On March 27, 2019, Brian Ludwigsen walked into a boardroom in Thunder Bay, ready for what he thought was going to be an important meeting. His employer, Lac des Iles Mine, operated by Toronto-based North American Palladium (since sold to Impala Platinum), had told him that he was going to review an impact-benefits agreement with Fort William First Nation.
This wasn’t out of the ordinary: one year earlier, Ludwigsen, a member of Fort William First Nation, had been hired as the mine’s community-liaison officer. He worked with Indigenous stakeholders such as Gull Bay First Nation, Whitesand First Nation, and the Métis Nation of Ontario to help build relationships, mitigate disputes, and educate the management team on Indigenous traditions, rights, and responsibilities.
Instead of reviewing the agreement, though, Ludwigsen was laid off. “This decision put me in immediate shock, that my own superior misled me to believe that everything was great and didn’t have the decency to even sit through the entire conversation to provide ample reason to this decision,” says Ludwigsen.
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He thinks the decision was motivated by his practice of smudging, an Indigenous tradition that involves the burning of sacred medicines, such as sage or sweetgrass, that are believed to cleanse and purify the spirit, clear negativity, and promote positivity.
According to Ludwigsen, his employer prohibited him from smudging in his office and failed to provide a suitable alternative, although the practice is protected under the Ontario Human Rights Code. In a brochure, the Ontario Human Rights Commission includes as an example of accommodation “changing the ventilation or fire-safety features of a room to allow for the practice of smudging in a timely and safe way.”
Ludwigsen first approached his employer about filing a claim with the Human Rights Tribunal of Ontario in February 2019, but he says management assured him that the company would accommodate his request. Ludwigsen then formally filed his claim in April 2019, after his dismissal.
In its response to the claim, the company contests his version of events, stating that it “reviewed and addressed” his concerns shorty after being made aware of them and that he was “fully aware that he could use this space” — an environmental shed that contained equipment and cleaning products, according to Ludwigsen — “to smudge moving forward” while staff worked toward building a permanent structure, as Ludwigsen had suggested. (Ludwigsen acknowledges that the company said it was planning to build such a structure, but he disputes its claims about the shed.)
The response further states that Ludwigsen’s role was no longer necessary and that he had a poor attendance record and adversarial relationships with nearby communities — claims that Ludwigsen also disputes.
This isn’t the first time that the accommodation of smudging has been an issue. In 2016, Infrastructure Ontario apologized for having forced a grieving mother to smudge outdoors during a coroner’s inquest in Thunder Bay. In 2017, a woman hired by the City of Toronto as an Indigenous-affairs consultant wasn’t permitted to smudge at work. And, earlier this year, an Ottawa hospital apologized for having made a patient smudge outside in -20 C weather.
“In Canada, Indigenous people, for the longest time, have had significant barriers impeding them from practising their culture,” says Veldon Coburn, an assistant professor at the University of Ottawa’s Institute of Indigenous Research and Studies. “Taking cultural traditions that get people through the day, that have been developed over 20,000 to 30,000 years, into a new setting for them to manage stress is quite important and needed.”
It was in late September 2018 that Ludwigsen decided to begin smudging at work. “It’s always something I’ve enjoyed,” he says. He’d smudged regularly for much of his life, but his practice had lapsed — he hoped that, by reviving it, he’d benefit spiritually and promote a safe space for Indigenous employees and other stakeholders.
In October, Ludwigsen says he talked to a human-resources representative at the company about the matter. He already knew smudging was exempt from the province’s Smoke-Free Ontario Act, but he wanted to make sure there were no relevant company policies. The representative said he wasn’t aware of any that would restrict the practice, so Ludwigsen began smudging. “I took the initiative to close my door and always open up the window,” he says. “I would also always [smudge] early, at least an hour before anybody would arrive.”
This didn’t appear to be a problem until November 2018, when Ludwigsen brought his medicines and smudge bowl to a cultural-training seminar he was delivering to the management team (he’d intended to smudge before the session, he says, but there wasn’t time). Ludwigsen says Wayne Scott, vice-president of human resources and Indigenous affairs for North American Palladium, told him the next day that he would no longer be allowed to smudge in the building. Ludwigsen says that he asked whether there was another location that would be acceptable. Scott replied that the general manager of Lac des Iles Mine, Bryan Wilson, had said he could go outside — but there was already snow on the ground, and the temperature was hovering around -20 C.
Over the next three months, Ludwigsen says, he attempted to find a solution, suggesting to Scott that the company repurpose an underused lodge on the site or build a structure specifically for smudging and cultural practices. He says his suggestions were largely ignored.
In early February, Ludwigsen approached the Human Rights Tribunal of Ontario, which adjudicates applications brought under the Ontario Human Rights Code. “From there, I reached out to my superior,” Ludwigsen says. “And I said, ‘I’ve told you numerous times this is a human-rights issue, and I just want you to know I’ve approached and started the application process with the HRTO.’” A few days later, he says, Scott told him that Lac des Iles Mine would continue to try to accommodate him, so he paused the process.
On February 19, Ludwigsen received a letter from Scott offering him a 3 per cent raise in recognition of his “contributions to the Company’s overall success” and the experience he brought to the role. Scott also wrote, “I thank you for your consistently strong contribution and look forward to working with you and the team as we meet the challenges of 2019 with innovation, safety, and excellence.”
Then, just over a month later, he was asked to travel to Thunder Bay. “I ended up being given a layoff slip,” he says. “They said they had restructured, and they don’t see where the community-liaison officer fits anymore.” Scott then referred him to an HR representative, who asked him to sign a release-and-indemnity form: he would be given a lump-sum payment of $6,338.20 but would have to refrain from filing any sort of complaint or grievance against the company. He refused.
Ludwigsen was convinced that his persistent requests to smudge on-site had influenced the company’s decision to lay him off, so, later that week, he formally filed a complaint with the HRTO.
In an emailed statement to TVO.org, Scott said, “We are aware that an application has been submitted to the Human Rights Tribunal of Ontario. The HRTO is currently investigating the matter further with North American Palladium’s full cooperation. At North American Palladium, we fully respect the traditional spiritual practices of our Indigenous employees, including providing accommodation in the workplace and onsite space specifically for smudging ceremonies.”
Derek Ground, a Toronto-based lawyer with experience in Indigenous and human-rights law, says the legislation is clear. “It means anything short of undue hardship has to be accommodated, and undue hardship usually means financial or an enormous disruption to the workplace,” he says.
The question, according to him, is whether the company can reasonably accommodate a certain request. “There is no undue hardship in giving someone a place to smudge,” he says. “When I did some work on the reorganization of hospitals in northern Ontario, which service primarily Indigenous patients, they allowed smudging.”
Although Ground notes that employers must also consider statutes governing occupational health and safety, he says that “human-rights legislation has primacy over other pieces of legislation. If you have a real health-and-safety issue, surely you can figure it out.”
Ludwigsen, who now manages his own consulting firm that deals with Indigenous relations and provides liaison services, says the HRTO has told him that his claim is still under review and will likely go to mediation.
“All these years I’ve done this type of work, I never thought this would happen to me,” Ludwigsen says. “I’ve now become an advocate on the issue — I’ve done my research and had lots of conversations, and I’ll continue having those conversations.”
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