F. 2d 1084, refd to. [paras. 75, 78].

Stephen Dodge v. Giant Food Inc. (1973), 3 F.E.P. Cases 374, not folld. [para. 76].

Baker v. California Land Title Company (1974), 507 F. 2d 895, not folld. [para. 77].

Brown v. D.C. Transit System Inc. (1974), 10 F.E.P. Cases 841, not folld. [para. 79].

Knott v. Missouri Pacific Railroad Company (1975), 507 F. 2d 1249, not folld. [para. 80].

Louis Longo v. Carlisle DeCoppet & Co. (1976), 537 F. 2d 685, not folld. [para. 81].

Earwood v. Continental Southeastern Lines Inc. (1976), 539 F. 2d 1349, refd to. [paras. 82, 84].

Barker v. Taft Broadcasting Company (1977), 549 F. 2d 400, refd to. [paras. 83, 85].

Rafford v. Randle Eastern Ambulance Service Inc. (1972), 348 F. Supp. 316, refd to. [para. 86].

Boyce v. Safeway Stores Inc. (1972), 351 F. Supp. 402, refd to. [para. 86].

Thomas v. Firestone Tire and Rubber Company (1975), 392 F. Supp. 373, refd to. [para. 86].

Bertulli v. First Natl. Stores (1979), 20 F.E.P. Cases 1527, refd to. [para. 86].

Indiana Civil Rights Commission v. Sutherland Lumber (1979), 394 N.E. 2d 949, refd to. [para. 86].

Diaz v. Pan American World Airways Incorporated (1971), 442 F. 2d 385, not folld. [para. 107].

Statutes Noticed:

Canadian Human Rights Act, S.C. 197677, c. 33, sect. 10 [para. 35]; sect. 14(a) [para. 114].

Civil Rights Act, United States (1964), Title VII, sect. 703(a)(1), sect. 703(e)(1) [para. 25]; sect. 703(a)(2) [para. 35].

Human Rights Act, S.M. 1974, c. 65; C.C.S.M., c. H-175, sect. 6(1), sect. 6(6) [para. 8]; sect. 30, sect. 31 [para. 7].

Ontario Human Rights Code, R.S.O. 1970, c. 318, sect. 4(1)(g) [para. 27].

Authors and Works Noticed:

Tarnopolsky, Discrimination and the Law (1982), p. 265 [para. 59].

Counsel:

R.J. Hansell, Q.C., for Canada Safeway Ltd;

Murray Sinclair, for the Manitoba Human Rights Commission;

D. Shrom, for the Manitoba Food & Commercial Workers Union.

This appeal was heard before Wright, J., of the Manitoba Court of Queen's Bench, who delivered the following decision on March 28, 1984: