McGill University Health Centre v Syndicat des employé de L’Hôpital général de Montréal
and John Kicoyne
McGill University Health Centre (Montreal General Hospital) v Syndicat des employé de L’Hopital général de Montréal, 2007 SCC 2 [McGill Health Centre], dealt with “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.” Although it is sensitive to the labour relations context, the majority decision, written by Justice Deschamps (on behalf of six members of the SCC), maintains the principle that that human rights norms trump negotiated agreements. It is consistent with well-established human rights jurisprudence, and, despite the somewhat unusual and problematic facts of the case, it is unremarkable.
However, the concurring judgment, written by Justice Abella and endorsed by the Chief Justice and Justice Bastarache, is surprising and disturbing. Not only does it advance a restrictive approach to proving discrimination, it also tends to subordinate human rights norms to collective agreements and employment standards legislation. The fact that it is a concurring decision should serve to lessen its impact. Nevertheless, the fact that it was written by Justice Abella, who is considered to be a strong proponent of equality rights, is troubling.
Background and Judicial History
At issue in this case was whether a clause in a collective agreement which provided for the automatic discharge of an employee who was absent from work for three years, violated the employer’s duty under human rights legislation to accommodate a disabled employee.
When the employer invoked this clause against an employee, her union, relying on s. 10 of the Quebec Charter of Rights and Freedoms, which protects individuals from discrimination on the basis of handicap, filed a grievance. This was denied by the arbitrator and the Quebec Superior Court dismissed the union’s application for judicial review. However, the Court of Appeal overturned the Superior Court’s decision on the ground that the arbitrator could not simply defer to such a termination clause, but rather had to engage in an individualized assessment of whether the employer had discharged its duty of accommodation.
The SCC Decision
Although Justice Deschamps agreed with the Court of Appeal that an individualized assessment is an essential element of the duty to accommodate, she gave more weight to the negotiated provision. While not determinative, she stated that such a clause is a significant factor to consider since “it does give a clear indication of the parties’ intention with respect to reasonable accommodation.” She went on to observe that depending upon the duration of the authorized period of absence, such a clause could “serve as evidence of the maximum period beyond which the employer will face undue hardship.” On the facts, however, she concluded that the arbitrator had not automatically applied the termination clause and agreed with his conclusion “that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period.”
In her concurring decision, Abella J. rejected the majority’s conclusion that the case turned on the question of accommodation. Rather, she declared that the pivotal issue was whether the grievor had “established prima facie discrimination, shifting the onus to the employer to justify its workplace standard or conduct.” Not only did she change the central issue in dispute at the very last stage of the appeal process, she also departed in a stark manner from long-established human rights jurisprudence about what a complainant must prove in order to establish discrimination.
The crux of Abella J.’s decision rested on the difference between a distinction and discrimination. Section 10 of the Quebec Charter of Human Rights and Freedoms provides:
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.
Although she noted that Commission scolaire regionale de Chambly v Bergevin,  2 SCR 525, established that the complainant must satisfy three steps in order to establish prima facie discrimination (a “distinction, exclusion or preference,” that the distinction is based on a ground listed in s. 10, and that the distinction has the effect of nullifying or impairing the right to full and equal recognition) (538), she added an additional step. Invoking McIntyre J.’s definition of discrimination in Andrews v Law Society of British Columbia,  1 SCR 143, she declared that “a workplace practice, standard or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics” and accordingly, “the essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed.” According to her,
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… 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.
The requirement to establish arbitrariness either in purpose or effect represents a significant burden on human rights complainants. Consider what the implications of this would have been in British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3.
It was Ms. Meiorin’s employer who decided that previous physical tests were inadequate and it was necessary to develop a new test for aerobic capacity. It was her employer who decided what the minimum aerobic capacity for forest firefighters should be. It was her employer who was responsible for the design of the shuttle run test and standard including the gender composition of test subjects. It was her employer who was responsible for the administration of the test and it was her employer who relied on this requirement to deny employment as a firefighter to a disproportionate number of female applicants. Nonetheless, under Abella J.’s proposal, it would be Ms. Meiorin who would bear the onus of marshalling the necessary evidence to establish that the standard was arbitrary.
Why would Justice Abella impose a requirement which can only have a limiting effect on access to employment by members of protected groups? What is the problem with the current approach under which a complainant must establish a distinction based on a prohibited ground that has a negative impact upon the individual at which point the onus shifts to the employer to establish, inter alia, that accommodation of the employee would impose undue hardship? What is wrong with placing an onus on the government or an employer to design workplace rules, requirements, or benefits in ways that include ill, disabled, or pregnant employees? The three concurring judges do not provide any answers to these questions.
The only justifications that are offered relate to the specific facts of the case and these are far from persuasive. Justice Abella expressed the concern that unless employees (and their unions) have a high hurdle to mount in order to establish that a termination clause is discriminatory, employers will have no “incentive to negotiate mutually acceptable absences.” She was worried that employers would “regardless of the reasonableness of the duration of the protection” have to “explain why it was reasonable to terminate an employee.”
This ignores the majority judgment which makes it clear that such clauses will be accorded considerable weight and may even provide the “maximum period beyond which the employer will face undue hardship.” Moreover, if a termination clause is reasonable, why should employers be concerned about meeting the onus? In the employment context, having to explain a decision is a good, not a bad, thing. The alternative she proposes is that employees would have the onus of showing, in order to establish prima facie discrimination, that the agreement was unreasonable. This alternative does not trouble her because she considers
automatic termination clauses of reasonable length [to] 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.
Three years of job protection for employees is a generous length of time in comparison with similar clauses in other collective agreements. As she observes, it is also generous in comparison to the job protection provided for disabled and ill employees under Quebec’s Labour Standards Code, which is 26 weeks in a 12-month period. However, she neglects to note that the statutory job protection provided in Quebec is by far the most generous in Canada.
Ontario only provides 10 days of job-protected leave for employees in a 12 month period, and then only if the employee is employed in an establishment that regularly employs 50 or more employees. Alberta and British Columbia provide no statutory protection for ill or disabled employees whatsoever. Surely, Justice Abella does not consider employment standards, which in most jurisdictions in Canada provides very limited job protection for disabled employees, as an appropriate bar for human rights.
Her reasoning is deeply problematic. It assumes that discrimination is about arbitrariness or irrationality rather than about exclusion and the failure to design and to implement employment requirements that enable disabled people to work. It also assumes that termination clauses represent a considered trade-off about employee needs rather than a product of the balance of power between employers and unions. Moreover, it invites reliance on employment standards legislation, which long has been labour law’s poor sister, as the standard against which collective agreements and human rights should be measured. All of these assumptions are contentious. Adding an additional step for employees and their unions to meet in order to establish a prima facie case of discrimination would create an incentive for employers to negotiate shorter, not longer, job protection leave.
It is tempting to dismiss the concurring judgment as another example of difficult facts resulting in bad law. However, the majority judgment indicates that this simple explanation is not sufficient. What is particularly troubling about Abella J.’s decision is the extent to which her proposal resonates with the restrictive format for establishing an infringement of the equality rights guaranteed in the Charter of Rights and Freedoms set out in Law v Canada (Minister of Employment and Immigration),  1 SCR 497 [Law].
The equality framework set out in Law involves three stages and the claimant has the burden at each stage of the equality analysis. Only after the claimant has satisfied all of the three stages does the government have the burden of justifying the violation under s. 1. The third step, which is the most contentious, requires that the claimant establish discrimination in a substantive sense in terms of a harm to her or his dignity.
The Law test has made it much more difficult for claimants to establish a violation of the Charter‘s equality rights and has seriously undermined the significance of s.1 of the Charter. In much the same manner, the requirement of “arbitrariness” would make it much more difficult for claimants to establish a violation of human rights legislation and would seriously undermine the significance of the three part substantive test in Meorin where a prima facie case of discrimination was established.
The question that Abella J’s analysis poses is who should have the onus of establishing that a distinction that excludes a member of a protected group does not discriminate — the complainant in a human rights case or the employer? There are good public policy reasons why this onus should be placed on employers. The majority of the SCC in McGill Health Centre did not question the well-established approach under human rights legislation to proving prima facie discrimination. The concurring judges should have left well enough alone.