Sample: Respondent (Sophia Li v. ABC Trucking Inc.)

Tribunal File No.: T2000/0001

CANADIAN HUMAN RIGHTS TRIBUNAL

BETWEEN:

SOPHIA LI

Complainant

and

CANADIAN HUMAN RIGHTS COMMISSION

Commission

and

ABC TRUCKING INC.

Respondent

Statement of particulars of the respondent

  1. Facts

    1. ABC Trucking Inc. (ABC) agrees with the facts stated by the Complainant at paragraphs 1 to 4 of her Statement of Particulars.
    2. With regard to what occurred on February 1, 2012, Pat Smith, the President of ABC, along with Casey Taylor, the Complainant’s Supervisor, had a meeting with the Complainant to discuss the results of her fitness test. The Complainant was informed that she did not pass the fitness test, but would be given an opportunity to retake it. Despite being informed that passing the fitness test was a condition of her employment, the Complainant stated she did not want to retake the test. Therefore, the Complainant was informed that she was laid off.
    3. The Complainant did perform her work well; however, she had been disciplined in the past for using vulgar language with colleagues and clients.
    1. While the Respondent agrees that the Complainant was laid-off because she did not pass the fitness test, it disagrees that doing so was discriminatory.
    2. Under section 15(1)(a) of the Canadian Human Rights Act, ABC’s fitness test was based on a bona fide occupational requirement.
    3. The fitness test was developed in response to a Report that recommended that only physically fit employees be assigned as truck drivers for safety reasons.
    4. The fitness test was developed by identifying the essential components of truck driving, measuring the physiological demands of those components, selecting fitness tests to measure those demands and, finally, assessing the validity of those tests.
    5. Under section 15(2) of the Canadian Human Rights Act, it would cause undue hardship for ABC to accommodate employees who fail the fitness test because:
      1. it would put the health and safety of the employee at risk; 
      2. it would put the health and safety of colleagues and the public at risk; and,
      3. as a small business, it would cost too much to keep the Complainant employed in another area of the organization, while hiring a new employee as a truck driver.

  3. Remedy

    1. The Respondent denies that any discrimination has occurred, therefore, it believes the complaint should be dismissed.
    2. In the event the Tribunal finds the complaint substantiated, the following is the Respondent’s position on the remedies sought by the Complainant.
    3. If ABC’s fitness test is found to be discriminatory, the company requires a minimum of one year to explore possible solutions.
    4. ABC shuts down for two weeks in March. This shutdown period should be taken into consideration in calculating the Complainant’s lost wages. In our calculation, $10,500 minus two weeks wages would be $8416.67.
    5. Given that the Complainant’s hurt feelings and depression only lasted for a relatively short period of time, the Respondent submits that an award of $5000 would be a more appropriate award for her alleged pain and suffering.

  4. List of documents

    Non-privileged documents
    Document #DescriptionDate
    1Report Recommending Implementation of Fitness Policy for Truck driversOctober 1, 2011
    2ABC Trucking Inc’s Trucker Fitness Policy StandardsDecember 1, 2011
    3Sofia Li’s Fitness Test resultsJanuary 31, 2012
    4Sophia Li’s Notice of TerminationFebruary 1, 2012
    5ABC Trucking Inc.’s Employee Accommodation PolicyAugust 1, 2011
    6ABC Trucking Inc. Financial Reports for the years 2011-2012.January 2, 2013
    7

    Megan Smith’s Personal Trainer

    Certification

    		August 15, 2011
    Privileged documents
    Document#DescriptionDatePrivilege
    1Letter from Stephen Roy, counsel for ABC Trucking Inc. to Pat Smith, Re: CHRT complaintJune 1, 2012Solicitor-client privilege
    2Legal opinion from Stephen Roy to Pat Smith Re: CHRT complaintJuly 1, 2012Litigation privilege

  5. List of Witnesses

    NameSummary of anticipated testimony 
    Pat SmithPresident of ABC Trucking Inc. Will testify as to reasons for implementation of fitness standards and why they are necessary to ensure the safety of drivers. 
    Megan SmithWife of Pat Smith, Personal Trainer and developer of the Trucker Fitness policy and standards. Will speak to the necessity of developing fitness standards and why the standards developed and implemented by ABC Trucking Inc. are perfectly attainable by women.