Quebec (Commission des droits de la personne et des droits de la
jeunesse) v. Communauté urbaine de Montréal, [2004] 1 S.C.R. 789,
2004 SCC 30
Commission des droits de la personne et des droits de la jeunesse
in favour of Jean-Marc Larocque Appellant
v.
Communauté urbaine de Montréal (now known as City
of Montréal) Respondent
and
Attorney General of Quebec and Tribunal des droits
de la personne Interveners
Indexed as: Quebec (Commission des droits de la personne et
des droits de la jeunesse) v. Communauté
urbaine de Montréal
Neutral citation: 2004 SCC 30.
File No.: 29231.
2003: December 9; 2004: May 14.
Present: McLachlin C.J. and Iacobucci, Major, Binnie, Arbour, LeBel
and Fish JJ.
on appeal from the court of appeal for quebec
Civil rights — Unlawful interference with right —
Remedy — Police officer — Discriminatory refusal to hire resulting from
application of minimum standard for hearing acuity adopted by CUM pursuant to
enabling Act — Quebec Tribunal des droits de la personne dismissing damages
claim, declaring regulatory standard inoperable in relation to complainant and
directing CUM to place complainant back in hiring process retroactively —
Whether remedy appropriate — Charter of Human Rights and Freedoms, R.S.Q., c. C‑12,
s. 49.
Civil rights — Unlawful interference with right —
Remedy — Damages — Principles of public law ruling out possibility of awarding
damages when legislation declared unconstitutional — Whether these principles
impede implementation of s. 49 of Charter of Human Rights and Freedoms
which entitles victims to damages — Charter of Human Rights and Freedoms,
R.S.Q., c. C-12, s. 49.
A candidate for a position as a municipal police
officer was excluded from the hiring process because he did not meet the
minimum standard for hearing acuity adopted by the CUM pursuant to the
regulatory powers given to it by its enabling Act. He filed a complaint with
the Commission des droits de la personne et des droits de la jeunesse, alleging
that the refusal to hire him constituted discrimination in violation of the
Quebec Charter of Human Rights and Freedoms. As its proposal in favour
of the complainant was not acted on, the Commission brought the matter to the
Quebec Tribunal des droits de la personne. The Tribunal concluded that it
could not find the CUM liable for damages resulting from the application of its
legislative and regulatory powers. However, it declared the regulatory
standard inoperable in relation to the complainant and directed the CUM to
reconsider the complainant’s application in accordance with the hiring process
as it was at the time he applied with all of the benefits to which he would
have been entitled had he not been excluded. The Court of Appeal allowed for
the most part the CUM appeal in limiting the remedy to a mere declaration of
the standard’s inoperability in relation to the complainant.
Held: The appeal should be allowed in part.
Violations of the Quebec
Charter give rise to various remedies. In particular, s. 49 entitles
victims to obtain the cessation of interference with their rights and to
damages and s. 52 provides that the Quebec Charter prevails over
all Quebec legislation, unless an Act expressly provides otherwise. The
general principle governing the exercise of these avenues of recourse is a
search for the appropriate measure, where consistent with the public interest.
This remedy for a violation cannot be chosen without taking into account the
constitutional framework and principles governing the organization and
practices of Canada’s public institutions. Well-established principles of
public law rule out the possibility of awarding damages when legislation is
declared unconstitutional. This is the context in which the Quebec Charter
shall be applied. The Commission’s argument that the traditional rules do not
apply with the introduction of s. 49 cannot be accepted. A more nuanced
approach with respect to the relationship between the law of civil liability
and public law should be adopted. General principles of public law may fully
impede the application of the jus commune’s civil liability regime or
partially modify the rules for its application. In this case, the rules
governing the immunities attached to legislative and regulatory action imply a
necessary distinction between a fault or negligent act and one that is unlawful
or invalid because it fails to comply with fundamental, constitutional or
quasi-constitutional standards. The Court of Appeal correctly rejected the
appellant’s arguments to the effect that a remedy in the form of damages should
be awarded.
However, on account of the diversity and flexibility
of remedies for enforcing fundamental rights, the Court of Appeal should not
have settled on a purely declaratory remedy. The restoration of these rights
must not be reduced to a choice between applying the general civil liability
regime or rendering declaratory judgments that recognize the right but give it
no practical effect. Given the difficulties inherent in a recourse in damages
and the problems resulting from a decision to place the complainant back in the
hiring process retroactively, the appropriate measure of redress, in the
circumstances of this case, is a declaration of inoperability coupled with a
conclusion that the complainant’s application should in future be considered
according to the by-law respecting the hiring of police officers currently in
force at the City of Montréal, but without taking into account his hearing loss.
Cases Cited
Applied: Mackin v.
New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405,
2002 SCC 13; referred to: British Columbia (Superintendent
of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999]
3 S.C.R. 868; British Columbia (Public Service Employee Relations
Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Commission
des droits de la personne et des droits de la jeunesse) v. Montréal (City),
[2000] 1 S.C.R. 665, 2000 SCC 27; Adler v. Ontario,
[1996] 3 S.C.R. 609; Reference re Bill 30, An Act to amend
the Education Act (Ont.), [1987] 1 S.C.R. 1148; Reference
re Secession of Quebec, [1998] 2 S.C.R. 217; Guimond v. Quebec
(Attorney General), [1996] 3 S.C.R. 347; Doré v. Verdun (City),
[1997] 2 S.C.R. 862; Prud’homme v. Prud’homme, [2002] 4 S.C.R.
663, 2002 SCC 85; Béliveau St-Jacques v. Fédération des employées
et employés de services publics inc.,
[1996] 2 S.C.R. 345; Québec (Procureur général) v.
Deniso Lebel Inc., [1996] R.J.Q. 1821; Doucet-Boudreau v. Nova Scotia
(Minister of Education), [2003] 3 S.C.R. 3,
2003 SCC 62.
Statutes and Regulations Cited
Act respecting the Communauté
urbaine de Montréal, R.S.Q., c. C-37.2,
ss. 77, 80 [am. 1993, c. 68, s. 16], 178.1.
By-law respecting standards of
the Sûreté du Québec and municipal police forces for the hiring of constables
and cadets, R.R.Q. 1981, c. P-13, r. 14,
s. 6.
Canadian Charter of Rights and
Freedoms .
Charter of Human Rights and
Freedoms, R.S.Q., c. C-12, ss. 10 [am. 1982, c. 61,
s. 3], 13, 16, 49, 52 [am. 1982, c. 61, s. 16], 71, 80 [am. 1989, c. 51, s. 5],
86, 88, 111 [ad. idem, s. 16], 111.1.
Civil Code of Québec, S.Q. 1991, c. 64, preliminary provision, art. 1376.
Constitution Act, 1867 .
Authors Cited
Macdonald, Roderick A. “Jurisdiction,
Illegality and Fault: An Unholy Trinity” (1985), 16 R.G.D. 69.
APPEAL from a judgment of the Quebec Court of Appeal,
[2002] Q.J. No. 367 (QL), setting aside in part a decision of the Tribunal
des droits de la personne, [2000] J.T.D.P.Q. No. 17 (QL). Appeal allowed
in part.
Pierre-Yves Bourdeau, for the appellant.
Pierre Yves Boisvert, for the respondent.
Hugo Jean and Gilles Laporte,
for the intervener the Attorney General of Quebec.
François Aquin and Sylvie Gagnon,
for the intervener Tribunal des droits de la personne.
English version of the judgment of the Court delivered
by
LeBel J. —
I. Introduction
1
This appeal concerns the scope of the remedial powers that the Quebec
Tribunal des droits de la personne (the “Tribunal”) may exercise under the Charter
of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec Charter”),
in cases of unlawful discrimination. The issue at bar arises out of the
rejection of an application for a position as a municipal police officer on the
grounds of a hearing disability. For the reasons I shall give here, the appeal
should be allowed in part, with the respondent being ordered to reconsider the
complainant’s application, despite his disability, in accordance with the
recruitment procedures currently in force.
II. Origin
of the Case
2
On February 3, 1992, the Communauté urbaine de Montréal (the
“CUM”), now the City of Montréal, which succeeded to the CUM’s rights following
the municipal mergers on Montréal Island, hired
Mr. Jean-Marc Larocque as a municipal police officer. On
February 12, 1993, Mr. Larocque resigned for personal reasons. A few
months later, on May 3, 1993, he asked to be reinstated. The CUM replied
that he could not be reinstated without once again going through the usual
application and selection process. Mr. Larocque therefore submitted
another application for the CUM’s consideration.
3
Pursuant to the regulatory powers given to it by its enabling Act, the Act
respecting the Communauté urbaine de Montréal, R.S.Q., c. C-37.2, the
CUM had adopted the hearing acuity standards contained in the By-law
respecting standards of the Sûreté du Québec and municipal police forces for
the hiring of constables and cadets, R.R.Q. 1981, c. P-13,
r. 14, as part of its minimum hiring requirements. That by-law would have
applied if there had been no relevant municipal regulations. Under s. 6
of the by-law, candidates were exempted from these standards if they had worked
as police officers within the last two years. The CUM’s standards, however,
did not provide for such an exemption.
4
As part of the application process, Mr. Larocque underwent a
medical examination. The results of that examination showed that he did not
meet the minimum standard for hearing acuity. Consequently, pursuant to its
authority under the Act respecting the Communauté urbaine de Montréal,
the CUM’s executive committee rejected his application. On November 8,
1994, Mr. Larocque was informed that his application had been turned down
because his medical examination had shown evidence of hearing loss. It is
agreed by all that this hearing loss does not constitute a functional
impairment and would not prevent him from carrying out his duties as a
municipal police officer. Nevertheless, the standard was applied to the
letter.
5
On December 5, 1994, Mr. Larocque filed a complaint with the
Commission des droits de la personne et des droits de la jeunesse (the
“Commission”), alleging that the CUM’s refusal to hire him constituted
discrimination on the basis of a hearing disability, in violation of
ss. 10 and 16 of the Quebec Charter. After investigating the
complaint, the Commission proposed a measure of redress in favour of
Mr. Larocque. As this proposal was not acted on, the Commission filed an
application to institute proceedings with the Tribunal, giving rise to the
dispute now before this Court.
III. Relevant Statutory Provisions
6
Charter of Human Rights and Freedoms, R.S.Q., c. C-12
10. Every person has a right to full and equal recognition and
exercise of his human rights and freedoms, without distinction, exclusion or
preference based on race, colour, sex, pregnancy, sexual orientation, civil
status, age except as provided by law, religion, political convictions,
language, ethnic or national origin, social condition, a handicap or the use of
any means to palliate a handicap.
Discrimination exists where such a distinction,
exclusion or preference has the effect of nullifying or impairing such right.
13. No one may in a juridical act stipulate a clause involving
discrimination.
Such a clause is deemed without effect.
16. No one may practise discrimination in respect of the
hiring, apprenticeship, duration of the probationary period, vocational
training, promotion, transfer, displacement, laying-off, suspension, dismissal
or conditions of employment of a person or in the establishment of categories
or classes of employment.
49. Any unlawful interference with any right or freedom
recognized by this Charter entitles the victim to obtain the cessation of such
interference and compensation for the moral or material prejudice resulting
therefrom.
In case of unlawful and intentional interference,
the tribunal may, in addition, condemn the person guilty of it to exemplary
damages.
52. No provision of any Act, even subsequent to the Charter,
may derogate from sections 1 to 38, except so far as provided by those
sections, unless such Act expressly states that it applies despite the Charter.
80. Where the parties will not agree to negotiation of a
settlement or to arbitration of the dispute or where the proposal of the
commission has not been implemented to its satisfaction within the allotted
time, the commission may apply to a tribunal to obtain, where consistent with
the public interest, any appropriate measure against the person at fault or to
demand, in favour of the victim, any measure of redress it considers
appropriate at that time.
111. The Tribunal is competent to hear and dispose of any
application submitted under section 80, 81 or 82, in particular in matters
of employment or housing or in connection with goods and services generally
available to the public, and any application submitted under section 88,
90 or 91 in respect of an affirmative action program.
Only the commission may initially submit an
application to the Tribunal to pursue any of the remedies provided for in any
of the said sections, subject to the substitution provided for in
section 84 in favour of a complainant and to the pursuit of the remedy
provided for in section 91 by a person on whom the Tribunal has previously
imposed an affirmative action program.
An Act
respecting the Communauté urbaine de Montréal, R.S.Q., c. C-37.2
77. The Community shall alone be responsible for the damages
and suits which may arise from the putting into force of any by-law or part of
a by-law the quashing of which has been so obtained.
80. Any procès-verbal, resolution or other order of the
Community may be set aside, by reason of illegality, in the same manner, within
the same time and with the same effect as a by-law of the Council. They shall
be subject to the provisions of section 65.
IV. Judicial
History
A. Tribunal des droits de la personne,
[2000] J.T.D.P.Q. No. 17 (QL) (Judge Simon Brossard, President,
Messrs. Hyppolite and Schabas, Assessors)
7
Following fairly complicated proceedings before the Tribunal marked by
various events and amendments to the initial application, Judge
Brossard handed down a decision allowing the Commission’s claim. In Judge
Brossard’s opinion, the CUM had excluded Mr. Larocque from the hiring
process because of a distinction based on an assessment of his hearing and on
the perception of a handicap. As the evidence showed that Mr. Larocque
did not have a true functional impairment, his exclusion from the hiring
process was the result of an arbitrary application of a non-individualized
standard and therefore constituted an unlawful act of discrimination.
8
The judge then considered what remedies would be appropriate in this
case. In his opinion, s. 52 of the Quebec Charter authorized the
Tribunal to declare the regulatory standard adopted by the CUM inoperable in
relation to the complainant. In his opinion, the Tribunal could also direct
the CUM to reconsider Mr. Larocque’s application in accordance with the
hiring process as it was at the time he applied. If his application were
accepted, the Tribunal would order the CUM to offer him a position as a police
officer [translation] “with all
of the benefits to which he would have been entitled had he been hired further
to the hiring process from which he had been excluded” (para. 69).
Earlier in his decision, however, Judge Brossard had concluded that he
could not find the CUM liable for damages resulting from the application of its
legislative and regulatory powers. Unhappy with this result, the CUM sought
and obtained leave to appeal to the Quebec Court of Appeal.
B. Quebec Court of Appeal, [2002] Q.J.
No. 367 (QL) (Deschamps, Delisle and Nuss JJ.A.)
9
The appeal was successful for the most part. The court limited the
remedy to a mere declaration of the standard’s inoperability in relation to the
complainant. According to the court’s reasons for judgment, as a general rule,
in cases where a legislative or regulatory provision is found to be inoperable
or invalid, the Tribunal cannot award damages as a remedy pursuant to
s. 49 of the Quebec Charter. Moreover, a declaration made pursuant
to s. 52 cannot have a retroactive effect. In this regard, the decision
to place Mr. Larocque back in the hiring process retroactively to 1994 was
illegal and an attempt to circumvent an otherwise valid regulation, possibly to
the detriment of third parties. That decision is the subject of the appeal now
before this Court.
V. Analysis
A. Issues
10
Over the nearly 10 years since this case began, the course of
proceedings has recast the nature of the issues still in dispute between the
parties. The dispute is now limited to the issue of the nature of the remedy
that the Tribunal could grant in the circumstances of this case. As we have
seen, this case involves the application of the Quebec Charter to a case
of discrimination and refusal to make reasonable accommodation. First of all,
the CUM has a duty of reasonable accommodation even though the discriminatory
rule originates from an Act or regulation. Second, all proceedings with a view
to invalidating the provincial or municipal hiring regulations were either
abandoned or rejected when the case was first brought before the Tribunal and
are no longer part of the record submitted to this Court. All that remains at
issue is the application to have the hearing standards declared inoperative in
relation to Mr. Larocque and the form of the remedy to be applied. For
this reason, much of the previous debate between the parties and interveners
about the scope of the Tribunal’s jurisdiction is now irrelevant.
11
Since proceedings began in this case, the case law respecting
discrimination and the duty of reasonable accommodation has clarified the
nature of and the methods for implementing that duty, abandoning the old
distinctions drawn between direct and indirect discrimination: British
Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of
Human Rights), [1999] 3 S.C.R. 868; British Columbia (Public
Service Employee Relations Commission) v. BCGSEU, [1999]
3 S.C.R. 3. The notion of the subjective perception of a handicap
was accepted in a case relating to the application of the Quebec Charter:
Quebec (Commission des droits de la personne et des droits de la jeunesse)
v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27.
Nevertheless, the protection against discrimination, the duty to accommodate
and the concept of handicap are not the creation of these cases. Rather, these
developments in the case law served to shape the manner in which these concepts
are defined and applied.
12
In light of the circumstances, it must be accepted that, for the
purposes of this appeal, Mr. Larocque was the victim of unlawful
discrimination because of a handicap when he was excluded from the police
officer hiring process in 1994. The procedural framework of the complaint as
it is currently defined by the decisions and actions of the appellant focuses
the debate on the individual relationship between Mr. Larocque and the
respondent. The Tribunal’s exercise of its remedial power and the
identification of appropriate measures of redress remain a function of this
context.
B. Legal Framework
of Remedies Under the Quebec Charter
13
Violations of the Quebec Charter give rise to a complex set of
remedies. Strictly speaking, it would be more accurate to say that the Quebec
Charter provides for a highly diverse range of regimes and procedural
avenues for ensuring compliance with and enforcement of rights recognized under
the Quebec Charter. When it created the Commission and gave it an
important role in the handling of complaints concerning violations of the Quebec
Charter, the legislature did not, however, give the Tribunal exclusive
jurisdiction over all the rights protected by the Charter. Instead, the
legislature limited the Tribunal’s activities to protecting citizens against
discrimination and enforcing certain aspects of equality rights, as provided
under ss. 71, 86 and 88 of the Quebec Charter, for example. The
Tribunal has a broad jurisdiction over such matters, but this jurisdiction does
not extend to every aspect of the Quebec Charter, as a reading of
ss. 111 and 111.1 indicate. Moreover, even where the Tribunal does have
jurisdiction, its jurisdiction is not exclusive. Under s. 80 of the Quebec
Charter, the Commission, like the complainants themselves, may apply to
courts of law to seek redress in such matters. Individuals whose fundamental
rights have been violated retain the right to bypass the Commission’s
administrative process and assert their rights before a court of competent
jurisdiction, although they do so at their own risk and expense. I shall
refrain from commenting on the specific problems surrounding the respective
jurisdictions of the Tribunal and other specialized administrative
adjudicators, such as grievance arbitrators in matters of labour law, as these
issues have already been the subject of extensive debate in Quebec for many
years and, most recently, before this Court.
14
Various remedies are available to claimants and tribunals of competent
jurisdiction. Section 49 entitles victims to obtain the cessation of
interference with their rights and to damages. Section 52 provides that
the Quebec Charter prevails over all Quebec legislation, unless an Act
expressly provides otherwise. Special recourse in the form of affirmative
action programs is provided for under s. 88. A general principle
governing the exercise of these avenues of recourse is outlined in s. 80:
the Commission may seek any appropriate measure “compte tenu de l’intérêt
public” or, as the English version of the Act puts it more clearly, “where
consistent with the public interest”.
15
Section 52 unquestionably gives the Quebec Charter a
preeminent, quasi-constitutional stature in relation to other Quebec
legislation. We should nevertheless bear in mind that the appropriate remedy
for a violation cannot be chosen without taking into account the constitutional
framework and principles governing the organization and practices of Canada’s
public institutions so that the relationships between the various components of
the legal hierarchy applicable to the situation under Quebec law are
articulated appropriately. In this regard, a review of a number of this
Court’s observations concerning the relationship between fundamental rights and
the overall makeup of Canada’s constitutional framework is in order. These
observations are particularly relevant to the discharge of the legislative
function, even when that function is delegated, as in the case at bar.
16
When confronted with the problems of reconciling the Canadian Charter
of Rights and Freedoms and provisions of the Constitution Act, 1867 ,
this Court stressed that the Constitution of Canada forms a single entity and
must be read as a whole. The Canadian Charter does not repeal the Constitution
Act, 1867 or the constitutional compromises it reflects, as
Iacobucci J. explained in connection with the funding of religious schools
in Adler v. Ontario, [1996] 3 S.C.R. 609, at
paras. 46-47; see also: Reference re Bill 30, An Act to amend the
Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1198, per
Wilson J. This Court took its examination of the nature and subject
matter of Canada’s constitutional framework further in its opinion on the Reference
re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 50 to
53 and 64 to 66, stressing the diversity and complexity of the rules making up
the Constitution of Canada. The Constitution includes written rules, of
course, but at the same time we cannot ignore the unwritten principles inherent
in the democratic and parliamentary form of Canadian government and its
origins, principles which govern the exercise of an independent legislative
power.
17
The nature of Canada’s constitutional regime must be taken into
consideration when establishing the hierarchy of rules governing the actions of
legislatures and public entities, such as municipalities, to which legislative
powers have been validly delegated. The ultimate source of traditional
immunities with respect to the consequences of the invalidity of legislative
action is this constitutional regime, a regime in which legislative power is necessarily
exercised within the confines of the law, but independently, free of
interference from the civil liability rules of the jus commune. The Quebec
Charter, a statute with quasi-constitutional standing in matters within the
Quebec legislature’s jurisdiction, is enforced within this legal framework and
is still based on the fundamental organizing principles for public powers
inspired by this framework.
18
In the case at bar, as I have already mentioned, the dispute arose out
of the adoption and application of a regulatory standard authorized by
provincial legislation. It stems from the regulatory activities of the CUM
authorized under s. 178.1 of its enabling Act.
19
In such cases, well-established principles of public law rule out the
possibility of awarding damages when legislation is declared unconstitutional,
be it on the grounds of a violation of the separation of legislative powers
within the Canadian federation or of non-compliance with the Canadian
Charter . The case law of this Court has been consistent in this regard.
The Court’s position was recently outlined in the comments of Gonthier J. in Mackin
v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002
SCC 13, at paras. 78-79:
According to a general rule of public law, absent
conduct that is clearly wrong, in bad faith or an abuse of power, the courts
will not award damages for the harm suffered as a result of the mere enactment
or application of a law that is subsequently declared to be unconstitutional (Welbridge
Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957; Central
Canada Potash Co. v. Government of Saskatchewan, [1979]
1 S.C.R. 42). . . .
In our parliamentary system of government,
Parliament or a legislature of a province cannot be held liable for anything it
does in exercising its legislative powers. The law is the source of duty, as
much for citizens as for the Administration, and while a wrong and damaging
failure to respect the law may for anyone raise a liability, it is hard to
imagine that either Parliament or a legislature can as the lawmaker be held
accountable for harm caused to an individual following the enactment of
legislation. (Footnotes omitted.)
. . . The limited immunity given to
government is specifically a means of creating a balance between the protection
of constitutional rights and the need for effective government. In other
words, this doctrine makes it possible to determine whether a remedy is
appropriate and just in the circumstances. Consequently, the reasons that
inform the general principle of public law are also relevant in a Charter
context. Thus, the government and its representatives are required to
exercise their powers in good faith and to respect the “established and
indisputable” laws that define the constitutional rights of individuals.
However, if they act in good faith and without abusing their power under
prevailing law and only subsequently are their acts found to be unconstitutional,
they will not be liable. Otherwise, the effectiveness and efficiency of
government action would be excessively constrained. Laws must be given
their full force and effect as long as they are not declared invalid. Thus
it is only in the event of conduct that is clearly wrong, in bad faith or an
abuse of power that damages may be awarded (Crown Trust Co. v. The Queen
in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div.
Ct.)). [Emphasis added.]
(See also: Guimond v. Quebec (Attorney General),
[1996] 3 S.C.R. 347.)
20
In Quebec law, in matters within the jurisdiction of the National
Assembly, the Quebec Charter has been elevated to the rank of a source
of fundamental law. The interpretation of legislation must draw on its
principles. The preliminary provision of the Civil Code of Québec, S.Q.
1991, c. 64, states that the Code, as the jus commune of Quebec,
must be interpreted in harmony with the Quebec Charter.
Article 1376 C.C.Q. further stipulates that the provisions set out in the
Book “Obligations” govern the State’s civil liability (see: Doré v. Verdun
(City), [1997] 2 S.C.R. 862; Prud’homme v. Prud’homme,
[2002] 4 S.C.R. 663, 2002 SCC 85, at paras. 27-31).
21
The appellant still asserts the right to a remedy in the form of damages
or its equivalent for complainants in Mr. Larocque’s position. The
appellant’s argument is based on the belief that the enactment of the Quebec
Charter fundamentally altered the traditional rules described above, rules
that circumscribed the State’s liability for the discharge of its legislative
function. The appellant argues that these rules no longer apply with the
introduction of s. 49, since this provision authorizes awards for damages
to remedy any unlawful act. A breach of the Quebec Charter constitutes
such an unlawful act and is equivalent to a fault, as defined in the law of
civil liability. On this point, the appellant draws our attention to the
comments of Gonthier J. in Béliveau St-Jacques v. Fédération des
employées et employés de services publics inc.,
[1996] 2 S.C.R. 345, in which he associates violations of the Quebec
Charter with the standard of wrongful conduct as defined in the law of
civil liability: “It is . . . clear that the violation of a right
protected by the Charter is equivalent to a civil fault”
(para. 120).
22
This Court has nevertheless adopted a more nuanced approach with respect
to the relationship between the law of civil liability and public law. The
Court recognizes that general principles of public law may fully impede the
application of the jus commune’s civil liability regime or partially
modify the rules for its application (Prud’homme, supra, at
para. 31). In the case at bar, the rules governing the immunities
attached to legislative and regulatory action are at odds with another
principle, one that asserts that where a legislative or regulatory standard is
incompatible with the Quebec Charter, the application of that standard
constitutes a fault and may engage the liability of a public entity or its
officials. The immunity rule excludes such an act from being considered a
“fault”, to use the civil law term, or “negligent”, within the common law
meaning.
23
Recourse to the civil liability regime to punish violations of the Quebec
Charter does not oust those fundamental rules which serve to safeguard
the free and effective discharge of the legislative function, subject to
mechanisms currently in place for reviewing constitutionality. In this
respect, immunity implies a necessary distinction between a fault or negligent
act and one that is unlawful or invalid because it fails to comply with
fundamental, constitutional or quasi-constitutional standards. By analogy, in
the law of Crown liability, if upon judicial review an administrative decision
is found to be unlawful, it does not necessarily follow that there is a fault
giving rise to recourse in civil liability (R. A. Macdonald,
“Jurisdiction, Illegality and Fault: An Unholy Trinity” (1985), 16 R.G.D.
69; Québec (Procureur général) v. Deniso Lebel Inc., [1996]
R.J.Q. 1821, at pp. 1836-37). In this context, the Court of Appeal
correctly rejected the appellant’s arguments to the effect that a remedy in the
form of damages should be awarded, either directly or through a retroactive
award compelling the payment of back salary and benefits. Moreover, as the
Court of Appeal concluded, ss. 77 and 80 of the Act respecting the
Communauté urbaine de Montréal do not impose a general civil liability on
the CUM in such cases. Rather, these provisions stipulate that when a
municipal by-law is challenged and quashed, the municipality’s elected
officials and employees cannot be held personally liable. The municipality
alone assumes responsibility.
C. Appropriate Remedies in the Circumstances Surrounding
the Appeal
24
In addition to the issue of the availability of an award for damages in
some form or other, the Tribunal’s order would, if carried out, raise a number
of uncertainties and difficulties warranting the Court of Appeal’s
intervention. The order is conditional in nature, and would have the
complainant participate once again in a hiring process that has since changed.
There is also the question of the monetary obligations it imposes, obligations
that could be difficult to quantify. The order might also affect the rights of
third parties who participated in that hiring process. Even in a best case
scenario, carrying out this order might still have raised further legal
disputes. It is difficult to see this order as an appropriate remedy
consistent with the public interest within the meaning of s. 80 of the Quebec
Charter.
25
However, the Court of Appeal should not have settled on a purely
declaratory remedy either. The Court ruled that no [translation] “order compelling the cessation of the
infringement can be made, since there is no fault . . .”
(para. 19). With respect, this position ignores the diversity and
flexibility of remedies for enforcing fundamental rights. The restoration of
these rights must not be reduced to a choice between applying the general civil
liability regime or rendering declaratory judgments that recognize the right
but give it no practical effect. This approach is perhaps indicative of an
undue focus upon a single, albeit important, question in the analysis of the
issue of remedies under the Quebec Charter, that is, the issue of the
question of the relationship between the law of civil liability in the jus
commune and the fundamental freedoms guaranteed under the Quebec Charter.
26
Despite occasional disagreements over the appropriate means of redress,
the case law of this Court, although the law is undoubtedly still in its early
stages of development in this area, stresses the need for flexibility and
imagination in the crafting of remedies for infringements of fundamental human
rights (Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003]
3 S.C.R. 3, 2003 CSC 62, at paras. 24-25 and 94). We
should also not lose sight of the fact that enactments such as the Quebec
Charter occasionally require intervention that is in no way related to
the law of civil liability. It is sometimes necessary to put an end to actions
or change practices or procedures that are incompatible with the Quebec
Charter even where there is no fault within the meaning of the law of civil
liability. The law of civil liberties may draw upon the law of civil liability
where circumstances warrant. The law of delict does not set limits on the
enforcement of the law of civil liberties. Thus, in the context of seeking
appropriate recourse before an administrative body or a court of competent
jurisdiction, the enforcement of this law can lead to the imposition of
affirmative or negative obligations designed to correct or bring an end to
situations that are incompatible with the Quebec Charter.
27
In the case at bar, the recognition of the right must be accompanied by
a closely linked remedy, one that would prospectively correct the
discrimination to which the appellant was subjected, that is, the
discrimination resulting from the application of the hiring standards adopted
by the CUM. A declaration of inoperability would at the very least mean that,
in future, Mr. Larocque’s application would have to be considered
according to the by-law respecting the hiring of police officers currently in
force at the City of Montréal, but without taking into account his hearing
loss. This coupling of conclusions, one following logically from the other,
could have been adopted by the Tribunal. Nothing in the Quebec Charter
would prohibit this. Given the difficulties inherent in a recourse in damages
and the problems posed by the retroactive nature of the decision, this
conclusion would be, in the circumstances of this case, an appropriate measure
of redress within the meaning of s. 80 of the Quebec Charter.
28
The hearing standard under the municipal by-law having been ruled
inoperable against Mr. Larocque, I would add that it cannot be argued that
the provincial by-law would apply to Mr. Larocque in the absence of a
municipal by-law, as the municipal by-law has not been invalidated. As we have
seen, this provincial by-law includes an exemption from the hearing standard,
an exemption that the complainant would have qualified for at the time he
applied for the position in question. As he did not withdraw this application,
he reserved the right to this exemption, a situation which the Attorney General
of Quebec does not contest.
VI. Conclusion
29
For these reasons, I would allow the appeal in part, adding to the Court
of Appeal’s disposition an order compelling the City of Montréal to reconsider
Mr. Larocque’s application in accordance with the rules for hiring police
officers currently in force, but without taking into account his hearing loss.
Given the outcome of this appeal, the appellant shall have its costs in this
Court.
Appeal allowed in part, with costs.
Solicitor for the appellant: Commission des droits de la personne
et des droits de la jeunesse, Montréal.
Solicitors for the respondent: Jalbert, Séguin, Caron, Montréal.
Solicitor for the intervener the Attorney General of Quebec:
Department of Justice, Sainte-Foy.
Solicitor for the intervener Tribunal des droits de la personne:
François Aquin, Montréal.