2012 QCCA 306, 2012 QCCA 306

Unofficial English Translation Commission des droits de la personne et des droits de la jeunesse c. Centre hospitalier universitaire de Sherbrooke 2012 QCCA 306 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020255-097 (450-53-000003-075) DATE : FEBRUARY 14, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE APPELLANT – Plaintiff v.

CENTRE HOSPITALIER UNIVERSITAIRE DE SHERBROOKE RESPONDENT – Defendant and SYLVAIN VACHON IMPLEADED PARTY – Victim and complainant JUDGMENT [ 1 ] THE COURT; - On the appeal from a judgment of the Tribunal des droits de la personne, rendered in Sherbrooke (Judge Daniel Dortélus), on November 24, 2009, which dismissed the action of the appellant seeking a conclusion that the respondent’s refusal to consider the impleaded party’s application constituted discrimination on the basis of a handicap, in violation of sections 10 and 16 of the Charter of human rights and freedoms . [1] The appellant also asked the Tribunal to grant the impleaded party $5,000 as moral damages and $2,500 for loss of chance; [ 2 ] For the reasons of the Chief Justice and those of Dufresne J.A.; [ 3 ] DISMISSES the appeal, with costs; [ 4 ] For his part, Bouchard J. would have allowed the appeal with costs, set aside the trial judgment, found the respondent’s refusal to consider the impleaded party’s application to be a discriminatory refusal in contravention of sections 10 and 16 of the Charter of human rights and freedoms [2] and ordered the respondent to pay the impleaded party the amount of $5,000 as moral damages for the proven prejudice and the amount of $2,500 for loss of chance.

NICOLE DUVAL HESLER, C.J.Q. JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. Mtre Christian Baillargeon VIZKETELY, DRAPEAU, BOURDEAU For the appellant Mtre Danielle Gauthier HEENAN, BLAIKIE

For the respondent Date of hearing: September 27, 2011 REASONS OF THE CHIEF JUSTICE [ 5 ] The Human Rights Tribunal dismissed the action of the appellant seeking a conclusion that the respondent’s refusal to consider the impleaded party’s application constituted discrimination on the basis of a handicap, in violation of sections 10 and 16 of the Charter of human rights and freedoms . [3] The appellant also asked the Tribunal to grant the impleaded party $5,000 as moral damages and $2,500 for loss of chance.

The facts [ 6 ] The impleaded party worked for the respondent’s establishment, the Centre hospitalier universitaire de Sherbrooke, from 1985 until 2001, the year he was dismissed. [ 7 ] He was first an orderly and then became a food service attendant.

He was dismissed because of an irregular attendance record caused by alcoholism, after many warnings from the respondent, as well as his breach of numerous promises to resolve his alcohol problem and to begin showing up for work regularly. [ 8 ] The grievance filed by the impleaded party challenging his dismissal was dismissed in March of 2002 and was not considered on judicial review. [ 9 ] According to the evidence, the impleaded party has been sober since May 3, 2001, having received therapy and secure treatment prior to the dismissal of his grievance. [ 10 ] In January of 2005, the impleaded party again applied to the respondent for a position as an orderly.

Having completed a diploma of vocational studies in this area in 2004, the impleaded party met the requirements sought by the respondent in its call for applications. [ 11 ] The hiring process of the Centre hospitalier universitaire de Sherbrooke involves a preselection stage in which the candidates’ curriculum vitae are analyzed in order to determine whether they meet the requirements of the position and thereafter an interview is conducted on the premises of the hospital. [ 12 ] Shortly after the impleaded party applied for the position, he was told that his application had been rejected because of his previous dismissal.

He was not granted an interview. [ 13 ] On January 28, 2005, the impleaded party contacted the hospital’s assistant manager of human resources to inform him of his rehabilitation. According to the impleaded party’s testimony, the assistant manager of human resources told him that the Centre hospitalier universitaire de Sherbrooke would [ translation ] “possibly never” rehire him because of his [ translation ] “issue”. The manager in question denied having spoken such words.

He acknowledged, however, that he had given instructions that the impleaded party not be rehired due to the entire course of his previous behaviour. [ 14 ] The impleaded party stated that, after the respondent’s refusal to consider his application, he lost all self-esteem and felt that the way his application was processed and turned down was disrespectful to him. [ 15 ] The impleaded party has been working as an orderly at another institution since May of 2005. [ 16 ] On two occasions, in 2002 and 2003, the impleaded party applied for a position as an orderly with another employer, but his application was rejected.

For each refusal, he filed a complaint with the Human Rights Commission alleging that he had been a victim of discrimination owing to a handicap. The Commission stopped representing him in both matters, following two resolutions adopted by its complaints committee. These resolutions were adduced as evidence by the respondent, but the appellant contested their admissibility. The judgment a quo [ 17 ] The judge of the Human Rights Tribunal concluded that there had been prima facie discrimination on the basis of a handicap.

He found, however, that refusing to consider the application of a person who was dismissed for chronic absenteeism was a bona fide occupational requirement, within the meaning of

section 20 of the Québec Charter . According to the Tribunal, the respondent’s duty of reasonable accommodation does not require that it disregard the impleaded party’s previous record showing that he could not perform his work because of chronic absenteeism. Moreover, if the respondent had to accommodate the impleaded party, it would impose undue hardship because all its previous attempts to accommodate him had failed. [ 18 ] The Tribunal again pointed out the definitive breakdown of the trust between the respondent and the impleaded party because of his previous behaviour. Citing Daigle v.

Caisse populaire Les Etchemins , the Tribunal was of the view that an employment relationship had become impossible. [4] It added that, because the arbitrator had deemed the dismissal non-discriminatory and reasonable, it was not discriminatory to refuse to consider the impleaded party’s application for the same reason as that underlying his dismissal. Lastly, the Human Rights Tribunal rejected the appellant’s position that the treatment received by the impleaded party after his dismissal and his

abstinence since May of 2001 constituted new facts, because the arbitrator had considered these facts and had decided nevertheless to maintain the impleaded party’s dismissal. The Tribunal added that it did not have jurisdiction to review the arbitrator’s decision. The issues [ 19 ] The appeal raised two issues: 1. Do the two resolutions by the Human Rights Commission to close the file constitute admissible evidence? 2.

Does the impleaded party’s dismissal in 2001 legitimately preclude his right to have his application considered according to the respondent’s usual hiring process? 1) The admissibility of the resolutions [ 20 ] The Human Rights Tribunal concluded that the two resolutions by the Human Rights Commission to close the file were admissible evidence. They are relevant because they address situations very much like this dispute in that the impleaded party’s application was refused by employers in the hospital sector for the same reasons as in the instant case.

Moreover, the resolutions are public documents even though they contain confidential nominative information under the Act respecting access to documents held by public bodies and the protection of personal information . [5] Indeed, there is no other legislative provision that makes the resolutions adopted by the Commission private or confidential and, moreover, according to the Tribunal, the impleaded party partially waived protection of his privacy in respect of the information relevant to the dispute by bringing legal proceedings against the respondent. [ 21 ] With respect, I cannot share the Tribunal’s opinion that the resolutions by the Human Rights Commission to close the file are relevant.

The Commission’s decision to cease to act in two other matters concerning separate employers is an administrative decision, not a judicial one, [6] which cannot affect the outcome of this dispute.

The role of the Commission is to process and manage complaints, and the Human Rights Tribunal does not act on appeal or on review of its decisions. [7] At the judicial stage, the Commission is a party like any other. [8] The Human Rights Tribunal is in no way bound by the Commission’s decisions. [ 22 ] Moreover, nothing in the evidence indicates that the respondent had cognizance of the resolutions when it decided to refuse the impleaded party’s application.

They are therefore without factual relevance, which is sufficient to determine their inadmissibility as evidence. [ 23 ] Accordingly, the confidentiality aspect of the resolutions is of no use in this dispute, and curial deference demands that it not be addressed. It is sufficient to point out that this matter does not involve communication of confidential information by a public body. The respondent filed no application to obtain the resolutions from the Commission. It came into their possession in an independent manner.

What the Access Act governs is the terms and conditions for the communication of documents held by a public body [9] and of which a party seeks disclosure, which is not the case here. 2) The right to equality [ 24 ] In this case, it is common ground that the impleaded party’s application was turned down because he had previously been dismissed by the respondent for chronic absenteeism caused by alcohol addiction. Regular attendance at work constitutes a good faith occupational requirement. [ 25 ] I concede that it could be discriminatory to presume that a person who once had a handicap still suffers from it.

But that is not the issue. Rather, the matter is to determine whether, in the instant case, individual reassessment was unreasonably refused : Failure to accommodate may be established by evidence of arbitrariness in setting the standard, by an unreasonable refusal to provide individual assessment, or perhaps in some other way. [10] [ 26 ] The appellant argues that, by summarily rejecting the impleaded party’s application because of his previous dismissal, the respondent refused to assess him individually. I am unable to agree with this position.

On the contrary, the file shows that the respondent considered the impleaded party’s case repeatedly before dismissing him, and its decision to do so was deemed reasonable by a grievance arbitrator. Because the employer dismissed the impleaded party for a reasonable and non-discriminatory reason, the same reason that was cited to refuse his subsequent application, it cannot be held that he was unfairly refused individual assessment in the circumstances of this case. [ 27 ] Moreover, the Human Rights Tribunal was correct to conclude that it did not have jurisdiction to review the arbitrator’s decision.

Without in any way deeming the impleaded party’s complaint to be abusive, it remains that in a sense he was asking another authority to consider his case when the matter of his dismissal was res judicata . The only “new” circumstance was the time elapsed since his dismissal and, therefore, the duration of his abstinence. [ 28 ] Although the argument of estoppel was not expressly raised in the instant case, it is relevant to mention here the Supreme Court’s decision in British Columbia (Workers’ Compensation Board) v.

Figliola , [11] which reiterates the importance of the definitive nature of disputes already decided between the same parties. [ 29 ] For these reasons, I would dismiss the appeal with costs. NICOLE DUVAL HESLER, C.J.Q.

REASONS OF DUFRESNE, J.A. [ 30 ] I have taken cognizance of the diverging reasons of my colleagues and, like my colleague the Chief Justice, I would dismiss the appeal.

My colleague has summarized the factual framework well and there is no need to revisit it. [ 31 ] With respect for the contrary view, the respondent’s refusal to grant the impleaded party an interview in connection with his job application is not in this case discriminatory within the meaning of sections 10 and 20 of the Charter of human rights and freedoms . [12] [ 32 ] Indeed, the impleaded party’s disciplinary dismissal was due essentially to his chronic absenteeism. [ 33 ] The arbitrator’s grounds for his decision to dismiss the impleaded party’s grievance are as follows: [ translation ] … The evidence showed, and the complainant himself acknowledged, that on each of these occasions he undertook to resolve his alcohol problem, to take responsibility for himself and to rectify the situation.

What is more important, and admitted, the evidence shows that, on seven or eight occasions, the employer tried to deal with Mr. Vachon, for the same reasons, and that as a result of his promises to obtain treatment and his requests that he be trusted and not be sanctioned, the employer agreed to give him another chance. We should also bear in mind that the complainant even received periodic wage loss insurance benefits to receive treatment. … In the instant case, there is no doubt that the complainant had his share of “last chances”.

The evidence even shows that, with assistance in this matter from his union representatives, Mr. Vachon benefited from a certain degree of understanding from his immediate superior, Ms. Nicole Verville. On more than one occasion she allowed herself to be convinced by his promises and she long believed him when he said he should be trusted. The evidence shows that Mr. Vachon was unable to make the most of these chances. … The absence of April 29, 2001, taken separately, is not a major fault. It cannot, by itself, justify a dismissal.

But, when considered in context, namely taking into account all the other actions and measures previously taken, it becomes a culminating event that must be analyzed in light of the entire file. The complainant has long known, or should have known, that if he did not take responsibility for himself, obtain treatment and resolve his absenteeism, he would run the risk of dismissal.

In addition to the many discussions he had with his employer, the letter of suspension of February 1, 1999 (E-4) already referred to this. [ 34 ] Clearly, the respondent’s trust in the impleaded party when he applied for a new job had been severely shaken, given the disciplinary dismissal. For that reason the employer refused to consider the application any further. [ 35 ] Whether the respondent was wrong or not in deciding not to consider the impleaded party’s job application, the refusal was not discriminatory within the meaning of

section 10 of the Charter . The respondent was in no way obliged to give the impleaded party an interview to assess his application. [ 36 ] For these reasons, I would dismiss the appeal with costs. JACQUES DUFRESNE, J.A.

REASONS OF BOUCHARD, J.A. [ 37 ] Having had the benefit of reading the reasons of the Chief Justice, I have no need to revisit the facts, except to specify that as of the date of the arbitral award rendered on March 13, 2002, confirming the impleaded party’s dismissal, he had been sober only since May 3, 2001, whereas when the respondent refused to consider his application in the month of January of 2005, he had abstained from consuming any alcohol for more than three and a half years. That is what enabled Dr.

Jean-Pierre Chiasson, an expert mandated by the appellant, to write the following in his report filed with the Tribunal des droits de la personne: [ translation ] … We believe that, with respect to alcohol addiction, he presents an excellent risk . … Moreover, his alcohol addiction seems to have been resolved and, as previously stated, we currently consider him to be in

extended total remission . … [Emphasis added.] [ 38 ] I also believe it is important to emphasize the fact that, after his dismissal in May 2001, the impleaded party successfully completed 630 hours of training in 2004 to work as an orderly in a health care establishment and three practica between September 21, 2004, and November 12, 2004. [ 39 ] In brief, because the impleaded party’s personal situation in January of 2005 was no longer that prevailing at the time of the arbitral award in 2002, the Human Rights Tribunal could not rely solely on the reasons cited by the respondent at the time for dismissing the impleaded party as justification for refusing out of hand to consider his application in 2005, pleading that the arbitral award in question had the effect of res judicata .

The Tribunal should have distinguished between the dismissal in 2001 and the right to equal opportunity during hiring in 2005, which ensures a discrimination-free selection process. [ 40 ] Certainly the respondent could base its decision on the impleaded party’s previous employment record. That is, moreover, what it did, with the Tribunal even recognizing, in paragraphs 9 and 110 of its judgment, that the appellant demonstrated by prima facie evidence that alcoholism constituted a handicap and was one of the reasons that the respondent rejected the impleaded party’s application in 2005.

The respondent should also have taken into account the impleaded party’s rehabilitation and newly acquired training to determine whether he had the required capabilities for the position he sought, which would have involved the individual assessment of his application, a right that he was unfairly and illegally denied in this instance. [ 41 ] The evidence adduced before the Human Rights Tribunal shows that the respondent denied the impleaded party access to the normal hiring process without regard for his progress and rehabilitation since his dismissal in 2001. [ 42 ] I am not suggesting that the impleaded party should have obtained the job he was seeking, but rather that the respondent should have given him the opportunity to demonstrate, through individual assessment, that he was capable in 2005 of meeting his obligations as an employee, including regular attendance at work, owing to the success of his rehabilitation since 2001 and his 630 hours of newly acquired training to work as an orderly in a health care establishment.

But, by referring constantly to his previous employment relationship, the Tribunal endorsed the respondent’s preconceived idea that in 2005 the impleaded party represented a risk that justified discriminating against him, since he was still perceived as an alcoholic who would have workplace absenteeism issues. [ 43 ] For these reasons, I would allow the appeal with costs, set aside the trial judgment, find the respondent’s refusal to consider the impleaded party’s application to be a discriminatory refusal on the basis of a handicap in contravention of sections 10 and 16 of the Charter of human rights and freedoms [13] and order the respondent to pay the impleaded party the amount of $5,000 as moral damages for the proven prejudice and $2,500 for loss of chance.

JEAN BOUCHARD, J.A.