McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161

                                                 SUPREME COURT OF CANADA

Between:

McGill University Health Centre (Montreal General Hospital)

Appellant

and

Syndicat des employés de l’Hôpital général de Montréal

Respondent

and

Jean Sexton, in his capacity as grievance arbitrator

Respondent

‑ and ‑

Ontario Network of Injured Workers’ Groups

Intervener

Official English Translation: Reasons of Deschamps J.

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

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

McGill University Health Centre (Montreal General Hospital)                   Appellant

v.

Syndicat des employés de l’Hôpital général de Montréal                          Respondent

and

Jean Sexton, in his capacity as grievance arbitrator                                   Respondent

and

Ontario Network of Injured Workers Groups                                               Intervener

Indexed as:   McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal

Neutral citation:  2007 SCC 4.

File No.:  30941.

2006:  April 12; 2007:  January 26.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for quebec

Human rights — Right to equality — Duty to accommodate — Role of collective agreement in assessment of employer’s duty to accommodate.

Labour relations — Collective agreement — Clause regarding loss of employment in event of extended absence — Employer’s duty to accommodate — Employee unable to return to work after three‑year absence owing to health problems — Clause of collective agreement providing that employee to lose job after three‑year absence by reason of illness — Whether arbitrator may, in assessing employer’s duty to accommodate, consider period provided for in collective agreement.

In March 2000, B took a leave of absence from her job at a hospital on account of health problems.  For more than two years, following her doctor’s orders, she tried unsuccessfully to return to work.  After the expiry of a period of rehabilitation that was provided for in the collective agreement and had been extended by the employer, B was to return to full‑time work in September 2002, but she had an automobile accident.  In March 2003, the hospital, citing B’s prolonged absence, notified her that her employment relationship would be terminated on April 3, 2003.  The union filed a grievance in which it contested the decision and asked the hospital to negotiate a reasonable accommodation with B.  The arbitrator dismissed the grievance.  He noted that the hospital had already accommodated B by granting her rehabilitation periods more generous than were provided for in the collective agreement, and that B was still unfit for work at the end of the three‑year period provided for in the agreement.  The Superior Court dismissed the union’s application for judicial review.  The Court of Appeal reversed that decision and remitted the case to the arbitrator to assess the accommodation issue on an individualized basis and, if applicable, rule on the appropriate compensation.

Held:  The appeal should be allowed.

Per Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.:  The parties to a collective agreement have a right to negotiate, in good faith, clauses to ensure the attendance of employees and to ensure that they do their work.  A clause of an agreement that provides for termination of the employment relationship should an employee be absent longer than a specified period of time is clearly aimed at ill or disabled employees and, considered from the perspective of the duty to accommodate, is among the measures implemented in the enterprise to accommodate them.  However, although the period negotiated by the parties is a factor to consider when assessing the duty to accommodate, it does not definitively determine the specific accommodation measure to which an employee is entitled, since each case must be evaluated on the basis of its particular circumstances.  The right to equality is a fundamental right, and the parties to a collective agreement cannot agree to a level of protection that is lower than the one to which employees are entitled under human rights legislation.  In light of the individualized nature of the accommodation process, the parties cannot definitively establish the length of the period in advance.  Finally, 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 period provided for in the collective agreement. [18‑20] [33]

In the instant case, the arbitrator was aware of the scope of the employer’s duty to accommodate.  He took the clause of the collective agreement into account but did not merely apply it automatically.  He considered all the events leading up to the termination of the employment relationship, together with the accommodation measures granted by the hospital in agreeing to rehabilitation periods longer than those provided for in the collective agreement.  He also considered B’s state of health and the absence of evidence that she would be able to return to work in the foreseeable future.  The arbitrator therefore correctly concluded that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period.  If in B’s view the accommodation provided for in the collective agreement was insufficient, and if she felt that she would be able to return to work within a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour. [34‑38]

Per McLachlin C.J. and Bastarache and Abella JJ.:  Automatic termination clauses in a collective agreement are not presumptively discriminatory.  To accept that such clauses automatically represent prima facie discrimination would render all time‑limited legislated employment protections for absences due, for example, to illness, disability, or pregnancy, presumptively vulnerable no matter how reasonable the protections may be in terms of their length, and would remove the incentive to negotiate mutually acceptable absences. [54‑55]

Here, B did not claim that the automatic termination clause of the collective agreement was discriminatory.  Both the arbitrator and the Superior Court judge found no discrimination in the employer’s refusal to continue to employ someone who, after three years of absence due to illness, was still deemed incapable of returning to work by her own doctor.  Absent a finding of prima facie discrimination, the employer is not required to justify the clause or its conduct. [41‑42] [64]

Cases Cited

By Deschamps J.

Applied:  British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; referred to:  Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Québec (Procureur général) v. Syndicat de professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311; Maple Leaf Meats Inc. v. United Food and Commercial Workers’ International Union, Locals 175 and 633 (2001), 149 O.A.C. 295; Memorial Hospital, Bowmanville and O.N.A., Re (1993), 35 L.A.C. (4th) 401.

By Abella J.

Applied:  Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; referred to:  Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

Statutes and Regulations Cited

Act respecting labour standards, R.S.Q., c. N‑1.1, s. 79.1.

Canada Labour Code , R.S.C. 1985, c. L‑2, s. 239 .

Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 10, 20.

Employment Standards Act, S.N.B. 1982, c. E‑7.2, s. 44.021.

Labour Standards Act, R.S.N.L. 1990, c. L‑2, s. 43.11.

Labour Standards Act, R.S.S. 1978, c. L‑1, s. 44.2.

APPEAL from a judgment of the Quebec Court of Appeal (Rousseau‑Houle, Nuss and Pelletier JJ.A.), [2005] R.J.D.T. 693, [2005] Q.J. No. 1724 (QL), 2005 QCCA 277, setting aside a decision of Poulin J., [2004] Q.J. No. 7555 (QL), dismissing an application for judicial review of an arbitral award.  Appeal allowed.

Jacques A. Laurin and Marie‑France Major, for the appellant.

Lise Lanno, Gérard Notebaert and Catherine Sauvé, for the respondent union.

Lesli Bisgould, Roberto Lattanzio and Katherine Haist, for the intervener.

English version of the judgment of Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ. delivered by

1              Deschamps J. — This appeal concerns the interaction between labour law and the right of a person to be absent from work owing to an illness or disability.  More specifically, what is in issue is the role of a collective agreement in the assessment of an employer’s duty to accommodate an employee who is absent for an indeterminate period owing to personal health problems.  For the reasons that follow, I find that the collective agreement plays an important role in determining the scope of the employer’s duty to accommodate and that, in the case at bar, the three‑year period provided for in the collective agreement represents a reasonable accommodation.

I.       Facts and Judicial History

2                                   On March 24, 2000, on account of a nervous breakdown, Alice Brady took a leave of absence from her job as a medical secretary for the appellant, McGill University Health Centre (Montreal General Hospital) (“Hospital”), a position she had held since 1985.  Between June 26, 2000 and February 28, 2001, on her doctor’s orders, she attempted a gradual return to work.  Her workload was accordingly reduced to three days a week.  No other less demanding work was available.  Since the collective agreement in force provided for a maximum period of six months for rehabilitation and no progress had been noted in an evaluation dated February 28, 2001, the Hospital notified Ms. Brady that she would have to stay home until she was able to work full time.  On March 14, the rehabilitation period was extended until September 17, 2001 following negotiations with the respondent Syndicat des employés de l’Hôpital Général de Montréal (“Union”), which represented Ms. Brady.  On September 14, her return to full‑time work was postponed to October 21, 2001, and it was subsequently postponed again to November 23, 2001.  However, on November 1, 2001, Ms. Brady’s supervisor asked her to go home because she was disorganized and behaving inappropriately.  Her supervisor suggested that she see her doctor.  The doctor recommended that a new gradual return to work be attempted beginning March 11, 2002, but the Hospital, relying on the lack of progress observed during the previous rehabilitation periods, rejected this recommendation.  A return to full‑time work was accordingly scheduled for September 2002, but Ms. Brady had an automobile accident on July 28, 2002.

3                                   The collective agreement provided that rehabilitation periods did not interrupt the disability period.  On March 12, 2003, the Hospital notified Ms. Brady that her employment would be terminated on April 3, 2003.  It cited her prolonged absence as the reason for its decision.  The Union filed a grievance in which it contested the decision of March 12, 2003 and asked the Hospital to negotiate a reasonable accommodation with Ms. Brady.

4                                   On November 5, 2003, the final day of the grievance hearing, Ms. Brady was still receiving total disability benefits from the Société de l’assurance automobile du Québec and was waiting for a shoulder operation.  According to the medical reports in the record, the date of her return to work was undetermined.

5                                   The arbitrator dismissed the grievance (SOQUIJ AZ‑50227506).  He found a number of clauses in the collective agreement to be relevant, including one concerning the protection of employees from discrimination and another providing for loss of employment in the event of an absence owing to illness.  The clauses quoted by the arbitrator are reproduced in the appendix to these reasons.  The arbitrator pointed out that the Hospital had already accommodated Ms. Brady by granting her rehabilitation periods more generous than those provided for in the collective agreement, and that Ms. Brady was still unfit for work at the end of the three‑year period provided for in the agreement.  He considered the facts subsequent to the termination of the employment to be relevant, since they were [translation] “clearly interrelated facts on a continuum, with Ms. Brady still being, as of the final hearing day, totally [incapable] of performing the usual duties of her position or of any other comparable position for medical reasons” (p. 17).  In the arbitrator’s view, “it is difficult to imagine an . . . additional duty to accommodate an employee whose attending physician considers her to be totally disabled” (p. 20).  After thus finding that the Hospital had discharged its duty to accommodate, the arbitrator concluded “that the employer has treated Ms. Brady in a way that was just and non‑discriminatory in correctly applying an express rule set out in the collective agreement” (p. 21).  The Union applied for judicial review of the arbitrator’s decision.

6                                   The Superior Court judge who heard the application noted that Ms. Brady’s illness, which was the cause of her loss of employment, was a handicap within the meaning of the Charter of human rights and freedoms, R.S.Q., c. C-12:

[translation] There is no question in the case at bar that Ms. Brady’s illness, which is the cause of the loss of her employment, is a handicap within the meaning of the Charter, and “it is of little relevance whether the arbitrator found that there was direct discrimination (handicap) or adverse effect discrimination (because the employee did not meet the availability requirements)”.  How it is characterized is unimportant, since, in either case, the Supreme Court, in BCGSEU, requires the employer to accommodate the employee in a manner that is not excessive, and to take reasonable measures.

([2004] Q.J. No. 7555 (QL), at para. 37)

She summed up the arbitrator’s conclusions as follows:

[translation]  It appears from his decision that the arbitrator found it difficult to imagine a duty to accommodate Ms. Brady, since she was disabled.  For him, this in itself constituted undue hardship, as an employer does not have a duty to keep on employees who are incapable of performing their duties.  [para. 41]

7                                   The judge found that these observations were based on a correct and reasonable interpretation of the evidence and that, even though the arbitrator had not expressly mentioned the principles set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, he had applied them correctly.  She dismissed the application for judicial review.  The Union appealed her decision.

8                                   In the Court of Appeal, the Union argued that the Hospital had [translation] “failed to take reasonable measures to accommodate the plaintiff” ([2005] R.J.D.T. 693, 2005 QCCA 277, at para. 9).  The Court of Appeal concluded that the arbitrator had not assessed the reasonable accommodation issue on an individualized basis but had instead merely applied the provision of the collective agreement mechanically.  The Court of Appeal reversed the judgment of the Superior Court and remitted the case to the arbitrator for a ruling on this duty and, if applicable, on the appropriate compensation.

9                                   The Hospital was granted leave to appeal to this Court on the issue of the scope of the duty to accommodate and on the possibility of agreeing on it in advance in the context of a collective agreement.  The Hospital submits that the clause in dispute is generous and meets the test in Meiorin.  It claims to have discharged its duty, explaining that it was impossible to further accommodate Ms. Brady, since she was totally disabled and since no date for her return to work was scheduled.  The Union, however, considers it contradictory to argue, on the one hand, that accommodation must be individualized and, on the other, that the duty of accommodation can be discharged by mechanically applying a general clause.

10                               The rules governing reasonable accommodation in the workplace are well established.  The parties do not dispute these principles.  The issue here is how they apply to a termination of employment clause.

II.      Duty to Accommodate and Collective Labour Relations

11                               The duty to accommodate in the workplace arises when an employer seeks to apply a standard that is prejudicial to an employee on the basis of specific characteristics that are protected by human rights legislation.  This can occur in the context of a sick employee’s right to be absent from work, as in the case at bar, or of a similarly protected right, such as a woman’s right to be absent from work owing to pregnancy.

12                               As can be seen from the many cases in this area, collective agreements often contain clauses providing for termination of the employment relationship after an absence for a specified period of time.  Such clauses are clearly aimed at ill or disabled persons.  The clause in issue in the instant case reads as follows:

[translation]

12.11        An employee shall lose his or her seniority rights and his or her employment in the following cases:

                                                                   . . .

5 ‑     absence by reason of illness or of an accident other than an industrial accident or occupational disease (see above), after the thirty‑sixth (36th) month of absence.

13                               It is well established that the employer must justify the standard it seeks to apply by establishing:

(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.

(Meiorin, at para. 54)

14                               The first and second steps enable the court to assess the legitimacy of, respectively, the standard’s general purpose and the employer’s intent in adopting it.  They thus guarantee that the standard, whether viewed objectively or subjectively, does not have a discriminatory foundation.  The third step is a test of rationality whose purpose is to determine whether the standard is necessary in order to accomplish a legitimate purpose.  The employer must demonstrate that it cannot accommodate the complainant without suffering undue hardship.

15                               The factors that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility (Meiorin, at para. 63; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 546; and Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 520‑21).  For example, the cost of the possible accommodation method, employee morale and mobility, the interchangeability of facilities, and the prospect of interference with other employees’ rights or of disruption of the collective agreement may be taken into consideration.  Since the right to accommodation is not absolute, consideration of all relevant factors can lead to the conclusion that the impact of the application of a prejudicial standard is legitimate.

16                               The parties’ positions can be summed up succinctly.  The Hospital submits that a collective agreement may, in advance, establish the scope of the duty to accommodate and provide for a maximum period of time beyond which any absence would constitute undue hardship.  The Union counters that the Hospital cannot rely on employee benefits granted under a collective agreement as a substitute for the duty to accommodate.  In the Union’s view, this duty arises when the period provided for in the collective agreement expires.

17                               It is quite true that employee benefits cannot be invoked as a substitute for the duty to accommodate.  But the Hospital is not saying that they can.

18                               Insofar as the operation of an enterprise relies on its workforce, there is no doubt that an employer may establish bona fide measures to ensure employees’ regular attendance.  For example, an employer’s right to require that employees work on certain days of the week was recognized in Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”), at pp. 555‑56, and in Central Alberta Dairy Pool, at p. 520.  Similarly, it must be recognized that parties to a collective agreement have a right to negotiate clauses to ensure that sick employees return to work within a reasonable period of time.  If this valid objective is recognized, the establishment of a maximum period of time for absences is thus a form of negotiated accommodation.

19                               The fact that such a period of time has been negotiated and included in the collective agreement indicates that the employer and the union considered the characteristics of the enterprise and agreed that, beyond this period, the employer would be entitled to terminate the sick person’s employment.  The consensus that has been reached is significant, because it was reached by the people who are most familiar with the particular circumstances of the enterprise, and also because these people were representing different interests.  It can therefore be assumed that the clause has been negotiated in the mutual interest of the employer and the employees.  The three‑year period is not, therefore, a monetary benefit included in the remuneration of employees in the same way as health insurance or disability benefits.  Rather, it is the maximum period that an employee can be absent before the employment relationship will be terminated.  Considered from the perspective of the duty to accommodate, this clause, like the right to return to work part time, is among the measures implemented in the enterprise to enable a sick employee to be accommodated.

20                               The period negotiated by the parties is therefore a factor to consider when assessing the duty of reasonable accommodation.  Such clauses do not definitively determine the specific accommodation measure to which an employee is entitled, since each case must be evaluated on the basis of its particular circumstances.  In Commission scolaire régionale de Chambly v. Bergevin, Cory J. wrote the following:

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.  [p. 551]

Neither the employer nor the union may impose a period shorter than the one to which a sick person is entitled under human rights legislation in light of the facts of and criteria applicable to his or her particular case.  A clause purporting to do so would have no effect against an employee who is entitled to a longer period.  Since the right to equality is a fundamental right, the parties to a collective agreement cannot agree to a level of protection that is lower than the one to which employees are entitled under human rights legislation, nor can they definitively establish the length of the period in advance, since the specific circumstances of a given case will not be known until they occur, that is, after the collective agreement has been signed.

21                               It has long been recognized that the parties to a contract cannot agree to limit a person’s fundamental rights: Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at p. 213.  This principle was reaffirmed in the context of management rights in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42:

Under a collective agreement, the broad rights of an employer to manage the enterprise and direct the work force are subject not only to the express provisions of the collective agreement, but also to statutory provisions of the Human Rights Code and other employment‑related statutes.  [para. 23]

Thus, a clause that meets minimum employment standards is a priori not suspect.  The parties may refer to it to determine the individual accommodation to which an employee is entitled in a given situation.

22                               The importance of the individualized nature of the accommodation process cannot be minimized.  The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made.  Throughout the employment relationship, the employer must make an effort to accommodate the employee.  However, this does not mean that accommodation is necessarily a one‑way street.  In O’Malley (at p. 555) and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Court recognized that, when an employer makes a proposal that is reasonable, it is incumbent on the employee to facilitate its implementation.  If the accommodation process fails because the employee does not co‑operate, his or her complaint may be dismissed.  As Sopinka J. wrote in Central Okanagan, “[t]he complainant cannot expect a perfect solution” (p. 995).  The obligation of the employer, the union and the employee is to come to a reasonable compromise.  Reasonable accommodation is thus incompatible with the mechanical application of a general standard.  In this sense, the Union is correct in saying that the accommodation measure cannot be decided on by blindly applying a clause of the collective agreement.  The arbitrator can review the standard provided for in the collective agreement to ensure that applying it would be consistent with the employer’s duty to accommodate.

23                               A number of termination of employment clauses have been considered judicially.  In Québec (Procureur général) v. Syndicat de professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311, the Quebec Court of Appeal ruled on an application for review of an arbitration award dismissing the grievance of an employee whose employment had been terminated after over two years’ absence owing to illness.  The Court of Appeal criticized the arbitrator for applying the clause mechanically and remitted the case to him to assess the duty to accommodate on an individualized basis.  However, Thibault J.A. noted that the employer would be entitled to dismiss a complainant at the end of the period provided for in the collective agreement if the employee could not establish that she would be able to work within a reasonable period of time:

[translation]  As drafted, clause 3‑1.18 of the collective agreement does not authorize the employer to automatically dismiss an employee at the end of the salary insurance period, although the employer may do so if the employee cannot establish that he or she will be able to work within a reasonable period of time.  [para. 76]

24                               In Ontario too, courts and tribunals have refused to find that a termination of employment clause authorizes an employer to dismiss an employee without considering the employee’s specific circumstances: Maple Leaf Meats Inc. v. United Food and Commercial Workers’ International Union, Locals 175 and 633 (2001), 149 O.A.C. 295 (Div. Ct.), and Re Memorial Hospital, Bowmanville and O.N.A. (1993), 35 L.A.C. (4th) 401 (Ont.).

25                               To sum up, the conclusion to be drawn from the case law is that a termination of employment clause will be applicable only if it meets the requirements that apply with respect to reasonable accommodation, in particular the requirement that the measure be adapted to the individual circumstances of the specific case.  If the period provided for in the termination of employment clause is less generous than the one to which the employee is entitled under the principles applicable to the exercise of human rights, the clause will have no effect against the employee and the employer will have to propose further measures to accommodate him or her.  The period provided for in a clause such as this is not meant to be a threshold representing the minimum period to which an employee is entitled.  On the contrary, the clause should provide for a generous accommodation likely to meet the needs of as many employees as possible.  In providing for the most demanding of circumstances, the employer grants employees whose needs are less acute a period more generous than would be required by human rights legislation.  Unions can therefore play an important role, where such clauses are concerned, in the course of the collective bargaining process.

26                               The three‑year period provided for in the agreement between the Hospital and the Union in the case at bar is longer than those provided for in a number of statutes and collective agreements that have already been considered on judicial review (see: Canada Labour Code , R.S.C. 1985, c. L‑2, s. 239 ; Act respecting labour standards, R.S.Q., c. N–1.1, s. 79.1; Employment Standards Act, S.N.B. 1982, c. E‑7.2, s. 44.021; Labour Standards Act, R.S.N.L. 1990, c. L‑2, s. 43.11; Labour Standards Act, R.S.S. 1978, c. L‑1, s. 44.2).

27                               Thus, although a clause providing for termination of the employment relationship after a specified period is not determinative, it does give a clear indication of the parties’ intention with respect to reasonable accommodation.  It is accordingly a significant factor that an arbitrator must take into account in considering a grievance.  In these circumstances, and depending on the duration of the authorized period of absence, such a clause can serve as evidence of the maximum period beyond which the employer will face undue hardship.  This evidence may prove very useful, especially in the case of a large organization, where proving undue hardship resulting from an employee’s absence could be complex.

28                               In short, it cannot be concluded that the accommodation provided for in the collective agreement is a complete answer to the complaint of an employee claiming a more generous accommodation measure.  But it is no more appropriate to say that the benefit incorporated into the collective agreement should not be taken into account in the overall assessment of the accommodation granted by the employer.

III.    Did the Arbitrator Err in the Case at Bar?

29                               The Court of Appeal faulted the arbitrator for failing to assess on an individualized basis the accommodation to which Ms. Brady was entitled:

[translation]  The arbitrator could not simply apply the provisions of the collective agreement and state that it is not discriminatory to refuse to extend the employment of an individual who is not physically capable of performing the duties of the position.  He should have considered whether the employer had discharged its burden of proof with regard to the submission that the requested accommodation measure was unreasonable because the additional time the employee would have before returning to work would cause it undue hardship.  [para. 32]

30                               The analysis the arbitrator had to make concerned the reasonableness of the accommodation requested by Ms. Brady.  Did the arbitrator fail to discharge his duty?  In my view, the Superior Court’s interpretation captures the spirit of the arbitrator’s analysis better than that of the Court of Appeal.  The arbitrator did indeed conclude that the clause in the collective agreement applied to Ms. Brady, but he did so only after having reviewed and analysed the evidence.

31                               The arbitrator started by quoting the clauses of the collective agreement that incorporate the employer’s quasi‑constitutional obligations relating to the right to equality.  He then also quoted the clauses concerning rehabilitation measures and, finally, the one that sets out the circumstances that will result in termination of the employment relationship.  If he had felt that only the latter clause was relevant and had simply applied it blindly, he would probably have quoted only it.

32                               The arbitrator also related the facts and stated that he had to rule on the applicability of the clause [translation] “in the context of the duty to accommodate imposed on the employer” (p. 20).  He noted that the employer had discharged its duty to accommodate by granting rehabilitation periods that were longer than the ones provided for in the collective agreement.  He concluded with a comment that was determinative in the circumstances that had been presented to him, namely that he found it [translation] “difficult to imagine an . . . additional duty to accommodate an employee whose attending physician considers her to be totally disabled” (p. 20).

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.

34                               The arbitrator was correct to assess the circumstances in light of all the events leading up to the termination of the employment relationship.  What is more, when he ruled on the Union’s objection to the introduction in evidence of facts subsequent to the filing of the grievance, he made it clear that the employee’s overall state of health was relevant:

[translation]  Certain facts arising after the filing of the grievance designated as Exhibit S‑2 are indeed relevant to this case and must be considered, since they help to explain the situation that existed at the time the grievance arose.  These facts are clearly, from the perspective of the instant case, complementary facts, are intimately related to the original events and make it possible to ascertain the actual situation at the time the grievance was filed.  They are clearly interrelated facts on a continuum, with Ms. Brady still being, as of the final hearing day, totally [incapable] of performing the usual duties of her position or of any other comparable position for medical reasons. [Emphasis added; p. 17.]

35                               The arbitrator took into account not only the accommodation measures granted by the Hospital, which had agreed to rehabilitation periods longer than those provided for in the collective agreement, but also the dynamics leading to the failure of the attempt to return to work before the expiry of the three‑year period and, finally, the state of Ms. Brady’s health after the employer’s decision.

36                               The arbitrator thus did not limit himself to automatically applying a clause of the collective agreement.  He was aware of the scope of the employer’s duty to accommodate but could not anticipate that the employee would be returning to work in the foreseeable future.  He therefore correctly concluded that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period.

37                               The arbitrator took into account the clause of the collective agreement that authorized the employer to terminate Ms. Brady’s employment, which was an important piece of evidence.  This clause was not considered in a factual vacuum.  Rather, it acquired particular significance for the purpose of demonstrating the Hospital’s willingness to accommodate Ms. Brady during the rehabilitation periods despite the absence of evidence that she would be able to return to work in the foreseeable future.

38                               The duty to accommodate is neither absolute nor unlimited.  The employee has a role to play in the attempt to arrive at a reasonable compromise.  If in Ms. Brady’s view the accommodation provided for in the collective agreement in the instant case was insufficient, and if she felt that she would be able to return to work within a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour.

IV.    Conclusion

39                               For these reasons, it is my view that the Superior Court did not err in dismissing the application for judicial review.  I would accordingly allow the appeal and set aside the Court of Appeal’s decision with costs in both courts.

The reasons of McLachlin C.J. and Bastarache and Abella JJ. were delivered by

40                               Abella J. — An employer has a duty to provide a discrimination-free workplace.  It is important, therefore, to be clear about what discrimination is — and what it is not — so that employers know their duties and employees know their rights.

41                               The grievor, Alice Brady, asked that “By virtue of the collective agreement . . . the employer arrive at a reasonable accommodation with myself.”  Notably, Ms. Brady did not claim that the automatic termination clause of the collective agreement pursuant to which her employment was terminated, was discriminatory.  Nor did the union allege a breach of the collective agreement.

42                               Both Jean Sexton, the arbitrator, and Poulin J. found no discrimination on the part of the employer in refusing to continue to employ someone who, after three years of absence due to illness, is still deemed to be incapable of returning to work by her own doctor.  I agree.

43                               One preliminary matter.  Ms. Brady did in fact return to work intermittently on a part-time basis during her absence of more than 36 months.  The arbitrator held that these periods of rehabilitation did not interrupt her absence from work under the collective agreement.  He reasoned that “absence” — an undefined term in the agreement — should be construed with reference to the definition of “period of disability”.  The latter provided for continued sick-leave benefits if an employee returned for less than 15 days of full-time work or if the employee could show that a completely unrelated accident or illness had caused any subsequent periods of disability.  This is important because it would appear that Ms. Brady was injured in a car accident less than two months before she was scheduled to return to work on a full-time basis.  Clearly, the injuries she sustained from the car accident were unrelated to her previous illness.  Ms. Brady, however, declined to argue the applicability of the sick-leave benefits clause on this appeal, and I would not interfere with the arbitrator’s decision on this issue.  It appears that it was not clearly established whether Ms. Brady would have been available for work had it not been for the car accident.

44                               The central issue is whether Ms. Brady has established prima facie discrimination, shifting the onus to the employer to justify its workplace standard or conduct.  I accept that a collective agreement does not necessarily immunize an employer from a transcendent duty not to discriminate (see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42), and that this may involve accommodating an employee to the point where it would impose undue hardship on the employer (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”)).  But this is different from creating a legal paradigm that even if the employer’s conduct is not discriminatory, there is a legal duty to justify all distinctions.

45                               Section 10 of the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12 (“Quebec Charter”), explains discrimination as follows:

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.

46                               Establishing discrimination under s. 10 of the Quebec Charter requires a three-step analysis.  A plaintiff must demonstrate:

(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”.

(Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 538)

47                               McIntyre J. defined discrimination in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, in similar terms:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.  Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. [pp. 174-75]

48                               At the heart of these definitions is the understanding that a workplace practice, standard, or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics.  The goal of preventing discriminatory barriers is inclusion.  It is achieved by preventing the exclusion of individuals from opportunities and amenities that are based not on their actual abilities, but on attributed ones.  The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.

49                               What flows from this is that there is a difference between discrimination and a distinction.  Not every distinction is discriminatory.  It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group.  Such membership alone does not, without more, guarantee access to a human rights remedy.  It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy.  And it is the claimant who bears this threshold burden.

50                               If such a link is made, a prima facie case of discrimination has been shown.  It is at this stage that the Meiorin test is engaged and the onus shifts to the employer to justify the prima facie discriminatory conduct.  If the conduct is justified, there is no discrimination.

51                               To justify it, an employer must show that the conduct was reasonably necessary to accomplish a legitimate workplace purpose.  Part of proving reasonable necessity, as McLachlin J. explained in Meiorin, at para. 54, is demonstrating that “it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”.  This is where we examine whether the employer has reasonably accommodated an individual whose group identity has resulted in an arbitrary workplace disadvantage.

52                               Meiorin defines the applicable evidentiary burden on an employer for justifying discriminatory conduct, that is, for demonstrating that such conduct is brought “within an exception to the general prohibition of discrimination”: para. 67.  It is an onerous burden, and properly so.  It reinforces the primacy of human rights principles in a workplace and tells employers that they can only justify such conduct towards a particular employee if the employee cannot reasonably be accommodated.  If they can justify the conduct, there is no discrimination.  It is part of the justification defence, not a stand-alone legal duty:  if the conduct or standard is not discriminatory, on its face or in effect, no such burden of justification falls on the employer.

53                               There is no need to justify what is not, prima facie, discriminatory.  Unlike Deschamps J., then, the issue for me is not whether the employer has made out the justification defence of having reasonably accommodated the claimant, but whether the claimant has satisfied the threshold onus of demonstrating that there is prima facie discrimination, namely, that she has been disadvantaged by the employer’s conduct based on stereotypical or arbitrary assumptions about persons with disabilities, thereby shifting the onus to the employer to justify the conduct.

54                               I cannot accept the conclusions of the majority that “automatic” termination clauses automatically represent prima facie discrimination.  This renders presumptively vulnerable, no matter the reasonableness of their length, all time-limited legislated employment protections for absences due, for example, to illness, disability, or pregnancy.  It is hard to see how three years of job protection for a disabled employee — a significantly longer period than the 26 weeks in a 12-month period required by Quebec’s Act respecting labour standards, R.S.Q., c. N-1.1, s. 79.1 — constitutes an arbitrary disadvantage merely because it is finite.

55                               Moreover, from a policy perspective, designating such clauses as presumptively discriminatory removes the incentive to negotiate mutually acceptable absences.  It suggests that, regardless of the reasonableness of the duration of the protection, an employee can still, by bringing a grievance, render the clause’s term meaningless, shifting the burden to the employer to explain why it was reasonable to terminate a particular employee.

56                               This would leave disabled employees without the lengthy guarantee of job and seniority protection such clauses offer.  It is true that they are finite, and therefore, in a technical sense, arbitrary.  But they are not arbitrary in the way we understand arbitrariness in the human rights context, that is, they do not unfairly disadvantage disabled employees because of stereotypical attributions of their ability.  Instead, these clauses acknowledge that employees should not be at unpredictable risk of losing their jobs when they are absent from work due to disability.

57                               Generally, automatic termination clauses of reasonable length represent a trade off for employees between their right to be dismissed for just and sufficient cause (which entails that their employment will not be terminated unless there is no prospect that they may return to work in a reasonable period), and the certainty that the employment relationship will be maintained for a fixed period.  There is nothing inherently discriminatory in such a trade-off, especially if the resulting protection is significantly longer than the applicable employment standards legislation.

58                               Whether prima facie discrimination is established, shifting the obligation of justification on the employer, depends on the facts of the particular case, including the negotiated terms of any contract.  In Meiorin, prima facie discrimination was established by the fact that the requirement at issue had the practical effect of excluding most women from employment as firefighters.  This was sufficient to require that the employer justify the requirement.

59                               Arbitrators seized with a case such as this must determine, on a case-by-case basis, whether the particular agreement negotiated by the parties is prima facie discriminatory.  A very short period of leave for disability or illness will raise more concerns than a longer one.  The length of time provided by the negotiated clause must be assessed in the context of the nature of the employment and other relevant factors, to determine whether a prima facie case of discrimination is established.

60                               In this case, the arbitrator, albeit in the context of discussing reasonable accommodation, concluded that the three‑year leave period provided by the collective agreement — refusing to maintain the employment of someone who has been “totally incapable” of performing the job for three years and who, after three years, continues to be “totally incapable” of doing so — did not raise a prima facie case of discrimination.  He stated:  [translation] “it seems clear that clause 12.11.5 of the collective agreement in no way infringes sections 10 and 16 of the Charter of human rights and freedoms” (SOQUIJ AZ-50227506, at p. 21).  In the Superior Court, Poulin J. endorsed the arbitrator’s conclusion ([2004] Q.J. No. 7555 (QL), at paras. 31-42).  I see no reason to interfere with the arbitrator’s conclusion on this point.

61                               Far from representing discrimination on the basis of disability, the length of this termination clause represents, in purpose and effect, extensive protection from job loss caused by disability.  Through clause 12.11.5 of the collective agreement, the union has negotiated exemplary protection for employees who are absent due to illness or accident unrelated to work (work-related accidents or illnesses are covered by a different provision).  For 36 months, the employee’s job and seniority are protected.  According to the definition of “disability” in clause 23.03 of the collective agreement, employees can lose their jobs only if, at the end of the three years, they are [translation] “totally incapable of the usual duties of his or her job and of any other comparable, similarly compensated job”.

62                               Non-culpable absenteeism, including the failure to achieve a reasonable degree of attendance because of illness, is accepted in arbitral jurisprudence as a just cause for dismissal.  The absence of a protection such as the one found in clause 12.11.5 leaves an employee vulnerable to the unpredictable judgment of an employer as to whether his or her “innocent absenteeism” for illness is excessive and therefore justifies dismissal.  Here, just cause is only presumed after three years of absence.  The clause replaces the uncertainty with a guarantee of job protection for three years.  It is common sense that the union and employer would make the trade-offs necessary to avoid an individualized, case-by-case approach to undefined periods of absence and, instead, try to delineate a universal, generous period of job protection for disabled employees beyond which the mutual rights and obligations end.

63                               This does not target individuals arbitrarily and unfairly because they are disabled; it balances an employer’s legitimate expectation that employees will perform the work they are paid to do with the legitimate expectations of employees with disabilities that those disabilities will not cause arbitrary disadvantage.  If the employee is able to return to work, the same or an analogous job remains available.  If not, he or she lacks, and has lacked for three years, the ability to perform the job.  This, it seems to me, is precisely what is protected by s. 20 of the Quebec Charter which states, in part, that “[a] distinction, exclusion or preference based on the aptitudes or qualifications required for an employment . . . is deemed non-discriminatory.”

64                               On the facts and the findings of the arbitrator, the claimant did not establish prima facie discrimination.  Absent this, the employer is not called upon to justify the standard or its conduct.

65                               For these reasons, I agree with the conclusion of Deschamps J. that the appeal should be allowed.

                                                           APPENDIX

Collective Agreement

[translation]  

3.01     The employer shall treat its employees fairly, and the union shall encourage them to do their work properly.

                                                                   . . .

3.03     For the purposes of this collective agreement, neither management, nor the union, nor their respective representatives shall make threats, exercise coercion or discriminate against an employee because of the employee’s race, colour, nationality, social origin, language, sex, pregnancy, sexual orientation, marital status, age, religious beliefs or lack thereof, political opinions, disability, kinship, parental situation or exercise of a right conferred on the employee by this agreement or by law.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying, impairing or restricting a right conferred by this agreement or by law for one of the reasons set out above.

Notwithstanding the above, a distinction, exclusion or preference based on the aptitudes or qualifications required to perform the duties of a position is deemed non‑discriminatory.

                                                                   . . .

5.03     No special agreement between an employee and the employer respecting working conditions that differ from those provided for in this agreement or that are not provided for in this agreement shall be valid without the written approval of the union.

                                                                   . . .

12.11   An employee shall lose his or her seniority rights and his or her employment in the following cases:

1‑    voluntary termination of his or her employment;

2‑    in the case of a student, a return to full‑time studies constitutes voluntary termination of employment.  This paragraph applies only to students hired as replacements for the annual leave (vacation) period;

3‑    dismissal;

4‑    lay‑off for a period exceeding twelve (12) months, except in the case of an employee to whom clause 15.03 applies;

5‑    absence by reason of illness or of an accident other than an industrial accident or occupational disease (see above), after the thirty‑sixth (36th) month of absence.

                                                                   . . .

23.03   Definition of disability

Disability means a state of incapacity resulting from an illness — including an accident, a pregnancy complication, a tubal ligation, vasectomy or similar case related to family planning, or an organ donation — that requires medical care and renders the employee totally incapable of performing the usual duties of his or her job or of any other comparable, similarly compensated job offered to the employee by the employer.

23.04   A period of disability is any continuous period of disability or a succession of periods separated by fewer than fifteen (15) days of full‑time work or availability for full‑time work, unless the employee demonstrates to the satisfaction of the employer or the employer’s representative that a subsequent period is attributable to an illness or accident that is totally unrelated to the cause of the earlier disability.

23.17   . . .

(c)   From the eighth (8th) week of disability within the meaning of clause 23.03, an employee holding a position and receiving salary insurance benefits may, at the employee’s request and upon the recommendation of the employee’s attending physician, benefit from one or more periods of job rehabilitation within a period not exceeding three (3) consecutive months.  This job rehabilitation must be agreed to by the employer and must allow the employee to perform all the usual duties of the position.  During any rehabilitation period, the salary insurance plan shall continue to apply to the employee.

At the end of the period of three (3) months, the employer and the employee may, on the recommendation of the attending physician, agree to extend this period for up to three (3) consecutive months.

The employee may terminate the period of rehabilitation before the end of the period agreed upon by submitting a medical certificate from the employee’s attending physician.

During the rehabilitation period, the employee is entitled to receive both his or her salary for the proportion of the time worked and the benefits for which he or she is eligible for the proportion of the time not worked.

No period of rehabilitation shall have the effect of interrupting the disability period or extending the period of payment of full or partial salary insurance benefits beyond one hundred and four (104) weeks of benefits for the disability.

At the end of a rehabilitation period, the employee may return to his or her position if he or she is no longer disabled.  If the disability persists, the employee shall continue to receive benefits as long as he or she is eligible therefor.

Appeal allowed with costs.

Solicitors for the appellant:  Colby, Monet, Demers, Delage & Crevier, Montréal; Lang Michener, Ottawa.

Solicitors for the respondent union:  Pepin et Roy, Montréal.

Solicitor for the intervener:  ARCH  Disability Law Centre, Toronto.