Hydro-Quebec: Bending Over Backwards to Accommodate?
On Tuesday, January 22, the SCC heard and reserved judgment in Hydro-Quebec v Syndicat des employees de techniques professionnelles et de bureau d’Hydro-Quebec. When released, the decision will likely shed light on the important question of how far an employer is required to accommodate the disabilities of its employees.
The case involves Hydro-Quebec’s 2001 “administrative dismissal” of a mentally-ill employee with a track record of chronic absenteeism. The employee, Ms. Manon Laverriere, had been employed by Hydro-Quebec as a commercial rates and programs sales clerk for 24 years when she received a letter stating her dismissal. Hydro-Quebec indicated that the reason for the employee’s dismissal was her exceptionally high rate of absenteeism and her current and future inability to regularly and reasonably perform her job. The company based this evaluation on the opinions of psychiatric experts who concluded that Ms. Laverriere’s attendance problems at work would unlikely improve significantly in the future.
Beginning in 1994, initial tension developed between Laverriere and her immediate supervisor regarding the former’s increasing absences. At the same time, she developed considerable pain in her shoulder and elbow, which she blamed on the configuration of her workstation. Ms. Laverriere subsequently filed an employment injury claim in this regard, further aggravating her conflict with her supervisor.
Over the following seven years, Laverriere was absent from work over 850 days due to, among other things, injury, inter-personal conflict, depression, and two suicide attempts. Hydro-Quebec’s initial response to the problem was to transfer Laverriere so as to end the tense working relationship between her and her supervisor. When the supervisor retired, Laverriere was then returned to her initial position at her request.
In 1998, Laverriere’s position was abolished due to administrative reorganization. Despite a collective agreement that stipulated the redundancy of employees in such a situation, Laverriere was given the opportunity to transfer to another Hydro-Quebec location. Beginning in 1999, Laverriere fell into a number of deep depressive episodes resulting in exceptionally high rates of absence from work. In 2000 alone, Laverriere was absent 210.5 days, often with no explanation provided to her employer. In 2000 and 2001, Laverriere was seen by an array of doctors who, although differing as to whether there was a solution to the problem, agreed that Laverriere suffered from a personality disorder giving rise to serious adaptation problems in relationships with superiors and colleagues.
In July 2001, the appellant, Syndicat des employees de techniques professionnelles et de bureau d’Hydro-Quebec, filed a grievance on behalf of Laverriere. Among other things, the Union sought Laverriere’s reinstatement and financial compensation for damages and prejudice suffered.
The question before the arbitrator was whether Laverriere’s dismissal was wrongful, arbitrary, or discriminatory in light of both her mental illness and the measures taken by Hydro-Quebec to resolve or at least reduce the difficulties she was encountering at work.
According to the arbitrator, Hydro-Quebec’s decision had been correctly based not on Laverriere’s past absenteeism, but on her present and future incapacity to regularly and reasonably perform her job. In the arbitrator’s eyes the only possible long-term accommodation would be to consistently and continuously provide Laverriere with new working environments, supervisors and colleagues. Such a measure, the arbitrator ruled, would amount to an excessive burden upon Hydro-Quebec. In dismissing her grievance, the arbitrator noted that Hydro-Quebec had long been genuinely patient and tolerant towards Laverriere.
At the Superior Court
After determining that Laverriere’s condition qualified as a handicap under s. 10 of the Quebec Charter of Human Rights and Freedoms, CQLR, c C-12, the trial judge considered the nature of the duty to accomodate that is placed upon employers. The duty to accommodate in the workplace is generally understood as the legal requirement placed upon employers to eliminate practices and requirements that discriminate on the basis of prohibited grounds such as race, sex, age and disability.
Moreover, employers are generally required to take all steps short of undue hardship to eliminate discrimination on such grounds. Employers are, however, permitted to exclude certain workers under conditions in which the employer is able to establish the existence of what is known as a Bona Fide Occupational Requirement (BFOR). In essence, BFORs are the absolutely necessary tasks required to perform a job. In the case of Laverriere the question became whether the attendance standard imposed upon Laverriere was a BFOR.
The contemporary approach to the duty to accommodate was laid down by the SCC in British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3 [Meiorin], which involved a forest firefighter who was laid off after failing one of the four components of a job fitness test. According to Meiorin, three essential questions must be asked in order to determine whether a discriminatory standard is a BFOR:
1. Did the employer adopt the standard for a purpose rationally connected to the performance of the job?
2. Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?
3. Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? In order to show that a 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.
The trial judge concluded that Hydro-Quebec had rationally and in good faith adopted a standard of attendance at work because the performance of work constitutes a fundamental obligation in the employment contract. In relation to the question of undue hardship, the trial judge determined that the arbitrator had correctly weighed the evidence indicating that Laverriere would not be able to peform her job in the foreseeable future and that the repeated creation of new work environments would represent an undue hardship upon Hydro-Quebec.
At the Court of Appeal
At the Quebec Court of Appeal, the parties agreed that the trial judge had applied the appropriate standard of review, that of correctness. Thus the only live issue was whether the trial judge had wrongly approved the arbitrator’s determination that a BFOR existed and that it was indeed impossible to accommodate Laverriere due to undue hardship.
Of particular contention at the Court of Appeal was the third leg of the Meiorin test: whether the attendance standard adopted by Hyrdro-Quebec was resaonably necessary and that accommodating Laverriere would amount to undue hardship. According to Hilton. J.A. speaking on behalf of an unanimous Court of Appeal, while Hydro-Quebec did indeed display remarkable patience and tolerance with Laverriere’s absenteeism, it nonetheless failed to consider all possible measures of reasonable accommodations. In essence the Court of Appeal was critical of the arbitrator and trial judge’s selective consideration of expert opinions:
This analysis of the expert opinions is partial and accepts only the elements that are unfavourable to Ms. L. Of course, the expert opinions do reveal that she suffers from a personality disorder that affects both her capacity to work and the search for a harmonious solution to the work conflict. The expert reports are not as black and white as the analyses of the arbitrator and trial judge suggest, however.
In particular, the Court of Appeal criticized the arbitrator and the trial judge for ignoring the opinion of certain doctors, who suggested that Laverriere might be able to recommence her job with the aid of long-term medication, psychotherapy and a gradual and part-time return to work. Ultimately Hilton J.A. concluded that despite its already “nearly irreproachable behaviour” a business the size of Hydro-Quebec ought to be able to create a position and schedule to suit the very specific needs of Laverriere.
At the end of the day, it will be up to the SCC to determine how much accommodation is enough.