Anyone who has litigated human rights, or who has done research for said litigation, understands the challenges of putting together a claim for discrimination. However, that challenge becomes even more difficult when filing a claim for discrimination on the ground of family status. According to a relatively recent article in Canadian Lawyer Magazine (http://www.canadianlawyermag.com/), human rights tribunals, labour arbitrators and the courts will be faced more and more frequently with cases revolving around issues such as workplace flexibility and discrimination on the basis of family status, as families increasingly find themselves struggling to balance work and personal responsibilities. Unfortunately, the case law has not been very helpful, nor has it been very forgiving to these families.

In a 2004 British Columbia Court of Appeal case, Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, the court held that in order to meet the prima facie threshold for discrimination on the basis of family status, it must be the employer who changes a term of employment resulting in serious interference with a substantial parental or other family obligation. At that point, the employer must prove that the change was a bona fide occupational requirement. However, the article points out that a “serious interference” isn’t required for a finding of discrimination on other grounds.

The Federal Court, and the Federal Court of Appeal, agreed in Hoyt v. Canadian National Railway, that, “The suggestion by the court in Campbell River…that prima facie discrimination will only arise where the employer changes the conditions of employment seems to be…unworkable and, with respect, wrong in law.” Meanwhile, Quebec’s human rights legislation doesn’t protect against discrimination based on family status, meaning that employers in Quebec have no duty to accommodate families hoping for flexibility in the workplace.

The article also suggests that the challenge becomes greater for human rights advocates when employers use the downturn in the economy as a defence for the termination of an employee. It has become easier for employers to argue that accommodation on the basis of family status would involve undue hardship. And, despite the conflicting case law across jurisdictions, the theme in many cases is that it is the responsibility of parents to make external arrangements for child care. In other words: get to work.

Cited from:

Glenn Kauth, “Accomodating for Family Status” (August, 2009) Canadian Lawyer Magazine.

On Tuesday, February 17th, the Catherine Helen MacLean Memorial Lecture will be held. This year’s lecture is entitled “Human Rights at Work: The Future of Rights in the Workplace”.

The lecture will be given by Michael Lynk, professor of Law at the University of Western Ontario. This promises to be an interesting learning opportunity for ELLSS members or anyone interested in human rights.

It will be held on Tuesday, February 17th, 2009 at 6:00pm in room 147 of Fauteaux Hall at the University of Ottawa. If you would like to attend, please RSVP to sylvie[dot]vanasse[at]nelligan.ca by February 10th.

On December 3, 2008, Reach - a lawyer referral organization that helps people with all disabilities - in conjunction with Emond Harnden LLP, is hosting a conference entitled “Put Our Minds to Work: Re-Thinking Mental Health and Illness in the Workplace”. The conference looks to be a very interesting one as it deals with the accommodation of mental health disabilities, an area of accommodation which is often overlooked and misunderstood by employers and unions. The workshop topics for the conference include the legal framework for accommodation, accommodation strategies, overcoming stigma in the workplace, disclosure, and return-to-work programs.

Students can register for the conference for $35.00. It will be held from 7:30 to 3:30 at the Hampton Inn Ottawa Conference Centre. More information can be obtained by reading the conference brochure.

For more information, visit www.reach.ca, call 613.236.6636 (TTY: 613.236.9478) or send an e-mail to reach[at]reach[dot]ca.

Students are invited to attend an upcoming conference, “Solidarity: Migrant Workers”, a fantastic opportunity to learn more about a current issue in union-side labour law. The Federal Government’s move to open up the Temporary Foreign Worker Program raises longstanding questions about the barriers to unionization faced by migrant workers. Various discussions and workshops will be held from both academic and practical points of view.

The Conference will be held from October 24th to 26th at the University of Ottawa. The registration fee for students is only $50, but there is also a need for students to volunteer as notetakers. Volunteers can attend free of charge.

Further details and registration information for this exciting event can be found at Jewitt McLuckie’s Website under Events. If you would like to volunteer, please contact Samantha Lamb at SLamb AT jewittmcluckie.ca or Samar Musallam at smusallam AT jewittmcluckie.ca. To register, please send your completed registration form to Solange Ashe at sashe AT jewittmcluckie.ca or by fax at 613-594-5156.

Discrimination in the hiring process has been a contentious area of both labour and employment law and human rights law. It becomes even more difficult when certain employers are regulated by statute and are required by law to look for and consider qualifications in applicants. The Supreme Court in Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse) (“Montreal”) has addressed this very issue and has attempted to clarify the interaction of s.18.2 of the Quebec Charter of human rights and freedoms (“Charter“) and whether an employer can consider the absence of a criminal past as a bona fide occupational requirement.

In Montreal, S.N. applied for a job as a police officer with the Service de police de la Communauté urbaine de Montréal (”SPCUM”). She was rejected at the initial stage of the selection process because she did not have the qualification of having “good moral character” required under the Police Act and its by-laws. In 1991 at the age of 21, S.N. had pleaded guilty to a shoplifting theft charge and received a conditional discharge, which the employer used to determine her lack of “good moral character”. S.N. challenged this decision on the grounds that she had been pardoned for the offence, as per the Criminal Records Act (“CRA”) which grants an automatic pardon after three years for a conditional discharge, but the SPCUM stood by its position. S.N. then launched a human rights complaint, alleging that the SPCUM had violated s.18.2 of the Quebec Charter which prohibited the refusal to hire “owing to the mere fact” an individual had been convicted of a criminal offence “if the person has obtained a pardon for the offence.”

Among its arguments, the SPCUM took the position that S.N. had not been rejected based on her criminal record, but due to the “good moral character” criterion. It further submitted that its actions were justified under s.20 of the Charter which provides that exclusions or distinctions based on aptitudes and qualifications required for an employment are non-discriminatory.

The issue progressed and reached the Supreme Court, with all lower courts and tribunals finding in favor of S.N.

The majority decision of the Supreme Court, written by Justice Deschamps, dismissed the appeal. In doing so, it applied its reasoning from Therrien (Re) which held that s. 18.2 is engaged when 4 criteria are met:

1. A dismissal, a refusal to hire or any kind of penalty,
2. decided on in relation to the person’s employment,
3. owing to the mere fact that the person was convicted of a penal or criminal offence, and
4. either the offence must be in no way connected with the employment or the person must have obtained a pardon for the offence.

Looking particularly to the third and fourth factors, the Supreme Court found that the pardon under the CRA creates a presumption that the person has recovered his or her moral integrity. The Supreme Court also noted that having a “good moral character” was a required qualification for being a police offer, but it highlighted that as per the statutory provisions dealing with hiring, criminal record and “good moral character” were two separate criteria to be considered. As such, Justice Deschamps held that the SPCUM was entitled to consider the facts surrounding and giving rise to the finding of guilt but that it must also consider the pardon in determining moral character. A decision about moral character could not be based just on the mere fact of a finding of guilt, but could be countered by adducing additional evidence which, when considered in light of the circumstnaces in which the person committed the crime, supported the conclusion that the person is unfit for the job. These points were explained at paragraph 26, 27, and 28:

An employer is therefore entitled to consider the facts that resulted in a finding of guilt in assessing whether a candidate has the qualifications required for a job.  Those facts are inevitably part of the candidate’s past.  However, the employer must also consider the fact that the person has been pardoned.

The Court also noted that the positive effect of a pardon as it reflects on a person’s character may be countered by adducing evidence of delinquent behaviour or of facts indicating a lack of probity, although this evidence cannot be limited solely to the finding of guilt. The employer must show that the decision was not based on the mere fact of the finding of guilt. Justice Deschamps concluded that the decision was made soley on the conviction and not the facts surrounding it and the employer was not entitled to rely on it.

One issue I find with the majority decision is that it creates a certain degree of confusion as to what can and should be considered in rejecting an application for lack of “good moral character”. Although it permits the employer to consider the facts and circumstances in which a person committed a pardoned crime, an employer cannot rely on the mere finding of guilt itself. The tension here is that the facts leading up to the conviction are essentially what results in the eventual finding of guilt. For example, the fact that a person shoplifted is inseparable from the stigma of dishonesty and dubiousness of the act. As such, although the majority reasons on its face seem to suggest that so long as the decision is not made solely on the conviction you can rely on the dishonesty surrounding it, it is difficult to see how all conclusions drawn around it are not inexorably linked to the conviction itself and would contravene s.18.2.

It’s even harder to try and pin down the line between discrimination and bona fide occupational requirements Justice Deschamps was trying to draw. Because Justice Deschamps held that s.18.2 is a self-contained provision, she noted that s.20 of the Charter which essentially provides a bona fide occupational requirement does not apply. The issue with this conclusion is that SPCUM would never be able to argue that “good moral character” includes the bona fide occupational requirement that the candidate have never committed a criminal offence. Although this is less of a concern for candidates with minor offences like S.N., it raises questions about individuals who receive pardons for much more serious offences, particularly where those pardons were automatic by operation of statute. Such a dilemma could be better evaluated under a case-by-case basis of accommodation under s.20 rather than the all-or-nothing approach suggested by the majority reasons. This was explicitly addressed in the dissent by Justice Charron who would have applied the Meiorin test for bona fide occupational requirements and have found the SPCUM’s decision was reasonable under that test.

It is unclear the significance this decision will have on hiring, particularly outside of Quebec and outside of the stautory requirement of “good moral character”. In Quebec, the analysis of Justice Deschamps clearly indicates that if any employer wants to use a criminal conviction to refuse to hire because of a lack of moral character, it will require something more for it to be justified than just the pardoned criminal conviction. It may also stand for the principle that the bona fide occupational requirement will never be accessible to Quebec employers in cases of a pardoned offence under s.18.2, leading to difficulties with anyone who wishes to refuse to hire because of a past conviction for a serious offence which has received a pardon, particuarlly automatic administrative pardons. Likely, in other jurisdictions, the proper test will be continue to be Meiorin since no other province has a self-contained provision like 18.2.

How far-reaching is an employer’s duty to accommodate?  This question has been continuously debated in labour and employment jurisprudence for many years.  In the recent decision of Hydro-Quebec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ)  (“Hydro-Quebec”), however, the Supreme Court of Canada has clarified the outer limits of this duty. 

Specifically, the Supreme Court addressed the extent of an employer’s duty to accommodate in light of the test set out in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (“Meiorin”). As per Meiorin, an employer can justify a standard or actions which would otherwise be discriminatory if 3 steps are met. The third step involves demonstrating that it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. It is the correct interpretation of this requirement which was addressed by the Supreme Court in Hydro-Quebec. 

The case involved an employee who was plagued by various physical and mental problems, particularly a personality disorder which resulted in deficient coping mechanisms.  This led to a high absence rate as well as difficult relationships with co-workers and supervisors. The situation persisted over several years despite a number of adjustments by the employer to her conditions of work. Eventually, and after receiving a psychiatric assessment which indicated that the employee would not have regular and continuous attendance in the future, the employer dismissed her.

The union challenged her termination. It suggested that the employer could have completely changed her work environment to eliminate the stressors which caused her inability to work in a satisfactory manner. The arbitrator found in favour of the employer, holding that this proposed accommodation, which would require continuous, periodic changes to the employee’s work environment and colleagues, would constitute undue hardship. The Superior Court agreed with the arbitrator’s assessment, but on appeal to the Quebec Court of Appeal the decision was reversed on the grounds that the threshold of impossibility had not been met by the employer. The employer launched an appeal to the Supreme Court.

The Supreme Court needed to assess what the scope of the duty to accommodate was, as per the ruling in Meiorin, and whether or not the employee had been properly accommodated within it.

Even though the Supreme Court emphasized that the goal of accommodation is to ensure that if an employee is able to work they are not unfairly excluded or prevented from doing so, it also concluded that the duty to accommodate, as per the approach articulated in Meiorin, has certain boundaries:

• It does not mean that the employer has to prove it was impossible to accommodate the employee;
• It does mean that the employer has to prove that accommodating the employee would cause undue hardship;
• The employer does not have a duty to change working conditions in a “fundamental way” ;
• The duty to accommodate does not extend to a complete alteration of the “essence” of the employment contract: the performance of work in exchange for remuneration;
• If the nature of an illness is such that the proper operation of the business is excessively hampered or the employee remains unable to perform the work for the reasonably foreseeable future even though the employer has made attempts to accommodate, undue hardship will be met.

The Supreme Court upheld the original decision of the arbitrator and overturned the decision of the Court of Appeal. The test for undue hardship had been met because the employer had tried for a number of years to adjust the employee’s working conditions and attempted to accommodate, but the employee was still unable to work for the reasonably foreseeable future.

In our opinion, this case, while dealing with a situation arising from the labour context, will also have important implications for non-unionized employees and employers. The Supreme Court has clarified several legal points about the duty to accommodate, as well as rejected an interpretation of the Meiorin test which could be the subject of debate in the adjudication of these types of disputes.

Furthermore, it must be recognized that assessing whether or not an employer has met its duty to accommodate obligations to their employee can be a difficult, complicated, and completely fact-driven inquiry. Indeed, the Supreme Court itself in this case recognized that “what is really required is … proof of undue hardship, which can take as many forms as there are circumstances.” While the waters are still (and probably always will be) murky as to what is legally required to satisfy the duty to accommodate to the point of undue hardship, the Supreme Court has, at minimum, clarified what it does not involve.

Authored by:  Heather Robson and Cheryl Waram, ELLSS