Judicial Biography: Justice Clément Gascon
Post 5/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019)
In 2014, Justice Clément Gascon was appointed to the Supreme Court of Canada (“SCC” or “the Court”) by then Prime Minister Stephen Harper. His appointment came after the third seat from Quebec had been vacant for over one year following the retirement of Justice Morris Fish and the failed attempt to nominate Justice Marc Nadon.
A little under five years later, Justice Gascon announced his early retirement in April 2019. One month later, he suffered a panic attack that resulted in a brief police search report and the disappearance was covered extensively in the media. Shortly thereafter, Justice Gascon issued a statement revealing how for over twenty years, he has suffered from anxiety and depression. This disclosure was met with praise by the legal community, and contributed to the growing discussion around mental illness amongst legal professions with some commentators noted how the Court has come a long way in its treatment of its own members suffering from mental illness.
While the legal community’s response to Justice Gascon’s departure hopefully indicates a cultural change toward greater support for those suffering from mental illness, from the perspective of a justice departing the Court, the discussion potentially eclipsed any reflections on Justice Gascon’s career and contributions to Canadian jurisprudence. To begin to address this lacuna, this post will first provide an overview of Justice Gascon’s career before arriving at the Court, and will then revisit a 2017 decision not previously covered by TheCourt.ca in which Justice Gascon provided a compelling dissent.
Born in Montreal in 1960, Justice Gascon was a precocious student. After completing his diplôme d’études collégiales (DEC) at Collège Jean-de-Brébeuf in 1978, he entered the Faculty of Law at McGill University at age eighteen, the youngest student in his class. Reflecting on the pace of his education, Justice Gascon once noted: “C’est un regret. Je voulais tout trop vite.” But despite his relative youth, McGill was formative, and he has stressed the importance of his legal education taking place in a bilingual, bijural environment.
Two years after graduating with his B.C.L (Upper Second Class Honours and University Scholar) in 1981, Justice Gascon married Marie Michelle Lavigne. She is a judge of the Court of Québec, Civil Division, and together they have three children. In his remarks to the University of Ottawa Law Faculty shortly after his appointment, Justice Gascon reflected on his marriage: “Nous avons tous deux fait carrière comme avocats et nous sommes aujourd’hui tous deux juges. Un mélange explosif pour certains ; une recette gagnante pour nous.”
After his call, Justice Gascon joined Heenan Blaikie as an associate. At the time, the firm was less than ten years old, and Justice Gascon savoured the stimulating environment, the firm’s desire to do things differently, and the trust it placed in young associates. He managed the national litigation group, and practiced in a wide range of areas. Throughout, however, Justice Gascon retained his signature humbleness and dedication to hard work: “Je n’étais pas l’avocat le plus flamboyant. Je n’ai jamais cru en l’agressivité pour gagner une cause. J’ai appris de mes mentors que la préparation restait la clé du succès.” In addition to working as a litigator, Justice Gascon also taught at Saint-Jean-sur-Richelieu, UQAM, McGill University and the Barreau du Québec. He also published academic work on, amongst other things, the independent employment contract, fiduciary duty, and unfair competition.
In 2002 at age 42, Justice Gascon was appointed to the Superior Court, where he began what he has called his second career as a judge. He approached this new job with the same curiosity that characterized his initial interest in the law: “La beauté du droit est que tout s’apprend, que l’on ait vingt, trente ou cinquante ans. Quand l’apprentissage se fait en plus avec l’entraide et la collégialité si caractéristiques des juges que j’ai connus, c’est encore plus facile.” After 10 years at the Superior Court of Quebec, Justice Gascon joined the Court of Appeal of Quebec in 2012. Two years later, he was appointed to the SCC.
Justice Gascon’s reflections on his appointment to the Court reveal the extent to which he brought a deep sense of humility to his position. This approach is best illustrated by the advice for law students and young lawyers that Justice Gascon relayed in a 2016 CPAC interview:
We don’t do divine justice. We do human justice. And human justice is not perfect. It may be that in a few years from now we will be told that in that given case we decided wrongly. When we are in dissent, we consider that the majority is wrong. So, I don’t think that any judge can say that he or she has always been perfect. I don’t think that can be achievable.
Justice Gascon at the SCC
During his tenure at the Court, Justice Gascon wrote decisions on a variety of areas of law. Along with Justice Abella, he wrote for the majority in Morasse v Nadeau-Dubois, 2016 SCC 44 [Morasse] (see TheCourt.ca’s post here), and held that Mr. Nadeau-Dubois, the public face of the 2012 Quebec student protests, had not satisfied the requisite mens rea to uphold a conviction for contempt. In Barer v Knight Brothers LLC, 2019 SCC 13, Justice Gascon wrote for the majority in a case considering the enforcement of a foreign judgment from Utah in Quebec. Most recently in Salomon v Matte-Thompson, 2019 SCC 14 (see TheCourt.ca’s post here), Justice Gascon wrote for a majority and held that Mr. Salomon, a lawyer, was liable for the referral he made to a client for a financial advisor who was subsequently outed for operating a Ponzi scheme.
But this post focuses on one judgment from 2017, previously not covered by TheCourt.ca. While at the time of his appointment, Justice Gascon was heralded as an expert in civil and commercial law, it was his expertise in and sensitivity to human rights in the labour and employment context that shone through his spectacular dissent in Stewart v Elk Valley Coal Corp., 2017 SCC 30 [Elk Valley].
Stewart v Elk Valley Coal Corp.
To promote a safe workplace, Elk Valley Coal Company implemented an Alcohol, Illegal Drugs & Medications Policy (“the Policy”). Under the Policy, employees with drug dependencies were required to disclose these dependencies to the employer, and the employer would offer treatment. If a workplace incident occurred and the employee had failed to disclose a dependency or addiction, they would be terminated for breach of the policy (Elk Valley, para 1). Employees attended a training session on the Policy and signed forms acknowledging their understanding of the Policy and its obligations.
Mr. Ian Stewart used cocaine recreationally on his days off and worked at Elk Valley driving a loader. After an accident one day near the end of a 12-hour shift, Mr. Stewart tested positive for drugs. Regardless of the fact that during a meeting Mr. Stewart confessed that he believed he had an addiction, he was subsequently terminated (Elk Valley, para 2).
Mr. Stewart and his union challenged the termination, arguing that it was a violation of the Alberta Human Rights, Citizenship and Multiculturalism Act, RSA 2000, c. H-14 (the “Act”). The Alberta Human Rights Tribunal (the “Tribunal”) rejected Mr. Stewart’s claim that he was discriminated against in his termination. According to the Tribunal, Mr. Stewart was terminated for breaching the Policy and specifically its requirement that employees disclose dependencies or addictions to their employer. He was not terminated for his addiction.
If Mr. Stewart’s addiction had been a factor in his termination, the Tribunal held that Elk Valley had nevertheless discharged its duty to accommodate to the point of undue hardship according to the test in British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3 (“Meiorin”). The Tribunal was satisfied on a balance of probabilities that:
- the Policy was adopted for the purpose of ensuring workplace safety, which is rationally connected to Mr. Stewart’s job;
- Elk Valley had adopted the Policy in good faith to promote safety in the workplace; and
- That the Policy as such was reasonably necessary since it would be impossible to accommodate Mr. Stewart with lesser discipline and continued employment without incurring the undue hardship of heightened safety risks and lessening the deterrent goal of the Policy (Elk Valley, paras 8–10).
This decision was appealed to the Alberta Court of Queen’s Bench, which reviewed the prima facie discrimination case on a standard of correctness, and the accommodation on a standard of reasonableness (discussed in detail below). While the Tribunal applied the correct test, the Court of Queen’s Bench found that its decision with respect to accommodation was unreasonable. Mr. Stewart could not have self-reported, as per the Policy, since “self-reporting is not an accommodation for people in denial of their disability” (Elk Valley, para 12). To uphold self-reporting at this stage of the analysis would shift the onus for accommodation from the employer, which is the intent of the legislation, to the claimant himself.
The Alberta Court of Appeal, however, upheld the Tribunal’s ruling on both the discrimination and the accommodation. The majority affirmed the SCC’s three-part test set out in Moore v British Columbia (Education), 2012 SCC 61, to establish a prima facie case of discrimination: first, establish whether there was a disability present that is protected by the Act; second, determine whether the employee suffered adverse treatment in his employment; and third, determine whether the disability was a factor in this adverse treatment (Elk Valley, para 6). To be a factor in the adverse treatment, it must be a “real factor” – neither speculative nor part of the background (Elk Valley, para 14). While it concluded that Mr. Stewart was indeed addicted to drugs, the majority agreed with the Tribunal that his addiction was not a factor in his adverse treatment (the termination). So, the test for a prima facie case of discrimination was not met and it was reasonable to dismiss the claim. O’Ferrall J.A. dissented, finding that Mr. Stewart’s addiction was indeed a factor in his termination and the employer had not accommodated to the point of undue hardship (Elk Valley, paras 16-17).
Writing for the majority at the SCC, Chief Justice McLachlin dismissed the argument that the standard of review for the Tribunal’s decisions should be correctness. Since the heart of the issue related to a dispute over the facts and not the law, deference to the Tribunal is required and the reasonableness standard of review is appropriate (Elk Valley, para 22). The Court must only determine whether it was reasonable for the Tribunal to have found no prima facie case of discrimination. The majority, finding that the employer terminated Mr. Stewart for breaching the Policy, upheld the Tribunal’s finding and dismissed the appeal. Mr. Stewart’s dependency, the majority affirmed, was not a factor in his termination and therefore there was no prima facie case of discrimination.
According to Justice Gascon, the Tribunal erred by failing to find a case of prima facie discrimination and in the alternative, it erred by upholding the Policy as a bona fide occupational requirement. Far from being irrelevant to his drug dependency, Mr. Stewart’s failure to disclose was indicative of his dependency. As Justice Gascon lucidly explains,
[S]tigmas surrounding drug dependence — like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability — sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims. […]
Yet, as drug-dependent persons represent one of the marginalized communities that could easily be caught in a majoritarian blind spot in the discrimination discourse, they of course require equal protection from the harmful effects of discrimination. In my view, improper considerations relied on by the Tribunal here — such as drug-dependent persons having some control over their choices and being treated “equally” to non-drug-dependent persons under drug policies, and drug policies not necessarily being arbitrary or stereotypical — effectively excluded Mr. Stewart, a drug-dependent person, from the scope of human rights protections. (Elk Valley, paras 58–59)
Simply put: Mr. Stewart was terminated because he used drugs, and he used drugs because he suffered from a dependency. Justice Gascon argued that given the nature of drug dependency, it cannot be said that it was not a factor in his termination. To exclude Mr. Stewart from the protection of human rights legislation constitutes a profound misunderstanding of the legal principles that form the basis of discrimination laws. As a result, such a decision would be unreasonable (Elk Valley, para 60).
With respect to the argument from Justices Moldaver and Wagner that Elk Valley satisfied its obligation to accommodate to the point of undue hardship, again Justice Gascon disagreed. He wrote, “a policy that ‘accommodates’ employees through mechanisms which are either inaccessible by the employee due to their disability or only applicable to the employee post-termination cannot justify prima facie discrimination” (Elk Valley, para 61). Justice Gascon argued that the majority fell into a similar trap by raising the importance of workplace safety policies in the prima facie discrimination stage of the analysis. This consideration should come later when considering accommodation and undue hardship in the bona fide occupational requirement analysis.
Most importantly, the Tribunal’s decision, and the majority’s reasoning, improperly introduce a justificatory element to the prima facie discrimination analysis (Elk Valley, para 86). By accepting the employer’s account that Mr. Stewart was terminated for breaching the Policy even though he had fell under a protected ground, the Tribunal and the majority suggest that it is up to the complainant to make choices to avoid discrimination (Elk Valley, paras 96-97). This would shift the focus of the Act away from discouraging the employer from discrimination, and would blame marginalized groups for the discrimination they face in the workplace (Elk Valley, para 101).
Justice Gascon, in this decision, pierces through the logical inconsistencies and legal errors of the Tribunal, the lower courts, and his colleagues on the Court. He defends the rights of marginalized individuals that ought to fall within the scope of the Act. As one commentator wrote, “Justice Clément Gascon of the Supreme Court of Canada just did something startling, and excellent. He wrote a dissent in Stewart v. Elk Valley Coal Corp. that drives some truck-size holes through a sloppy majority decision from Chief Justice McLachlin. Too bad he stands alone, but he certainly stands out. And his decision is a relief.”
In Elk Valley, we see a judicial voice emerging from the fray and warning that the majority’s reasons may lead to a contributory fault defence for discrimination cases and further discrimination and marginalization of any already disadvantaged group (Elk Valley, para 97). Throughout his dissent, Justice Gascon exhibits compassion coupled with rigourous legal argument. While it did not attract the support of his colleagues in 2017, this author hopes that Elk Valley will be one of those rare cases revisited and overruled by the Court in the near future.
In his departing remarks, Justice Gascon emphasized that he had many people to thank for his time on the Court. While holding such an esteemed position may have caused some egos to bloat, Justice Gascon left the Court with the same humility that he expressed shortly after his appointment:
Si je suis conscient qu’à la Cour, nous avons le dernier mot, je n’ai pas la prétention d’être plus fin ou meilleur que les autres. Notre travail est souvent l’aboutissement d’une réflexion commencée bien en amont, qui met à contribution tantôt vos interrogations d’étudiants, tantôt vos remises en question de professeurs, tantôt vos arguments d’avocats, tantôt vos analyses de juges. Comme moi, vous avez à cœur de rendre la justice meilleure pour laisser une société meilleure aux générations actuelles et futures. We each have a role to play. Like you, I want to contribute, to the best of my abilities.
“This was a regret. I wanted too much too fast.” [translation by author]
“Both of us built our careers as lawyers and we both became judges. For some, this would have been an explosive combination; for us, it was a winning one.” [translation by the author]
“I was never the showiest lawyer. I never believed in using aggression to win a case. I learned from my mentors that preparation was the key to success.” [translation by the author]
“The beauty of the law is that everyone is learning, whether you are twenty, thirty, or fifty years old. When this learning is done with mutual support and collegiality which is characteristic of the judges I have known, [the learning] is made all the easier.” [translation by the author]
“Though I am aware that we have the final word at the Court, I do not have the allusion that [this final word] is finer or better than that of others. Our work is often the result of reflection started long ago, which involves the questions of students, the debates of professors, the arguments of lawyers, the decisions of judges. Like me, you have in your hearts the desire to make justice better in order to leave society better for future generations.” [translation by the author]