Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
Civil rights ‑‑ Discrimination on basis of religion ‑‑ Employment ‑‑ School calendar in collective agreement requiring Jewish teachers to work on holy day ‑‑ School board granting Jewish teachers leave of absence but without pay ‑‑ Whether school calendar had effect of discriminating against Jewish teachers ‑‑ If so, whether school board took reasonable steps to accommodate Jewish teachers.
Judicial review ‑‑ Labour relations ‑‑ Arbitration ‑‑ Collective agreement ‑‑ School calendar requiring Jewish teachers to work on holy day ‑‑ School board granting Jewish teachers leave of absence but without pay ‑‑ Arbitration board concluding that school calendar had effect of discriminating against Jewish teachers and that school board did not take reasonable steps to accommodate them ‑‑ School board ordered to pay teachers for their absence on holy day ‑‑ Whether arbitration board's decision patently unreasonable.
In 1985, three Jewish teachers employed by the respondent School Board took a day off to celebrate Yom Kippur. The School Board had granted them leave of absence but without pay and the teachers' union brought a grievance seeking reimbursement for the day's pay. The school calendar, which is part of the collective agreement, fixed the teachers' work schedule. The majority of the arbitration board found that the school calendar requiring Jewish teachers to work on Yom Kippur had the effect of being discriminatory and that the School Board had failed to take reasonable steps to accommodate the Jewish teachers in the observance of their religious holy day. The majority determined that the School Board could pay the Jewish teachers for their absence on Yom Kippur pursuant to the provisions of the collective agreement and allowed the grievance. The Superior Court dismissed the School Board's application for evocation but the majority of the Court of Appeal reversed that judgment and set aside the arbitration board's award as unreasonable.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Since the Quebec Labour Code contains a privative clause, a decision of the arbitration board interpreting a collective agreement and acting within its jurisdiction should not be subject to judicial review unless the decision is patently unreasonable. Here, the school calendar, although neutral on its face, had the effect of adversely discriminating against Jewish teachers. As a result of their religious beliefs, they must take a day off work and, in the absence of some accommodation by their employer, must lose a day's pay to observe their holy day while the majority of their colleagues have their religious holy days recognized as holidays from work. It follows that the effect of the calendar is to discriminate against members of an identifiable group because of their religious beliefs and that the employer must take reasonable steps to accommodate the individual or group of employees adversely affected. A de minimis test should not apply to the evaluation of either the existence or the extent of the duty to accommodate. This duty is a fundamentally important aspect of human rights legislation and an integral part of the right to equality in the workplace. In permitting the Jewish teachers to take a day off work without pay in order to celebrate Yom Kippur, the School Board has not, however, met the burden resting upon it to demonstrate that it took reasonable steps to accommodate these teachers, short of undue hardship. No evidence was presented that it would place an unreasonable financial burden upon the School Board to pay the Jewish teachers for their absence on Yom Kippur. In fact, until 1983, they had been paid for that day despite their absence. Further, the provisions of the collective agreement could reasonably be interpreted to provide for such an accommodation. The agreement specifically provided, in arts. 5‑14.05 and 5-14.02, for the payment of teachers who were absent for what the parties considered to be a good or valid reason and for a number of days for a variety of reasons. On a reasonable, indeed a correct, interpretation of the collective agreement, the observance of a holy day by teachers belonging to the Jewish faith should constitute a "good reason" for their absence and should qualify them for payment of a day's wages. Finally, by incorporating the provisions of the Quebec Charter of Human Rights and Freedoms, the collective agreement provided further support for this position by stressing that principles of equality and freedom from religious discrimination would guide the parties in their relations. The decision of the majority of the arbitration board was therefore correct and the arbitration board's award should be restored. In light of this conclusion, it is unnecessary to consider whether the decision of an arbitration board must be correct in its interpretation of the Quebec Charter in order to be exempt from judicial review.
Per Gonthier and L'Heureux‑Dubé JJ.: An arbitrator mandated under the Labour Code to dispose of grievances relating to a collective agreement, whose jurisdiction is protected by a privative clause, does not exceed his jurisdiction merely because, in disposing of a grievance, he applies the law, in this case the Quebec Charter of Human Rights and Freedoms. The application of a clear and uncontested provision of an Act, be it the Quebec Charter, should not be confused with its interpretation. The interpretation of an Act also differs from the application to a given situation of the provisions of a collective agreement, even if it incorporates guarantees of employees' fundamental rights contained in the Quebec Charter.
The only point which the arbitrator had to decide was whether, in the present circumstances, it was possible under the collective agreement to accommodate Jewish teachers and on what conditions, in order to comply with the anti‑discrimination provisions of the Quebec Charter. In so doing, the arbitrator was acting within his jurisdiction, and unless his decision was so unreasonable as to be irrational a court of law has no basis for intervening. The arbitrator's decision was far from unreasonable in this case and is accordingly beyond the scope of judicial intervention. The collective agreement left sufficient room for reasonable accommodations to avoid the hardship which having to work on Yom Kippur may cause to Jewish teachers.
Cases Cited
By Cory J.
Referred to: Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
By L'Heureux‑Dubé J.
Referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724; Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Université du Québec à Trois‑Rivières v. Larocque, [1993] 1 S.C.R. 471; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 9.1 [ad. 1982, c. 61, s. 2], 10 [am. 1980, c. 11, s. 34; am. 1982, c. 61, s. 3], 16.
Labour Code, R.S.Q., c. C‑27, ss. 100, 100.12(a) [repl. 1983, c. 22, s. 74], 101 [am. idem, s. 77], 139 [repl. 1982, c. 16, s. 5; am. 1983, c. 22, s. 93; am. 1985, c. 12, s. 93], 139.1 [ad. 1982, c. 16, s. 6].
Authors Cited
Proulx, Daniel. "La norme québécoise d'égalité dérape en Cour suprême: commentaire des arrêts Forget, Devine et Ford" (1990), 24 R.J.T. 375.
APPEAL from a judgment of the Quebec Court of Appeal (1992), 48 Q.A.C. 34, reversing a judgment of the Superior Court*, which refused to issue a writ of evocation against a decision of an arbitration tribunal. Appeal allowed.
Georges Marceau and Michel Boyer, for the appellants.
Pierre Bégin and Christian Brunelle, for the respondent.
Béatrice Vizkelety, for the intervener.
The judgment of Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
Cory J. -- Two issues are raised in this appeal. The first is whether the schedule of work for teachers, set by the respondent School Board, had the effect of discriminating against Jewish teachers. Secondly, if its effect was discriminatory, it must be determined whether the School Board as employer took appropriate steps to reasonably accommodate the Jewish teachers in the observance of their religious holy day Yom Kippur.
Factual Background
The appellants Joseph Kadoch, Louise Elbraz and Jacob Lahmi are Jewish teachers, employed by the respondent, the Commission scolaire régionale de Chambly. The appellant, the Syndicat de l'enseignement de Champlain, is the collective bargaining agent of the teachers.
In 1985, Yom Kippur, a high holy day for members of the Jewish faith, fell on September 25, a day that teachers were scheduled to work. The religious beliefs of the appellant teachers required them to abstain from working on that day. The respondent School Board took the position that it would not object to Jewish teachers taking the day off but that it would have to be without pay. This decision of the Board is significant in light of its actions in the past.
Up to 1983, the School Board had granted Jewish teachers leave with pay for Yom Kippur. This was done pursuant to a letter of agreement interpreting an article of the collective agreement which provided for paid leave of absence taken by teachers for personal reasons. In 1983, the Board granted leave of absence but without pay. Before this case arose, a number of Jewish teachers instituted grievance procedures to recover the salary lost as a result of their observance of Yom Kippur. The grievance was settled by compensating the teachers for the loss of the day's pay. However, it must be observed that this settlement was achieved in the course of negotiations which resulted in the settlement of a number of other grievances.
In December of 1985, the appellant union brought grievance proceedings seeking reimbursement for the day's pay deducted by the School Board from the Jewish teachers who were absent on Yom Kippur that year.
Decisions Below
Arbitration Board
The majority of the arbitration board carefully considered the facts presented to them. They determined that the principles enunciated in Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536, were applicable. They found that the School Board's work schedule requiring Jewish teachers to work on the days fixed in the schedule, which included Yom Kippur, had the effect of being discriminatory. As a result, they held that the evidence established a prima facie case of discrimination.
They then went on to find that, contrary to the principles set out in O'Malley, supra, at pp. 558-59, the employer had failed to take "such reasonable steps toward accommodation of the employe[es'] position as are open to him without undue hardship". The majority determined that the respondent could pay the Jewish teachers for their absence on Yom Kippur pursuant to the provisions of the collective bargaining agreement.
Superior Court of Quebec
Steinberg J. concluded that the arbitrators had neither abused their power nor failed to observe the applicable law. He found that the arbitral award of the majority was not unreasonable and therefore rejected the application for evocation.
Court of Appeal (1992), 48 Q.A.C. 34
The Majority
The majority found that the award of the arbitration board must be set aside as unreasonable. That conclusion was founded on three bases. First it was noted that the school calendar was secular and reflected the reality of our society. Thus, the very basis for the arbitration board's decision that the school calendar was religious was manifestly unreasonable. Secondly, it was held that the arbitral award created reverse discrimination by allowing the appellant teachers to receive their full salary for 199 days of work while the other teachers had to work 200 days to earn their full pay. Lastly, it was noted that if the School Board were forced to apply the logic of the arbitration board to Muslim teachers who celebrate their religion on Fridays, and on the days immediately preceding and following the month of Ramadam, the School Board would be placed in an impossible position. In the view of the majority then, the arbitral award was clearly unreasonable and the appeal was allowed. Since there was no discrimination in the opinion of the majority, there was no need for them to consider whether the employer had made a reasonable accommodation to the employees.
The Minority
In her dissent Rousseau‑Houle J.A. determined that the majority decision of the arbitration board was neither in error nor unreasonable. She concluded that there was evidence upon which the board could base its conclusion that there had been adverse effect discrimination and that the School Board had failed to take reasonable steps to accommodate the Jewish teachers.
Relevant Legislative and Contractual Provisions
A. Text of Relevant Provisions of the Collective Bargaining Agreement
Provisions constituting collective agreements binding on each of the school boards for Catholics contemplated by chapter 0‑7.1 of the Revised Statutes of Quebec on the one hand and, on the other hand, each of the accredited associations which on November 29, 1982 negotiated through the Centrale de l'enseignement du Québec on behalf of teachers employed by those school boards (the Act respecting Management and Union Party Organization in Collective Bargaining in the Sectors of Education, Social Affairs and Government Agencies, R.S.Q., c. 0‑7.1).
[translation]
5‑14.00 SPECIAL LEAVE
5‑14.01 Incumbent teachers shall be entitled to certain special leave without loss of salary, supplementary pay or regional disparity bonuses. The duration of such leave and the events which will trigger a right thereto are those specified in clause 5‑14.02.
5‑14.02 (a) in the event of the death of a spouse, child or the child of a spouse living under the same roof: seven (7) consecutive calendar days including the day of the funeral;
(b) in the event of the death of a father, mother, brother or sister: five (5) consecutive calendar days including the day of the funeral;
(c) in the event of the death of parents‑in‑law, a grandfather, grandmother, brother‑in‑law, sister‑in‑law, son‑in‑law, daughter‑in‑law, grandson or granddaughter: three (3) consecutive calendar days including the day of the funeral;
(d) the wedding of a father, mother, brother, sister or child: the day of the wedding;
(e) a change of residence other than that specified in article 5‑3.00: the day of the move; however, a teacher shall not be entitled on this account to more than one (1) day's leave per year;
(f) the teacher's wedding: a maximum of seven (7) consecutive calendar days, including the day of the wedding;
(g) an annual maximum of three (3) working days to cover: any other event of force majeure (disaster, fire, flood and so on) requiring a teacher to be absent from work; any other reason requiring the teacher to be absent from work and as to which the board and the union agree to grant permission for absence without loss of salary, supplementary pay or regional disparity bonuses.
5‑14.05 The board may also allow a teacher to be absent without loss of salary, supplementary pay or regional disparity bonuses for any other reason not provided for in this article which it considers to be valid.
6‑8.03 The board shall deduct 1/200 per working day . . . from the applicable annual salary and from the applicable supplementary pay and regional disparity bonuses, if any, of the teacher in the following cases:
(a) authorized absences without pay for a period of less than one working year;
(b) absences which are unauthorized or used for purposes other than those authorized.
10‑4.02 The board and the union recognize that every teacher is entitled to the full exercise of the rights and freedoms as affirmed in the Charter of Human Rights and Freedoms (R.S.Q., c. C‑12).
The board expressly agrees that its actions, attitudes and decisions shall provide for the full exercise by every teacher of such human rights and freedoms, without distinction, exclusion or preference which may constitute discrimination within the meaning of the Charter mentioned in the preceding paragraph.
Letter of November 10, 1980 (this agreement was in force until 1983)
[translation]
LOCAL ARRANGEMENT PURSUANT TO CLAUSE 5‑14.02 PARAGRAPH G
Pursuant to paragraph 5‑14.02(g), the board and the union agree to grant leave of absence on the grounds and for the number of days indicated below:
(1)the teacher may be absent by using the three (3) aforementioned days, if he still has any, to care urgently (serious illness or accident duly certified by a medical certificate) for a person in his immediate family;
(2)the teacher may be absent by using one (1) of the three (3) days mentioned in paragraph 5‑14.02(g) for personal reasons if he still has any of them, and if he provides proof of the need to be absent.
Commission scolaire régionale de Chambly
(signatures)
Syndicat des Enseignants de Champlain
(signatures)
80‑11‑10
Agreement of June 11, 1984 (this is an agreement made pursuant to art. 5‑14.02(g))
[translation]
RE: SPECIAL LEAVE: CLAUSE 5‑14.02(g)
Pursuant to clause 5‑14.02 paragraph (g) of the provisions constituting the 1983‑85 collective agreements, the Board and the Union agree to grant leave of absence to any teacher without loss of salary, supplementary pay or regional disparity bonuses for the events and the length of time indicated below:
1 ‑A teacher may be absent by using the three working days mentioned in paragraph (g) of clause 5‑14.02, if he still has any of them, to care urgently (serious illness or accident certified by a medical certificate) for a person in his immediate family.
2 ‑A teacher who is unable to report for work for a reason beyond his control such as:
‑being the victim of an automobile accident: one half‑day, namely that on which the event occurs, for a maximum of one day;
‑attending at a court of law in a case in which he is a party: the time required, for a maximum of one day;
‑a heating system breakdown requiring urgent repair and endangering occupants of the residence: one half‑day, namely that on which the event occurs, for a maximum of one day.
Days so used shall be deducted from the three working days provided for in paragraph (g) of clause 5‑14.02. However, a maximum of one day per year may be used for all the events mentioned in paragraph 2a, b and c.
For any of these events the teacher shall provide the Board with proof of the need to be absent.
B. Legislation
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12
3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Quebec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.
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.
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.
Labour Code, R.S.Q., c. C‑27
100. Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator chosen by the parties or, failing agreement, appointed by the Minister.
. . .
100.12. In the exercise of his duties the arbitrator may
(a) interpret and apply any Act or regulation to the extent necessary to settle a grievance;
101. The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned. Section 19.1 applies to the arbitration award, mutatis mutandis.
139. Except on a question of jurisdiction, no extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure (chapter C‑25) shall be exercised and no injunction granted against an arbitrator, the Conseil des services essentiels, a certification agent, a labour commissioner or the Court acting in their official capacities.
139.1. Except on a question of jurisdiction, article 33 of the Code of Civil Procedure (chapter C‑25) does not apply to any person, body or agency mentioned in section 139 acting in their official capacities.
Analysis
It can be seen that the Labour Code contains a privative clause. It follows that a decision of the arbitration board interpreting a collective agreement and acting within its jurisdiction should not be subject to judicial review unless its decision is patently unreasonable. (See Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 ("PSAC No. 2"), at pp. 955 et seq.; see also Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; and Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412.) A decision should not be considered to be patently unreasonable unless it is "clearly irrational". (See PSAC No. 2, at pp. 963‑64.) Those are the general principles that should guide a court in its consideration of the decision of the arbitration board rendered in this case. With that said, I should add that there is a further question raised on this appeal; that is whether the arbitration board in interpreting the provisions of the Quebec Charter of Human Rights and Freedoms incorporated by the parties in the collective agreement must be correct. In this case, that question need not be answered since, in my view, the arbitration board was correct in its application of the Quebec Charter.
Was There Discrimination?
First it must be determined whether the calendar which fixed the teachers' work schedule and formed part of the collective bargaining agreement had the effect of discriminating against Jewish teachers.
It has been held by this Court that to demonstrate that there has been discrimination, a plaintiff must establish that the following three elements exist:
(1) that there is a "distinction, exclusion or preference";
(2) that the "distinction, exclusion or preference" is based on one of the grounds listed in the first paragraph of s. 10 of the Quebec Charter; and
(3) that the "distinction, exclusion or preference has the effect of nullifying or impairing" the "right to full and equal recognition and exercise of a human right or freedom".
See Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90, at p. 98; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 783‑84; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, at p. 817; and generally Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279.
Further, it is clear from O'Malley, supra, that discrimination can result from the effects of an otherwise neutral rule. Indirect discrimination or discrimination by adverse effect was defined in this way in the O'Malley case at p. 551:
A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here." . . . On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.
This concept of discrimination was later applied in the context of provincial human rights legislation in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, this same concept of adverse effect discrimination was applied in the context of the Canadian Charter of Rights and Freedoms .
Does this same principle of adverse effect discrimination come within the purview of the Quebec Charter? I think it clearly does. It will be remembered that the second paragraph of s. 10 of the Quebec Charter provides:
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. [Emphasis added.]
These words confirm the applicability of the principle. Further, this same conclusion can be inferred from the reasons of this Court in the cases of Forget, Devine and Ford. Daniel Proulx makes this observation in his article entitled "La norme québécoise d'égalité dérape en Cour suprême: commentaire des arrêts Forget, Devine et Ford" (1990), 24 R.J.T. 375, at pp. 383‑85. In each of these cases the Court considered whether rules which were apparently neutral were discriminatory in their effect. (See Forget, at pp. 101‑3; Ford, at pp. 785‑86; and Devine, at p. 817.)
Application of the Principles to the Facts of this Case
Let us see how these principles can be applied to the situation presented in this appeal. Here the schedule of work is based upon the Catholic calendar of holidays. Nonetheless, I think the calendar should be taken to be secular in nature and thus neutral or non-discriminatory on its face. It will be remembered that the majority of the Court of Appeal determined that since the calendar did not have any religious aims, it was not discriminatory. With respect, I think this was an erroneous conclusion. It is true that this approach can properly serve to determine that there has been no direct discrimination. However, the analysis cannot stop there. Consideration must still be given to the effect of the calendar in order to determine if there is indirect or adverse effect discrimination.
In my view, the calendar which sets out the work schedule, one of the most important conditions of employment, is discriminatory in its effect. Teachers who belong to most of the Christian religions do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided for in the calendar. Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur. It thus inevitably follows that the effect of the calendar is different for Jewish teachers. They, as a result of their religious beliefs, must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work. In the absence of some accommodation by their employer the Jewish teachers must lose a day's pay to observe their holy day. It follows that the effect of the calendar is to discriminate against members of an identifiable group because of their religious beliefs. The calendar or work schedule is thus discriminatory in its effect.
Adverse effect discrimination can occur quite innocently in situations where an employer adopts a rule, a standard or a procedure, which although neutral on its face, and equally applicable to all employees, is nevertheless discriminatory in its effect upon an individual or a group of employees because of some characteristic of that group such as their religion. When adverse effect discrimination occurs, it can, just as surely as direct discrimination, confront employees with harsh conflicts between employment and religious beliefs and just as surely it will infringe human rights legislation. When it arises, the employer must take reasonable steps to accommodate the individual or group of employees adversely affected. See, for example, O'Malley, supra, at p. 551.
The Position of the School Board
The respondent employer argued that the adverse effect was so minimal that it did not constitute discrimination. Further it was contended that even if it was conceded that the calendar or work schedule had the effect of adversely discriminating against Jewish teachers, the effect was so minimal that no accommodation was necessary. I cannot agree with those contentions.
The vast majority of teachers like most salaried employees budget for and expect to receive their entire salary. The loss of a day's pay amounting to 1/200th of the year's salary cannot be considered to be insignificant. If a condition of work existed which denied all Asian teachers one day's pay, it would amount to direct discrimination. It would continue to be discriminatory whether it applied to one day's pay or ten. The loss of one day's pay resulting from direct discrimination would not be tolerated. This conforms to one of the aims of human rights legislation which is to secure, as far as is reasonably possible, equality, that is to say, fairness in the work place. Clearly direct discrimination resulting in the loss of a day's pay would be intolerable and would fly in the face of human rights legislation. Similarly adverse effect discrimination resulting in the same loss cannot be tolerated unless the employer takes reasonable steps to accommodate the affected employees, a question that will be addressed later.
With regard to accommodation it must be remembered that the entire annual salary of the teachers in this case was based upon 200 working days. It is of course impossible for Jewish teachers to make up for a lost day by working for example, on Saturday, Sunday, Christmas or Easter. A teacher can only teach when the school is open and the pupils are in attendance. If five days or a week's work was missed, there is no doubt that it would constitute a significant loss to the teacher. There is no difference in principle in the loss of one day's pay. Family budgets and financial commitments are based upon the total annual salary. The loss of a whole day's pay when that cannot be made up, is of very real significance to teachers and their families.
Further, the idea that because the effect of the discrimination is not great no steps need be taken in order to make a reasonable accommodation is unacceptable. The whole aim and purpose of human rights legislation is to prevent discrimination. If there can be discrimination without any consequences, then the very purpose of the legislation is defeated. The recognition of the purpose and goal of the legislation is, in itself sufficient to deal with such a position. Further, I would observe that in Central Okanagan School District No. 23 v. Renaud, supra, Sopinka J. carefully considered the serious consequences of adverse effect discrimination. He pointed out that even in situations where there is a bona fide occupational requirement established there is a duty resting upon an employer to take reasonable steps to accommodate, in order to avoid the consequences of adverse effect discrimination. He dismissed the contention that a de minimis test should be applied in considering what constitutes undue hardship in these words (at p. 983):
Furthermore there is good reason not to adopt the "de minimis" test in Canada. Hardison was argued on the basis of the establishment clause of the First Amendment of the U.S. Constitution and its prohibition against the establishment of religion. This aspect of the Hardison decision was thus decided within an entirely different legal context. The case law of this Court has approached the issue of accommodation in a more purposive manner, attempting to provide equal access to the workforce to people who would otherwise encounter serious barriers to entry. The approach of Canadian courts is thus quite different from the approach taken in U.S. cases such as Hardison and more recently Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986).
In my view, a de minimis test should not apply to the evaluation of either the existence or the extent of the duty to accommodate. There can therefore be no doubt that the adverse effect discrimination in this case was very real and significant in its consequences for the Jewish teachers. It follows that a duty rested upon the School Board to take reasonable steps to accommodate those teachers.
Reasonable Accommodation and the Basis for Such a Requirement
It may be appropriate to begin with a question. Why should there be reasonable accommodation in those situations where there exist apparently neutral employment rules, standards or procedures which nonetheless adversely affect an identifiable individual or group of employees?
The response to that question must flow from the very aim and purpose of human rights legislation. Those enactments seek, to the extent that it is reasonable, to provide equity or fairness in the workplace to persons of all religions, races and nationalities. To the vast majority of Canadians their work and place of work are matters of fundamental importance. Fairness in the workplace is the desire of all. It is a magnificent goal that is worth striving to attain. Once it has been established that there is adverse effect discrimination flowing from employment rules, procedures or standards then there must be a reasonable attempt on the part of the employer to accommodate the employees adversely affected. Almost invariably, those adversely affected will be members of a minority group. If there is to be true equality and fairness in the workplace without regard to religious beliefs, then it follows as the night the day that there must be a duty resting upon an employer to take reasonable steps to accommodate those employees that are adversely affected by the employment rules. This is essential if the aim of human rights legislation is to be fulfilled. Anything less defeats the purpose of such legislation and makes it a hollow enactment of little value in the workplace.
This principle is so important that McIntyre J. speaking for a unanimous Court in O'Malley, supra, indicated that a reasonable accommodation was an integral aspect of equality. It thus can be taken that the duty to accommodate is a fundamentally important aspect of human rights legislation and an integral part of the right to equality in the workplace. It then becomes necessary to determine precisely what constitutes reasonable accommodation.
It was pointed out in Renaud, supra, at p. 989, that historically the duty to accommodate developed as a means of limiting the liability of an employer who was found to have discriminated by the bona fide adoption of a work rule without any intention to discriminate. By providing reasonable accommodation to the affected workers, the employer could justify the adverse effect discrimination and thereby avoid liability for the unintended consequences of the rules of employment.
The extent of the duty to accommodate in cases of adverse effect discrimination was put in this manner in the O'Malley case at p. 555:
The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer. [Emphasis added.]
The factors to be considered in determining what may constitute reasonable accommodation were set out in Central Alberta Dairy Pool, supra. Wilson J. writing for the majority described the factors in this way at pp. 520‑21:
I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar ‑‑ financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.
With regard to the factor of the morale of other employees, Sopinka J. in Renaud, supra, reworded it to require a consideration of the effect of the reasonable accommodation on other employees. (See pp. 984‑85 and 991‑92.)
These factors are not engraved in stone. They should be applied with common sense and flexibility in the context of the factual situation presented in each case. The situations presented will vary endlessly. For example, in a large concern, it may be a relatively easy matter to replace one employee with another. In a small operation replacement may place an unreasonable or unacceptable burden on the employer. The financial consequences of accommodation will also vary infinitely. What may be eminently reasonable in prosperous times may impose an unreasonable financial burden on an employer in times of economic restraint or recession. However, the listed factors can provide a basis for considering what may constitute reasonable accommodation.
It is important to remember that the duty to accommodate is limited by the words "reasonable" and "short of undue hardship". Those words do not constitute independent criteria. Rather they are alternate methods of expressing the same concept. (See Renaud, supra, at p. 984.)
Application of Factors Pertaining to Adverse Effect Discrimination to the Facts of this Case
The respondent School Board contended that if the schedule of work fixed by the calendar which forms part of the collective agreement had the effect of adversely discriminating against Jewish teachers, it had taken all necessary steps to make a reasonable accommodation for them. This, the employer argued, was accomplished by permitting them to take a day off work without pay in order to celebrate Yom Kippur. The majority of the Court of Appeal agreed with this position and went so far as to state that to do more would constitute reverse discrimination by favouring Jewish teachers over those of the Catholic faith. With the greatest of respect I cannot agree with the positions put forward either by the respondent or the majority of the Court of Appeal.
It is true that the Letters of Agreement of November 10, 1980 and June 11, 1984 have somewhat different provisions as to the application of art. 5‑14.02 (g). However, the articles with which we are concerned, namely 5‑14.02 and 5‑14.05, remained the same in all the relevant collective bargaining agreements. It will be remembered that the collective bargaining agreement specifically provided for a teacher to be compensated for a number of days of absence in certain circumstances. For example, by art. 5‑14.05, the teacher could be absent and yet paid if the absence was for "valid" reasons. This clause would seem to be sufficient in itself to base payment by the School Board to a teacher absent for a day because of the requirements of that teacher's religion. As well, by art. 5‑14.02, compensation would be paid if the teacher was absent following the death of members of his family, or marriage, or, for up to three days, in the case of [translation] "any other event of force majeure", and other reasons upon which the School Board and the union would agree. Arising out of art. 5‑14.02 (g) a further agreement was reached, on June 11, 1984, that provided additional details in these words:
[translation]
RE: SPECIAL LEAVE: CLAUSE 5‑14.02 (g)
Pursuant to clause 5‑14.02 paragraph (g) of the provisions constituting the 1983‑85 collective agreements, the Board and the Union agree to grant leave of absence to any teacher without loss of salary, supplementary pay or regional disparity bonuses for the events and the length of time indicated below:
1 ‑A teacher may be absent by using the three working days mentioned in paragraph (g) of clause 5‑14.02, if he still has any of them, to care urgently (serious illness or accident certified by a medical certificate) for a person in his immediate family.
2 ‑A teacher who is unable to report for work for a reason beyond his control such as:
‑being the victim of an automobile accident: one half‑day, namely that on which the event occurs, for a maximum of one day;
‑attending at a court of law in a case in which he is a party: the time required, for a maximum of one day;
‑ a heating system breakdown requiring urgent repair and endangering occupants of the residence: one half‑day, namely that on which the event occurs, for a maximum of one day.
Days so used shall be deducted from the three working days provided for in paragraph (g) of clause 5‑14.02. However, a maximum of one day per year may be used for all the events mentioned in paragraph 2a, b and c.
For any of these events the teacher shall provide the Board with proof of the need to be absent. [Emphasis added.]
It would seem that this letter of agreement was intended to widen the grounds upon which teachers could base an absence from work. The words of the second paragraph [translation] "for a reason beyond his control such as" indicate that the subsequent examples are not intended to be exclusive. (Emphasis added.) Rather, they show that the provision for payment during absence is meant to be flexible. Obviously the date fixed for a holy day is beyond the control of an individual Jewish teacher. Yet the observance of that day must be of paramount importance.
On this issue it is worth noting that in Central Alberta Dairy Pool, supra, Wilson J. speaking for the majority stated, at p. 521:
If the employer could cope with an employee's being sick or away on vacation on Mondays, it could surely accommodate a similarly isolated absence of an employee due to religious obligation. I emphasize once again that there is nothing in the evidence to suggest that Monday absences of the complainant would have become routine or that the general attendance record of the complainant was a subject of concern. The ability of the respondent to accommodate the complainant on this occasion was, on the evidence, obvious and, to my mind, incontrovertible. I therefore find that the respondent has failed to discharge its burden of proving that it accommodated the complainant up to the point of undue hardship.
This statement of principle is equally applicable to the facts presented in this case. Here the collective agreement provided for payment for absences for a variety of reasons.
It is not necessary that a collective bargaining agreement specifically provide for the observance of the holy day of a religious minority. Its provisions are simply a factor to be considered in determining whether the employer can reasonably accommodate the religious observances of the minority. In this case, the collective agreement provides a flexibility that demonstrates that a reasonable accommodation could be made. This could have been reasonably effected pursuant to either arts. 5‑14.02 or 5‑14.05. In the past, paid absences included the celebration of Yom Kippur. It is thus apparent that to replace the Jewish teachers and to compensate them for their absence on Yom Kippur did not constitute an unreasonable burden for the employer. Freedom of religion is of fundamental importance to Canadian democracy. If reasonable accommodation of religious beliefs can be undertaken by an employer, it should be.
There was no proof presented by the respondent School Board, that to pay the salaries of the Jewish teachers would impose an unreasonable financial burden upon it. Indeed it would be extremely difficult to put forward such a position in light of the fact that the Board through collective bargaining had specifically provided, in art. 5‑14.05, for the payment of teachers who were absent for what the parties considered to be a good or valid reason and, in art. 5‑14.02, for a number of days for a variety of reasons. It would be difficult if not unreasonable to contend that the absence of a teacher in order to observe a holy day would not constitute a "good reason" for the absence. It follows that the observance of a holy day by teachers belonging to the Jewish faith should constitute a "good reason" for their absence and should qualify them for payment of a day's wages, pursuant to the provisions of that collective agreement. This would be an eminently reasonable, indeed a correct, interpretation of the collective agreement. Further I would observe that this had been recognized as acceptable in the past, as confirmed by the practice existing prior to 1983 of many Jewish teachers who were absent on Yom Kippur without any loss of wages.
Further, I cannot see how the payment of the day's wages in these circumstances could possibly constitute reverse discrimination. The Jewish teachers, in this case, seek no more than to use one of their three days of paid absence provided by the collective agreement, under art. 5‑14.02 (g), to honour the tenets of their religion.
Additionally, it must be remembered that the collective agreement incorporated the provisions of the Quebec Charter of Human Rights and Freedoms within its terms. For the purposes of these reasons it is not necessary to consider in any detail either this aspect of the collective agreement or the arbitration board's references to it. Specifically, it is not necessary to determine whether the decision of the board on this issue must be correct in order to escape judicial review. In my view, the decision of the majority of the board on this question was correct. It will suffice to observe that by this incorporation the parties agreed that their relationship would recognize and be bound by the principles of equality and freedom from discrimination on religious grounds. This would certainly indicate that the provisions of the collective agreement were, at the very least, to be interpreted on that basis. This too would support the conclusion that its provisions indicate that the Jewish teachers should have been paid for the day they were absent from work to celebrate Yom Kippur. Any approach to the concept of reasonable accommodation would certainly extend to a requirement that the employer would proceed on this basis.
The provisions of a collective bargaining agreement cannot absolve either the employer or the union from the duty to accommodate. Yet, the terms of the agreement are relevant in assessing the degree of hardship which may be occasioned by interference with its terms. Thus, as pointed out in Renaud, supra, at p. 987, a substantial departure from the normal operation of the conditions or terms of employment set out in the collective agreement may constitute undue interference in the operation of the employer's business. However, in this case, the collective bargaining agreement supports the position taken by the appellants and the majority of the arbitration board.
I recognize that other cases may demonstrate circumstances which would make reasonable accommodation impossible. For example, if the religious beliefs of a teacher required his or her absence every Friday throughout the year, then it might well be impossible for the employer to reasonably accommodate that teacher's religious beliefs and requirements. However, that is far from the situation presented in this case.
In summary then, there was no evidence presented that it would place an unreasonable financial burden upon the respondent School Board to pay the Jewish teachers for their absence on Yom Kippur. Historically, Jewish teachers had been paid for this day despite their absence. As well, the provisions of the collective bargaining agreement could reasonably be interpreted to provide for such an accommodation. The collective agreement by incorporating the provisions of the Quebec Charter provided further support for this position by stressing that principles of equality and freedom from religious discrimination would guide the parties in their relations. The respondent has not met the burden resting upon it to demonstrate that it took reasonable steps to accommodate the Jewish teachers, short of undue hardship. It follows that the decision of the majority of the arbitration board was correct. In light of this conclusion it is unnecessary to consider whether the decision of an arbitration board must be correct in its interpretation of the Quebec Charter, in order to be exempt from judicial review.
Disposition
In the result, the appeal will be allowed, the order of the Court of Appeal set aside and the award of the arbitration board restored. The appellants will have their costs throughout.
English version of the reasons of L'Heureux-Dubé and Gonthier JJ. delivered by
L'Heureux‑Dubé J. ‑‑ Although I agree with the result arrived at by my colleague Justice Cory and with a large part of his analysis, I take a different approach that applies the principles of administrative law developed by this Court in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and recently restated (Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, at p. 735 (per Gonthier J.) and pp. 753‑54 (per L'Heureux‑Dubé J.); Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 771 (per L'Heureux‑Dubé J.); United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 334 (per Sopinka J.); Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230, at pp. 258 (per La Forest J.) and 308 (per Cory J.); Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 965 (per Cory J.) and 977 (per L'Heureux‑Dubé J.); Université du Québec à Trois‑Rivières v. Larocque, [1993] 1 S.C.R. 471, at pp. 485‑86 (per Lamer C.J.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 601 (per L'Heureux‑Dubé J.); Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at pp. 628 (per Sopinka J.) and 657 (per Cory J.); National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1346 (per Wilson J.); CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at p. 1000 (per La Forest J.)). In this I concur with the opinion of Rousseau‑Houle J.A., dissenting in the Quebec Court of Appeal (1992), 48 Q.A.C. 34.
Like Rousseau‑Houle J.A., my opinion rests on the premise that a court of law should not intervene and substitute its view for that of an administrative tribunal on questions which the legislature has clearly intended to leave for its consideration, unless the tribunal's decision is patently unreasonable. That is the test which applies here.
Under the Labour Code, R.S.Q., c. C‑27, the arbitrator, whose jurisdiction is protected by a privative clause (ss. 139 and 139.1 of the Labour Code), is mandated to dispose of grievances relating to a collective agreement. He does not exceed his jurisdiction merely because, in disposing of the grievance filed, here by the appellant the Syndicat de l'enseignement de Champlain, he applies the law, in this case the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (hereinafter the "Quebec Charter").
I must here briefly digress to dispose of the argument of the respondent, the Commission scolaire régionale de Chambly, that the standard of judicial review applicable here is one of correctness, on the ground that the arbitrator could not err in interpreting the provisions of the Quebec Charter which are at issue here (ss. 3, 9.1, 10, 16 and 20). With respect, one should not confuse the application of a clear and uncontested provision of an Act such as the Quebec Charter, with its interpretation. The interpretation also differs from the application to a given situation of the provisions of a collective agreement, even if that agreement incorporates guarantees of employees' fundamental rights also contained in the Quebec Charter.
No one in the case at bar questioned, whether before the arbitrator or before any other court including our own, that the Quebec Charter and the Canadian Charter of Rights and Freedoms both guarantee freedom of religion and the right to equality without discrimination to individuals in Quebec and Canada. Equally, there was no dispute that the parties to the collective agreement have a duty to remedy the discriminatory effects of employment conditions in this regard through reasonable accommodation without undue hardship. The provisions of the Quebec Charter at issue are also part of the collective agreement. The only point which the arbitrator had to decide was whether and on what conditions, in the circumstances of this case, it was possible under the collective agreement concluded between the parties to accommodate teachers of the Jewish faith, in order to comply with the anti‑discrimination provisions of the Quebec Charter. In so doing, the arbitrator was acting within his jurisdiction, and unless his decision was so unreasonable as to be irrational a court of law has no basis for intervening. If, on the other hand, the arbitrator were to conclude that the collective agreement does not permit such accommodation, which is not the case here, the issue would then shift to the duty to accommodate according to the Quebec Charter and a decision on this matter would have to be correct.
In my opinion, the arbitrator's decision was far from unreasonable and is accordingly beyond the scope of judicial intervention. As Rousseau‑Houle J.A. said (at pp. 51 and 55):
[translation] With great respect for the opinion of Brossard J.A., it seems to me that the conclusion of the arbitral award is neither erroneous nor unreasonable and that it should not be open to judicial review.
. . .
In view of these provisions of the collective agreement, it was not unreasonable for the arbitrator to decide that the fact of giving three teachers their full pay for a day of leave granted on the occasion of the Yom Kippur holiday could not cause the school board any significant administrative disruption. [Emphasis added.]
I share the view of my colleague Cory J. that the collective agreement as drafted leaves sufficient room for reasonable accommodations to avoid the hardship which working on a day of religious observance of their faith may cause to the appellant teachers Joseph Kadoch, Louise Elbraz and Jacob Lahmi. As he himself says (at pp. 547 and 549):
It will be remembered that the collective bargaining agreement specifically provided for a teacher to be compensated for a number of days of absence in certain circumstances. For example, by art. 5-14.05, the teacher could be absent and yet paid if the absence was for "valid" reasons. This clause would seem to be sufficient in itself to base payment by the School Board to a teacher absent for a day because of the requirements of that teacher's religion. As well, by art. 5-14.02 compensation would be paid if the teacher was absent following the death of members of his family, or marriage, or, for up to three days, in the case of [translation] "any other event of force majeure", and other reasons upon which the School Board and the Union would agree.
. . .
It is not necessary that a collective bargaining agreement specifically provide for the observance of the holy day of a religious minority. Its provisions are simply a factor to be considered in determining whether the employer can reasonably accommodate the religious observances of the minority. In this case, the collective agreement provides a flexibility that demonstrates that a reasonable accommodation could be made. This could have been reasonably effected pursuant to either arts. 5-14.02 or 5-14.05. In the past, paid absences included the celebration of Yom Kippur. It is thus apparent that to replace the Jewish teachers and to compensate them for their absence on Yom Kippur did not constitute an unreasonable burden for the employer. Freedom of religion is of fundamental importance to Canadian democracy. If reasonable accommodation of religious beliefs can be undertaken by an employer, it should be.
I would dispose of the appeal as my colleague Cory J. suggests.
Appeal allowed with costs.
Solicitors for the appellants: Melançon, Marceau, Grenier & Sciortino, Montréal; Lapierre, St‑Denis & Associés, Montréal.
Solicitors for the respondent: Pothier Bégin, Ste‑Foy.
Solicitor for the intervener: Béatrice Vizkelety, Montréal.
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