2020 QCCA 857, 2020 QCCA 857

Unofficial English Translation of the Judgment of the Court Syndicat canadien de la fonction publique,

section locale 1108 v. CHU de Québec — Université Laval 2020 QCCA 857 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-009875-185 (200-17-027389-188) DATE: July 3, 2020 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE,

SECTION LOCALE 1108 APPELLANT – Impleaded Party v. CHU DE QUÉBEC – UNIVERSITÉ LAVAL RESPONDENT - Applicant and DENIS TREMBLAY, in his capacity as grievance arbitrator IMPLEADED PARTY - Defendant JUDGMENT [ 1 ] The appellant, Syndicat canadien de la fonction publique,

section locale 1108, appeals against a judgment rendered on September 25, 2018 by the Honourable Mr. Justice Pierre C. Bellavance of the Superior Court, District of Quebec, that granted an application for judicial review of the respondent, CHU de Québec-Université Laval, set aside the arbitral award made by the impleaded party, grievance arbitrator Denis Tremblay, and dismissed the grievance of the employee, Karine Langlois. [1] [ 2 ] For the reasons of Thibault.

J.A., with which Ruel and Gagné, JJ.A. agree, THE COURT: [ 3 ] ALLOWS the appeal, with legal costs; [ 4 ] REVERSES the judgment at first instance; [ 5 ] DISMISSES the application for judicial review, with legal costs. FRANCE THIBAULT, J.A. SIMON RUEL, J.A. SUZANNE GAGNÉ, J.A. Mtre Brigitte Fortier SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE For the appellant

Mtre Bruno Lepage Mtre Stéphanie Blanchet-Gravel BEAUVAIS TRUCHON For the respondent Date of hearing: June 11, 2020 REASONS OF THIBAULT, J.A. [ 6 ] The appellant, Syndicat canadien de la fonction publique,

section locale 1108, appeals against a judgment rendered on September 25, 2018 by the Honourable Mr. Justice Pierre C.

Bellavance of the Superior Court, District of Quebec, that granted an application for judicial review of the respondent, CHU de Québec-Université Laval, set aside the arbitral award made by the impleaded party, grievance arbitrator Denis Tremblay, and dismissed the grievance of the employee, Karine Langlois. [2] [ 7 ] The appeal concerns the respondent’s fulfilment of its duty to reasonably accommodate pursuant to the Charter of Human Rights and Freedoms . [3] More specifically, the appeal seeks to determine the standard of judicial review applicable to the arbitrator’s award and to verify whether the award complies with the chosen standard.

The arbitrator allowed the grievance filed by the employee who, in order to minimize the loss suffered following her reclassification due to her physical disability, was claiming the salary assigned to the last level of the job class to which she had been reassigned following an accommodation agreement. [ 8 ] For the reasons set out below, I am of the opinion that the applicable standard of review is reasonableness and that the arbitrator rendered a reasonable sentence within the meaning accepted by the Supreme Court in Canada (Minister of Citizenship and Immigration) v.

Vavilov . [4] [ 9 ] Consequently, I would allow the appeal and reinstate the arbitral award. 1. THE CONTEXT [ 10 ] The employee worked for the respondent since January 7, 2002 as a nursing assistant. The respondent is an institution resulting from the merger, in July 2012, of the Centre hospitalier universitaire de Québec (CHUQ) and the Centre hospitalier affilié (CHA). [ 11 ] On April 29, 2016, the employee was the subject of an accommodation agreement due to her inability to perform her duties as a nursing assistant for health reasons.

The agreement was entered into after a period of disability that began on December 13, 2012 and during which she received the salary insurance benefits provided for in the relevant collective agreement. [ 12 ] At the time, the employee held a full-time daytime position as a nursing assistant in the emergency department of the Hôpital de l’Enfant-Jésus. She was part of the bargaining unit represented by the Syndicat interprofessionnel du CHU de Québec (“SICHU”) affiliated with the Fédération interprofessionnelle de la Santé (“FIQ”).

She was governed by the 2011-2015 collective agreement entered into between the Comité patronal de négociation du secteur de la santé et des services sociaux (“CPNSS”) and the FIQ. Her salary was $27.30/h. Furthermore, she received premiums. [ 13 ] Pursuant to the accommodation agreement, the respondent granted the employee the position of administrative officer, class 3, subject to a 30-day probationary period. The accommodation agreement was signed by the employee, her former union (SICHU-FIQ), her new union (the appellant), the employer (the respondent) and the insurer.

In the agreement, the parties acknowledged that the respondent had fulfilled its duty to accommodate. [ 14 ] At the end of a successful probationary period, the employee’s new position as an administrative officer, class 3, was confirmed, as contemplated. The accommodation agreement is silent regarding recognition of the employee’s experience for purposes of her integration within the salary scale of the job class administrative officer, class 3.

Moreover, it does not deal with the applicable salary. [ 15 ] The appellant placed the employee at level 1 of the administrative officer salary scale because she had no experience in her new position. Her new salary was $17.57/h, a reduction of $9.73/h compared with her salary as a nursing assistant, not to mention the loss of the premiums she had been receiving until then. [ 16 ] On July 18, 2016, the employee filed a grievance.

To reduce the salary loss resulting from her reclassification, she asked to be classed at the last level of the salary scale for administrative officer, class 3, given the most recent situation of a similar accommodation involving the respondent in November 2014 and given the existing practice when she had worked for the CHA. In the employee’s view, the respondent’s decision represented a breach of its Charter duty of reasonable accommodation. The employee’s request entailed a salary increase of $2.69/h. [ 17 ] The arbitration took place before the arbitrator (the impleaded party).

The parties chose to proceed by means of admissions. [5] The arbitrator rendered his decision on January 26, 2018. He allowed the employee’s grievance. [6]

[ 18 ] On February 27, 2018, the respondent filed an application for judicial review. The matter was heard on June 20, 2018. On September 25, 2018, Bellavance, J.S.C. granted the application for judicial review, set aside the arbitral award and dismissed the grievance. 2.

THE PRIOR DECISIONS 2.1 The arbitral award [ 19 ] After having noted that the employee’s complaint was not dealt with in the accommodation agreement, which does not [ translation ] “specify what her classification or salary will be or what will happen to her experience and her fourteen (14) years of service at the CHU”, the arbitrator concluded that the salary loss suffered by the employee, which was equal to the difference between the salary of a nursing assistant (last level) and that of an administrative officer (first level), was unreasonable. [ 20 ] Before merging with the CHUQ, the practice at the CHA, the employee’s employer, was to assign the level with the salary closest to that received by the person being accommodated.

The arbitrator was of the view that the employee’s request would not impose a huge financial burden on the respondent. Indeed, he noted that if the employee had been part of the bargaining unit represented by the appellant when the accommodation measure was applied to her, the respondent would have classified her in the last level of the administrative officer, class 3, job class. 2.2 The judgment under appeal [ 21 ] The judge noted that a question of law dealing with the

interpretation of the Charter is subject to the correctness standard, while the application of a clear right conferred by the Charter to a set of facts is subject to the reasonableness standard. [ 22 ] He was of the opinion that the dispute pertained to the scope of the duty to accommodate. More specifically, the judge wondered whether the duty includes a financial guarantee. He decided that the resolution of the grievance involved the

interpretation of a question of law that is of importance to the legal system. Such a question calls for the application of the correctness standard. [7] [ 23 ] The judge was of the view that the duty to reasonably accommodate did not include a financial obligation on the part of the respondent, because the principal objective of such a measure is to have the employee continue to work for the employer.

Moreover, requiring the respondent to give the employee the salary equal to the last level of the scale when applying an accommodation measure would have the effect of [ translation ] “completely altering the very essence of an employment contract”. In his opinion, it was fair to place the employee, who had no experience in the new position, at the first level of the scale.

Consequently, he found that the arbitrator had erred in law by expanding the scope of the duty to reasonably accommodate. [8] [ 24 ] Furthermore, the judge added that the accommodation agreement between the parties did not recognize any experience on the part of the employee. The statement to the effect that [ translation ] “the employee and the unions acknowledge that the employer has fulfilled its duty of accommodation” resulted in the formation of a valid contract between the parties and was a bar to the grievance, which should have been dismissed on that basis alone. [9] 3.

THE ISSUES IN DISPUTE [ 25 ] The arguments pleaded by the parties require that the following four questions be answered: - What is the applicable standard of judicial review? - What is the scope of the duty to reasonably accommodate? - Did the judge err by concluding that, based on the definition of the duty to reasonably accommodate, the employee could not be remunerated at the last level of the relevant salary scale? - What is the impact on the grievance of the accommodation agreement entered into between the parties? 4.

THE ANALYSIS 4.1 The applicable standard of judicial review [ 26 ] As early as 1994, in Commission scolaire régionale de Chambly v. Bergevin , [10] the Supreme Court drew a distinction between interpreting the meaning and scope of a Charter provision and applying it to a given situation. In the first case, the decision maker is required to answer the question correctly, while, in the second case, the decision must be reasonable. [11] [ 27 ] This approach was substantially maintained when the Supreme Court reformed the standards of judicial review in Dunsmuir v.

New Brunswick . [12] The highest court in the land still recognized the existence of two standards when the administrative decision maker is seized of a constitutional question or a question of general law that is of central importance to the legal system as a whole. The correctness standard applies to decisions that determine the meaning and scope of such questions and the reasonableness standard is adopted when dealing with their application to the facts of the case. [ 28 ] The guidance set out in Bergevin , supra , has not changed fundamentally over the years. [13]

[ 29 ] In Doré v. Barreau du Québec , [14] the Supreme Court distinguished between the situation of an administrative tribunal that rules on the constitutionality of a law or regulation and that of a specialized administrative tribunal that applies Charter guarantees or takes Charter values into account in order to rule on a dispute within the scope of a specific administrative regime.

In the first case, the correctness standard applies, [15] while in the second one, the administrative decision is reviewed from the perspective of reasonableness. [16] [ 30 ] Our Court maintained this distinction in its post- Dunsmuir decisions: [ translation ] [23] This, however, may be different when it comes to applying a Charter provision to the facts of the case. Shortly after Dunsmuir , our Court used the following standard of review when a grievance arbitrator had applied a Charter provision.

Dufresne, J.A., writing for the Court, stated: [47] Since it is difficult, in the present case, to dissociate the law from the facts, the applicable standard is reasonableness , all the more so since this is an arbitral award made in a labour relations context, which calls for great deference towards the arbitrator deciding the merits of the grievance, as is the case here. The presence of a privative clause also calls for such deference. The mere fact that, according to the arbitrator, s. 18.2 of the Quebec Charter comes into play does not necessarily alter the standard of review. The wording of this

section is inexorably linked to the field of labour relations and is liable to be applied frequently by grievance arbitrators. Notwithstanding the quasi-constitutional nature of s. 18.2 of the Quebec Charter , the standard of review remains reasonableness, where, as is the case here, the arbitrator applies the provision to the facts of the case. What is at issue here is not the arbitrator’s

interpretation of s. 18.2 of the Quebec Charter , but his application thereof. […] [24] I agree with this statement, which is also relevant when it comes to applying ss. 18.1 and 20 of the Charter . Thus, one must distinguish between the

interpretation of the relevant provisions of the Charter and their application to the facts of the case. [17] [Emphasis added] [ 31 ] In 2019, when the Supreme Court reframed the general structure of the judicial review of administrative decisions in Canada (Minister of Citizenship and Immigration) v. Vavilov , [18] it did not modify its approach. It explained that the application of the reasonableness standard is presumed, unless the legislature has indicated a different standard or the rule of law requires the application of the correctness standard.

This second situation requires courts to apply the correctness standard to: (1) constitutional questions; (2) general questions of law of central importance to the legal system as a whole; and (3) questions related to the jurisdictional boundaries between two or more administrative bodies. [ 32 ] In Vavilov , the Supreme Court specified that its decision did not call into question the guidance in Doré . [19] In principle, the application by a decision maker of Charter provisions or principles to adjudicate an administrative dispute is reviewable on the basis of reasonableness. [20] Moreover, in Vavilov , the Supreme Court explained that the application of the correctness standard to the class of general questions of law of central importance to the legal system as a whole is driven by the requirement for uniformity and consistency with respect to certain issues due to their impact on the administration of justice: […] the reality [is] that certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”.

In these cases, correctness review is necessary to resolve general questions of law that are of “fundamental importance and broad applicability”, with significant legal consequences for the justice system as a whole or for other institutions of government. [21] [References omitted] [ 33 ] The scope or

interpretation of the duty to reasonably accommodate is a question of general law that is of central importance to Quebec’s legal system. [22] As the Supreme Court wrote in Vavilov , supra , “general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows”. [23] [ 34 ] This leads me to identify the issue the arbitrator was required to decide. His role was not to define the scope of the duty to reasonably accommodate.

The Supreme Court did so in a number of judgments, as I will discuss in the following section. The arbitrator had to decide, in light of the applicable law, particularly the judgments of the Supreme Court, and the facts, whether the respondent had fulfilled its duty to reasonably accommodate by placing the employee at the first level of the relevant job class.

This exercise is subject to the application of the reasonableness standard. [ 35 ] The trial judge therefore erred in applying the correctness standard to review the arbitrator’s arbitral award. 4.2 The duty to reasonably accommodate [ 36 ] When an employee is no longer in a position to perform the duties of his job due to a physical disability, the employer’s duty to reasonably accommodate resulting from the Charter includes the duty to find a reasonable solution to minimize the impact of a change in job class—a change, incidentally, accepted by the employer—provided this solution does not result in undue hardship.

This obligation is not limited to maintaining the employment relationship. [ 37 ] The arbitrator based his decision to allow the employee’s grievance on the respondent’s obligation to limit the financial loss suffered by the employee when accommodations are agreed upon, provided the accommodation does not result in undue hardship for the respondent. The arbitrator listed the principles he had noted from his review of the jurisprudence, in particular the one that requires an employer to try to give the employee benefits comparable to those she enjoyed before the accommodation offered.

He expressly acknowledged that the employee is not entitled to any financial guarantees:

[ translation ] [47] The courts have developed many principles and standards with respect to accommodation. The parties largely expressed them in their arguments.

What I have noted therefrom, in connection with this case, can be summarized as follows: • The basis for reasonable accommodation is the principle of employment equality without any discrimination; • Reasonable accommodation may be incompatible with the blind and strict application of the collective agreement; • The duty to accommodate presupposes that the usual rules and standards will be adapted to suit the situation, provided doing so does not result in undue hardship; • The aim of the accommodation process should be to provide the employee with benefits comparable to what she had before; • Once the employee has been accommodated, she is not entitled to any financial guarantees. [48] I would also add that, while accommodation must not impose undue hardship on the employer, it seems entirely natural to me that its counterpart is that it must not be unreasonable for the employee in question. “The undersigned is of the opinion that reasonable accommodation must not lead to a substantial loss of rights for the person benefitting from it.

That person must find herself in substantially the same position, retain the same status as employee.

The employee must be accommodated so that she can continue to work for her employer in a position that provides her with benefits comparable to those she had in her former position and not so that she loses all her benefits by being put in the precarious situation that being placed on a recall list entails, unless that was her prior status.” (p.46) [49] In CSSS du Nord de Lanaudière , [24] the arbitrator, René Turcotte, performed the following analysis with respect to this matter: “Indeed, the case law unanimously recognizes that the parties may cross the boundaries of a bargaining unit in order to offer an employee being accommodated employment in another certification unit.

Given the impossibility for Ms. Vienneau to hold a category 2 position, as both parties recognized, the parties were entitled to offer her a category 3 position.” (pp. 45-46) “The obligation to offer a reasonable accommodation to Ms. Vienneau requires both the employer and the union to be accommodating. It is worthwhile noting that the expression reasonable accommodation implies that the parties will tailor the rules they usually follow, relax them. These rules may be a provision of the collective agreement or a requirement for awarding a position.

This adjustment, this relaxing of the rules, however, must not cause undue hardship to either of the two parties: undue hardship for other employees represents undue hardship for the union.” (p.46) “The undersigned is of the opinion that reasonable accommodation must not lead to a substantial loss of rights for the person benefitting from it. That person must find herself in substantially the same position, retain the same status as employee.

The employee must be accommodated so that she can continue to work for her employer in a position that provides her with benefits comparable to those she had in her former position and not so that she loses all her benefits by being put in the precarious situation that being placed on a recall list entails, unless that was her prior status.” (p.46) [ 38 ] The Superior Court judge was of the view that the arbitrator had erred when he decided that the accommodation measure should aim to give the employee benefits comparable to those she enjoyed before the accommodation.

According to the judge, (1) the duty to accommodate requires only that the employee’s employment relationship be maintained in a position that takes her handicap into account and it must not cause undue hardship to the respondent; and (2) forcing the respondent to give the employee remuneration comparable to the remuneration she was receiving before the reclassification resulting from an accommodation completely alters the essence of the contract of employment, because a salary is based on experience, not seniority: [ translation ] [17] For the following reasons, the Court accepts the employer’s argument that the duty to accommodate, which was implemented here, does not entail financial obligations that would require the employer to guarantee to the worker salary conditions similar or close to those she had before the change in position: 1.

An employer’s duty to accommodate an employee is defined as follows: [14] As L’Heureux-Dubé J. stated, the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work.

The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. [15] However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration. […]. 2.

The primary objective of accommodation, as expressed by the Supreme Court of Canada, is to keep the employee working for the employer, in a position that takes the employee’s handicap into account, and not to provide the employee with employment conditions identical or even similar to those he had before the handicap arose. 3. It is necessary to bear in mind that the duty to accommodate is intended to enable an employee to keep working for his employer, without imposing undue hardship on the employer. 4.

The Court is of the view that the concept of undue hardship must be considered only to determine whether the employer can wholly or partially avoid its duty to accommodate and for no other purpose.

5. Moreover, imposing “similar” remuneration in connection with accommodation could “completely alter” the very essence of the contract of employment, one of whose important components, that is, remuneration, is established by considering, among other things, the nature of the work to be performed and the employee’s experience doing that work. 6.

Indeed, as the arbitrator himself recognized, salary scales are based on the experience of employees and not on their years of service, and it is fair that the employer should place the employee, who had no experience in the new position, at level 1. […] [ 39 ] Like the arbitrator decided, I am of the opinion that the precedents in this area teach us that the duty to accommodate entails a duty of the parties involved to find a reasonable solution that will protect the right to equality of the employee who is unable to return to work for health reasons.

Such a pursuit requires a serious contextual examination to identify the best possible solution for the employee, who must accept it even if the solution does not meet all his expectations, insofar as it does not result in undue hardship for the employer.

Thus, reasonable accommodation must aim to give to the employee, although without any guarantee, benefits comparable to those he had before being affected by a handicap, provided the accommodation does not cause undue hardship to the employer. [ 40 ] Within this context, I believe it would be useful to review the evolution of (1) reasonable accommodation and (2) undue hardship in the Supreme Court’s jurisprudence. 4.2.1 Reasonable accommodation [ 41 ] In 1985, in Ontario Human Rights Commission v. Simpson Sears , [25] the Supreme Court was faced for the very first time with a request for reasonable accommodation.

The employee was a saleswoman at Simpson Sears. The store hours included Thursday and Friday evenings as well as Saturdays. The period from Thursday evening to Saturday evening was the busiest. One of the conditions of employment for salespersons was to work Friday evenings, on a rotation basis, and two Saturdays out of every three. [ 42 ] The employee converted and became a member of the Seventh-Day Adventist Church. This religion requires strict observance of the Sabbath, which runs from sundown on Friday to sundown on Saturday.

The employee was therefore no longer able to work without compromising her religious beliefs. She informed the personnel manager that she refused to work on Saturdays due to her religious beliefs. He replied that she was required to work on Saturdays and that if she were absent, she would be dismissed. Given the employee’s refusal to resign, the personnel manager offered her part-time employment, which she accepted despite a decrease in her salary and fringe benefits. [ 43 ] The employee filed a discrimination complaint pursuant to the Ontario Human Rights Code (the “ Code ”).

She alleged that she had been discriminated against based on her religious beliefs. Her complaint was dismissed by the first three levels seized thereof, that is, the Board of Inquiry established under the Code , the Divisional Court and the Ontario Court of Appeal.

They all concluded that there was no evidence of discrimination by the employer. [ 44 ] The Supreme Court allowed her complaint and ordered the employer to pay to her, as compensation, the difference between the salary she had earned and the salary she would have been entitled to if she had worked full-time. [ 45 ] After agreeing that the situation was not one of direct discrimination, the Supreme Court examined the effect of discrimination based on a religious belief when that condition is rationally related to the performance of the job.

It observed that, in such a situation, the condition cannot be struck down because it is reasonable. To overcome this difficulty, the Supreme Court borrowed a solution from American law that preserves the natural corollary to the recognition of a right, that is, the acceptance to respect that right and to act within reason to protect it. This is how the employer’s duty to reasonably accommodate arose in Canadian law. [ 46 ] At that time, the Supreme Court delimited the employer’s duty to accommodate as follows: 23.

Accepting the proposition that there is a duty to accommodate imposed on the employer, it becomes necessary to put some realistic limit upon it. The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer. Cases such as this raise a very different issue from those which rest on direct discrimination.

Where direct discrimination is shown the employer must justify the rule, if such a step is possible under the enactment in question, or it is struck down. Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general work force which must be considered.

In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation. The employer must take reasonable steps towards that end which may or may not result in full accommodation.

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment. [26] [Emphasis added] [ 47 ] The Supreme Court therefore suggested a certain hierarchy of accommodation measures: (1) the employer must take reasonable steps towards full accommodation; (2) where such measures do not result in full accommodation, the employee must take some accommodating steps on his own part; and (3) if the employee refuses to take accommodating steps, he must sacrifice his religious principles or his employment. [ 48 ] The ruling in Bergevin , supra , [27] is another relevant example in which the Supreme Court addressed the scope of the accommodation measure.

Three Jewish teachers asked for and obtained a leave of absence from their employer to observe Yom Kippur. Since the school calendar required teachers to work that day, the leave was granted, but without pay.

[ 49 ] The certified association filed a grievance seeking reimbursement of the salary denied to the teachers. The arbitrator concluded that the school calendar had the effect of discriminating against Jewish teachers and that the employer had not taken the necessary steps to allow them to be absent from work without losing their salary. The Superior Court dismissed the application for judicial review of the arbitral award, but the Court of Appeal allowed it, since it was of the opinion that the award was unreasonable. [ 50 ] The Supreme Court intervened and restored the arbitral award.

After pointing out the rationale for the duty to reasonably accommodate, which is to provide equity or fairness, particularly in the workplace, to persons of all religions, races and nationalities, the Supreme Court noted that it is not necessary that a collective agreement specifically provide for the observance of the holiday of a religious minority in order for members of that minority to have the right to a paid leave.

The provisions of a collective agreement are one of the factors to be considered in determining whether the employer can accommodate the religious beliefs of its employees and offer them a reasonable accommodation. [ 51 ] The Supreme Court ruled that payment of the salary was the reasonable accommodation in the circumstances, given the flexibility in the applicable collective agreement, the existence of a past practice and the absence of evidence demonstrating that reimbursing the pay that had been docked due to the employees’ absence on Yom Kippur was an undue burden on the employer. [ 52 ] I note from this judgment that the employer had, in a way, favoured Jewish teachers by allowing them to take time off work without pay to observe a religious holiday, even if the collective agreement did not expressly provide for it.

The Supreme Court, however, did not consider this accommodation to be reasonable. It concluded that the leave should have been granted with pay. [ 53 ] As we know, over time, the notion of reasonable accommodation evolved beyond the idea that it was applicable only in cases of adverse effect discrimination. In British Columbia (Public Service Employee Relations Commission) v.

BCGSEU [28] , the Supreme Court held that the distinction between direct and adverse effect discrimination was no longer appropriate. [ 54 ] In this case, the employee had been hired as a forest firefighter by the British Columbia Ministry of Forests. She underwent tests designed to assess her physical condition. One of those was a running test. After four attempts, she failed the test and was dismissed. The arbitrator allowed the employee’s grievance.

According to him, the employee had been the victim of discrimination; moreover, the employer had not proved that maintaining the employment of a person unable to satisfy the chosen standard (the running test) was an undue hardship on it [ 55 ] The Supreme Court first found that the standard chosen by the employer was discriminatory because, given their generally lower aerobic capacity, most women were adversely affected by that choice. Furthermore, it concluded that the employer had not established that it would experience undue hardship if a different standard were used.

Indeed, the employer had not demonstrated that this particular standard was necessary in order to identify those persons able to perform the tasks of a forest firefighter safely and efficiently. [ 56 ] Since then, courts have applied the duty to reasonably accommodate to every type of discrimination, whether based on religion, sex, handicap, pregnancy, age or social origin, among others. [29] [ 57 ] In Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) [30] , the Supreme Court expanded the notion of “handicap” set out in the Charter .

It proposed certain guidelines to interpret this notion and specify its scope. It stated that the notion must not be confined within a narrow definition that leaves no room for flexibility. A handicap may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. Rather than focusing on a person’s condition, courts must determine whether an actual or perceived ailment causes the individual to experience “the loss or limitation of opportunities to take

part in the life of the community on an equal level with others”. [31] This includes persons who have overcome their functional limitations and who are restricted in their everyday activities only by the stereotypes that are associated with this ground. [ 58 ] At the same time, the jurisprudence extended the duty to reasonably accommodate to a number of areas of activity: labour relations, employee associations, public agencies, etc., which effectively obliged those involved in these various sectors to tailor their organization or operating methods so as to alleviate the consequences of a handicap or facilitate the exercise of fundamental rights.

For example, employee associations are required to cooperate in implementing individualized measures to allow a handicapped person to return to work, even if the application of those measures requires a change to the collective agreement. [32] Similarly, a school board must authorize a student to wear a religious object required by his religion if normal safety requirements are met. [33] [ 59 ] The duty to reasonably accommodate therefore covers a broad spectrum. It targets direct and adverse effect discrimination. It applies to all grounds of discrimination.

It extends to numerous areas of activity and to their participants. It even applies to victims of employment injuries, who benefit from legislative measures intended to facilitate their rehabilitation and return to work. [34] [ 60 ] The duty to reasonably accommodate has only one limitation: undue hardship. Let us now see how the jurisprudence has defined this concept. 4.2.2. Undue hardship [ 61 ] The notion has been considered and applied by the Supreme Court in a number of judgments. [35] In Ontario Human Rights Commission v.

Simpson Sears , supra , [36] the Supreme Court mentioned two indicators of undue hardship: undue interference in the employer’s business and undue expense to the employer. [ 62 ] In Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [37] , the Supreme Court wrote that it is not necessary to provide a comprehensive definition of what constitutes undue hardship.

It listed a number of factors for assessing undue hardship: financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities, the size of the employer’s operation and safety risks. [ 63 ] In Central Okanagan School District No. 23 v. Renaud , [38] the Supreme Court went even further, stating that if the proposed

accommodation measure is the least expensive and least disruptive, it may be chosen even if it contravenes the collective agreement or affects the rights of other employees. In such a situation, if the accommodation measure is reasonable, the union has the obligation to cooperate with the employer to make it possible. [ 64 ] In Commission scolaire régionale de Chambly v.

Bergevin [39] , the Supreme Court reiterated the factors mentioned in Central Alberta Dairy Pool and Renaud , supra . [40] It observed that these factors are not immutable and must be applied with common sense and flexibility in the context of the factual situation presented in each case, pointing out that the duty to accommodate is limited by the words “reasonable” and “short of undue hardship”: The factors to be considered in determining what may constitute reasonable accommodation were set out in Central Alberta Dairy Pool , supra .

Wilson J. writing for the majority described the factors in this way at pp. 520-21: I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar—financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities.

The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.

With regard to the factor of the morale of other employees, Sopinka J. in Renaud, supra , reworded it to require a consideration of the effect of the reasonable accommodation on other employees. (See pp. 984-85 and 991-92.) These factors are not engraved in stone. They should be applied with common sense and flexibility in the context of the factual situation presented in each case. The situations presented will vary endlessly. For example, in a large concern, it may be a relatively easy matter to replace one employee with another.

In a small operation replacement may place an unreasonable or unacceptable burden on the employer. The financial consequences of accommodation will also vary infinitely. What may be eminently reasonable in prosperous times may impose an unreasonable financial burden on an employer in times of economic restraint or recession. However, the listed factors can provide a basis for considering what may constitute reasonable accommodation. It is important to remember that the duty to accommodate is limited by the words “reasonable” and “short of undue hardship”. Those words do not constitute independent criteria.

Rather they are alternate methods of expressing the same concept. (See Renaud , supra , at p. 984.) [41] [ 65 ] More recently, in two judgments rendered one year apart, the Supreme Court reiterated that the duty to reasonably accommodate is neither absolute nor unlimited. The guidance in those decisions is particularly relevant to this appeal, because the Superior Court judge relied on one of these decisions to grant the application for judicial review. [ 66 ] In McGill University Health Centre (Montreal General Hospital) v.

Syndicat des employés de l’Hôpital général de Montréal , [42] the Supreme Court emphasized the individualized nature of an accommodation measure and the fact that it must not be based on a blind application of the collective agreement. [ 67 ] The employee took a leave of absence from work due to health problems. For more than two years, she unsuccessfully attempted to return to work. After the expiry of the rehabilitation period provided for in the collective agreement, which the employer had voluntarily extended, the employee was to return to work in September 2002.

However, she was unable to do so because she was injured in an automobile accident. In March 2003, the employer informed her that her employment relationship would be terminated on April 3, 2003. The union filed a grievance in which it contested the employee’s termination and asked for reasonable accommodation. [ 68 ] The arbitrator dismissed the grievance.

He was of the opinion that the employer had granted the employee more generous rehabilitation periods than provided for in the collective agreement and that the employee was still unfit to work at the end of the three- year period provided for therein. [ 69 ] The Supreme Court wrote that the existence of a clause negotiated by the parties in a collective agreement—dealing with the employee’s return to work within a prescribed period after an absence due to illness—represents a form of negotiated accommodation.

It noted that the consensus on such a clause is significant, because it was reached by parties who know the enterprise and have differing interests.

While stating that the period of absence due to illness negotiated by the parties is a factor to consider when assessing the duty to reasonably accommodate, the Supreme Court observed that this factor is not decisive, because the specific accommodation measure to which an employee is entitled must be evaluated on the basis of the employee’s particular circumstances. [ 70 ] The Supreme Court concluded that the arbitrator had performed an individualized assessment of the employee’s situation and had not limited himself to blindly applying the collective agreement.

The arbitrator, who was aware of the extent of the employer’s obligation, nevertheless decided that it would not be reasonable to force it to continue to employ an employee who had been declared disabled “for an indeterminate period” after the expiry of the considerable rehabilitation period provided for in the collective agreement. [ 71 ] In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec,

section locale 2000 (SCFP-FTQ) , [43] the Supreme Court revisited the same theme, namely, an employee’s absence from work for health reasons. This time, it addressed the issue by considering the interaction between the employer’s duty to accommodate the sick employee and the employee’s duty to do her work. [ 72 ] In this case, the dismissed employee’s record of absences indicated that she had missed work for health reasons 960 days over the last seven years. She suffered from a serious personality disorder.

It resulted in deficient coping mechanisms and caused difficulties in her interpersonal relationships with her supervisors and co-workers, notwithstanding the adjustments made by the employer to take these limitations into account: light duties, gradual return to work, etc.

[ 73 ] At the time of her dismissal in July, the employee had been absent since February. Her physician had recommended that “she stop working for an indefinite period” until the work-related dispute was resolved. The letter informing the employee of her administrative dismissal referred to her absenteeism, her inability to work on a regular and reasonable basis and the fact that no improvement in her attendance at work was expected. [ 74 ] The arbitrator dismissed the employee’s grievance.

He was of the view that the employer was entitled to terminate the contract with the employee because she was unable to perform the work provided for in the contract.

As regards reasonable accommodation, the arbitrator concluded that the reasonable accommodation that had been suggested would require the employer to have to periodically, on a recurring basis, provide a new work environment, a new immediate supervisor and new co-workers, which would cause it undue hardship. [ 75 ] According to the Supreme Court, the duty to accommodate in an employment context implies that the employer must be flexible if such flexibility enables the employee to work.

The Court noted that, while the objective of the duty to reasonably accommodate is to enable an employee to work, its purpose is not to completely alter the essence of the contract of employment. This requires that the employee be in a position to perform work in exchange for remuneration for the reasonably foreseeable future: [19] The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees’ fundamental rights and the rule that employees must do their work.

The employer’s duty to accommodate ends where the employee is no longer able to fulfil the basic obligations associated with the employment relationship for the foreseeable future. [44] *** [ 76 ] I note from the Supreme Court’s guidance that the duty to reasonably accommodate must not result in an alteration of the essence of the contract of employment, that is, the obligation to work in return for remuneration.

At the end of the salary insurance period provided for in the applicable working conditions or in the legislation, the employer is not required to maintain the employment relationship with an employee in order to satisfy its duty to accommodate if the employee cannot establish that he will be in a position to work for the foreseeable future. [ 77 ] The duty to accommodate, however, requires the employer to be flexible and creative in applying that obligation, if the flexibility will enable the employee to work and will not cause the employer undue hardship.

In some cases, the accommodation measure may justify a departure from the strict application of the provisions of the collective agreement. The accommodation measure must be reasonable, which implies an individualized and flexible process. The measure may take a variety of forms and involve various adjustments, such as staff transfers, lighter work duties, modifications to certain tasks, a reclassification, etc. [ 78 ] In all cases, those involved must take a serious approach and must explore all reasonable avenues.

The solution may not fully satisfy the employee’s expectations, but it must aim to offer to the employee, although without any guarantee, similar working conditions and wages comparable to those of his original position, provided the employer does not suffer undue hardship as a result. [ 79 ] In that regard, I adopt the comments made by grievance arbitrator Claude Martin in Société immobilière du Québec (Société québécoise des infrastructures) et Syndicat des professionnels et professionnels du gouvernement du Québec (SPGQ) (Jacques Campeau) . [45] They reflect the guidance that emerges from the Supreme Court’s decisions: [ translation ] [85] Fulfilling the obligation requires an approach that is serious and exhaustive, in which all those concerned—the employer, the certified association and the employee—must be involved.

All measures intended to maintain the employment relationship of the creditor of the obligation must be contemplated. Seeking an acceptable solution requires a genuine effort and the exercise must consider all reasonable possibilities. The solution arrived at, however, need not necessarily meet all of the employee’s expectations.

If, at the end this serious, even rigorous, process, the employer offers the employee a job with similar working conditions and the possibility of wages comparable to the employee’s original job, without imposing a serious inconvenience on the employee, the obligation has been satisfied. *** [ 80 ] With all due respect, in my opinion the trial judge erred in concluding that: (1) the respondent’s duty to reasonably accommodate was satisfied by the continued employment of the employee; and (2) the arbitrator’s decision to grant a given salary completely altered the essence of the contract of employment. [ 81 ] First, the judge unduly limited the duty to reasonably accommodate—which is owed by an employer whose employee suffers from a handicap—to merely maintaining the employee in a job, without any consideration as to the conditions of that job.

Those conditions, however, must be considered in any serious accommodation process. The cases cited above demonstrate that the accommodation must be reasonable.

This requires a contextual and thorough approach, whose purpose is to keep an employee—who is unable to return to work due to a handicap—employed, in the full exercise of the employee’s right to equality, by offering her employment with working conditions and earning possibilities comparable to those of her original position, without imposing undue hardship on the employer. [ 82 ] This error on the part of the trial judge stems from a misunderstanding of the remarks of L’Heureux-Dubé, J. in Québec (Commission des droits de la personne et des droits de la jeunesse) v.

Montréal (City) , supra , [46] which were referred to by Deschamps, J. in Hydro-Québec, supra , [47] and which the trial judge cited out of context. He mistakenly drew therefrom the notion that the duty to reasonably accommodate is satisfied by the employer if it maintains the employment relationship with its employee. Nothing in those decisions can be taken to indicate that an employer’s duty to reasonably accommodate is fully satisfied by the mere continuation of the employment relationship with the handicapped employee.

Keeping the employee at work, when this does not cause undue hardship, must be coupled with working conditions, whether the employee is kept in the same job that has been adapted or is given a new job. These conditions depend on numerous factors which, to paraphrase the Supreme Court, are subject to only one limitation. They must be

“reasonable” or, in other words, not cause “undue hardship”. [ 83 ] Second, the Superior Court judge mistakenly concluded that assigning the employee to a salary level higher than the one corresponding to her experience in her new position completely altered the contract of employment. The fact that the parties deviate from the text of the collective agreement and adapt its terms during an accommodation process or after an arbitrator has established the accommodation measure does not result in a complete alteration of the contract of employment.

The relevant jurisprudence, summarized above, states it clearly: the search for a reasonable accommodation transcends the terms of a collective agreement when doing so does not result in undue hardship for the employer. [ 84 ]

Article 2085 C.C.Q. defines the contract of employment as a contract “ by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer ”. When the employee is unable to work at the expiry of the sick leave provided for in the applicable legislation or collective agreement and he cannot demonstrate that he will be able to do so for the foreseeable future, the jurisprudence concludes that the employment relationship may be severed because it is of the essence of the contract of employment that the employee work.

This is the guidance that emerges from Hydro-Québec , supra . [48] The assignment of one salary level rather than another does not necessarily completely alter the nature of the contract of employment. [ 85 ] The Court must now determine whether the arbitrator rendered a reasonable sentence, in light of the particular circumstances of the case. 4.3 The reasonableness of the arbitral award [ 86 ] In Vavilov , supra , the Supreme Court reiterated that “the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”. [49] The inquiry must therefore focus on the decision maker’s reasons. [50] [ 87 ] In the present case, the arbitrator concluded that assigning the employee to the first level of the salary scale of administrative officer was not reasonable because it resulted in a considerable loss of pay for the employee, while assigning her to the last level of that salary scale would minimize the harm suffered, and such measure would not cause the respondent undue hardship [51] . [ 88 ] The arbitrator pointed out that the CHA’s past practice sought to classify the employee being accommodated in the level giving the employee the salary most similar to that he was earning before the accommodation and that this practice was abandoned relatively recently after the merger, solely in order to harmonize the practices of the CHUQ and the CHA.

It appears from the arbitrator’s reasoning that he did not find there would be undue hardship if the employee were assigned to a higher level. His decision relied partly on the past practice, which was abandoned solely for administrative harmonization purposes, not because it constituted an undue hardship. [ 89 ] The arguments submitted by the respondent have not convinced the Court that the award is unreasonable. [ 90 ] First, the respondent has previously experienced such a situation. I refer here to the past practice at the CHA, which was maintained after the merger in 2012.

In this regard, I note that, in 2014, a nursing assistant reassigned to the position of administrative officer was assigned to the highest level in her new salary scale. [52] [ 91 ] Second, according to the terms of the applicable collective agreement, an employee in the bargaining unit represented by the appellant is classified at the level corresponding [ translation ] “to her/his years of service in the institution” [53] (and not his or her experience) when the employee is placed in another position as a result of an accommodation.

Consequently, in the collective agreement entered into with the appellant, the respondent acknowledges the possibility of placing an employee in a salary level that takes his seniority into account rather than his experience. [ 92 ] The arbitrator did not grant all employees this negotiated right—which normally applies when an employee is reassigned within a same bargaining unit.

He quite rightly took this element into account, because, as the Supreme Court stated, “the terms of the agreement are relevant in assessing the degree of hardship which may be occasioned by interference with its terms”. [54] [ 93 ] It appears from the arbitral award that the difference in salary between the first and last levels of the salary scale in question does not represent a high cost to the respondent in comparison to the financial loss suffered by the employee as a result of her new position.

In this regard, the arbitrator noted that placing the employee in the higher level, as requested, would impose a cost on the respondent, [55] that is, an amount of $2.69/h, but without this accommodation, there would be [ translation ] “real and significant financial consequences for the complainant, namely, a loss of $9.73/h, which represents 36% of her previous hourly wage”. [56] Even by receiving the additional $2.69/h, the employee would still suffer a significant loss (more than $7/h) compared with the salary she received as a nursing assistant. [ 94 ] In short, the arbitrator considered that assigning the employee to the higher level as requested was an acceptable adaptation of the usual rules and standards, given that accommodation is inconsistent with the blind and strict application of the collective agreement, [57] as the Supreme Court has repeatedly indicated. [58] [ 95 ] Moreover, the accommodation granted by the arbitrator is not a preferential or special treatment that compromises the right to equality of the other employees, as the respondent argues.

In Central Alberta Dairy Pool , supra , the Supreme Court wrote that, in some circumstances, the “morale of other employees” may be a factor relevant to appraising undue hardship. [59] In Renaud , supra , it specified that this factor must be applied with caution: “The objection of employees based on well-grounded concerns that their rights will be affected must be considered.

On the other hand, objections based on attitudes inconsistent with human rights are an irrelevant consideration.” [60] In other words, it is “the prospect of substantial interference with the rights of other employees” [61] that is important. [ 96 ] The respondent argues that placing the employee in the last level of the salary scale constitutes [ translation ] “a benefit clearly not offered to other employees”, which makes it a form of discrimination [ translation ] “just as objectionable as discrimination by

exclusion”. No evidence, however, was presented regarding the opinion of the employee’s co-workers or in connection with the practical effect on them of the accommodation sought.

The accommodation does not make the duties of the other employees more burdensome, expose them to a greater health or safety risk, force them to accept a less advantageous work schedule, cause them to lose an expected promotion or a transfer to another position, etc. [62] [ 97 ] In conclusion, I am of the opinion that the arbitral award rendered by the arbitrator is reasonable and that the judge erred in allowing the application for judicial review. 4.4 The inadmissibility of the grievance because of the signing of an accommodation agreement [ 98 ] The trial judge was of the opinion that the arbitrator should have dismissed the grievance because, when the parties entered into the accommodation agreement, they acknowledged that the respondent [ translation ] “had fulfilled its duty to accommodate”.

He wrote: [ translation ] 9. On another point, it must be noted that the entire accommodation process took place on the basis of an agreement signed on April 29, 2016 by all the parties involved, namely, the employee’s original union, the receiving union, the employer, the employee herself as well as her insurer. 10. This agreement, which does not recognize any experience on the part of the employee in her new position, sets out all the terms and conditions of the accommodation measure accepted by all the parties. The Court notes that the agreement includes a statement in

section 15 pursuant to which [ translation ] “the employee and the unions acknowledge that the employer has fulfilled its duty to accommodate”. 11. In the Court’s view, the signing of this agreement, which acknowledges that the employer has fulfilled its duty to accommodate, entails the formation of a contract signed between well-informed parties and is a bar to the grievance filed by the employee, which should have been dismissed on that basis alone. [ 99 ] With all due respect, the judge erred in choosing the applicable standard of review and, consequently, in its application.

The standard of judicial review applicable to this matter is reasonableness. Vavilov , supra , crystallizes the presumption that when a court reviews administrative decisions, it must apply the reasonableness standard. The

interpretation of the accommodation agreement entered into between the parties does not fall within any of the exceptions set out in Vavilov to which the correctness standard applies. [63] [ 100 ] In my opinion, the arbitrator’s decision on this matter is reasonable. He wrote: [ translation ] [40] In

section 15 of the accommodation agreement dated April 29, 2016, the complainant and the union acknowledged that the employer had fulfilled its duty to accommodate. The Employee and the unions acknowledge that the Employer has fulfilled its duty to accommodate. [41] On reading the agreement, it would be legitimate to believe that what the complainant is claiming was settled and that her recourse is futile. [42] This is not the case, however, because the agreement is silent on this point.

It only refers to the complainant’s integration from her bargaining unit (FIQ) into that of the SCFP; nowhere does it refer to her integration in her new job. [43] Also, save for the fact that it states that the complainant will have position #65932000 as a full-time daytime administrative officer, class 3, at reception, it does not specify what her classification or salary will be or what will happen to her experience and her fourteen (14) years of service at the CHU. [ 101 ] The agreement entered into between the parties on April 29, 2016 is a transaction, that is, a contract by which the parties in question prevent a future contestation by way of mutual concessions or reservations (art. 2631 C.C.Q. ).

The arbitrator concluded that the employee’s claim was not settled by the agreement and, consequently, that her recourse was not destined to fail, because the agreement was silent on the point in question. [64] [ 102 ] Admittedly, the parties to the agreement acknowledge [ translation ] “that the Employer has fulfilled its duty to accommodate”, but the fact remains that the clauses of a contract cover only what it appears that the parties intended to include (art. 1431 C.C.Q. ). [ 103 ] According to the arbitrator, the parties agreed to grant to the employee, who accepted, the position of full-time daytime administrative officer, class 3, at reception.

It follows that they did not contract on what [ translation ] “her classification or salary will be or what will happen to her experience and her fourteen (14) years of service at the CHU”. [65] [ 104 ] This reasoning is coherent and rational and resulted in a reasonable decision. [66] The judge therefore erred in concluding that the grievance should have been dismissed because of the agreement entered into by the parties. 5.

THE CONCLUSION [ 105 ] For these reasons, I would allow the appeal, with legal costs, reverse the judgment at first instance and dismiss the application for judicial review, with legal costs.

FRANCE THIBAULT, J.A

Schedule 1 [ translation ] List of admissions 1. The grievance procedure was followed; 2. The arbitrator had jurisdiction to hear the grievance; 3. The dispute pertains to an accommodation agreement entered into on April 29, 2016, a copy of the agreement being produced as Exhibit E-1; 4. The employee has been employed by the CHU de Québec - Université de Laval since January 7, 2002, having been originally hired as a nursing assistant at the Centre hospitalier affilié de Québec (CHA - Hôpital l’Enfant-Jésus), which is now the merged CHU de Québec - Université de Laval; 5.

Before April 29, 2016, the date on which the accommodation agreement (E-1) was entered into, the employee held a full-time, 36¼- hours-per-week, day shift position in the emergency department of the Hôpital l’Enfant-Jésus as a nursing assistant; 6.

Given her position as a nursing assistant, the employee was part of the class 1 bargaining unit in accordance with s. 4 of the Act respecting bargaining units in the social affairs sector (hereinafter the “Act”), represented by the Syndicat Interprofessionnel du CHU de Québec affiliated with the FIQ (hereinafter the “SICHU-FIQ”), and was therefore subject, as regards her remuneration, to the conditions set out in the national provisions of the 2011-2015 collective agreement entered into between the CPNSSS and the FIQ annexed hereto as Exhibit E-2; 7.

Based on the experience she acquired as a nursing assistant, the employee was entitled, as of February 26, 2011, to a basic salary corresponding to the 10th and last level of the salary scale applicable to the position of nursing assistant in the 2011-2015 FIQ collective agreement (E-2) (see ss. 7.22 and 7.23 and Appendix 11, job title number 3455 and salary scale for class 355): 8.

Following the signing of the 2016-2020 FIQ agreement (E-3) entered into on July 10, 2016, the salary scale applicable to the job title of nursing assistant was readjusted retroactively to April 1, 2016 and henceforth became the salary scale for class 770 (see the wording of the CPNSSS job titles as at August 25, 2017) (S-8); 9. In addition to her base salary, the employee was entitled to the following premiums: (

a) A premium equal to 2% of her hourly basic salary relating to overlapping shifts (collective agreement E-2, letter of agreement no. 16, s. 4); (

b) The critical care premium because she was assigned to the emergency department, namely, 11% of her hourly basic salary as of April 1, 2012 (see s. 9.05 of the collective agreement E-2); 10. From December 13, 2012 to May 1, 2016, inclusively and without interruption, the employee was on disability leave; 11. During her absence, given that she was an employee forming part the bargaining unit represented by the SICHU-FIQ, the employee was covered by the salary insurance program provided for in

article 23 of the 2011-2015 FIQ (E-2) and 2016-2020 FIQ (E-3) collective agreements, given the retroactive effect of the latter; 12. From December 13, 2012 to December 17, 2014, the employee received the salary insurance benefits provided for in paragraphs (

a) and (

b) of

section 23.17 of the FIQ E-2 collective agreement, namely, her basic salary and premiums for the first five (5) days of the disability and 80% of her basic salary, with adjustments if applicable in accordance with the last paragraph of

section 23.17 (

b) of the FIQ collective agreement; 13. As of December 20, 2014 and until April 29, 2016, as provided for in the long-term disability insurance contract related to the FIQ collective agreement, the employee received from Desjardins Sécurité financière, the plan’s insurer, 70% of her basic salary as it stood at the beginning of her disability, with adjustments if applicable in accordance with the insurance contract, the whole until April 29, 2016, the date on which the accommodation agreement E-1 was entered into; 14.

During her absence, it was determined that the employee would not be able to resume her duties as a nursing assistant, or any other duties comprised within the bargaining unit represented by the SICHU-FIQ, given the nature of the permanent functional disabilities confirmed by her attending physician, which are described as follows: - Cannot stand for more than 15 minutes, with or without moving, per two-hour period;

- Favour seated work with little need to move about. 15. Given the circumstances, the employer undertook a process to accommodate the employee by assigning her to another administrative job compatible with her permanent functional disabilities; 16. During the process, notwithstanding the provisions of subsection 6 of

section 12.11 of the FIQ collective agreement relating to the loss of employment and seniority after a thirty-six-month absence in the event of disability, the employer maintained the employment relationship with the employee; 17. The accommodation process identified a position as full-time daytime administrative officer, class 3, at the main reception at the Hôpital l’Enfant-Jésus, forming part of the category 3 bargaining unit represented by the Syndicat Canadien de la Fonction Publique affiliated with the FTQ (hereinafter the “SCFP-FTQ”); 18.

On April 29, 2016, the accommodation agreement E-1 was entered into between the SICHU-FIQ (the original union), the SCFP- FTQ (the receiving union), the employer, the employee and the insurer, attributing the aforementioned position to the employee provided she met the requirements of the job;

Section 4 of the agreement provided that the employee would begin her 30-day initiation and trial period at the employer’s expense and that, at the end of that period, she would be integrated into the SCFP-FTQ bargaining unit;

Section 9 of the agreement provided that the employer and the union SCFP-FTQ would recognize the seniority accumulated by the employee in the FIQ bargaining unit before her reinstatement at work, namely, 12 years and 240 days, as soon as she had been integrated into the bargaining unit represented by the SCFP-FTQ; 21. At the end the initiation and trial period, the employee was kept in her new position and was therefore integrated into the bargaining unit represented by the SCFP-FTQ; 22.

Since the employee did not have any experience in her new position, she was integrated at level 1 of the salary scale applicable to the title of administrative officer, class 3 (see the 2010-2015 CPNSSS-SCFP collective agreement - Exhibit S-1); 23. As of May 2, 2016, the employer paid the employee a basic salary of $17.31 per hour, as set forth in the 2010-2015 SCFP collective agreement S-1; 24.

On July 10, 2016, the 2015-2020 collective agreement was entered into between the SCFP-FTQ and the CPNSSS (S-2) and the salary scale applicable to the employee was increased retroactively to April 1, 2016 to $17.57 per hour, thus obliging the employer to pay to the employee retroactively to May 2, 2016, the date she began working in her new position, the difference between the salary she had received and the salary determined by the new collective agreement; 25.

In addition to her basic salary, the employer paid to the employee, since her integration into the bargaining unit represented by the SCFP-FTQ, the seniority premium provided for in

section 9.01 of the national provisions of the SCFP collective agreement, namely, $5 per week pursuant to the 2010-2015 collective agreement (S-8) and still $5 per week pursuant to the 2015-2020 collective agreement (S-2); 26.

Pursuant to the insurance contract related to the FIQ agreement E-2, since May 2, 2016, the employee has been receiving the difference between 70% of the basic salary she was receiving as a nursing assistant on the date her disability started (with adjustments if applicable in accordance with the insurance contract), namely, December 13, 2012, and the basic salary she receives as administrative officer, class 3, increased by the SCFP-FTQ seniority premium; 27.

Pursuant to the same insurance contract related to the FIQ agreement E-2, this benefit ends on the 5th year following the beginning of the employee’s disability (December 13, 2012), namely, December 13, 2017; 28. Through her grievance, the employee asked the employer to place her in the 7th and last level of the salary scale for the job title of administrative officer, class 3, provided for in the SCFP agreement, retroactive to May 2, 2016, in order to reduce the financial loss resulting from the change in her job; 29.

The employer refused the employee’s request given the lack of experience in her new job and given its position regarding the absence of a financial guarantee in connection with the accommodation process; 30. The position of the SCFP-FTQ is that the employer must, pursuant to the duty to accommodate, grant the employee’s request in order to minimize her financial loss; 31. The CHU de Québec-Université Laval is the result of the merger in July 2012 between the CHUQ and the CHA; 32.

The practice at the CHA, after an accommodation, was to assign the employee to the level in the new salary scale that resulted in the salary most similar to the one the employee was receiving before the accommodation; 33. In the same circumstances, the practice at the CHUQ was to assign the employee to the new salary scale on the basis of the employee’s lack of experience, if that was the case; 34. In both cases, the integration into the new salary scale of an employee being accommodated from one bargaining unit to another is carried out by staff in the pay and benefits department;

35. Notwithstanding the merger, unionized staff members in that department were not immediately consolidated, such that each original team (CHA and CHUQ) continued to function according to the existing practices in its original institution, without the new managers being informed of this fact; 36. The last accommodation from one bargaining unit to another at a site belonging to the CHA occurred on November 8, 2014 and involved a nursing assistant reassigned to the position of administrative officer, who was placed in the maximum level of her new salary scale; 37.

The employer has since standardized its practices and, henceforth, the following practice is in place at the CHU de Québec - Université Laval: the employee assigned to a new position as a result of an accommodation is integrated in level 1 of the new salary scale given that the person has no acquired or relevant experience with respect to the new position; 38. The position of nursing assistant that the employee concerned by this agreement held was abolished in the days following April 29, 2016, the date on which the accommodation agreement E-1 was signed; 39.

The abolition of that position, however, did not free up any part of the budget; 40. The operating budget of the emergency department at the Hôpital l’Enfant-Jésus is based primarily on the number of employees required to be present during the various work shifts, as the core team; 41. The budget of the emergency department is supplemented by a bank of extra hours so as to meet the department’s fluctuating needs, given that it is an emergency department; 42.

Shortly after the arrival of a new department head in April 2009, and after consultation with existing staff members, it was decided, in order to meet the needs of the department’s clientele during the night shift in regards to the number of nurses and orderlies during the day shift and the evening shift, to change the workforce plan for the core team by adding one nurse to the night shift and one additional orderly for each evening and night shift; 43. In order to finance the operations within the same budget for the core team, management decided to abolish two (2) day-shift nursing assistant positions; 44.

However, in order to avoid the bumping process resulting from the abolition of the two positions, it was agreed to proceed by attrition and to keep, as extras in the meantime, the two nursing assistant positions so they could be used to replace absent staff or, as the case may be, so they could be assigned to the extra hours resulting from fluctuations in the activities of the emergency department; 45. Thus, the employee kept her position until the start of her disability, notwithstanding the revision of the workforce plan; 46.

Under no circumstances did the fact that the employee was not replaced during her absence and the fact that her position was abolished on April 29, 2016 affect the operating budget of the emergency department.