Mrs. Lewis appealed the Director of the Department of Labour’s decision cancelling an officer’s decision that the School Board had wrongfully discriminated against the appellant. In 1996, Mrs. Lewis suspected that the cause of her health problems arose from the modular classroom to which she had recently been assigned and complained to the Board of Education. The Board declared that the classroom was safe. Mrs. Lewis filed a complaint with the Occupational Health and Safety Division of the Department of Labour, claiming that the Board had discriminated against her by failing to find her a new classroom. The tribunal held that the Board had failed to provide good and sufficient reasons for its failure to provide an alternative classroom. The Board appealed the decision and was successful on appeal. Mrs. Lewis appealed to the Saskatchewan Court of Queen’s Bench, who held that the adjudicator committed no error in concluding that there was no discriminatory action by the Board against Mrs. Lewis. Mrs. Lewis’ appeal was dismissed.
Administrative law – Labour law – Working conditions – Schools – Teachers – Discrimination
Lewis v. Regional School Division No. 4,  S.J. No. 526, Saskatchewan Court of Queen’s Bench, July 31, 2003, Matheson J.
After being assigned to the modular classroom in 1996, Mrs. Lewis began to experience persistent health problems. Her family doctor was unable to reach a diagnosis; however, Mrs. Lewis suspected that the cause of her health problems arose from her modular classroom, principally because her health improved on week-ends and during holiday periods when she was away from work. Mrs. Lewis’ doctor requested that the Board accommodate her special medical needs by moving her to another building or a classroom that was not a modular unit.
The Board took the position that Mrs. Lewis’ illness was not occupationally related; nevertheless, it undertook to find a position for Mrs. Lewis in another school. In 2001, Mrs. Lewis complained to the Occupational Health and Safety Division of the Department of Labour. The essence of her complaint was that her new classroom was not satisfactory and that the Board had discriminated against her in failing to place her in a different classroom in her original school.
An officer of the Department of Labour reviewed the complaint and made reference to regulation 302 of the Occupational Health and Safety Regulations, which indicates that an employer has a duty to take reasonable practicable steps to determine the presence of biological substances. The officer concluded that, having received no explanation from the Board as to whether they had done everything reasonably practicable to meet this duty, they had failed to provide good and sufficient reason for their failure to provide an alternate work area. The Board was consequently ordered to reinstate Mrs. Lewis and pay Mrs. Lewis any wages that she would have earned but for the wrongful discrimination.
The Board appealed the decision to the Director of the Department, who concluded that the Board did everything reasonably practicable to provide Mrs. Lewis with alternate work. The Director cancelled the decision of the officer.
Mrs. Lewis appealed the decision to an adjudicator, who denied the appeal. Mrs. Lewis made a further appeal to the Court of Queen’s Bench arguing that the definition of “discriminatory action” extends to any action, or threat by an employer that does or would adversely affect a worker, whether or not the action relates to occupational health and safety.
The court held that to be a prohibited discriminatory action as set out in the Act, the action must not only have adversely affected the worker but also have taken place because the worker had been attempting to enforce the Act or Regulations. It was apparent that the Board was not aware that Mrs. Lewis was attempting to enforce the Act or Regulations. The Board had placed Mrs. Lewis on sick leave because of its genuine concern for her health. In placing her on sick leave, the Board had not taken any discriminatory action. The appeal was dismissed with costs to the Board.
To stay current with the new case law and emerging legal issues in this area, subscribe here.