Osborne and Inco Ltd., Re, (1984) 28 Man.R.(2d) 199 (QB)

• Judge: Kroft, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 25, 1984
• Jurisdiction: Manitoba
• Citations: (1984), 28 Man.R.(2d) 199 (QB)

Osborne, Re (1984), 28 Man.R.(2d) 199 (QB)

MLB headnote and full text

Re Osborne and Inco Ltd.

(Suit No. 86/83 N.J.D.)

Indexed As: Osborne and Inco Ltd., Re

Manitoba Court of Queen's Bench

Kroft, J.

May 25, 1984.

Summary:

An underground miner was dismissed from his job after he was absent from his work on four occasions on the Sabbath day as celebrated by his religion, the Seventh Day Adventist. The miner complained under the Manitoba Human Rights Act, s. 6(1), that he was discriminated against in his employment because of his religion. A Board of Adjudication, in dismissing his complaint, held that there was no contravention of the Act. The miner appealed.

The Manitoba Court of Queen's Bench allowed the appeal, held that there was a contravention of s. 6(1) of the Act, and remitted the matter back to the Board of Adjudication to determine the appropriate level of compensation and whether the miner should be placed on the employer's recall list.

Civil Rights - Topic 981

Discrimination - Employment - General - Approach of court to discrimination issues - The Manitoba Court of Queen's Bench discussed what it considered to be the proper approach that the court should take in deciding whether a particular employer's practices amount to discrimination contrary to s. 6(1) of the Human Rights Act - See paragraphs 9 to 47.

Civil Rights - Topic 986

Discrimination - Employment - On basis of religion - General - A miner was dismissed from his job after he was absent from work on four occasions on the Sabbath day as celebrated by his religion, the Seventh Day Adventist - The Manitoba Court of Queen's Bench held that his dismissal was discrimination because of religion contrary to s. 6(1) of the Manitoba Human Rights Act - See paragraphs 1 to 68.

Civil Rights - Topic 986

Discrimination - Employment - On basis of religion - Remedies - A miner was dismissed from his job after he was absent from work on four occasions on the Sabbath day as celebrated by his religion, the Seventh Day Adventist - The Manitoba Court of Queen's Bench held that his dismissal was discrimination because of religion contrary to s. 6(1) of the Manitoba Human Rights Act - As a remedy under s. 31 of the Act, the court returned the matter to a Board of Adjudication to determine what level of compensation was appropriate and whether the miner should be placed on a recall list - See paragraphs 63 to 68.

Civil Rights - Topic 986

Discrimination - Employment - On basis on religion - Defence of reasonable accommodation - Section 6(1) of the Manitoba Human Rights Act provided that no employer shall discriminate against an employee because of, inter alia, religion - The Manitoba Court of Queen's Bench stated that where a prima facie contravention of s. 6(1) is established, if it can be shown that the employer did all it reasonably could to accommodate the employee's religious beliefs without undue hardship on its business then there will be no discrimination because of religion contrary to the Act - See paragraphs 33 to 62.

Civil Rights - Topic 992

Discrimination - Employment - Adverse effect or indirect discrimination - Employer's intention to discriminate - Relevancy of - The Manitoba Court of Queen's Bench discussed the case law on the issue of whether there can be discrimination within the meaning of human rights legislation without the intention to discriminate on the part of the employer - See paragraphs 9 to 27.

Civil Rights - Topic 992

Discrimination - Employment - Adverse effect or indirect discrimination - Employer's intention to discriminate - Relevancy of - Section 6(1) of the Manitoba Human Rights Act provided that no employer shall discriminate against an employee in employment - The Manitoba Court of Queen's Bench stated that the absence of an intention to discriminate will not justify discriminatory practices prohibited by s. 6(1) - See paragraphs 9 to 33.

Cases Noticed:

Griggs v. Duke Power Co. (1971), 91 S.Ct. 849, refd to. [paras. 10, 20].

Attorney-General for Alberta v. Gares et al. (1976), 67 D.L.R.(3d) 635, refd to. [paras. 10, 20].

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), consd. [paras. 10, 16 to 23, 26, 35 to 40].

Ontario Human Rights Commission et al. v. Borough of Etobicoke (1982), 40 N.R. 159; 3 C.H.R.R. D/781, refd to. [paras. 10, 31].

Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commission et al. (1983), 48 N.R. 81; 147 D.L.R.(3d) 312, consd. [paras. 10, 24 to 27].

Canada Safeway Limited v. Steel (as a Board of Adjudication) and Manitoba Human Rights Commission (1984), 27 Man.R.(2d) 79, consd. [paras. 10 to 15, 32, 34].

Statutes Noticed:

Canadian Human Rights Act, S.C. 1976-77, c. 33 [para. 24].

Human Rights Act, S.M. 1974, c. 65; C.C.S.M., c. H-175, sect. 6(1) [paras. 3 et seq.]; sect. 31 [para. 63].

Human Rights Code, R.S.O. 1980, c. 340 [para. 16].

Individual's Rights Protection Act, R.S.A. 1980, c. I-2 [para. 20].

Authors and Works Noticed:

Tarnopolsky, Discrimination and the Law (1982), generally [para. 41]; pp. 180 to 223 [para. 10].

Counsel:

M.W. Howell, for the appellant;

R. Hansell, Q.C., for the respondent.

This appeal was heard before Kroft, J., of the Manitoba Court of Queen's Bench, who delivered the following decision on May 25, 1984: