Canadian HR Reporter, 2021
promote "substantive equality" — which
the Supreme Court of Canada described as
"going behind the façade of similarities and
differences." Substantive equality required
looking at the "full context" of the situa
-
tion and "the continuous disadvantages that
have operated to limit the opportunities
available to the Code protected group," said
the tribunal.
The tribunal found that Cybulsky clearly
raised the challenges of female leaders and
the expectations around female versus male
traits with the reviewer, the surgeon-in-
chief, and the chief medical executive. She
told all of them during the review process
about how the leadership traits that she had
but women weren't expected to have, could
work against her.
However, the issues raised by Cybulsky
were not addressed in the report, the tribu
-
nal said, despite the fact that the reviewer
noted the differences in how Cybulsky was
viewed, particularly with the cardiac sur-
geons. This indicated that the reviewer failed
to consider the context of Cybulski being a
female leader in a male-dominated work-
place, the tribunal concluded.
The tribunal determined that HHS, the
reviewer, and the chief medical executive
violated Cybulski's human rights by failing
to consider the role that her sex and gender
played in the comments she received about
Cybulsky in interviews. They also failed to
respond appropriately when Cybulski her
-
self discussed her concerns that her gender
could be a factor in how some of the staff
assessed her as a leader, said the tribunal.
The tribunal also found that Cybulsky
was adversely affected by the breach of her
human rights, as her "dignity was under
-
mined by conclusions which were devoid
of any gender analysis and the damage
was compounded when those conclusion
were accepted by the HHS." It added that
the assumption by the reviewer that gender
wasn't a factor in the assessment of leader
-
ship styles was likely to have a dispropor-
tionate impact on women occupying leader-
ship roles in male-dominated workplaces as
compared to men.
In addition, the surgeon-in-chief used the
report as the basis for his decision to open
the head position up for others, so Cybulsky
experienced further adverse treatment from
the breach of her rights in the review — and
therefore connected to her gender. While it
may not have been the only consideration
in the decision, it only needed to be a fac
-
tor in the decision to be discrimination, said
the tribunal.
The tribunal upheld Cybulski's human
rights complaint and ordered a separate
process to determine remedies.
For more information, see:
• Cybulsky v. Hamilton Health Sciences, 2021
HRTO 213 (Ont. Human Rights Trib.).
October
6,
2021
|
Canadian
Employment
Law
Today
CREDIT:
STEEX
iSTOCK
ABOUT THE AUTHOR
Jeffrey R. Smith
Jeffrey R. Smith is the editor of Canadian Employment Law
Today. He can be reached at jeffrey.smith@keymedia.com, or
visit www.employmentlawtoday.com for more information.
