4. Importance of the decision-making process

52. This Court has acknowledged that both the decision-making process and the final decision have to be taken into consideration in analysing bona fide and reasonable justification because it is sometimes too tempting to reject a request for accommodation that is out of the ordinary.

Meiorin, supra, at p. 37.
See also Oak Bay Marine, supra, at paragraphs 84-86.
Lepofsky, supra, at p. 14:

It is perhaps a regrettable reality in the workplace, that when a person asks for something out of the ordinary, the first knee-jerk response on the part of some is simply to say no. It is often only after the matter receives further thought and reflection that stereotypical concerns can give way to imaginative solutions.

53. The CSMB had a duty to show not only that the policy itself had a bona fide and reasonable justification, but also that the process which led to that decision complied with human rights legislation. The following questions are pertinent in analysing that process:

1. Did the Respondent investigate alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
2. If alternative standards were investigated and found to be capable of fulfilling the Respondent's purpose, why were they not implemented?
3. Is there a way to do the job that is less discriminatory while still accomplishing the Respondent's legitimate purpose?
4. Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

Meiorin, supra, at pp. 36-37.

54. Author David Lepofsky adds the following questions about the process:

1. Who was involved in the discussions and the decision-making process?
2. What accommodation options were considered?
3. Was sufficient effort made to obtain the perspective of the person to whom the standard applies?

Lepofsky, supra, at pp. 11-15.
Oak Bay Marine, supra, at paragraphs 147-148.

55. In the case at hand, the CSMB rejected the accommodation proposed by Gurbaj Singh, allowing him to wear only a symbolic kirpan made of a material other than metal. For all intents and purposes, that amounted to rejection of all kirpans because of the religious requirement that a kirpan be made of metal.

56. To justify that decision, the CSMB had a duty to show that it considered and reasonably rejected the option proposed by Gurbaj Singh and any other possible accommodations that would make the kirpan reasonably inoffensive. In addition to those identified by the trial judge, possible accommodations could include the following restrictions, provided they comply with the Sikh religion:

1. impose a size limit on kirpans;
2. require kirpans to have a dull blade;
3. require periodic inspections;
4. use technological means (such as an alarm) to alert the CSMB if the kirpan is removed from its scabbard;
5. impose disciplinary requirements before allowing a kirpan to be worn;
6. organize information sessions to make other students aware of the kirpan and reassure them by explaining the applicable safety measures;
7. any other option that might be put forward in consultations between the CSMB and the Sikh community.

See

Pandori, Singh, Tuli, supra.

Conclusion

57. The CSMB has the right and a duty to ensure safety in its schools. However, to maintain its policy prohibiting the kirpan, it had to show that it carefully analysed the magnitude of the risk caused by the presence of a kirpan at school and that that risk is incompatible with the standard of safety necessary in schools. It had a duty to show, if applicable, that it considered and reasonably rejected any accommodations that would reduce the risk by making the kirpan reasonably inoffensive.

58. For all these reasons, we respectfully submit that the Court of Appeal erred in not compelling the CSMB to consider all possible accommodations before upholding its ban on the kirpan.

PART IV - ARGUMENTS REGARDING COSTS

59. The Canadian Human Rights Commission makes no arguments regarding costs.

PART V - ORDER SOUGHT

60. The Canadian Human Rights Commission respectfully requests that the appeal be allowed and that the Quebec Court of Appeal's decision be set aside.

ALL RESPECTFULLY SUBMITTED this 18^th day of March 2005.

Philippe Dufresne
Canadian Human Rights Commission

Counsel for Intervener
Canadian Human Rights Commission

 

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