2015 QCCA 1397, 2015 QCCA 1397

Unofficial English Translation Université de Sherbrooke c. Commission des droits de la personne et des droits de la jeunesse 2015 QCCA 1397 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTRÉAL No.: 500-09-023779-135 / 500-09-023783-137 (450-53-000004-107) DATE: September 3, 2015 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. JEAN BOUCHARD, J.A. MARIE ST-PIERRE, J.A. No.: 500-09-023779-135 UNIVERSITÉ DE SHERBROOKE APPELLANT – Defendant v.

COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE RESPONDENT – Complainant and ASSOCIATION DES INGÉNIEURS-PROFESSEURS DES SCIENCES APPLIQUÉES OF THE UNIVERSITÉ DE SHERBROOKE (AIPSA) IMPLEADED PARTY – Defendant No.: 500-09-023783-137 ASSOCIATION DES INGÉNIEURS-PROFESSEURS DES SCIENCES APPLIQUÉES OF THE UNIVERSITÉ DE SHERBROOKE (AIPSA) and UNIVERSITÉ DE SHERBROOKE APPELLANTS – Defendants v. COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE RESPONDENT – Complainant and PIERRE F. LEMIEUX, GÉRARD BALLIVY, J. PETER JONES, DENIS PROULX, RICHARD THIBAULT, KENNETH W.

NEALE, GILLES JASMIN IMPLEADED PARTIES JUDGMENT [ 1 ] The Université de Sherbrooke and the Association des ingénieurs-professeurs des sciences appliquées of the l’Université de Sherbrooke appeal the judgment rendered on July 2, 2013, by the Tribunal des droits de la personne, district of Saint-François (the Honourable Michèle Pauzé J.), declaring that the second and third paragraphs of

section 7-6.04 of the collective agreement they signed on July 4, 2006, constitute discrimination on the basis of age. The Tribunal consequently ordered the appellants to pay the complainants, represented by the Commission des droits de la personne et des droits de la jeunesse, $557,558 in material damages, $25,000 in moral damages, and $10,000 in punitive damages. [ 2 ] For the reasons of Bouchard, J.A., with which Morissette and St-Pierre, JJ.A. agree, THE COURT : [ 3 ] UPHOLDS the trial judgment; [ 4 ] DISMISSES the appeals; [ 5 ] With costs.

YVES-MARIE MORISSETTE, J.A. JEAN BOUCHARD, J.A. MARIE ST-PIERRE, J.A. Mtre Stéphane Fillion Fasken Martineau DuMoulin For the Université de Sherbrooke Mtre Athanassia Bitzakidis Boies Drapeau Bourdeau For the Commission des droits de la personne et des droits de la jeunesse For Pierre F. Lemieux, Gérard Ballivy, J. Peter Jones, Denis Proulx, Richard Thibault, Kenneth W. Neale, Gilles Jasmin Mtre Pierre Moreau PE Moreau Avocat inc.

For the Association des ingénieurs-professeurs des sciences appliquées of the Université de Sherbrooke (AIPSA) Date of hearing: April 22, 2015 REASONS OF BOUCHARD, J.A. [ 6 ] The Human Rights Tribunal heard the motion to institute proceedings of the Commission des droits de la personne acting on behalf of five complainants [1] and declared that the second and third paragraphs of

section 7-6.04 of the collective agreement signed on July 4, 2006, by the Université de Sherbrooke (the “University”) and the Association des ingénieurs-professeurs des sciences appliquées of the Université de Sherbrooke constituted discrimination on the basis of age . [2] Consequently, it ordered the University and the Association to pay the complainants $557,558 in material damages, $25,000 in moral damages, and $10,000 in punitive damages. The University and the Association appeal this judgment on the basis of

section 132 of the Charter of human rights and freedoms . [3] The facts [ 7 ] The Association des ingénieurs-professeurs des sciences appliquées of the Université de Sherbrooke is a certified association of employees within the meaning of the Labour Code . [4] The complainants, represented by the Commission, are all engineer-professors (E.P.

s) who taught at the University at the relevant time and were members of the Association. [ 8 ] We must go back to 2002 to understand the issue in the present matter. At the time, the parties wanted to encourage faculty renewal. They consequently negotiated an early retirement agreement that encouraged E.P.s to resign from their positions.

The main provision of the agreement provided the following: [5] [ translation ] EARLY RETIREMENT 9.07 A regular permanent E.P. may take early retirement upon three (3) months notice if he or she is at least fifty-three (53) years of age on the date his or her retirement begins and if he or she has been employed as an E.P. for at least fifteen (15) years by the University. Early retirement begins on January 1, May 1, or September 1.

If an E.P. takes early retirement, he or she is entitled to a retirement allowance in the form of a lump sum, the amount of which is determined in the following manner in accordance with his or her age and annual salary at the time of the early retirement: 64 years old – twenty percent (20%) of his or her salary at the time of early retirement. 63 years old – forty percent (40%) of his or her salary at the time of early retirement. 62 years old – sixty percent (60%) of his or her salary at the time of early retirement. 61 years old – eighty percent (80%) of his or her salary at the time of early retirement.

53 to 60 years old inclusively – one hundred percent (100%) of his or her salary at the time of the early retirement. This benefit applies proportionately to the E.P.’s employment regime. The retirement allowance is paid at the time of departure or according to the terms agreed upon between the University and the E.P. [ 9 ] Thus, a professor between the ages of 53 and 60 who chose to leave his or her employment was entitled to a retirement allowance equivalent to one hundred percent (100%) of his or her annual salary if he or she had taught at the University for at least fifteen years.

This percentage decreased starting at the age of 61, reaching zero percent (0%) at age 65, no allowance being provided for a professor who is 65 years of age or older. [ 10 ] During the negotiations for the renewal of the 2002-2005 collective agreement, the issues on the agenda were different. Whereas in 2002, the objective was to encourage retirement, the University now wanted to keep its professors in its employ for longer. The regime was therefore completely reorganized, and the age limit for entitlement to a retirement allowance was increased to age 69. Not everyone, however, was entitled to it.

This is the origin of the dispute between the parties. In this respect, to understand the situation, it is necessary to set out the provisions of the collective agreement signed on July 4, 2006: [ translation ] 7-6.03 If he or she is eligible, a regular E.P. may, until September 1, 2006, benefit from sections 9.07, 9.08, and 9.09 of the collective agreement signed on March 26, 2002.

RETIREMENT ALLOWANCE 7-6.04 A regular E.P. between fifty-five (55) and sixty-nine (69) years of age is entitled, at the time of his or her retirement or at the start of his or her gradual retirement, to a retirement allowance equivalent to one (1) month of his or her annual salary for each year of full-time employment as an E.P. for the University, up to a maximum of twelve (12) months. Notwithstanding the preceding paragraph, during the year preceding the date of his or her retirement, a regular E.P. whose name appears on the letter of agreement entitled [ translation ] “List of regular E.P.s concerned by

section 7-6.04”, benefits from only the following terms: A reduction in his or her workload corresponding to: - for a regular E.P. who is 61 years of age on the date of signing of the collective agreement: an 80% reduction; - for a regular E.P. who is 62 years of age on the date of signing of the collective agreement: a 60% reduction; - for a regular E.P. who is 63 years of age on the date of signing of the collective agreement: a 40% reduction; - for a regular E.P. who is 64 years of age on the date of signing of the collective agreement: a 20% reduction; After this, he or she is entitled to no further benefit relating to the retirement allowance. [ 11 ] The letter of agreement referred to in paragraph 2 of

section 7-6.04 reads as follows: [ translation ] LETTER OF AGREEMENT Between THE UNIVERSITÉ DE SHERBROOKE (hereinafter the “University”) and THE ASSOCIATION DES INGÉNIEURS-PROFESSEURS DES SCIENCES APPLIQUÉS OF THE UNIVERSITÉ DE SHERBROOKE (hereinafter the “AIPSA”) List of regular E.P.s concerned by

section 7-6.04 The E.P.s listed below benefit from the terms of

section 7-6.04 during the year preceding their retirement: As at July 1, 2006: NAME AGE AT THE DATE OF SIGNING OF THE AGREEMENT PERCENTAGE OF REDUCTION IN WORKLOAD

Ballivy, Richard Cloutier, Louis Galanis, Nicolas Lemieux, Pierre F. Proulx, Denis Thibault, Richard Johns, Kenneth Jones, Peter Neale, Kenneth Jasmin, Gilles Van Hoenacker, Yves 65 years 68 years and 6 months 67 years and 2 months 65 years and 11 months 65 years and 8 months 63 years and 11 months 62 years 61 years and 9 months 61 years and 9 months 61 years and 8 months 61 years and 4 months 0% 0% 0% 0% 0% 40% 60% 80% 80% 80% 80% IN WITNESS WHEREOF, the parties have signed at Sherbrooke, on this 4th day of July, 2006. [ 12 ] A preliminary remark is in order.

The complainants that the Commission represents are all concerned by this letter of agreement. They are all also 61 years old or older and excluded from the retirement allowance provided by the first paragraph of

section 7-6.04. Under

section 7-6.03, they may avail themselves of the provisions of the 2002 collective agreement until September 1, 2006, but if they decide to remain employed by the University instead, they will not be entitled to anything other than the reduction of their workload until the age of 64, decreasing from 80% to 20%. [ 13 ] For example, an E.P. who was 62 years old when the 2006 collective agreement was signed could leave at that time and benefit from a retirement allowance corresponding to 60% of his or her annual salary pursuant to

section 9.07 of the 2002 collective agreement, or they could remain employed by the University but then benefit from only a 60% workload reduction for the year preceding his or her retirement under paragraphs 2 and 3 of

section 7-6.04 of the 2006 collective agreement. [ 14 ] Faced with this situation, after reporting it to both the University and their Association, some of the complainants whose names appear in the letter of agreement of July 4, 2006, filed a complaint with the Commission. [6] As no agreement between the parties was reached, on December 29, 2010, it filed a motion to institute proceedings before the Human Rights Tribunal on their behalf. [7] [ 15 ] As the Commission’s action followed its course before the Tribunal, the University and the Association reached a new agreement on March 4, 2011, intended to put an end to the dispute by retroactively applying the effects of

section 9.07 of the 2002–2005 collective agreement. Believing it could this way obtain the dismissal of the Commission’s action, the University presented a motion to dismiss to the Tribunal, which, on October 11, 2012, denied it for the following reasons: [8] [ translation ] [44] The Tribunal agrees with the Commission that the complainants’ situation was fully crystallized before the execution of the letter of agreement on March 4, 2011. The University and the Association cannot unilaterally cause the basis of the action to disappear once the complainants’ rights have been exercised before the Tribunal.

The retroactivity of the letter of agreement cannot negate a right that was already triggered under the Charter and that was already exercised before the Tribunal. [ 16 ] This brings us to the trial judgment. The judgment of the Human Rights Tribunal [ 17 ] The Tribunal provided lengthy reasons for its judgment. To avoid repetition, I will address these in further detail in my analysis of the parties’ arguments, limiting myself for the moment to providing an overview. [ 18 ] Pauzé J. first reiterated the three conditions under

section 10 of the Charter of Human Rights and Freedoms [9] for a finding of prima facie discrimination, as follows: [10] [ translation ] (1) a distinction, exclusion or preference; (2) based on an enumerated ground, in this case, age; (3) that has the effect of nullifying or impairing the right to full and equal recognition and exercise of human rights and freedoms. [ 19 ] The judge then quite easily came to the conclusion that the first two conditions were met because

section 7-6.04 of the 2006 collective agreement contained several distinctions and exclusions that were, in her view, based on age: [ translation ]

[132] The practical effect of

section 7-6.04 is therefore as follows. All employees 60 years old or younger at the time of the signing of the collective agreement obtain the right upon retirement to an allowance calculated on the basis of their annual salary. Employees whose names appear on the letter of agreement of July 4, 2006, are excluded from the general plan that applies to their colleagues. A first distinction is thus created between two categories of employees. [133] Another distinction is created by this provision regarding the nature of the benefit granted to employees for their retirement. In this regard,

section 7-6.04 creates three categories of employees. For those who are 60 years of age or younger at the time of the signing of the collective agreement, the benefit is monetary, i.e. a retirement allowance. For employees 61, 62, 63 or 64 years of age on that date, the benefit concerns their performance of work and takes the form of a reduction in their workload in the year preceding their retirement. Employees 65 years old or older at the time of the signing of the collective agreement do not receive either of these benefits. [134]

Section 7-6.04 contains a third distinction concerning the method of calculating the benefit to which the employee is entitled. For employees 60 years of age or younger at the time of the signing of the collective agreement, the retirement allowance is calculated on the basis of years of service. For employees who are 61 years of age or older and entitled to a reduction in their workload, the benefit depends on the number of years remaining before they turn 65, regardless of their years of service for the University. [135] This calculation method is likely to produce significant differences.

An employee who was younger than 61 years of age on the date the 2006 collective agreement was signed could be entitled to a retirement allowance equivalent to twelve months’ salary if he or she had been employed by the University for twelve years, but an employee who was 65 years old on that date was not entitled to any benefit, whether in the form of a retirement allowance or a reduction in workload, even if he or she had three times the years of service that the younger colleague did. [136] The Court is of the view that

section 7-6.04 of the 2006 collective agreement clearly contains a distinction between various categories of employees. [137] It also appears clearly that this distinction and this exclusion are based on age. Under this provision, the identification of the rights granted to an employee at the time of retirement depends essentially and exclusively on his or her age on the date of the signing of the collective agreement. No factor other than age determines whether the first, second, or third paragraph applies to the employee. Moreover, no criterion other than age is used in the letter of agreement to which

section 7-6.04 refers. [ 20 ] Regarding the third necessary condition for a finding of discrimination, the judge again concluded that this condition was met, being of the view that [ translation] “the complainants were deprived of the full and equal recognition and exercise of their rights as protected under sections 13 and 16 of the Charter , without distinction or exclusion based on age”. [11] [ 21 ] It is important to note that the judge found it unnecessary for the Commission to establish that the alleged distinction perpetuated prejudice or stereotypes. [12] In the judge’s opinion, since the Supreme Court’s decision in Quebec (Attorney General) v.

A . , [13] such evidence is no longer required, although this did not prevent the judge from noting, [ translation ] “if it is required”, that the alleged distinction [ translation ] “is based entirely on stereotypes and prejudice whereby individuals lose their professional value merely by reaching a certain age, regardless of their actual capabilities.” [14] [ 22 ] Finally, analyzing the scope of the letter of agreement of March 4, 2011, the judge was of the view that there was no reason to reach a conclusion that differed from that of her colleague, who had dismissed the University’s motion to dismiss based on this ground. [15] [ 23 ] In conclusion, the judge ordered the University and the Association jointly and severally to pay each of the complainants an amount equivalent to the allowance to which they would have been entitled at the time of their retirement under the first paragraph of

section 7-6.04, namely, $5,000 in moral damages and $2,000 in punitive damages. [16] Jurisdiction of the Human Rights Tribunal [ 24 ] Before delving into the heart of the matter, it is necessary to rule on the Association’s argument that the Tribunal did not have jurisdiction to hear the case and that the Commission des relations du travail (hereinafter the “CRT”) is the appropriate forum. [ 25 ] The Tribunal, before whom the issue was also brought, concluded without much difficulty on the basis of Morin [17] and Audigé [18] that it had jurisdiction. [19] Its conclusion was entirely correct. [ 26 ] Let us first review the Commission’s allegations in its motion to institute proceedings: [ translation ] 1.

On July 4, 2006, a collective agreement was entered into between the Université de Sherbrooke and the Association des ingénieurs-professeurs des sciences appliquées of the Université de Sherbrooke ( “AIPSA”) for the period from July 4, 2006, to March 31, 2010; 2.

At the time , the defendants infringed the complainants’ right to be treated with full and equal recognition without distinction or exclusion based on age, by stipulating a clause (7-6.04) resulting in differential treatment with regard to the terms of the retirement allowance for eleven (11) engineer-professors specifically named in a Letter of Agreement dated July 4, 2006, in violation of sections 10 , 13 , 16 and 19 of the Charter of human rights and freedoms (R.S. Q., c. C-12) (the “ Charter ”); 3.

At the same time , the defendants infringed the complainants’ right to the safeguard of their dignity without distinction based on age, thus violating sections 4 and 10 of the Charter ; 4. Because of the unlawful interference with their rights, the complainants are entitled to compensation for the moral and material damages resulting therefrom.

[Emphasis added] [27] The allegations set out in the action instituted by the Commission before the Tribunal directly challenge the negotiation processand the inclusion of

section 7-6.04 in the 2006 collective agreement. When the alleged discrimination is based on the negotiation andinsertion of a clause in a collective agreement rather than its

interpretation, application or implementation, the issue is properly broughtbefore the Human Rights Tribunal. That is what the Supreme Court clearly decided in Morin, in which the jurisdiction of the grievancearbitrator was weighed against that of the Tribunal:[20] 23 Here, the same cannot be said.

Taking the dispute in its factual context, as Weber instructs, the main fact that animates the disputebetween the parties is that the collective agreement contains a term that treats the complainants and members of their group — thoseteachers who had not yet attained the highest level of the pay scale who were typically younger and less experienced — less favourablythan more senior teachers.

This, in turn, emerges from the fact that in the course of negotiating the collective agreement, disputes aroseover how to meet the government’s budgetary demands and how cutbacks in the budget should be allocated among union members. Inits factual matrix, this is essentially a dispute as to how the collective agreement should allocate decreased resources among unionmembers. Ultimately, the decision was to impose the costs of the budget cutbacks primarily on one group of union members — thosewith less seniority.

This gave rise to the issue in the dispute: was it discriminatory to negotiate and agree to a term that adversely affectedonly younger and less experienced teachers? The essence of the dispute is the process of the negotiation and the inclusion of this term inthe collective agreement. 24 Viewed in its factual matrix, this is not a dispute over which the arbitrator has exclusive jurisdiction. It does not arise out of theoperation of the collective agreement, so much as out of the pre-contractual negotiation of that agreement.

This Court has recognizedthat disputes that arise out of prior contracts or the formation of the collective agreement itself may raise issues that do not fall within thescope of arbitration; see, for example, Goudie, supra; Weber, supra, at para. 52; see also Wainwright v. Vancouver Shipyards Co. (1987), (BC CA), 38 D.L.R. (4th) 760 (B.C.C.A.); Johnston v. Dresser Industries Canada Ltd. (1990), (ONCA), 75 O.R. (2d) 609 (C.A.). Everyone agrees on how the agreement, if valid, should be interpreted and applied.

The only question iswhether the process leading to the adoption of the alleged discriminatory clause and the inclusion of that clause in the agreement violatesthe Quebec Charter, rendering it unenforceable. 25 That is not to say that the arbitrator lacks the power to deal with all issues which involve a Charter claim. This Court has recognizedthat arbitrators may resolve legal issues incidental to their function of interpreting and applying the collective agreement: Parry Sound(District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42.

Moreover, s. 100.12 of theLabour Code specifically confers on the arbitrator the authority to interpret and apply any Act necessary to settle a grievance. But, at thesame time, the dispute, viewed not formalistically but in its essential nature, engages matters which pertain more to allegeddiscrimination in the formation and validity of the agreement, than to its “interpretation or application”, which is the source of thearbitrator’s jurisdiction under the Labour Code, s. 1(f).

The Human Rights Commission and the Human Rights Tribunal were created bythe legislature to resolve precisely these sorts of issues. [Emphasis added] [28] The Association submits, however, that Morin must be distinguished in that the second paragraph of

section 114 of the LabourCode[21] now grants exclusive jurisdiction to the CRT, which “shall hear and dispose, to the exclusion of any court or tribunal, of anycomplaint for a contravention of this Code...”. According to the Association, the complainants should have brought an action before theCRT based on

section 47.2 of the Labour Code, which provides the following: 47.2 [Égalité de traitement pasl’association accréditée] Uneassociation accréditée ne doit pas agirde mauvaise foi ou de manièrearbitraire ou discrimi-natoire, ni fairepreuve de négligence grave à l’endroitdes salariés compris dans une unité denégociation qu’elle représente, peuimporte qu’ils soient ses membres ounon. 47.2 [Behaviour of certifiedassociation] A certified asso-ciationshall not act in bad faith or in anarbitrary or discriminatory manner orshow serious negligence in respect ofemployees comprised in a bargainingunit represented by it, whether or notthey are members. [29] This Court, in a judgment written by Gascon J.A., rejected this argument in Audigé,[22] noting that, for the complainant, anaction under

section 47.2 of the Labour Code is not particularly useful if not indeed entirely illusory where, as in this case, thecomplainants do not allege that the collective agreement was violated but rather that it is discriminatory as a result of the conduct of theunion at the negotiating table, it being understood that this conduct cannot be the subject of a grievance:[23] [translation] [39] In Morin, the Supreme Court reversed the earlier decision of this Court and ruled that grievance arbitrators do not have exclusivejurisdiction to hear cases involving the negotiation process and the insertion of a discriminatory clause in a collective agreement.

This isparticularly true, the Supreme Court noted, where the interests of the negotiating union appear opposed to those of the employeecomplaining about the clauses negotiated to his or her detriment. [40] In this case, the Employee’s allegations in his proceeding before the Court of Quebec directly address the negotiation processand the inclusion of

section 19.03 in the collective agreement. In my view, this is a perfect fit with the context in which the SupremeCourt ruled that the grievance arbitrator did not have exclusive jurisdiction in Morin. …

[42] It is therefore apparent that the foundation of the claim is not an issue of

interpretation, application or enforcement of the collective agreement.

Rather, the Employee complains about the formation and negotiation of the collective agreement, and, above all, the allegedly intentional insertion of a discriminatory clause in his regard. [43] In this regard, I agree with the Employee’s statement that an action by him against the Union under sections 47.2 and following of the Labour Code is illusory in this context, as in Morin . … [45] As correctly noted by the Employee, the existence of some type of bad faith, arbitrariness, discrimination or serious negligence on the part of the Union towards him in their refusal to bring this grievance to arbitration triggers the possibility of bringing an action under sections 47.2 and following of the Labour Code .

In this case, this possibility is not particularly useful and may very likely fail. [46] In the circumstances, only the Tribunal or the Court of Quebec provides a proper recourse for the Employee. To paraphrase McLachlin C.J. in Morin , both the Tribunal and the Court of Quebec are a “better fit” for the claim contemplated by the Employee than the CRT (under sections 47.2 , 114 and 116 of the Labour Code ) (or possibly the grievance arbitrator if

section 47.3 of the Labour Code is applicable). [ 30 ] In conclusion, I am of the view that the trial judge did not err in concluding that the Human Rights Tribunal had jurisdiction to hear the case. This first ground must fail. The standard of review [ 31 ] Since Mouvement laïque québécois v.

Saguenay (City) , [24] it is clear that the standard of intervention in an appeal from a final judgment of the Human Rights Tribunal is based on the principles of administrative law and judicial review . [25] Consequently, the choice must now be made between the standard of correctness and the standard of reasonableness, according to the nature of the issues raised: [26] [45] This being said, the choice of the applicable standard depends primarily on the nature of the questions that have been raised , which is why it is important to identify those questions correctly ( Mowat , at para. 16; Canada (Citizenship and Immigration) v.

Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at para. 4 ). For the purposes of this appeal, it will suffice to mention the following in this regard. [46] Deference is in order where the Tribunal acts within its specialized area of expertise, interprets the Quebec Charter and applies that Charter ’s provisions to the facts to determine whether a complainant has been discriminated against ( Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 , [2013] 1 S.C.R. 467, at paras. 166 - 68 ; Mowat, at para. 24). In Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paras. 30 , 34 and 39, the Court noted that, on judicial review of a decision of a specialized administrative tribunal interpreting and applying its enabling statute, it should be presumed that the standard of review is reasonableness ( Canadian National Railway Co. v. Canada (Attorney General) , 2014 SCC 40 , [2014] 2 S.C.R. 135, at para. 55 ; Canadian Artists’ Representation v. National Gallery of Canada , 2014 SCC 42 , [2014] 2 S.C.R. 197 (“NGC”), at para. 13 ; Khosa , at para. 25 ; Smith v.

Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160, at paras. 26 and 28 ; Dunsmuir , at para. 54 ). In such situations, deference should normally be shown, although this presumption can sometimes be rebutted.

One case in which it can be rebutted is where a contextual analysis reveals that the legislature clearly intended not to protect the tribunal’s jurisdiction in relation to certain matters; the existence of concurrent and non - exclusive jurisdiction on a given point of law is an important factor in this regard ( Tervita , at paras. 35 - 36 and 38 - 39; McLean , at para. 22; Rogers , at para. 15). [47] Another such case is where general questions of law are raised that are of importance to the legal system and fall outside the specialized administrative tribunal’s area of expertise ( Dunsmuir , at paras. 55 and 60 ).

Moldaver J. noted the following on this point in McLean (at para. 27): The logic underlying the “general question” exception is simple. As Bastarache and LeBel JJ. explained in Dunsmuir , “[b]ecause of their impact on the administration of justice as a whole, such questions require uniform and consistent answers” (para. 60).

Or, as LeBel and Cromwell JJ. put it in Mowat , correctness review for such questions “safeguard[s] a basic consistency in the fundamental legal order of our country” (para. 22). [48] As LeBel and Cromwell JJ. pointed out in Mowat (at para. 23), however, it is important to resist the temptation to apply the correctness standard to all questions of law of general interest that are brought before the Tribunal: There is no doubt that the human rights tribunals are often called upon to address issues of very broad import. But, the same questions may arise before other adjudicative bodies, particularly the courts.

In respect of some of these questions, the application of the Dunsmuir standard of review analysis could well lead to the application of the standard of correctness.

But, not all questions of general law entrusted to the Tribunal rise to the level of issues of central importance to the legal system or fall outside the adjudicator’s specialized area of expertise. [Emphasis added] [ 32 ] Applied to the present situation, these statements by the Supreme Court lead me to conclude that the issue of whether a collective agreement clause is discriminatory against certain employees because of their age is at the heart of the specialized expertise of the Tribunal.

Such issues are the daily reality of the Tribunal and are not particularly important for the legal system. [ 33 ] I would therefore apply the standard of reasonableness to the analysis of the judgment rendered by the Tribunal. This standard requires me to show deference if the Tribunal’s decision falls “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ” . [27] At this stage, the issue is not whether

section 7-6.04 is discriminatory, but rather whether the Tribunal, in finding that it was, rendered a decision possessing the qualities that make it reasonable.

Analysis [ 34 ] Both the University and the Association, like the Tribunal, recognize that

section 7-6.04 of the 2006 collective agreement treats the complainants differently than other professors in terms of the retirement allowance. I have quoted the reasons of the trial judge at length in this respect and will refer back to them as needed. [28] [ 35 ] For a better understanding of the remarks that follow, however, I will briefly reiterate that the professors whose names appear in the letter of agreement of July 4, 2006, are excluded from the general plan that applies to their colleagues.

Section 7-6.04 also creates a distinction as to the nature of the benefit provided. Professors who are 60 years of age or younger are entitled to a retirement allowance, whereas those who are 61 years of age or older and employed by the university on the date the 2006–2010 collective agreement came into force are not entitled to this monetary benefit but only to a reduction in their workload.

Finally, while the retirement allowance provided to professors 60 or younger is calculated on the basis of their number of years of service, the reduction in workload for those 61 or older is calculated on the basis of their age on July 4, 2006. [ 36 ] This leads to the inexorable conclusion that the judge’s finding that

section 7-6.04 of the 2006 collective agreement contains a distinction between various categories of employees is not only reasonable, it is also correct. The first condition required to establish discrimination under

section 10 of the Quebec Charter is thus met. [29] [ 37 ] The parties have divergent viewpoints, however, as to whether this differential treatment is based on one of the grounds enumerated in

section 10 of the Charter , in this case, age. [ 38 ] Although it was clear to the judge that the identification of the rights granted to a professor at the time of retirement depended solely on his or her age, [30] the University and the Association argue that the distinction created by

section 7-6.04 of the 2006 collective agreement was motivated by a desire for fairness towards professors who chose to avail themselves of the benefits offered by the pre- retirement plan in

section 9.07 of the 2002 collective agreement. [ 39 ] The names of the professors listed in the letter of agreement of July 4, 2006, who are not entitled to a retirement allowance correspond to those that could have taken their retirement but chose to remain employed by the University after that date, regardless of their age.

At least, this is the explanation provided by one of the negotiators for the University, Jean-Pierre Rousseau, who testified at first instance: [ translation ] A. … so it turned out that – and now I am speaking personally, and I insist on that, on behalf of the University – we found it unfair that professors who had – and again I am using the best term I have been able to come up with – waived, tacitly, monetary benefits could see their right to a retirement allowance revived overnight under the new collective agreement, precisely this fairness, the unfairness, precisely because other colleagues, during the same time period, had decided to retire with the allowance.

They had made a choice that was as informed as those who had decided to continue their careers at the University, they had, for professional or personal reasons, I don’t know, we saw the names this morning, they had decided to take the gradual three-year allowance, typically three-year gradual, and after two years they left, so they were entitled to 200%.

So they had accepted this while other professors decided to continue their careers at the University, and, as I said, in the interest of fairness, we did not want to revive that right to an allowance, considering that they had waived that right in the very recent past.

This is why the second paragraph was included notwithstanding the preceding paragraph, which is the general rule that we saw before: [ translation ] The E.P.s whose names appear in the letter of agreement benefit in the year preceding their retirement from only the following terms … And that is the reduced workload, and we see the infamous letter of agreement of R I don’t know … [ 40 ] The Court is not convinced, for several reasons. [ 41 ] To meet the second condition of the test for the application of

section 10 of the Quebec Charter , it must be demonstrated that the distinction is based on one of the grounds of discrimination enumerated in the first paragraph of that provision. Such demonstration, far from requiring evidence of a close or exclusive connection between the ground and the distinction, is made once the ground is a differential factor. Basically, as long as the prohibited ground played a role in or contributed to the criticized conduct, the liability of the person who engaged in that conduct may be triggered.

This is what emerges from the most recent comments of the Supreme Court in Bombardier : [31] [47] This Court has used the expression “causal connection” at least once, in City of Montréal (para. 84). However, it is important to consider the context in which the expression was used. In that case, the Court noted that the employer had acknowledged the existence of a “causal connection”.

But in setting out the elements of prima facie discrimination, the Court had required proof of only a “connection” between the prohibited ground of discrimination and the impugned decision or conduct: para. 65. [48] In that case, this Court found, as did the Tribunal in the case at bar, that the decision or action of the person responsible for the distinction, exclusion or preference need not be based solely on the prohibited ground; it is enough if that decision or action is based in part on such a ground : City of Montréal , at para. 67, per L’Heureux - Dubé J., quoting with approval D.

Proulx, “La discrimination fondée sur le handicap: étude comparée de la Charte québécoise ” (1996), 56 R. du B. 317, at p. 420. In other words, for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it : see, inter alia , Commission des droits de la personne et des droits de la jeunesse v. Gaz métropolitain , 2008 QCTDP 24 (decision reversed by the Court of Appeal, but only as regards the award of punitive damages), at para. 415.

[49] In a recent decision concerning the Human Rights Code , R.S.O. 1990, c. H.19, the Ontario Court of Appeal found that it is preferable to use the terms commonly used by the courts in dealing with discrimination, such as “connection” and “factor”: Peel Law Assn. v. Pieters , 2013 ONCA 396 , 116 O.R. (3d) 80, at para. 59 . In that court’s opinion, the use of the modifier “causal” elevates the test beyond what is required, since human rights jurisprudence focuses on the discriminatory effects of conduct rather than on the existence of an intention to discriminate or of direct causes: para. 60.

We agree with the Ontario Court of Appeal’s reasoning on this point. Moreover, this Court used the term “factor” in a recent decision concerning British Columbia’s human rights code: Moore , at para. 33. [50] It is more appropriate to use the terms “connection” and “factor” in relation to discrimination, especially since the expression “ lien causal ” has a specific meaning in the civil law of Quebec. In civil liability matters, the plaintiff must establish on a balance of probabilities that there is a causal relationship between the defendant’s fault and the injury suffered by the plaintiff: J. - C. Royer and S.

Lavallée, La preuve civile (4th ed. 2008), at para. 158. The Quebec courts have defined this causal relationship as requiring that the damage be a logical, direct and immediate consequence of the fault. This rule therefore means that the cause must have a [ translation ] “close” relationship with the injury suffered by the victim: J. - L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile (8th ed. 2014), at para. 1 - 683. [51] A close relationship is not required in a discrimination case under the Charter , however.

To hold otherwise would be to disregard the fact that, since there may be many different reasons for a defendant’s acts, proof of such a relationship could impose too heavy a burden on the plaintiff. Some of those reasons may, of course, provide a justification for the defendant’s acts, but the burden is on the defendant to prove this.

It is therefore neither appropriate nor accurate to use the expression “causal connection” in the discrimination context. [52] In short, as regards the second element of prima facie discrimination, the plaintiff has the burden of showing that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference.

Finally, it should be noted that the list of prohibited grounds in s. 10 of the Charter is exhaustive, unlike the one in the Canadian Charter : City of Montréal , at para. 69. [Emphasis added] [ 42 ] In addition, even assuming that the complainants were listed in the letter of agreement because they could take advantage of the provisions of the 2002 collective agreement but chose not to, it cannot be ignored that they were all 61 years of age or older.

At the time the 2006 collective agreement was signed, the professors between 53 and 60 years of age could also take advantage of the 2002 collective agreements, yet those who did not were not listed in the letter of agreement.

Upon taking a closer look, it appears possible to state that the identification of the rights to be granted to an employee upon retirement depended, at least partially, on his or her age on the date the 2006 collective agreement was signed. [ 43 ] In my view, this is a tenable position that was open to the Tribunal acting within its area of expertise; its reasoning on this point was based on a close comparative analysis of the 2002 collective agreement and the 2006 collective agreement, which revealed that they were two substantially different juridical acts.

Therefore, according to the Tribunal, the wording of the 2006 agreement alone must be relied on to determine whether

section 7-6.04 is discriminatory by comparing how the complainants were treated with how the other professors were. Moreover, it cannot be said that the complainants waived the new plan in the 2006 collective agreement. In this regard, it is again useful to quote the Tribunal: [32] [ translation ] [143] … The 2002 collective agreement and the 2006 collective agreement are distinct juridical acts that applied in different time periods. To determine whether or not

section 7-6.04 is discriminatory, we need to refer to what is set out in the 2006 collective agreement. Analyzing the discrimination in this case does not consist of comparing the plans set out in the two collective agreements. Rather, it requires comparing how the complainant was treated with how other employees were treated under the 2006 collective agreement. [144] In addition, the comparison between the two collective agreements is of limited usefulness since the provisions concerning retirement benefits are entirely different from each other.

Examples of these differences include the following: 1) the minimum age at which the right to a retirement allowance is triggered is not the same: 53 in 2002 and 55 in 2006; 2) the maximum age at which one can obtain a retirement allowance is different: 64 in 2002 and 69 in 2006; 3) the duration of employment preceding retirement is different: at least 15 years of service in 2002 and no minimum duration of service in 2006; 4) the method of calculating the retirement allowance is different: in 2002, it was calculated as a percentage of the employee’s annual salary, depending on his or her age, whereas in 2006, it was calculated on the basis of one month of annual salary per year of service. [145] The parties to the 2006 collective agreement thus completely modified the framework of the retirement allowance for engineer- professors and put a new system in place.

This was in fact one of the University’s stated objectives during negotiations, given that the costs of the previous plan were found to be too high. The University stated in its notes and authorities that the defendants [ translation ] “agreed to transform the previous plan of faculty renewal into a plan favouring staff retention”.

Clearly, these substantial modifications caused a break in the legal situation of employees under the 2002 collective agreement with respect to their right to a retirement allowance. [146] Accordingly, the continuity the defendants seek to establish solely for the complainants between their situation under the 2002 collective agreement and the treatment available to them under the 2006 collective agreement loses its meaning. The argument raised by the defendants could have had merit if the 2006 collective agreement had reproduced the 2002 provisions on the right to a retirement allowance in full. But it did not.

By not taking advantage of the 2002 collective agreement, the complainants obviously cannot have

waived their right to the new and distinct plan introduced in the 2006 collective agreement. [147] Moreover, the defendants’ submission that they did not want the 2006 collective agreement to revive a benefit to which the complainants had waived their rights is not supported by the wording of the collective agreements. The 2006 agreement did not revive prior rights. Based on a renewed approach to the retirement of professors, it created new rights, different from those granted by the previous collective agreement. If the defendants had made the first paragraph of

section 7-6.04 apply to the complainants, then the complainants would not have recovered rights that had already been extinguished by their own decisions. On the contrary, they would have had access, like all their colleagues, to a benefit that had never before been available to them. [148] One of the aspects of the plan in the 2006 collective agreement is particularly fatal to the defendants’ submissions. Under the terms of the 2002 collective agreement, the last age group eligible to receive a retirement allowance is set at 64 years old. Under the first paragraph of

section 7-6.04 of the 2006 collective agreement, it became possible for an employee to receive a retirement allowance if they retired before the age of 70. This right is therefore new. The Tribunal does not see how the complainants, who were all under 70 years old at the time the 2006 collective agreement was signed, could have waived their rights to this benefit in advance by not taking advantage of the previous provision, which provided no retirement allowance to employees who took their retirement between the ages of 65 and 70. [ 44 ] In my view, the Tribunal is entitled to deference.

Its reasoning is beyond any doubt transparent and intelligible. [33] [ 45 ] This leads to the third condition required under

section 10 of the Quebec Charter for a finding of prima facie discrimination. Having already found that it was reasonable to conclude that

section 7-6.04 of the 2006 collective agreement treats the complainants differently than other professors and that this treatment is based on age, it remains to be determined whether it was also reasonable for the Tribunal to conclude that this constituted discrimination, a vague concept that the Supreme Court has tried to circumscribe over the years by regularly reformulating the applicable analytical framework. [34] [ 46 ] The particular problem raised in this case resides in the trial judge’s statement that at this stage of the analysis it was no longer necessary for a complainant to show that the discriminatory treatment of which he or she claims to be a victim perpetuates stereotypes or prejudice, a condition required by the case law until then, [35] as the reasons of Abella J. for the majority in A are to this effect. [36] [ 47 ] The trial judge’s statements should be corrected if they indicate that, in her view, the issues of stereotypes and prejudice are from now on to be removed from the analysis of the discriminatory effect of a distinction.

I will explain. [ 48 ] An analytic framework capable of distinguishing a discriminatory situation from a non-discriminatory situation is fundamental, since not all differential treatment between individuals create situations of inequality. That is why the Supreme Court very early on developed an analytical framework that takes into consideration issues of historical prejudice, stereotypes, and disadvantages. [ 49 ] In my view, this is still the case.

In A , Abella J. reminds us of this fact: “[p]rejudice and stereotyping are two of the indicia that may help answer that question”, that is, whether “the challenged law violate[s] the norm of substantive equality in s. 15(1) of the Charter ”. [37] We cannot, however, require “claimants ... to prove that a distinction perpetuates negative attitudes about them”. [38] [ 50 ] Abella J.’s statement teaches us that the search for prejudice or stereotypes remains relevant , [39] but that, since they are mere indicia of discrimination, complainants cannot be required to prove that a distinction perpetuates prejudicial or stereotypical attitudes about them. [ 51 ] Returning to the reasons of the trial judge, it is apparent that she did not err in stating that [ translation ] “[t]he reasons of Abella J., with which the majority of the Court agreed, remove the obligation to prove the perpetuation of stereotypes or prejudices or an infringement of dignity to conclude that there is discrimination”. [40] On the other hand, it must be admitted that her analysis after the passage cited above appears somewhat hasty, particularly since the alleged ground of discrimination is age, [41] a frequently raised ground regarding which McLachlin C.J., for the majority, stated in the following Gosselin : [42] 31 However, unlike race, religion, or gender, age is not strongly associated with discrimination and arbitrary denial of privilege.

This does not mean that examples of age discrimination do not exist. But age-based distinctions are a common and necessary way of ordering our society.

They do not automatically evoke a context of pre-existing disadvantage suggesting discrimination and marginalization under this first contextual factor, in the way that other enumerated or analogous grounds might. [Emphasis added] [ 52 ] This impression of haste, however, quickly dissipates upon a reconsideration of the judge’s reasons as a whole in light of the most recent case law of the Supreme Court. [ 53 ] Again in A , Abella J., sought to define the analytical context capable of revealing a situation of discrimination and insisted that there be an arbitrary disadvantage as proof of such a situation. [43] 331 Kapp and Withler guide us, as a result, to a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group.

As Withler makes clear, the contextual factors will vary from case to case — there is no “rigid template”: The particular contextual factors relevant to the substantive equality inquiry at the second step [of the Andrews test] will vary with the nature of the case. A rigid template risks consideration of irrelevant matters on the one hand, or overlooking relevant considerations on the other: Kapp. Factors such as those developed in Law — pre-existing disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected — may be helpful.

However, they need not be expressly canvassed in every case in order to fully and properly determine whether a particular distinction is discriminatory . . . . [Emphasis added; para. 66.] [ 54 ] I understand from the reasons of Abella J. that it is proof of an arbitrary disadvantage that must now serve as the ultimate guide

to a finding of prima facie discrimination, and that the perpetuation of stereotypes or prejudice constitutes merely a relevant factor for the purposes of the analysis. Professor Christian Brunelle interprets the scope of Abella J.’s comments in the same way: [44] [ translation ] … Certainly, a person who alleges suffering from discrimination must show that the distinction they have been subjected to creates a prejudice or disadvantage for them.

There is no doubt that such evidence will be more convincing if the victim is able to establish that this disadvantage also results from a prejudice or a stereotype, but the state of the law in this regard still needs to be clarified.

While some judgments tend to require a strict demonstration that a negative stereotype or prejudice is at the origin of the disadvantage likely to destroy or compromise the right to equality under the Quebec Charter , a recent judgment of the Supreme Court of Canada seems instead to favour the dissociation of the disadvantage and the prejudice/stereotype, such that mere proof of a disadvantage – regardless of its causal connection with a prejudice or stereotype – is sufficient to conclude that there is discrimination.

From this point of view, it must be concluded that there is [ translation ] “ prima facie proof of discrimination” once the person subject to the distinction [ translation ] “establishes a prejudice and connection with the prohibited ground of discrimination”. [ 55 ] A careful reading of the entirety of the trial judge’s reasons leads me to conclude that it is the arbitrary disadvantage for the complainants created by

section 7-6.04 that led her to find that this measure was discriminatory. [45] Here I have in mind the fact that the complainants are entirely excluded from the plan that applies to their younger colleagues, who are entitled to a monetary benefit in the form of a retirement allowance for no apparent reason, given the rejection of the argument of fairness towards the professors who chose to take advantage of the benefits offered by the pre-retirement plan under

section 9.07 of the 2002 collective agreement. Therefore, in my view, the trial judge could reasonably conclude that the professors referred to in the letter of agreement were discriminated against because of the lack of proof of any rational basis for

section 7-6.04 and because the appellants did not meet their burden of proof. [46] [ 56 ] I would add that it was also open to the judge to state, subsidiarily, that [ translation ] “such a measure is based entirely on stereotypes and prejudice whereby individuals lose their professional value merely by reaching a certain age, regardless of their actual capabilities”, [47] since the Supreme Court itself had already analyzed this prejudice in Gosselin , stating that “[c]oncerns about age-based discrimination typically relate to discrimination against people of advanced age who are presumed to lack abilities that they may in fact possess”. [48] [ 57 ] In conclusion, I am of the view that the Tribunal is once again entitled to deference because the result it reached “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [49] The scope of the March 4, 2011 letter of agreement [ 58 ] As stated at the beginning of these reasons that, after the Commission brought the action on behalf of the complainants, the University and the Association reached an agreement on March 4, 2011, retroactively repealing

section 7-6.04 and reactivating

section 9.07 of the 2002 collective agreement, causing the latter provision to be [ translation ] “considered an integral part of the collective agreement signed on July 4, 2006, until December 31, 2010”. [50] The avowed purpose of this agreement was to defeat the Commission’s action before the Tribunal, and the evidence even shows that the Association had verified with the University that this letter of agreement would have no financial impact on the complainants. [51] [ 59 ] The Tribunal, presided by Brosseau J., heard and dismissed a motion to dismiss presented by the University. [52] [ 60 ] The University once again raised the motion to dismiss during the hearing on the merits, and it was again denied by Pauzé J., who went so far as to characterize it as a sham, since the discriminatory treatment the complainants suffered from had already occurred.

The Tribunal stated the following in this regard: [53] [ translation ] [164] The minutes of the Association’s general assembly held on February 24, 2011, state that a member of the executive of the Association [ translation ] “had verified with the University whether the letter of agreement had any impact on AIPSA members who retired between 2006 and 2010 ”. [165] The utility of the letter of agreement of March 4, 2011, was thus of a different order for the defendants.

It sought to withdraw from the collective agreement a provision that was in force at the time of the complainants’ retirement and that prevented them from benefiting from the retirement allowance offered to other employees. Given that the complainants had already asserted their rights in this respect to the Commission, and the fact that the Commission had then pursued the claim before the Tribunal, the only effect sought was to create the appearance that the problem of discrimination raised in the Commission’s proceedings had disappeared.

Meanwhile, the discrimination affecting the complainants at the time of their retirement had in no way been corrected. [166] The retroactive repeal of the right granted by the first paragraph of

section 7-6.04 is thus a total sham. The University and the Association cannot simply claim, on the basis of the March 4, 2011, letter of agreement, that

section 7-6.04 never existed. This provision was in force for several years and produced legal effects for the complainants. Its repeal in no way changes this situation. Moreover, attributing retroactivity to this repeal does not cause the consequences that the provision already produced to disappear. The Tribunal cannot be fooled by such tricks. [167] It is not surprising that this letter of agreement was very poorly received by the complainants and that they considered that they were being mistreated a second time.

In both its purpose and its effects, this letter of agreement constitutes a violation of the Charter and an attempt by the University and the Association to avoid the consequences of their discriminatory conduct. [168] The Tribunal thus concludes that the March 4, 2011, letter of agreement did not prevent the Commission from asserting the complainants’ rights before the Tribunal and does not render its claim inadmissible.

[Emphasis added] [ 61 ] In my view, it was reasonable for the Tribunal to dismiss the University’s submission whereby the March 4, 2011, letter of agreement would have caused the legal dispute to disappear by retroactively repealing

section 7-6.04. As the complainants’ rights were crystallized at the time of signing the 2006 collective agreement, the letter of agreement could not have this effect, especially since it provided the complainants with no benefit. Damages [ 62 ] After considering the individual situations of the complainants, the Tribunal ordered the University and the Association to pay each of them $5,000 in moral damages. The Tribunal noted that the complainants experienced frustration, disappointment, anger, outrage, and a feeling of betrayal when

section 7-6.04 of the 2006 collective agreement was adopted. [54] [ 63 ] The appellants challenge the award of this amount. As this matter is highly discretionary and compels deference, [55] however, the appellants do not make our task any easier by submitting only selected extracts from the complainants’ testimonies before the Tribunal.

Given this situation, I do not see how I can be expected to review all of the trial judge’s findings of fact relating to the award of moral damages when not all of the evidence presented to her has been submitted. [56] This ground of appeal must fail. [ 64 ] Regarding the Tribunal’s award of $2,000 in punitive damages to the complainants, which the University also challenges, it should be noted that the Commission’s claim in this respect was added to its application following the March 4, 2011, letter of agreement.

In the Tribunal’s opinion, it was the signing of this letter of agreement that confirmed its impression that the appellants had the deliberate, even malicious, intention to cause harm to the complainants. The Tribunal stated the following in this regard: [57] [ translation ] [227] The defendants excluded the complainants from a benefit granted to the other employees a first time in the 2006 collective agreement. They repeated this exclusion when the March 4, 2011, letter of agreement was executed.

In both cases, they had knowledge of the complainants’ allegations regarding the discriminatory nature of this measure. They acted with disregard for the legitimate concerns expressed in various ways by the complainants and other employees. The Association did not even follow through on the complainants’ request to obtain a legal opinion on the validity of

section 7-6.04 of the 2006 collective agreement. [228] The avowed objective of the March 4, 2011, letter of agreement was to deprive the complainants of the rights they had already invoked in their complaint with the Commission, and which the Commission had already submitted to the Tribunal in its application.

The minutes of the extraordinary assembly of the Association that was held on February 24, 2011, to approve this letter of agreement indicates, moreover, that [ translation ] “in the event where the AIPSA has to contribute to the financial settlement of the complaint, the signing of the letter of agreement should reduce this contribution”. [229] The defendants believe that they could thus, in one stroke, rewrite the past to their advantage and change the rules of the game for the complainants, who had all already retired by the time the March 4, 2011, letter of agreement was signed.

It is not up to the Tribunal to determine whether the defendants had the required authority and capacity to render the repeal of

section 7-6.04 retroactively applicable. The Tribunal notes, however, that the defendants unilaterally used their status as contracting parties to the collective agreement to attempt to avoid their liability to the complainants and escape the Tribunal’s jurisdiction. Such conduct, which the Tribunal considers abusive against the complainants in all respects, certainly denotes a malicious intent on the part of the defendants. [ 65 ] In my opinion, the Tribunal could reasonably conclude that the University and the Association intended to deprive the complainants of their rights.

This conclusion contains no reviewable error. Conclusion [ 66 ] For all of these reasons, I would uphold the trial judgment and dismiss the appeals with costs. JEAN BOUCHARD, J.A. 16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.