Difficulty in Conciliating Freedom of Religion and the Protection of Workers
Recently, the Court of Appeal rendered a decision with respect to the complex relationship between the freedom of religion of certain workers and the health and safety obligations of employers. In some cases, it turns out that the freedom of one will have to give way to the obligations of others.
Three truck drivers who are of the Sikh faith and wear the turban challenge a policy applicable to the terminals of the Port of Montreal (the “terminals”). Under this policy, they are required to wear a helmet when they leave their truck and move around the site of the terminals where they deliver or retrieve containers in the context of their work.
An accommodation was tested for a few months in different terminals. The truck drivers who refused to wear the helmet were asked to stay inside their trucks at all times, while other employees did the required maneuvers outside of the truck. This resulted in significantly longer operational delays. The accommodation was therefore abandoned because the truck drivers and terminals considered it unsustainable on the economic and organizational levels.
One year after the adoption of the policy, the three appellants initiated proceedings with the Superior Court to be exempted from wearing protective helmets when moving around the terminal sites. The Superior Court rejected their application – they challenged this decision, which the Court of Appeal ultimately upheld.
What should be remembered from the decision of the Court of Appeal
The appellants have cleverly attempted to draw a parallel with a decision that was highly publicized over ten years ago, the Multani case. In that case, it was submitted that the risk of an incident involving the wearing of kirpan by students was theoretical because no such incident had occurred in a school in the last 100 years.
According to the appellants, their situation is similar since the terminals have only demonstrated a theoretical risk of head injury without providing accurate statistics on accidents involving truck drivers.
The Court of Appeal dismissed this proposition on the basis of the extensive evidence presented by the terminals regarding the objective dangerousness of the workplace in a terminal. It also confirmed the risk of an argument to the effect that the absence of actual injuries demonstrates the futility of a preventive measure, even though such measure could well be the cause of a lack of actual injuries.
The Court then decided that the evidence leads to the conclusion that the policy interferes with the freedom of religion as little as possible. The Sikh truck drivers are not required to remove their turban – they are simply asked to wear a helmet, over the turban if necessary, when they must get out of their trucks while working at the terminals.
The Court noted that the occupational health and safety regime does not allow a person to voluntarily expose himself to risk by refusing, for example, to wear a protective helmet. It emphasized that allowing such behaviour would be inconsistent with the legislature’s intent to create a safe work environment to protect everyone from the risks and dangers inherent to that environment.
Finally, the Court mentioned that the duty to accommodate is certainly not one-sided and that the cooperation of both parties is necessary. In this case, it should be noted that the appellants did not suggest any accommodation but required an outright exemption from wearing the helmet.
Considering the health and safety obligations of the terminals under the Criminal Code, the Canada Labour Code and the applicable regulations, the Court of Appeal, when considering the balance of positive and negative impacts, concluded that the safety of the workplace objective must prevail over the temporary detrimental effects on the appellants’ freedom of religion. The violation of freedom of religion is therefore justified within the meaning of the Quebec Charter.
This demonstrates that a well-crafted health and safety policy that aims for a real goal and is the least intrusive possible about the individual rights and freedoms will be difficult to challenge in court.