SUPREME
COURT OF CANADA
Citation: Hydro‑Québec
v. Syndicat des employé‑e‑s de techniques professionnelles
et de bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ),
[2008] 2
S.C.R. 561, 2008 SCC 43
|
Date: 20080717
Docket: 31395
|
Between:
Hydro‑Québec
Appellant
and
Syndicat
des employé‑e‑s de techniques professionnelles et
de
bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ)
Respondent
Official English Translation
Coram: McLachlin
C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and
Rothstein JJ.
Reasons
for Judgment:
(paras. 1 to 24)
|
Deschamps J.
(McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
concurring)
|
Bastarache J.
took no part in the judgment.
______________________________
Hydro‑Québec v. Syndicat des employé‑e‑s de
techniques professionnelles et de bureau d’Hydro‑Québec, section locale
2000 (SCFP‑FTQ), [2008] 2 S.C.R. 561, 2008 SCC 43
Hydro‑Québec Appellant
v.
Syndicat des
employé‑e‑s de techniques professionnelles et
de bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ) Respondent
Indexed as: Hydro‑Québec v. Syndicat des employé‑e‑s
de techniques professionnelles et de bureau d’Hydro‑Québec, section
locale 2000 (SCFP‑FTQ)
Neutral citation: 2008 SCC 43.
File No.: 31395.
2008: January 22; 2008: July 17.
Present: McLachlin C.J. and Bastarache,
Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Employment law — Duty to accommodate — Undue hardship
—Employee frequently absent for extended periods because of illness — Employee
dismissed for her absenteeism and inability to work on regular and reasonable
basis — Interaction between employer’s duty to accommodate sick employee and
employee’s duty to do work — Time relevant to determination of whether employer
has fulfilled duty to accommodate — Interpretation and application of undue
hardship standard.
The complainant, an employee of Hydro‑Québec, had
a number of physical and mental problems, and her record of absences indicated
that she had missed 960 days of work between January 3, 1994 and
July 19, 2001. Over the years, the employer had adjusted her working
conditions in light of her limitations. At the time of her dismissal on
July 19, 2001, the complainant had been absent from work since
February 8. Her attending physician had recommended that she stop working
for an indefinite period, and the employer’s psychiatric assessment mentioned
that the complainant would no longer be able to “work on a regular and
continuous basis without continuing to have an absenteeism problem as . . . in
the past”. The complainant filed a grievance, alleging that her dismissal was
not justified. The arbitrator dismissed the grievance on the basis that the
employer had proven that, at the time it dismissed the complainant, she was
unable, for the reasonably foreseeable future, to work steadily and regularly
as provided for in the contract. Furthermore, the conditions for her return to
work suggested by the union’s expert would constitute undue hardship. The
Superior Court dismissed the motion for judicial review of the arbitrator’s
decision. The Court of Appeal set aside the Superior Court’s judgment, holding
that the employer had not proven that it was impossible to accommodate the
complainant’s characteristics. It added that the arbitrator should not have
taken only the absences into account, since the duty to accommodate must be
assessed as of the time the decision to terminate the employment was made.
Held: The appeal should
be allowed.
The test for undue hardship stated by the Court of
Appeal is erroneous. The test is not whether it was impossible for the
employer to accommodate the employee’s characteristics. Although the employer
does not have a duty to change working conditions in a fundamental way, it does
have a duty, if it can do so without undue hardship, to arrange the employee’s
workplace or duties to enable the employee to do his or her work. The test for
undue hardship is not total unfitness for work in the foreseeable future. If
the characteristics of an illness are such that the proper operation of the
business is hampered excessively or if an employee with such an illness remains
unable to work for the reasonably foreseeable future even though the employer
has tried to accommodate him or her, the employer will have satisfied the
test. The employer’s duty to accommodate ends where the employee is no longer
able to fulfill the basic obligations associated with the employment
relationship for the foreseeable future. In the instant case, the arbitrator
had not erred in law, and there was no justification for interfering with his
assessment of the facts. [16] [18‑19] [23]
The Court of Appeal also erred in holding that the duty
to accommodate had to be assessed as of the time the decision to dismiss the
complainant was made. It is instead necessary to assess the duty to
accommodate globally in a way that takes into account the entire time the
employee was absent. [20]
Cases Cited
Applied: British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
S.C.R. 3; McGill University Health Centre (Montreal General Hospital) v.
Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R.
161, 2007 SCC 4; referred to: 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; Québec (Procureur général) v. Syndicat de professionnelles
et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005
QCCA 311.
Statutes and Regulations Cited
Charter of human rights and
freedoms, R.S.Q., c. C‑12.
APPEAL from a judgment of the Quebec Court of Appeal
(Hilton, Bich and Dufresne JJ.A.), [2006] R.J.Q. 426, [2006] R.J.D.T. 1, [2006]
Q.J. No. 907 (QL), 2006 CarswellQue 770, 2006 QCCA 150 (CanLII), setting
aside a decision of Matteau J., [2004] Q.J. No. 11048 (QL), 2004
CarswellQue 3043. Appeal allowed.
Robert Bonhomme, Robert
Dupont and Julie Lapierre, for the appellant.
Richard Bertrand,
for the respondent.
English version of the judgment of the Court delivered
by
[1]
Deschamps J. — This appeal
requires the Court to take another look at the rules protecting employees in
the event of non‑culpable absenteeism and the rules governing contracts
of employment. In particular, the Court must consider the interaction between
the employer’s duty to accommodate a sick employee and the employee’s duty to
do his or her work. For the reasons that follow, I would allow the appeal and
affirm the Superior Court’s judgment dismissing the application for judicial
review of the arbitration award in issue.
1. Facts
and Procedural History
[2]
The complainant’s employment with the appellant, Hydro‑Québec, was
marked by numerous physical and mental problems: she suffered from tendinitis,
epicondylitis and bursitis, had undergone a number of surgical procedures for
various problems, took medication for various other physical problems
(hypothyroidism, hypertension, etc.), and had episodes of reactive depression
and a mixed personality disorder with borderline and dependent character
traits.
[3]
The complainant’s record of absences indicates that she missed
960 days of work between January 3, 1994 and July 19, 2001,
that is, during the last seven and a half years she was employed by Hydro‑Québec.
These absences were due to her many problems. One of the main problems was
that her personality disorder resulted in deficient coping mechanisms and that,
as a result, her relationships with supervisors and co‑workers were
difficult. Over the years, the employer adjusted her working conditions in
light of her limitations: light duties, gradual return to work following a
depressive episode, etc. As well, following an administrative reorganization
in which the complainant’s position was abolished and she became surplus, the
employer assigned her to a position she was not owed, although the union had
not consented to this.
[4]
At the time of her dismissal on July 19, 2001, the complainant
had been absent from work since February 8 of that year and had been seen
by her attending physician, who recommended that she stop working for an
indefinite period, [translation]
“until the work‑related dispute is resolved”. The employer had also
obtained a psychiatric assessment, which included a conclusion that the
complainant would no longer be able to [translation] “work
on a regular and continuous basis without continuing to have an absenteeism
problem as . . . in the past”. The employer’s letter informing the complainant
of her administrative dismissal referred to her absenteeism, her inability to
work on a [translation] “regular
and reasonable” basis and the fact that no improvement in her attendance at
work was expected. The complainant filed a grievance, alleging that her
dismissal was not justified.
[5]
The arbitrator who heard the case dismissed the grievance. He was of
the opinion [translation] “that,
in principle, the [e]mployer could terminate its contract of employment with
the complainant if it could prove that, at the time it made that administrative
decision, the complainant was unable, for the reasonably foreseeable future, to
work steadily and regularly as provided for in the contract”. The arbitrator
stated that, according to the employer’s experts, no medication can effectively
treat a condition such as a personality disorder, and that psychotherapy can at
most alleviate the symptoms very slightly. Those experts estimated the risk of
depressive relapse at more than 90 percent. In their words, [translation] “the future will
mirror the past”. On the other hand, the arbitrator noted that the expert for
the Syndicat des employé‑e‑s de techniques professionnelles et de
bureau d’Hydro‑Québec, section locale 2000 (SCFP‑FTQ)
(“Union”), which represents the complainant and is the respondent in this
Court, was of the opinion that the complainant could
[translation] work in a
satisfactory manner provided that it is possible to eliminate the stressors —
both those related to her work and those arising out of her relationship with
her immediate family — that affect her and make her unable to work. He
suggests a complete change in the complainant’s work environment.
[6]
The arbitrator concluded that, given the specific characteristics of the
complainant’s illness, if the suggestion of the Union’s expert were accepted, [translation] “the [e]mployer would have
to periodically, on a recurring basis, provide the complainant with a new work
environment, a new immediate supervisor and new co‑workers to keep pace
with the evolution of the ‘love‑hate’ cycle of her relationships with
supervisors and co‑workers”. The arbitrator added that some of the
factors that contributed to the complainant’s condition were beyond the
employer’s control and that the employer would not be able to eliminate
stressors related to the complainant’s family environment, as the suggestion of
the Union’s expert would require. The arbitrator found that the conditions
suggested by the Union’s expert would constitute undue hardship. In his view,
the employer had acted properly — with patience and even tolerance — toward the
complainant. He dismissed the grievance. The Union then applied for judicial
review of the arbitrator’s decision.
[7]
Matteau J. of the Superior Court noted at the outset that the
complainant’s illness was a handicap within the meaning of the Charter of
human rights and freedoms, R.S.Q., c. C‑12, and that the
decision to terminate her employment had been based on her inability to work
regularly and steadily because of her health ([2004] Q.J. No. 11048 (QL), at
paras. 29‑30). The judge considered the arbitrator’s assessment of
the duty to accommodate. She rejected the Union’s argument that the employer
had to show that the complainant’s absences would have [translation] “insurmountable consequences”. In the judge’s
view,
[translation]
[t]he arbitrator’s findings on the duty to accommodate are therefore correct
and are based on the opinions of the various psychiatrists who examined the
employee. Although the arbitrator did not, in his reasons, refer clearly to the
various steps established by the Supreme Court, he did reach the conclusion
that the employer’s decision was not discriminatory. This conclusion is
consistent with the provisions of the Charter [of human rights and freedoms]
and with what the Supreme Court has said on this question. [para. 51]
The Union
responded by appealing the Superior Court’s judgment.
[8]
The Court of Appeal expressed the opinion that the complainant was not
totally unable to work and that the arbitrator had misapplied the approach
adopted in British Columbia (Public Service Employee Relations Commission)
v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”). According to the Court of
Appeal, the employer had to prove that it was impossible to accommodate the
complainant’s characteristics. Furthermore, in the court’s view, the
arbitrator should not have taken only the absences into account, since the duty
to accommodate must be assessed as of the time the decision to terminate the
employment was made ([2006] R.J.Q. 426, 2006 QCCA 150 (CanLII)).
2. Issue
[9]
The application of the Meiorin approach is central to this
appeal. In the Superior Court and the Court of Appeal, only the scope of
the duty to accommodate was really in issue, as both courts briefly noted that
the employer in fact has such a duty (Sup. Ct., at paras. 29‑31;
C.A., at paras. 63‑64). In this Court, the appellant also argued
that there was no prima facie discrimination and that the rules on
accommodation therefore did not apply. According to the respondent, however,
the employer had not shown that its attendance standard was necessary for the
business to be able to meet its objectives. The preconditions for the duty to
accommodate are not really in issue. The real issue is instead the
interpretation and application of the undue hardship standard.
3. Analysis
[10] Two
problems are apparent upon reading the decision of the Court of Appeal. The
first is that the standard that court applied to determine whether the employer
had fulfilled its duty to accommodate was whether [translation] “it was impossible to [accommodate the
complainant’s] characteristics”, and the second is that, according to the
court, the duty of accommodation must be assessed as of the time of the
decision to dismiss.
A. Standard
for Proving Undue Hardship
[11] Despite
the large number of decisions concerning the rules developed in Meiorin,
the concept of undue hardship seems to present difficulties. Certain aspects
that have caused interpretation problems in the case at bar therefore need to
be reviewed. First of all, it will be helpful to reproduce the explanation of
the approach given in Meiorin (at para. 54):
An employer
may justify the impugned standard by establishing on the balance of
probabilities:
(1) that the employer adopted the standard for a purpose
rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an
honest and good faith belief that it was necessary to the fulfilment of that
legitimate work‑related purpose; and
(3) that the standard is reasonably necessary
to the accomplishment of that legitimate work‑related purpose. To show
that the standard is reasonably necessary, it must be demonstrated that it is
impossible to accommodate individual employees sharing the characteristics of
the claimant without imposing undue hardship upon the employer.
[12] The
relevance of the approach is not in issue. However, there is a problem of
interpretation in the instant case that seems to arise from the use of the word
“impossible”. But it is clear from the way the approach was explained by
McLachlin J. that this word relates to undue hardship (at para. 55):
This approach is premised on the need to develop
standards that accommodate the potential contributions of all employees in so
far as this can be done without undue hardship to the employer.
Standards may adversely affect members of a particular group, to be sure. But
as Wilson J. noted in Central Alberta Dairy Pool, [[1990] 2 S.C.R.
489], at p. 518, “[i]f a reasonable alternative exists to burdening
members of a group with a given rule, that rule will not be [a BFOR]”. It
follows that a rule or standard must accommodate individual differences to
the point of undue hardship if it is to be found reasonably necessary.
Unless no further accommodation is possible without imposing undue hardship,
the standard is not a BFOR in its existing form and the prima facie case
of discrimination stands. [Emphasis added.]
What is really
required is not proof that it is impossible to integrate an employee who does
not meet a standard, but proof of undue hardship, which can take as many forms
as there are circumstances. This is clear from the additional comments on
undue hardship in Meiorin (at para. 63):
For example, dealing with adverse effect discrimination in Central
Alberta Dairy Pool, supra, at pp. 520‑21, Wilson J.
addressed the factors that may be considered when assessing an employer’s duty
to accommodate an employee to the point of undue hardship. Among the relevant
factors are the financial cost of the possible method of accommodation, the
relative interchangeability of the workforce and facilities, and the prospect
of substantial interference with the rights of other employees. See also Renaud,
[[1992] 2 S.C.R. 970], at p. 984, per Sopinka J. The various
factors are not entrenched, except to the extent that they are expressly
included or excluded by statute. In all cases, as Cory J. noted in Chambly,
[[1994] 2 S.C.R. 525], at p. 546, such considerations “should be applied
with common sense and flexibility in the context of the factual situation
presented in each case”.
[13] As
these passages indicate, in the employment context, the duty to accommodate
implies that the employer must be flexible in applying its standard if such
flexibility enables the employee in question to work and does not cause the
employer undue hardship. L’Heureux‑Dubé J. accurately described the
objective of protecting handicapped persons in this context in 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, at para. 36:
The purpose of Canadian human rights legislation is
to protect against discrimination and to guarantee rights and freedoms. With
respect to employment, its more specific objective is to eliminate exclusion
that is arbitrary and based on preconceived ideas concerning personal
characteristics which, when the duty to accommodate is taken into account, do not
affect a person’s ability to do a job.
[14] As
L’Heureux‑Dubé J. stated, the goal of accommodation is to ensure
that an employee who is able to work can do so. In practice, this means that
the employer must accommodate the employee in a way that, while not causing the
employer undue hardship, will ensure that the employee can work. The purpose
of the duty to accommodate is to ensure that persons who are otherwise fit to
work are not unfairly excluded where working conditions can be adjusted without
undue hardship.
[15] However,
the purpose of the duty to accommodate is not to completely alter the essence
of the contract of employment, that is, the employee’s duty to perform work in
exchange for remuneration. The burden imposed by the Court of Appeal in this
case was misstated. The Court of Appeal stated the following:
[translation] Hydro‑Québec
did not establish that [the complainant’s] assessment revealed that it was
impossible to [accommodate] her characteristics; in actual fact, certain measures
were possible and even recommended by the experts. [Emphasis added;
para. 100.]
[16] The
test is not whether it was impossible for the employer to accommodate the
employee’s characteristics. The employer does not have a duty to change
working conditions in a fundamental way, but does have a duty, if it can do so
without undue hardship, to arrange the employee’s workplace or duties to enable
the employee to do his or her work.
[17] Because
of the individualized nature of the duty to accommodate and the variety of
circumstances that may arise, rigid rules must be avoided. If a business can,
without undue hardship, offer the employee a variable work schedule or lighten
his or her duties — or even authorize staff transfers — to ensure that the
employee can do his or her work, it must do so to accommodate the employee.
Thus, in McGill University Health Centre (Montreal General Hospital)
v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R.
161, 2007 SCC 4, the employer had authorized absences that were not provided
for in the collective agreement. Likewise, in the case at bar, Hydro-Québec
tried for a number of years to adjust the complainant’s working conditions: modification
of her workstation, part‑time work, assignment to a new position, etc.
However, in a case involving chronic absenteeism, if the employer shows that,
despite measures taken to accommodate the employee, the employee will be unable
to resume his or her work in the reasonably foreseeable future, the employer
will have discharged its burden of proof and established undue hardship.
[18] Thus,
the test for undue hardship is not total unfitness for work in the foreseeable
future. If the characteristics of an illness are such that the proper
operation of the business is hampered excessively or if an employee with such
an illness remains unable to work for the reasonably foreseeable future even
though the employer has tried to accommodate him or her, the employer will have
satisfied the test. In these circumstances, the impact of the standard will be
legitimate and the dismissal will be deemed to be non‑discriminatory. I
adopt the words of Thibault J.A. in the judgment quoted by the Court of
Appeal, Québec (Procureur général) v. Syndicat de professionnelles et
professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005
QCCA 311: [translation] “[In
such cases,] it is less the employee’s handicap that forms the basis of the
dismissal than his or her inability to fulfill the fundamental obligations
arising from the employment relationship” (para. 76).
[19] The
duty to accommodate is therefore perfectly compatible with general labour law
rules, including both the rule that employers must respect employees’
fundamental rights and the rule that employees must do their work. The
employer’s duty to accommodate ends where the employee is no longer able to
fulfill the basic obligations associated with the employment relationship for
the foreseeable future.
B. Time
of Accommodation
[20] The
Court of Appeal held that the duty to accommodate had to be assessed as of the
time the decision to dismiss the complainant was made. It stated the
following:
[translation]
Nevertheless, can it be affirmed that Hydro‑Québec, having in its
possession relatively unfavourable expert reports on [the complainant], has
established that it had considered all [reasonably possible
accommodation measures] when it dismissed [the complainant]?
[Underlining added; italics in original; para. 78.]
It should be
noted that the Court of Appeal’s judgment was delivered prior to this Court’s
decision in McGill University Health Centre. In that case, this Court
reversed a decision in which the Court of Appeal had adopted the date of
dismissal as the relevant date. This Court opted to assess the duty to
accommodate globally in a way that took into account the entire time the
employee was absent (at para. 33):
The Court of Appeal appears to have held that the
duty to accommodate must be assessed as of the time the employee was
effectively denied an additional measure (para. 31). In my view, this
approach is based on a compartmentalization of the employee’s various health
problems. Undue hardship resulting from the employee’s absence must be
assessed globally starting from the beginning of the absence, not from the
expiry of the three‑year period.
[21] In the
instant case, the Court of Appeal applied a compartmentalized approach that was
equally inappropriate. A decision to dismiss an employee because the employee
will be unable to work in the reasonably foreseeable future must necessarily be
based on an assessment of the entire situation. Where, as here, the employee
has been absent in the past due to illness, the employer has accommodated the
employee for several years and the doctors are not optimistic regarding the
possibility of improved attendance, neither the employer nor the employee may
disregard the past in assessing undue hardship.
[22] The
Court of Appeal’s approach led it to criticize the employer for not trying to
accommodate the complainant after February 8, 2001, the last day she
reported for work. Even if the employer had not known the reasons for the
complainant’s absenteeism at the time it agreed to accommodate her, her
personal file, including the record of her past absences, was nonetheless
entirely relevant for the purpose of putting the experts’ prognosis for the
period after February 8 into context. The Court of Appeal found that the
employer did not know the nature of the complainant’s mental disorders and
therefore could not have taken action in this regard. Believing that it had detected
an error in the arbitrator’s approach, the Court of Appeal reinterpreted the
evidence and concluded that a gradual return to work was a possible
accommodation. My view is that it is in fact the Court of Appeal that erred
and that that court should not have interfered with the arbitrator’s assessment
of the evidence.
4. Conclusion
[23] I
therefore conclude that the Court of Appeal’s decision contains two errors of
law, one relating to the standard for assessing undue hardship and the other
relating to the time that is relevant to the determination of whether the
employer has fulfilled its duty to accommodate. The arbitrator, on the other
hand, did not err in law, and there was no justification for interfering with
his assessment of the facts.
[24] For
the above reasons, I would allow the appeal, set aside the judgment of the
Court of Appeal and affirm the Superior Court’s judgment dismissing the motion
for judicial review, with costs throughout.
Appeal allowed with costs.
Solicitors for the appellant: Heenan Blaikie, Montréal;
Judicial Affairs, Hydro‑Québec, Montréal.
Solicitors for the respondent: Trudel, Nadeau, Montréal.
Bastarache J. took no part in the judgment.