2011 QCCA 2314, 2011 QCCA 2314

Unofficial English Translation Commission des droits de la personne et des droits de la jeunesse c. Société des casinos du Québec inc. 2011 QCCA 2314 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-022135-115 (550-53-000021-090) DATE: December 13, 2011 PRESIDED BY: THE HONOURABLE ANDRÉ ROCHON, J.A. COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE PETITIONER – plaintiff v. LA SOCIÉTÉ DES CASINOS DU QUÉBEC INC. RESPONDENT – defendant and ASSOCIATION DES CADRES DE LA SOCIÉTÉ DES CASINOS DU QUÉBEC INC.

IMPLEADED PARTY – complainant and FRANÇOIS BELLFOY, JACQUES BOUCHARD, JEAN-GUY BRADETTE, ALAIN CLERMONT, CARLO COLOMBI, DENIS DUBOIS, MARIO ELIBANI, ALAIN HARVEY, DENIS KNIGHT, PIERRE LABERGE, LISA LAVOIE, RICHARD LEPAGE, BENOÎT LESSARD, MARTINE LETANG, ROBERT LETTS, SHYANNE MORIN, MARC SABOURIN, STEPHANE SGARBOSSA, PATRICK TANGUAY IMPLEADED PARTIES – victims JUDGMENT [ 1 ] The petitioner seeks leave to appeal from a decision rendered on September 30, 2011, by the Human Rights Tribunal (the Tribunal), District of Hull (the Honourable Michèle Pauzé). Leave is required under the terms of

section 132 of the Charter of human rights and freedoms [1] (the Charter ). [ 2 ] The criteria for granting leave are known. I had the opportunity to discuss them in Commission des droits de la personne et des droits de la jeunesse v.

Provigo Distribution Inc., Division Maxi : [2] [translation] [12] Without elaborating a general theory on the subject or making an exhaustive list of situations where leave to appeal must be granted, it seems to me that the following situations, of fact or law, favour granting leave to appeal: when it is a question of principle, a new question that has yet to be decided by the appellate courts, a question of general interest, a question on which the human rights tribunals across the country are divided or on which the case law of that Tribunal has not yet reached a consensus, a question that, for the parties themselves, is serious and likely to have significant repercussions.

In any event, a party petitioning for leave to appeal may not merely seek a different result from that reached in the Tribunal's judgment. Rather, it must identify the issues that it intends to raise and then show the legal consequences of these issues on its rights. [ 3 ] The Tribunal concluded that paragraph 6(

b) of the respondent's policy titled "Performance Assessment, 2002-2003" was inherently discriminatory.

According to the Tribunal, this policy interfered with the right of pit bosses to benefit equally from work conditions – including salary and performance bonuses – free of discrimination based on handicap. [ 4 ] The respondent's policy was consequently declared null and void. [ 5 ] The Tribunal, however, declined to make a compensatory order [translation] "absent individual evidence of a handicap or of a health condition deemed equivalent to one". [ 6 ] The question the petitioner wants to submit to the Court addresses only the remedies that were refused. The petitioner submits three grounds:

(

a) The Tribunal judge committed a palpable and overriding error by requiring, once it had concluded that paragraph 6(

b) of the Policy was discriminatory based on handicap and therefore null and void, that individual evidence of a handicap for each of the pit bosses on behalf of whom the Commission brought its action be adduced in order to make an order remedying material damages; (

b) That being so, the Tribunal's error respecting the compensation of victims is the consequence of a palpable and overriding error in the analysis of the discriminatory nature of paragraph 6(

b) of the performance assessment policy; (

c) Alternatively, the Tribunal judge committed a palpable and overriding error by finding that no individual evidence of a handicap had been adduced. [ 7 ] At the hearing, counsel for the petitioner restated these various grounds. She maintains that there is discrimination in this case based on the perception of a handicap under a general policy that was declared discriminatory and null and void.

Thus, the persons affected by this policy suffered direct and proven harm. [ 8 ] With respect, the debate the petitioner intends to submit to the Court is one relating to evidence, not a question of principle. [ 9 ] In its analysis, the Tribunal made an initial finding of fact: between August 1, 2002 and March 31 2003, the manner in which the assessment policy was applied resulted in the pit bosses being treated exactly the same.

All the absences were taken into account [translation] "without regard to whether or not they were authorized for illness, whether they were long or short, caused by a minor, average or more serious complaint". [ 10 ] According to the evidence, the absences for illness may have been due to various causes ranging from chronic illness (diabetes, asthma, fibromyalgia, etc.) to headaches. [ 11 ] The Tribunal added that any distinction on the basis of health “is not necessarily discrimination based on handicap”. [3] Therefore, the petitioner has failed to show a causal link between the interference with a Charter right and the actual or perceived handicap.

The Tribunal found that there were no subjective components of discrimination based on handicap in this case. [ 12 ] This is a question of evidence or of fact that does not meet the criteria required to grant leave to appeal. [ 13 ] For these reasons, the motion for leave to appeal is dismissed with costs. ANDRÉ ROCHON, J.A. Mtre Lysiane Clément-Major Vizkelety, Drapeau, Bourdeau For the petitioner Mtre Jean Leduc Loranger, Marcoux For the respondent Date of hearing: November 30, 2011