The Human Rights Code, C.C.S.M. CapH175 and amendments thereto.BETWEEN:
KIMLEE WONG MORRISEAU, and
THE HUMAN RIGHTS COMMISSION,
- and -
JASON WALL and VIVIAN WALL,
operating as PAISLEY PARK,
Adjudicator: P. Colleen Suche, Q.C.
For the Complainants: A. Berg and J. Mann
For the Respondents: Jason Wall and Vivian Wall, in person
This complaint was filed by Kimlee Wong Morriseau on May 20, 1998, and alleges that the Respondents discriminated against her on the basis of family status and gender in that she was not allowed to breast-feed her infant child while in the Respondents’ store.
The issue that arises in this case is whether a party who provides a service to the public, as described in Section 13(1) of The Human Rights Code, must reasonably accommodate a nursing mother, and if so, what amounts to reasonable accommodation in the particular circumstances of this situation.
The hearing of this matter took place on September 20th and 21st, 2000. The Complainant and two friends, Jacqueline Vincent and Ginette McMullen testified, as did the Respondents, Jason and Vivian Wall. Two very different versions of events were described. Central to the issue is a discussion that occurred between Kimlee Wong Morriseau and Jason Wall, the critical components of which were neither witnessed nor overheard by anyone else.
The Respondents operate (or did at the time in question) an antique store known as Paisley Park located in the Osborne Village area of Winnipeg. On April 23, 1998, the Complainant and her two friends had spent the afternoon browsing in Osborne Village. The Complainant was carrying her six month old daughter, Kachina, in a baby sling. At about 4:00 p.m., the group entered the Respondents’ premises. Vincent and McMullen went in one direction, their attention caught by some chairs that Vincent was interested in, and the Complainant went in another. After a few minutes, Kachina began to fuss and the Complainant recognized that she was hungry, so she looked for somewhere to sit so she could breast-feed. There were several chairs in the store, so she sat in one that was located somewhat out of the way, and began to nurse Kachina. Wong Morriseau’s version of what happened then is that Jason Wall approached her and stated, "I don’t have a problem with that, but other customers might". He then asked her to go outside and indicated to a door that lead to what looked like an alley. She thought it looked dirty and insecure.
The Complainant looked around and saw that there were other customers in the store, none of whom were paying any attention to her. She told Wall that she had the right to breast-feed her child. She also attempted to explain to him the benefits of breast-feeding as she felt that he probably did not understand its importance. She maintained that she was not angry and that she spoke in a normal voice which was not raised. However, Wall responded by saying that she was being very rude. He picked up the telephone and said he was calling the police. At that point, Wong Morriseau turned her attention away from him for a few minutes. He again approached her and told her she was being very rude and should leave. She said she would leave when her friends left. When he continued on with this "verbally harassive" behaviour, as she described it, she started to feel anxious, so she called her friends over and told them that Wall had a problem with her breast-feeding, so they would have to leave. She said at that point Wall stated that he had spoken to his wife. The Complainant and her friends then left the shop.
Wong Morriseau maintained that she was not offered any alternative to leaving the store, nor did Wall say anything about the particular chair she was sitting in. She understood only that he wanted her to leave. She denied that she swore at him or was rude in any way.
Jacqueline Vincent testified that she and her sister had been looking at some chairs when she became aware that the Complainant and the Respondent were involved in a conversation, as she heard raised voices. The Complainant then called her and McMullen over. She was visibly upset and told them that Wall had said that if she wanted to feed Kachina she had to go outside. Vincent said she looked into the courtyard and from what she could see it appeared dirty and dingy. The Complainant also said that Wall had told her that he wanted her to leave the store. Wall interjected that he had spoken to his wife, and his wife said that the Complainant should leave. Vincent testified that she and her sister could not understand why the Complainant was being asked to leave.
Ginette McMullen testified that she and Vincent were looking at some things in the shop and had their backs turned when the Complainant called to them. They walked over to the Complainant and Respondent. Wong-Morriseau told them that Wall had said that she would have to leave and could not breast-feed her baby in the store. McMullen recalled that the Complainant had a shocked and upset look on her face at this point, and told them that Wall had suggested that she go outside to feed Kachina. She looked out the door and saw dirty concrete and a brick wall. McMullen also recalled that the Respondent made a comment that it was his right to ask them to leave. She thought he said something about offending customers. She remembered, as well, that he had made reference to getting the chair dirty, or expressed concern that it would get dirty. McMullen said she was shocked that something like this would happen "in this day and age".
Jason and Vivian Wall had a very different story to tell. Jason Wall stated that he is very conscious of the importance of being polite to everyone who comes into the store. Only ten per cent of those who come into the shop make purchases. He recognizes that the other ninety percent may well return to purchase an item at a future date, so it has always been his practice to treat everyone the same.
On the day in question, Wall said he was working at the counter when the Complainant and her friends arrived. He spoke to Vincent and McMullen for a few moments about the chairs they were looking at, and thereafter, noticed the Complainant was sitting on a very valuable Jacobean chair. It was the most expensive item in the store. He testified that he "got a little antsy" when he saw this because of the value of the chair. He said that he was concerned that the baby might spit up on the chair, and damage or soil it. Damage to stock was a matter of some concern to the Respondents. Wall maintained that it is very easy for articles to be damaged. They had had situations where furniture was damaged just from people sitting on it; for example, he recalled a chair was damaged by a comb that was sticking out of a customer’s pocket when he sat down. It was for this reason that the Respondents had a policy of not allowing customers to bring food or drink into the store. A sign was posted in the window that said "No food or drink allowed". The usual concern was more so in the case of this chair, because of its value. It was for this reason that the chair had a tag on it that read, "Please ask permission to sit in chair".
Wall said he recognized the situation was somewhat delicate, so he decided to call his wife and ask her what to do. She thought that he should offer the woman another place to sit. Since it was a beautiful day, she suggested the courtyard might be a good spot. Alternatively there were some dinette chairs in the shop that could be used.
The courtyard is adjacent to the store and is accessed by a door at one end of the store. This is the door that Wall pointed to in his discussion with Wong Morriseau. The courtyard has no roof, but is totally enclosed by the other areas of the building. A tree is in the center and several benches are located around the tree. The walls are brick, the ground is unistone. Wall said it was a beautiful day: the sun was shining into the courtyard; he described it as most pleasant and tranquil. The courtyard is well maintained and he indicated that he frequently received comments from customers as to how lovely an area it was. He said it was simply impossible that there was debris or litter in the courtyard. There is a large mural painted on the wall that faces the store. It could not be described as dingy, in his view.
Wall denied that when he first approached Wong Morriseau while she was breast-feeding he said that "while [he] didn’t have a problem with it, others might". He said that he offered her the courtyard as a place to nurse her baby, and suggested that she could also sit in a vinyl chair which was located next to the door leading to the courtyard. In response he said Wong Morriseau stated, "I’ll damn well breast-feed wherever I want". He described her tone as belligerent and said her voice was raised. At that point, he noticed that two customers who had just entered the store turned and left. He found this to be very unusual and concluded that the two events were related. He told the Complainant that she was being rude and she would have to leave as she was upsetting other customers. She refused.
He said the Complainant’s friends then came over and Wong Morriseau told them that she would have to leave the store. As she passed the desk, he heard her say "this guy won’t let me breast-feed - how typical of a guy". Wall said he pointed out that he spoken to his wife who agreed that the Complainant should leave. He said that as they left, one of them made a comment that the Human Rights Commission would be interested in this.
Vivian Wall testified that she received a call from her husband on the afternoon in question, advising that there was a woman breast-feeding in the Jacobean chair. He wondered what to do. She told him to suggest that she go sit in the courtyard because it was a beautiful day; alternatively, she could sit on one of the chairs from a dinette suite. Five minutes later, she received another telephone call from him. He was very shaken up. He described what had occurred and that that the customer stated that she was going to the Human Rights Commission. Wall’s response was that she did not feel that there was anything to fear based on what he had told her.
Wall described that in the several weeks after the complaint was filed, the issue became a matter of interest to the media. CBC contacted her; several articles appeared in local newspapers; the local BIZ organization received an e-mail from an irate member of the public purportedly on behalf of the Complainant. She expressed frustration that she and her husband had been unfairly portrayed to the public. It was clear from their testimony that they still felt the sting of the negative publicity they received.
The two versions of the conversation between Wong Morriseau and Jason Wall could hardly have been more different. It was apparent that both were quite invested in their perspective; they portrayed themselves as the picture of reasonableness, and the other as quite the opposite. While I do not think that either was untruthful, I am satisfied that in both instances both their perceptions and recollections were not accurate. It is also clear that the intervening two and half years between the incident and the hearing served to further colour their recollections. The search for truth, which is always an inexact process, becomes more difficult in such situations. Consistency with other evidence concerning surrounding events, as well as common sense and logic become important, if not blunt instruments in trying to decide what took place.
When all is said and done, there are some aspects of the situation that will forever remain unclear. However, I am satisfied about a few critical points. I accept that Wall’s concern was that the Complainant was sitting in the Jacobean chair. He felt that he had the right to enforce the store’s policy that prevented customers from consuming food or drink on the premises; he also seems to have recognized that in doing so might be inappropriate in the case of the Complainant, and that was the reason he sought his wife’s advice.
I accept Wong Morriseau’s evidence that Wall never mentioned that his concern was the particular chair she was sitting on. I also doubt that he was as polite as he would have me believe. Having said that, I also accept that the Complainant responded in more or less the fashion he described. Wong Morriseau, reacting to what she no doubt perceived as an attack on herself and her child, and Wall, offended at a browser’s belligerence in the face of his attempt to protect his property were instant partners in a serious conflict. Surely this is the very stuff of which neighbourhood feuds, or even international incidents are made.
The Human Rights Code
The Respondents were providing a service to the public in operating their store, and thus, come within Section 13 of the Human Rights Code. The first question that arises is whether they discriminated against the Complainant. Specifically what is at issue is the Respondents’ policy of not allowing customers to consume food or drink on the premises. While the policy is not discriminatory on its face, it is the application of the policy to the Complainant that must be examined.
Discrimination, as defined by Section 9(1)(d) of the Human Rights Code includes:
failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2).
Section 9(2) of the Human Rights Code lists the applicable characteristics, the relevant of those being:
(f) sex, including pregnancy, the possibility of pregnancy, or circumstances related to pregnancy;
(g) gender-determined characteristics or circumstances other than those included in the clause (f);
(i) marital or family status.
I am satisfied that breast-feeding falls within both "circumstances related to pregnancy" and "family status". If I am wrong on the former, then certainly breast-feeding is a "gender related characteristic or circumstance" as contemplated by (g).
In my view breast-feeding is both about the rights of the mother and the rights of the infant child. This is of particular relevance given the policy in question. After all it was the child that was eating. In this respect, a nursing child would fall within Section 9(2)(e) of The Code, which identifies age as a protected characteristic.
Breast-feeding is an important health and developmental issue. In Schafer v. Canada (Attorney General) O.J. No. 1915, the court commented on information filed before it, (p. 8):
The World Health Organization, Health and Welfare Canada and the Canadian Pediatric Society have for the past 20 years actively promoted breast-feeding. Exclusive breast-feeding is recommended for the first 6 to 12 months of life for maximum nutritional, immunological and developmental benefit to an infant.
About 75% to 80% of mothers begin breast-feeding. There is no accurate data about its duration. It is estimated that only 25-30% of mothers continue to breast-feed for 6 months. Exclusive breast-feeding does not persist after 2 months for a majority of breast-feeding mothers.
Breast-feeding is a high frequency irregularly scheduled activity. The mother must be well nourished and needs frequent rest periods. The women’s ability to sustain lactation requires help with other children and household tasks and emotional encouragement. Mother and child must be in close proximity. The surroundings must be clean and comfortable with some degree of privacy. Few work sites can accommodate these needs.
It is also the case that The Universal Declaration of Human Rights adopted and proclaimed by the United Nations General Assembly in 1948, to which Canada is a party, provides:
The States Parties to the present Covenant recognize that:
- The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children...
- Special protection should be accorded to mothers during a reasonable period before and after childbirth....
- Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination by reasons of parentage or other consideration...
In addition, The Convention on the Rights of the Child was sponsored by the United Nations in 1989. Canada became a signatory in 1991. The preamble recalls that in the Universal Declaration of Human Rights the United Nations has proclaimed that childhood is entitled to special care and assistance.
Article 24 of the Convention addresses the promotion of health care and nutrition of children, including pre-natal and post-natal care for mothers and the advantages of breast-feeding.
International documents to which Canada is a signatory are not binding authorities. The Supreme Court of Canada in Slaight Communications Inc. v. Davidson  S.C.R. 1038 observed that when considering the Charter, the same must be interpreted to be consistent with such conventions. While provincial legislation may be one step removed, the purposive nature of such legislation suggests the same standards are intended to apply.
There can be no doubt that a breast-feeding mother and her child have special needs, and these must be reasonably accommodated by anyone who provides a service that falls within Section 13(1) of the Human Rights Code.
Until recently, an analysis of a human rights cases from most jurisdictions was dependant upon whether the discrimination was direct or indirect. Recently, the Supreme Court of Canada in British Columbia Government and Service Employees’ Union v. Government of the Province of British Columbia as represented by the Public Service Employee Relations Commission(1999), 35 C.H.R.R. D/257 (S.C.C), (the "Meiorin case"), observed that this analysis raised numerous difficulties. The court concluded it was appropriate to adopt what it described as a unified approach. This approach is consistent with the analysis that has always been required by the Human Rights Code, given Section 9(1)(d). The three steps identified by the Supreme Court in determining whether a discriminatory rule can be sustained provide a concise road map for the analysis of the duty to accommodate. The Court stated at page 275:
4. Elements of a Unified Approach
Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
This approach is premised on the need to develop standards that accommodate the potential contributions of all employees insofar as this can be done without undue hardship to the employer. Standards may adversely affect members of a particular group, to be sure. But as Wilson J. noted in Central Alberta Dairy Pool, supra, at 518 [D/436, para. 56], "[i]f a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be [a BFOR]". It follows that a rule or standard must accommodate individual differences to the point of undue hardship if it is found reasonably necessary. Unless no further accommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case of discrimination stands.
Having set out the test, I offer certain elaborations on its application.
The first step in assessing whether the employer has successfully established a BFOR defence is to
identify the general purpose of the impugned standard and determine whether it is rationally connected
to the performance of the job. The initial task is to determine what the impugned standard is generally
designed to achieve. The ability to work safely and efficiently is the purpose most often mentioned
in the cases, but there may well be other reasons for imposing particular standards in the workplace.
In Brossard, supra, for example, the general purpose of the town’s anti-nepotism policy was
to curb actual and apparent conflicts of interest among public employees. In Caldwell, supra,
the Roman Catholic Church high school sought to maintain the religious integrity of its teaching environment
and curriculum. In other circumstances, the employer may seek to ensure that qualified employees are
present at certain times. There are innumerable possible reasons that an employer might seek to impose
a standard on it employees.
Once the legitimacy of the employer’s more general purpose is established, the employer must take
the second step of demonstrating that it adopted the particular standard with an honest and good faith
belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating
against the claimant. This addresses the subjective element of the test which, although not essential
to a finding that the standard is not a BFOR, is one basis on which the standard may be struck down:
see O’Malley, supra, at 547-50 [D/3105], per McIntyre J.; Etobicoke, supra, at
209 [D/783], per McIntyre J. If the imposition of the standard was not thought to be reasonably
necessary or was motivated by discriminatory animus, then it cannot be a BFOR.
The employer’s third and final hurdle is to demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated to be rationally connected to the performance of the job. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. When referring to the concept of "undue hardship", it is important to recall the words of Sopinka J. who observed in Central Okanagan School District No. 23 v. Renaud,  2 S.C.C. 970 at 984 [16 C.H.R.R. D/425 at D/432, para. 19], that "[t]he use of the term ‘undue’ infers that some hardship is acceptable; it is only ‘undue’ hardship that satisfies this test". It may be ideal from the employer’s perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship.
Although the Meiorin test was developed in the employment context, it applies to all claims of discrimination.
Applying the first step to the situation at hand then, it is clear that the Respondents’ policy of not allowing food or beverages in their store was adopted for a purpose or goal that was rationally connected to their business. Certainly the concern that their goods could be soiled or damaged was legitimate, and such a rule would minimize the risk of this occurring.
I am also satisfied that the policy met the second test, namely that it was adopted in good faith and in the belief that it was necessary to achieve its purpose.
The third step asks the questions of whether the policy is reasonably necessary to accomplish its purpose in the sense that the Respondents could not accommodate the Complainant without incurring undue hardship.
As was noted in Terry Grismer (Estate) v. British Columbia Council of Human Rights (Member of Designate Tom Patch), British Columbia Superintendent of Motor Vehicles (1999), 36 C.H.R.R. D/129 (S.C.C.), at page 136:
"Accommodation" refers to what is required in the circumstances to avoid discrimination.
Standards must be as inclusive as possible. There is more than one way to establish that the necessary
level of accommodation has not been provided.
It must be remembered, of course, that accommodation does not have to be absolute or "perfect" accommodation. Rather, by definition, it must be reasonable. It may be that there is more than one alternative available, and in that instance, the employer or service provider, as the case may be, has the right to choose which accommodation it shall offer.
The party seeking accommodation also has some responsibilities in this situation. As was noted by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud,  16 C.H.R.R. SCC D/425, at page 439:
The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this Court in O’Malley, supra. At p. 555 [D/3107, para. 24777], McInytre J. stated:
Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.
To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley, supra. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.
In conclusion, the duty to accommodate requires reasonableness and something of a give-and-take on the part of all those who are affected by a given situation. It is, as has been described by one experienced counsel, "a dance of reasonableness".
The question of whether third parties are affected by an accommodation is sometimes a relevant consideration. The Court in Renaud commented, (again in the context of a complaint of discrimination in employment) that:
The reaction of employees may be a factor in deciding whether accommodating measures would constitute undue interference in the operation of the employer’s business. In Central Alberta Dairy Pool, supra, Wilson J. referred to employee morale as one of the factors to be taken into account. It is a factor that must be applied with caution. The objection of employees based on well-grounded concerns that their rights will be affected must be considered. On the other hand, objections based on attitudes inconsistent with human rights are an irrelevant consideration.
Here the Complainant testified that the Respondent stated, as his explanation for suggesting she go into the courtyard, that other customers might be offended by her breast-feeding her child. Wall denied this. For the purposes of reaching a decision in this case, it is not necessary for me to conclude whether the comment was made. It is worth noting, however, that such a consideration would be an improper basis for refusing accommodation, being nothing more than an archaic view that comes within Justice Sopinka’s description of "an attitude inconsistent with human rights".
Applying the principles referred to above to the facts of this situation, there are several conclusions that can be drawn. The first is that the Respondents cannot enforce their policy that no food or beverage can be consumed in their store as against the Complainant and her daughter. In the language of human rights analysis, they have not demonstrated that they would suffer undue hardship by accommodating the Complainant. In fairness, the Respondents did not argue otherwise. They maintained that they had offered reasonable accommodation. This point is really all that is in issue.
What is reasonable accommodation of the needs of a breast-feeding mother and her child? Based on the Complainant’s testimony, the comments in Schafer and some common sense, all that was required was somewhere for the complainant to sit that was clean, comfortable, and somewhat private. The Jacobean chair located in an out of the way spot in the Respondents’ store offered that. However, the Complainant had no absolute right to sit there. The Respondents had the right to choose the accommodation they would offer, provided, of course, that it was reasonable.
This leads to the question of exactly what was offered. Jason Wall maintained that he told the Complainant that she could go into the courtyard or sit in a dinette chair that was located near the door into the Courtyard. Wong Morriseau said he offered no alternative to the courtyard. I accept Wong Morriseau’s evidence on this point. I am satisfied that all that was communicated to the Complainant was to sit in the courtyard. I am also satisfied that the Complainant was not insistent on sitting on the Jacobean chair, and would have agreed to sit somewhere else, had it been offered.
Was the courtyard, then, a reasonable location for the Complainant to sit to breast-feed her child? To begin with, I accept the Respondents’ description of both the courtyard and the weather conditions on the day in question, albeit that the latter was not really in issue. I conclude that given those conditions, on that particular day the courtyard was a location that was as suitable and secure, and generally as comfortable as presented by the Jacobean chair in the store. Furthermore, offering the courtyard was not equivalent to asking the Complainant to leave the premises, which would not amount to reasonable accommodation. The courtyard was connected to the store and private to a few tenants in the building. It is clear that Wong Morriseau did not appreciate this, and thought it was something much less attractive. This was due, in part, to the fact that the conflict in which she and the Respondent were engaged was in full flight by this point.
It was argued on behalf of the Complainants that offering the courtyard to Wong Morriseau amounts to segregation, and is reflective of an "out of sight, out of mind attitude" that is no longer acceptable. While I agree that such an attitude is sexist and outdated, I am not prepared to conclude that it is one that the Respondent held. Even if I were, however, I do not see that it would make a difference to the outcome in this case. Human rights is about conduct, not motives. The law is clear that in human rights cases intention is irrelevant. The question is only what is the effect or result of the conduct to the person entitled to protection? For this reason, neither ignorance, nor bona fide intention is a successful defence to a claim of discrimination. Surely the principle operates in reverse. If the accommodation offered is reasonable, it should be no less so because it was offered as a result of an attitude inconsistent with human rights.
This situation was both unfortunate and unnecessary. To be generous to the Complainant and the Respondent, one could say that the whole episode was simply an exercise in miscommunication. While I don’t perceive either of them to be unreasonable people, certainly their conduct in this matter does not reflect well on them. Having said that, this analysis is not about manners, and I conclude that the Respondents have met the onus upon them to demonstrate that they offered to reasonably accommodate the special needs of the Complainant and her infant daughter. The complaint is therefore dismissed.
Dated at the City of Winnipeg, in Manitoba, this 12th day of December, 2000
P. Colleen Suche, Q.C.