2011 QCCA 1201, 2011 QCCA 1201

Unofficial English Translation Gaz métropolitain inc. c. Commission des droits de la personne et des droits de la jeunesse 2011 QCCA 1201 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019077-080 (500-53-000204-030) DATE: June 27, 2011 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. GAZ MÉTROPOLITAIN INC. SOCIÉTÉ EN COMMANDITE GAZ MÉTROPOLITAIN APPELLANTS – Defendants v.

COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE RESPONDENT – Plaintiff and LINE BEAUDOIN JOHANNE BOLDUC MARIE-CLAUDE CÔTÉ JOHANNE (JOAN) DUPONT TANIA PLOURDE SHIRLEY THOMAS NICOLE TRUDEL IMPLEADED PARTIES - Complainants and ACTION TRAVAIL DES FEMMES DU QUÉBEC INC.

IMPLEADED PARTY - Complainant before the Commission des droits de la personne et des droits de la jeunesse and SYNDICAT DES EMPLOYÉS DE GAZ MÉTROPOLITAIN INC. (CSN) IMPLEADED PARTY – Interested party JUDGMENT [ 1 ] THE COURT ; - On the appeal from a judgment rendered on September 11, 2008, by the Human Rights Tribunal, District of Montreal (the Honourable Michèle Rivet), which found that the appellants' recruitment and hiring process systemically discriminated, leading to the disproportionate exclusion of women from the blue-collar job of Network attendant/Network trainee and which, consequently, made a number of orders and awarded damages; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Dufresne, J.A., with which Forget and Rochon, JJ.A. agree: [ 4 ] ALLOWS the appeal in part ; [ 5 ] MODIFIES the order respecting the setting up of a committee to counter sexual and sexist harassment in the workplace, making it a recommendation instead, which will be worded as follows: RECOMMENDS that a committee be set up, with the union, to counter sexual and sexist harassment in the workplace, which committee will include women who are Network attendants/trainees as well as members of management. [ 6 ] SETS ASIDE the conclusion of the judgment worded as follows:

TO PAY to Shirley Thomas, Line Bolduc, Line Beaudoin, Johanne (Joan) Dupont, Tania Plourde and Nicole Trudel an amount of $7,500.00 each as a result of the intentional nature of the unlawful interference with their right not to be discriminated against in hiring based on sex; [ 7 ] THE WHOLE , with costs against the appellants, because the appeal was largely unsuccessful. ANDRÉ FORGET, J.A. ANDRÉ ROCHON, J.A. JACQUES DUFRESNE, J.A. Mtre Véronique Morin Mtre Pierre L.

Baribeau Lavery, de Billy For the appellants Mtre Béatrice Vizkelety Mtre Athanassia Bitzakidis VIZKELETY Drapeau Bourdeau For the respondent Mtre Annick Desjardins Canadian Union of Public Employees For the impleaded party Action travail des femmes du Québec Mtre Lise Lanno Pépin & Roy For the impleaded party Syndicat des employés de Gaz Métropolitain Inc. (CSN) Date of hearing: November 16, 2010 REASONS OF DUFRESNE, J.A. [ 8 ] The appelants, Société en Commandite Gaz Métropolitain, sponsored by Gaz Métropolitain inc. ("Gaz Met"), appeal from a judgment rendered on September 11, 2008, by the Human Rights Tribunal (the "Tribunal") which found, essentially, that the recruitment and hiring process in which the impleaded parties took part systemically discriminated, thereby disproportionately excluding women from the blue-collar job of Network attendant/trainee ("Network attendant"), and which made a number of orders and awarded damages. [ 9 ] The judgment rendered on September 11, 2008, has 578 paragraphs, not including its disposition.

It was rendered following 52 days of hearing that took place between October 25, 2004, and January 12, 2007. The Tribunal heard 38 witnesses, 10 of whom were experts. A short review of the background will provide a better understanding of the appeal.

CONTEXT [ 10 ] The Tribunal’s judgment harkens back to the complaint filed by the impleaded party, Action travail des femmes du Québec (the "ATF"), on December 18, 1996, as stated in the judgment under appeal: [translation] [8] The dispute is the result of a complaint filed by the ATF with the Commission on December 18, 1996, after Gaz Met rejected the applications of several women during the special hiring competitions held as of 1995 [footnote omitted].

The complaint alleged that Gaz Met's requirements, criteria and methods of proceeding, among other things, made that company's selection process generally discriminatory against women. [9] In August of 2002, after an investigation lasting several months, the Commission recommended that Gaz Met adopt various means of redress to correct the discriminatory situations observed.

Gaz Met did not follow these recommendations, hence the bringing of the legal proceedings by the plaintiff [footnote omitted]. [10] Thus, on December 16, 2003, the Commission filed a motion to institute proceedings with the Tribunal on behalf of eight victims: Line Beaudoin, Johanne Bolduc, Marie-Claude Côté, Joan Dupont, Tania Plourde, Shirley Thomas, Nicole Trudel and Danielle Varin. Ms. Varin then abandoned her complaint [citation omitted]. [ 11 ] A review of the chronology of events and proceedings is in order. [ 12 ] In November of 1989, the appellants voluntarily adopted an access to equality program.

[ 13 ] On June 2, 1995, under this program, they signed a letter of understanding with the Syndicat des employés de Gaz Métropolitain inc. (C.S.N.) (the "Union"). This agreement set out that during the next recruitment, ten of the fourteen positions for Network trainee would be reserved for women and visible minorities. [ 14 ] To promote the recruitment of women, the appellants initiated an external "special recruitment" and organized an information session for women, which took place in June of 1995.

The appellants also asked for the help of several organizations, including the ATF. [ 15 ] From 1995 to 1997, more or less the same three Gaz Met employees managed the special recruitment process. 1995 Recruitment [ 16 ] The appellants made a staffing request to fill seven positions for Network trainee starting on October 2, 1995.

To this end, they published notices in newspapers. [ 17 ] The requirements of the position were described as follows in the notices; [translation] • Driver's licence, class 3: • Mechanical, electrical, pneumatic and hydraulic qualifications; • Ability to perform work requiring some physical strength; • High school diploma; • Expertise in related fields (civil engineering, mechanical contractors) acquired through professional training or experience is relevant to this type of position. [ 18 ] Furthermore, in an job profile sent to the ATF, the appellants listed what experience was deemed relevant to promote the recruitment of women: [translation] • Experience on construction sites, in horticulture, on a farm, an assembly line, an aqueduct, refinery, and others; experience with any subterranean system; • Handling of various equipment: shovel, blower, sprinkler system, air gun, mechanical parts; • Lifestyle-related experience such as vehicle repair and upkeep (changing tires, oil, brakes, and so on). [ 19 ] The candidates were selected in several stages: 1.

Initial sorting and analysis of curriculum vitae; 2. Preliminary interview: in the course of the 1995 special recruitment, a preliminary interview was set up for female candidates only. This stage was used to screen out applicants; 3. Theoretical test: including a

section titled "Math and logic" and another one titled "Mechanics and electricity"; 4. Practical test: a series of six tests given to assess physical strength, as well as manual, mechanical and electrical abilities; 5. Medical assessment. [ 20 ] The pilot project designed to promote the hiring of women in the position of network attendant had three planned stages: an evaluation of the candidates' psychological profiles, practical trials and a specialized training. Only the first two stages were completed before the project was abandoned.

Only the candidates whose applications had been rejected but who had obtained the highest results were accepted for the purposes of this pilot project. 1996 Recruitment [ 21 ] The appellants made a staffing request to fill seven positions starting November 11, 1996. An ad was published in La Presse on October 5, 1996.

The selection process was similar to the one in 1995, but the candidates no longer underwent preliminary interviews. 1997 Recruitment [ 22 ] In 1997, the appellants issued two notices of staffing requests for network attendant positions: the first, for four positions starting April 7, 1997, and the second, for one position starting October 6, 1997. An ad was published in the Journal de Montreal on June 14, 1997, for the first request.

The selection process was similar to the one in 1996. [ 23 ] The special process for recruiting women for the job of network attendant, which was set up by Gaz Met between 1995 and 1997, did not yield the desired results. When the program got under way, there was only one woman amongst the 132 network attendants working for Gaz Met. Regardless of the special recruitment process set up to promote the hiring of women and the great number of applicants, [1] only six women were hired for the position during that period.

Procedural background [ 24 ] On December 18, 1996, the ATF filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (the "Commission") on behalf of eight job applicants. [2] In its complaint it asked the Commission to investigate the systemic discrimination against women in the recruitment and hiring process that took place in 1995 and 1996. [ 25 ] On July 19, 2002, after investigating, the Commission proposed a series of means of redress to the appellants to correct the situations that were deemed to be discriminatory.

The appellants did not adopt the proposed means. [ 26 ] On December 16, 2003, the Commission filed a motion to institute proceedings with the Tribunal on behalf of the eight complainants. It alleged that the appellants, through the hiring system used to fill the network attendant positions, repeatedly interfered with the complainants' right, [3] and the right of female applicants, to be considered for the job with complete equality, notably by disproportionately excluding them from these traditionally male-dominated jobs.

JUDGMENT UNDER APPEAL [ 27 ] From the outset, the judge set out the applicable law in matters involving systemic discrimination, emphasizing two of the characteristics of this form of discrimination: first, that it does not exclude all the members of a group and, second, that the disproportionate exclusion is the result of a [translation] " combination of often unconscious attitudes marked by preconceived notions and stereotypes, and of policies and practices that are generally adopted without taking into consideration the characteristics of those members of the group who are the object of the prohibition of discrimination ". [4] Consequently, evidence of systemic discrimination is based on a set of facts that produces and maintains the disproportionate exclusion of a group and may be supported by statistical evidence, though this is not indispensable. [ 28 ] The judge proceeded with a four-part analysis of the evidence: 1.

The presence of women in blue-collar jobs at Gaz Met The judge accepted the respondent's expert report, which stated that women are significantly underrepresented in the job. She added, however, that she must examine the overall selection process in order to determine whether or not this fact was attributable to systemic discrimination. 2. The job description and its prerequisites The judge examined the appropriateness of the job description and the employment profile used to recruit. She first noted that there was no existing job description during the relevant period.

The appellants' document was dated June 12, 1998, [5] and was therefore subsequent to the period in question; moreover, it was flawed. She then examined the requirements set out in the recruitment notices, dwelling especially on three of them:

a) Class 3 driver's licence : Although the evidence did not show that the candidates were rejected on this ground, it is relevant to examine its discriminatory effect in the context of systemic discrimination. There is prima facie evidence of discrimination since the applicants had to have this licence prior to hiring, thus discouraging women from applying for the job because they represented only 3% of class 3 licence-holders.

The rational connection to the purpose of having the trainee be immediately ready to fill the position remains questionable since the first six months of the internship were to be supervised by a qualified mentor. In any event, Gaz Met did not show that allowing candidates to obtain their licence after being hired would impose undue hardship.

b) High school diploma : Every candidate fulfilled this requirement.

c) Non-traditional experience : Gaz Met required that the women have non-traditional experience, which was assessed subjectively to verify their motivation. This requirement is not rationally connected to the objective of recruiting more women. 3. The external selection process After reiterating that presumptive evidence applies in matters involving discrimination, the judge analyzed the seven stages of the process as to their validity, relevance and balance.

She concluded that the process was [translation] " contaminated by subjectivity, arbitrariness and a significant discretionary power ". [6] Together with the underrepresentation of women in blue-collar jobs (especially in the position of network attendant), the prejudice attached to the presence of women in a non-traditional job context, and the incompetence of the persons charged with recruiting the women, these factors encouraged and perpetuated a recruitment system tainted by discrimination against women. [7] The judge made the following conclusions with respect to the various stages of the process that the candidates went through:

a) Information sessions : The comments made during the session were likely to discourage women.

b) Management of curriculum vitae : The judge did not have any specific conclusions on this subject.

c) Preliminary interview : The preliminary interview was discriminatory because a qualitative analysis of the interview showed that it was tainted by the preconceived notion that women were unfit to work in a non-traditional sector. Given the fact that it was used to screen out applicants, the preliminary interview was not rationally connected to the purpose of recruiting more women.

d) Theoretical test : The high failure rate (78% for women and 72% for men) was explained by the conditions surrounding the test. Fifteen per cent of the points came from the Bennett test, which favours men. Absent evidence of the rationality of this measure, Gaz Met should eliminate the discriminatory questions.

e) Practical test : The practical test caused disproportionate exclusionary discrimination against women given the lack of measures

adapted to the physical characteristics of women, the different conditions imposed on some of them, and the exemption that wasavailable only to men for the Attestation de spécialisation professionnelle en réparation d'appareils au gaz naturel (ASP) [the Certificateof professional specialization in natural gas device repair].

f) Medical exam: Marie-Claude Côté was the victim of a discriminatory refusal to hire on account of her pregnancy becausepresumptive evidence established that her pregnancy played a

part in the rejection of her application.

g) Pilot project: The pilot project was confusing and improvised and contributed to building the hopes of the participants. 4. Corporate culture at Gaz Met The judge noted that the culture at Gaz Met was homogeneous, that recruitment was principally internal and that several preconceivednotions fed the conviction that only those women who could conform to the dominant group would be able to make a positivecontribution.

Even if a written agreement and the general position taken by the company asserted Gaz Met's willingness to increase thenumber of women in their workforce, the special recruitment's flaws cast a doubt on the actual importance of this operation. [29] After having stated that the recruitment and hiring process for the appellants' network attendant position was discriminatory, thejudge made a series of orders to stop the discriminatory practices and free the selection process from discrimination.

She thencondemned the appellants to pay damages for the material and moral injury sustained by the complainants, in addition to awardingpunitive damages because of the intentional nature of the unlawful interference with their rights. She finally ordered the appellants to hireMs. Marie-Claude Côté and to reintegrate the other complainants into a selection process free of discrimination and to offer them aposition should they successfully complete that process. GROUNDS FOR APPEAL [30] The appellants' grounds for appeal can be grouped into the following questions: 1.

Did the Tribunal err in law with respect to the principles applicable in matters involving systemic discrimination? 2. Did the Tribunal commit reviewable errors in its assessment of the facts concerning the evidence of systemic discrimination inlight of the applicable legal principles? 3. Did the Tribunal exceed its jurisdiction by making orders affecting work conditions set out in the collective agreement? 4.

Did the Tribunal err in condemning the appellants to moral and punitive damages? [31] It is useful to begin by addressing the standard of intervention before discussing each of the questions listed above, which shallbe considered in the following order: the legal principles, the application of these principles to the facts of the case, the Tribunal’s ordersand the awarding of damages. ANALYSIS [32] First, although we must acknowledge that the Tribunal is specialized, it nonetheless remains subject to the same standards ofreview as trial courts.

Indeed, in Commission scolaire des Phares,[8] the Court explained: [translation] [31] The legislature did not confer on the Tribunal exclusive jurisdiction over all the rights protected by the Quebec Charter. Therespondent may address the ordinary courts or the specialized courts without distinction [Commission des droits de la personne et desdroits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30 , [2004] 1 S.C.R. 789 at 798–799]. [32] When the Tribunal is the one to hear the complaint, its final judgment is subject to appeal, with leave, under

section 132 of theQuebec Charter. Thus, it is an appeal that is before the Court, not a judicial review. As Gendreau J.A. pointed out in Coutu v. Tribunaldes droits de la personne, this right to appeal gives rise to a reconsideration of the decision [translation] "based on criteria that aredifferent and broader than those applicable in matters of judicial review ..." [citation omitted]. [33] The expertise of the Tribunal is recognized with respect to the assessment of facts in the context of human rights. It does notinclude general questions of law, however. In Canada (A.G.) v.

Mossop, the Supreme Court states the following [citation omitted]: ... the superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context, and does not extendto general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, andinvolve concepts of statutory

interpretation and general legal reasoning which the courts must be supposed competent to perform. Thecourts cannot abdicate this duty to the tribunal, and must therefore review the tribunal's decisions on questions of this kind on the basis ofcorrectness, not on a standard of reasonability [34] The decisions of the Tribunal must therefore be subject to the same standards of review as those applied to the decisions of trialcourts under appeal, that is, with respect to assessing the facts, the principle is that of the palpable and overriding error, and with respectto questions of law, it is that of correctness.

As for questions of mixed fact and law, the standard may vary according to whether or notthe error stems from the application of the incorrect legal standard to a set of facts. ... [35] The Tribunal's judgment, which has been appealed before the Court, is therefore subject to the standards of review set out by theSupreme Court in Housen [citation omitted] regarding questions of fact, of law and of mixed fact and law.[9] [33] In short, on the two grounds of appeal concerning the applicable law and the jurisdiction of the Tribunal, the Court willintervene if the Tribunal has committed an error of law.

With respect to the grounds regarding the assessment of the facts and the

damages, however, the Court will not intervene unless there is a palpable and overriding error.[10] [34] Generally, the judgment under appeal is based on the correct

interpretation of the principles applicable in matters involvinginterference with rights protected under the Charter of human rights and freedoms[11] (the "Quebec Charter") and the application ofthese principles to the facts of the case is a function of the Tribunal’s assessment of the evidence, which is not affected by a reviewableerror. Moreover, the judge related and explained in great detail the basis for her assessment of the evidence. A closer look is in order.

The legal framework [35] More generally, the appellants consider that the judge stated principles that run counter to those set out and advocated by theSupreme Court. They maintain that the Tribunal erred in affirming the existence of a right to substantive equality. In their view, section10 of the Quebec Charter prohibits discrimination but does not impose on a private employer the duty to take steps to promote the hiringof women.

A private employer has a duty to accommodate only if it is demonstrated that there was discrimination at the time of hiring. [36] The Tribunal based itself on the principles stated by case law in matters of discrimination, and its decision does not show anyerrors of

interpretation in this respect.

The Supreme Court has time and again maintained that paragraph 15(1) of the Canadian Charterof Rights and Freedoms[12] (the "Canadian Charter") does not require merely formal equality, but substantive equality.[13] InCommission scolaire des Phares, supra, the Court added that [translation] "the objective of the Charters is to provide substantiveequality".[14] While substantive equality does not create a right to be hired for a particular job without regard for the abilities orqualifications required, a review of an employer's systemic discrimination practices must nonetheless be performed with this purpose inview.[15] [37] In CN v.

Canada (Commission canadienne des droits de la personne),[16] in referring to the Abella Report[17] on equality inthe workforce, former Supreme Court Chief Justice Dickson gave a definition of systemic discrimination: A thorough study of "systemic discrimination" in Canada is to be found in the Abella Report on equality in employment.

The terms ofreference of the Royal Commission instructed it "to inquire into the most efficient, effective and equitable means of promotingemployment opportunities, eliminating systemic discrimination and assisting individuals to compete for employment opportunities on anequal basis." (Order in Council P.C. 1983-1924 of 24 June 1983).

Although Judge Abella chose not to offer a precise definition ofsystemic discrimination, the essentials may be gleaned from the following comments, found at p. 2 of the Abella Report: Discrimination … means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group'sright to the opportunities generally available because of attributed rather than actual characteristics ….

It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it isthe accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionatelynegative way, it is a signal that the practices that lead to this adverse impact may be discriminatory. This is why it is important to look atthe results of a system.

In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of establishedprocedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination isthen reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside thegroup, that the exclusion is the result of "natural" forces, for example, that women "just can't do the job" (see the Abella Report, pp. 9-10).

To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can bechallenged and discouraged. ...[18] [Emphasis added.] [38] It is the consequences of discrimination more than the voluntary or involuntary nature of the measures that will indicatewhether there is systemic discrimination.[19] With indirect discrimination, the discriminatory effect results from the application of astandard that appears neutral; the same can be said of systemic discrimination, where the discriminatory effect results from theapplication of practices and employment systems that appear neutral.

A prima facie case of a situation of systemic discrimination ismade by examining the consequences of the practices and the employment systems. [39] The analytical approach advocated by the Supreme Court in Meiorin[20] to determine whether a standard that appears to bediscriminatory at first glance is a Bona Fide Occupational Requirement (BFOR) is applicable to

section 20 of the Quebec Charter, as perthe Court of Appeal judgment penned by Robert C.J. in Hôpital général juif Sir Mortimer B. Davis v. Commission des droits de lapersonne et des droits de la jeunesse,[21] which was, however, rendered after the judgment under appeal: [translation] [20] When there is prima facie evidence of discrimination, the Supreme Court, in British Columbia (Public, Service, Employee,Relations, Commission) v.

B.C.G.S.E.U. (SCC), [1999] 3 S.C.R 3 (hereinafter "Meiorin"), suggests a three-step test: Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatorystandard is a BFOR.

An employer may justify the impugned standard by establishing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of thatlegitimate work-related purpose; (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show that the standardis reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of

the claimant without imposing undue hardship upon the employer. [Meiorin, ibid. at para. 54] [21] These principles are applicable, mutatis mutandis, to

section 20 of the Quebec Charter. [22] Also, the second criterion no longer applies in Quebec since the amendment brought by the legislature to

section 20 of theQuebec Charter [Act to amend the Charter of human rights and freedoms, S.Q. 1982, c.12, s. 6.] [Emphasis added.] [40] This judgment seemed to indicate that the subjective element of the analysis in Meiorin, supra –that is, the evidence that theemployer adopted "the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimatework-related purpose"[22] – is no longer relevant in actions brought under the Quebec Charter. Indeed, the amendment brought by thelegislature in 1982 modified

section 20 of the Quebec Charter by replacing the expression "required in good faith for an employment" by"required for an employment".[23] Moreover, it goes without saying that if the employer's bad faith is established by the evidence, thereis no bona fide occupational requirement. [41] Once prima facie evidence of discrimination has been established, the employer may argue

section 20 of the Quebec Charter indefence: 20.

A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by thecharitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to thewell-being of an ethnic group, is deemed non-discriminatory. [Emphasis added.] [42] The employer must then prove the following elements on a balance of probabilities, in accordance with the applicable criteria ofMeiorin, supra, without taking into account the second criterion respecting the sincere belief: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; ... (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show that thestandard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing thecharacteristics of the claimant without imposing undue hardship upon the employer.[24] [43] The Supreme Court judgment in SCFP-FTQ,[25] rendered after Meiorin and after the judgment under appeal, did not alter thenature of the onus of proof with respect to undue hardship. [44] Indeed, in that judgment, Deschamps J. adds that, although the employer does not have a duty to change working conditions in afundamental way, it does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable theemployee to do his or her work (the person in question in that case was already in the appellants' employ).

In short, the standard to be metis undue hardship as a result of having to deal with the employee's characteristics: [12] The relevance of the approach is not in issue. However, there is a problem of

interpretation in the instant case that seems to arisefrom the use of the word “impossible”. But it is clear from the way the approach was explained by McLachlin J. that this word relates toundue hardship (at para. 55): This approach is premised on the need to develop standards that accommodate the potential contributions of all employees in so far asthis can be done without undue hardship to the employer. Standards may adversely affect members of a particular group, to be sure.

Butas Wilson J. noted in Central Alberta Dairy Pool, (SCC), [1990] 2 S.C.R. 489] at p. 518, “[i]f a reasonable alternativeexists to burdening members of a group with a given rule, that rule will not be [a BFOR]”. It follows that a rule or standard mustaccommodate individual differences to the point of undue hardship if it is to be found reasonably necessary.

Unless no furtheraccommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case ofdiscrimination stands. [Emphasis added.] What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of unduehardship, which can take as many forms as there are circumstances. This is clear from the additional comments on undue hardship inMeiorin (at para. 63): [quotation omitted]. ... [16] The test is not whether it was impossible for the employer to accommodate the employee’s characteristics.

The employer does nothave a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrangethe employee’s workplace or duties to enable the employee to do his or her work.[26] [45] Several factors make it possible to establish undue hardship, as McLachlin J. points out in Meiorin, supra, an excerpt to whichDeschamps J. refers in paragraph [12] of SCFP-FTQ, supra: 63 When determining whether an existing standard is reasonably necessary for the employer to accomplish its purpose, it may behelpful to refer to the jurisprudence of this Court dealing both with the justification of direct discrimination and the concept ofaccommodation within the adverse effect discrimination analysis.

For example, dealing with adverse effect discrimination in CentralAlberta Dairy Pool, supra, at pp.520-21, Wilson J. addressed the factors that may be considered when assessing an employer's duty toaccommodate an employee to the point of undue hardship. Among the relevant factors are the financial cost of the possible method of

accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees . See also Renaud, supra, at p. 984, per Sopinka J. The various factors are not entrenched, except to the extent that they are expressly included or excluded by statute. In all cases, as Cory J. noted in Chambly, supra , at p. 546, such considerations "should be applied with common sense and flexibility in the context of the factual situation presented in each case". [27] [Emphasis added.] [ 46 ] These are the most relevant legal principles on the subject.

Principles accepted by the Tribunal [ 47 ] A review of the statements of principle on which the Tribunal relied illustrates that it properly directed itself on the law.

A few excerpts are sufficient to demonstrate this: [translation] [36] Also, the Tribunal finds it relevant at this time to define systemic discrimination as being the sum of the disproportionate exclusionary effects resulting from the combination of often unconscious attitudes marked by preconceived notions and stereotypes, and of policies and practices that are generally adopted without taking into consideration the characteristics of those members of the group who are the object of the prohibition of discrimination. ... [54] We will soon show how the underrepresentation of the members of a group who are the object of the prohibition of discrimination can constitute one form of systemic discrimination in employment.

First, some observations are in order on the role of statistical evidence in this matter. ... [63] ...

Also, for a human rights statute to meet its remedial purpose, the nature of the evidence required to establish systemic discrimination may vary according to the nature and context of each case. ... [67] Evidence of systemic discrimination basically rests on a set of facts such as institutional policies, decision-making processes, behaviours and attitudes that, while often unconscious and innocuous in appearance, produce and perpetuate, when combined, disproportionate exclusionary effects for the members of the group who are the object of the prohibition of discrimination.

Regardless of its usefulness when available and relevant, statistical evidence is not essential to proving systemic discrimination. [68] After the plaintiff has established evidence of discrimination in employment, the employer may avoid liability by proving that, in accordance with the requirements of

section 20 of the Charter , the impugned exclusion is "based on the aptitudes or qualifications required for an employment". ... [70] The Tribunal reiterates the irrelevance of the second criterion stated in Meiorin respecting the honest belief, by the employer, that the disputed standard was necessary to the fulfilment of the legitimate work-related purpose. In Quebec law, the two above- described requirements are the only ones that apply since the subjective element was removed from the defence of bona fide occupational requirement by the amendments brought to

section 20 in 1982. ... [72] Systemic discrimination in employment is characterized, inter alia , by the disproportionate exclusionary effects that are the result of institutional recruitment, hiring, and promotion policies and practices, which are generally neutral in appearance.

Also, the justification test set out in Meiorin first subjects the policies and practices to a rationality test, which the conventional approach that was previously applied did not. ... [75] To avoid perpetuating or even reinforcing the standards that produce systemic exclusionary effects, the rationality requirement set out in the first stage of the Meiorin test must be strictly applied. Indeed, it is with this first test that a tribunal will determine if the purpose of a discriminatory standard is rationally connected to the objective requirements of the employment in question.

Thus, a standard that did not meet this requirement simply could not be maintained and no a posteriori measures could restore its validity within the meaning of the Charter .

According to Professor Colleen Sheppard, this approach: … emphasizes the need to change the institutional status quo, rather than simply according to special or exceptional treatment to individuals otherwise excluded or disadvantaged by institutional norms, policies, or practices. [Footnotes omitted] [76] In short, this approach involves a rigorous assessment of the actual usefulness of the discriminatory rules and of their effects; conversely, it requires their recasting, even their transformation so that they favour attaining actual substantial or substantive equality (as opposed to a purely formal equality). ... [79] The second step of the test in Meiorin is just as important in Quebec law since it purposes to assess whether the employer can,

without undue hardship, reasonably accommodate the excluded person or group of persons by adopting a standard that does not produce that effect. To this end: Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards.

By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. ... To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible.

A standard that allows for such accommodation may be only slightly different from the existing standard but it is a different standard nonetheless. [Footnote omitted] [80] To be as inclusive as possible (or the least discriminatory) and to deal with the potential contribution of all candidates who have the ability to perform the work safely and efficiently, the standard that allows this ability to be measured must, unless the employer would consequently incur undue hardship: (1) be minimally established to enable these requirements to be met; (2) be adapted to the various ways in which the candidates in some groups (such as women or handicapped persons) may meet them. [81] In other words, the approach consists of first assessing the inherent validity of some of the professional requirements to ensure that they correspond to the minimum qualifications required to perform the job in question.

In the affirmative, it must be verified whether adaptations or modifications which would allow the inclusion of persons who would otherwise be excluded can yet be brought without incurring undue hardship for the employer. [82] For each of these requirements, it follows that the employer must first adopt a standard that is "properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies".

In Meiorin , after noting that the standard respecting the aerobic capacity of candidates corresponded to the average performance of the forest firefighters and those aspiring to that position, the Supreme Court noted that this average performance did not indicate whether the standard was " the minimum qualification to perform the job safely and efficiently." According to the Court: The polymorphous group’s average aerobic performance is irrelevant to the question of whether the aerobic standard constitutes a minimum threshold that cannot be altered without causing undue hardship to the employer.

Rather, the goal should have been to measure whether members of all groups require the same minimum aerobic capacity to perform the job safely and efficiently and, if not, to reflect that disparity in the employment qualifications.

There is no evidence before us that any action was taken to further this goal before the aerobic standard was adopted. [Footnote omitted] [83] The employer who has fulfilled its duty to impose a professional requirement that ensures at the very least the safe and efficient performance of the job must then investigate whether it would be possible, without incurring undue hardship, to meet this standard by performing the job in other ways or by using alternative approaches that do not have a discriminatory effect.

It is then a question of "measur[ing] whether members of all groups require the same minimum ... capacity to perform the job safely and efficiently and, if not, to reflect that disparity in the employment qualifications". The following questions are those a tribunal will consider to this end:

b) If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?

d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose? [Citation omitted] [84] The employer's dual obligation to adopt a standard that is both minimally required for the safe and efficient performance of the job and open to reasonable accommodations, without undue hardship, raises this comment from Professor Sheppard on the approach established by the Supreme Court: It is absolutely critical for McLachlin J. that institutional norms, policies, and practices be scrutinized and revised whenever possible as part of the project of securing greater substantive equality.

Nevertheless, individual accommodation remains essential as well. … It should not be an excuse to avoid scrutinizing the underlying validity of institutional norms, but rather a mechanism to ensure inclusion when revision of the underlying practices is not possible. Both components are necessary and important. [Footnote omitted] [85] We reiterate that the employer may raise, inter alia , the following grounds to prove 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 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. [Footnote omitted] ... [89] Having now finished this

summary of the various rules relative to the nature, foundation, evidence and grounds of defence in matters involving systemic discrimination, we will begin forthwith the analysis of the evidence adduced by the parties during the hearing. [ 48 ] Since the Tribunal drew on the relevant legal principles, it remains to be determined whether it committed a reviewable error in

its application of the said principles to the case. Application of the principles to the case [ 49 ] The judge took an essentially rational approach to her analysis. This practical exercise is devoted to an extremely detailed analysis of the evidence and specifically addresses the verification of the presence of women in blue-collar jobs at Gaz Met, the job description for network attendant/trainee and its prerequisites, the external recruitment process, and the corporate culture of this employer.

The judge also considered whether the appellants met their obligation of [translation] "ensuring that their recruitment standards included reasonable accommodation measures, without undue hardship, to allow the substantive equality of women in the hiring process [footnote omitted]". [28] [ 50 ] From the evidence as a whole, the judge found that the appellants violated the right to equality of seven complainants by applying a hiring system that was discriminatory against female applicants.

This overall finding as to the existence, during the relevant period of time, of systemic discriminatory practices in the external selection hiring process is the result of a thorough analysis that includes conclusions that are particular to the various characteristics or stages of this process. [ 51 ] In this context, her assessment of the evidence and the conclusions or inferences she drew therefrom are not reviewable on appeal unless they show a palpable and overriding error, [29] which, in this case, they do not. [ 52 ] The Supreme Court, in H.L. v.

Canada (Attorney General) states that "an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result". [30] Housen [31] was already along those lines. [ 53 ] The outlines of this standard, with regard to both facts and questions of mixed fact and law, are well-established by Supreme Court case law. In P.L. v. Benchetrit , [32] this Court, per Morissette, J.A., reiterated what constitutes a palpable error: [translation] [24] ...

But the appellate judge does not see or hear the witnesses and, above all, the time constraints imposed by the appellate judge’s duties do not allow him or her to redo what is expected of a trial judge, that is, to perform a detailed examination of the evidence at the pace at which it was presented by the parties at trial. Except for those cases where there is no room for doubt, the appellate judge is in a poor position to reassess the credibility of the witnesses. He or she also has to count on the assistance of counsel to identify and assess the alleged errors of fact relied on by a party.

It follows from this that no purpose is served on appeal by affirming, without being more specific, that a finding of fact [TRANSLATION] “is contrary to the whole of the evidence”. And claiming that something is “palpable” does not make it so . In my view, this is how we must understand what Fish J. was saying when he wrote the following in H.L. v. Canada (Attorney General) [citation omitted]: The “palpable and overriding error” standard, apart from its resonance, . . . helps to emphasize that one must be able to “put one’s finger on” the crucial flaw, fallacy or mistake.

In the words of Vancise J.A., “[t]he appellate court must be certain that the trial judge erred and must be able to identify with certainty the critical error” (Tanel, at p. 223, dissenting, though not on this issue). To “put one’s finger on” means something other than inviting the Court to take a broad look at all the evidence: it means to direct its attention toward a determined point where an unequivocal evidentiary element is quite simply an obstacle to the impugned finding of fact.

If that finding of fact, which has, in that way, been shown to be clearly wrong, sufficiently compromises the disposition of the judgment, then the error will be regarded as determinative and will justify reversing the judgment. [Emphasis added.] [ 54 ] In the earlier judgment in Regroupement des CHSLD ChristRoy (Centre hospitalier de soins de longue durée v. Comité provincial des malades , [33] this Court had made the following observations on the matter: [translation] [54] An appeal, must we reiterate, is not an opportunity to retry the case. [55] When evidence of some complexity lends itself to a degree of

interpretation and requires from the trial judge the individual and then overall assessment of multiple elements, including some that are divergent or contradictory, it is not enough to select for the purposes of the appeal that which could have been interpreted differently, excluding the rest, to restate a theory already deemed to be without merit by the trial judge.

An error in the determination of a contentious fact is only palpable if its obvious or overriding nature may be clearly observed when re-examining the relevant portion of the evidence and that a different finding regarding this contentious fact becomes necessary.

An error is only determinative if it deprives the judgment under appeal from a necessary factual basis, thereby skewing the disposition of the decision rendered at trial and consequently requiring that the disposition be reviewed. ... [Emphasis added.] [ 55 ] In this case, these principles are all the more applicable since the appellants have been unsuccessful in pointing out an error of law or a palpable and overriding error of fact, as will be demonstrated hereinafter. [ 56 ] In 1995, Gaz Met began an external recruitment process intended to promote the hiring of women and members of visible minorities.

Contrary to the appellants' impression, the Tribunal did not ignore the efforts of Gaz Met at the time to promote the hiring of women in blue-collar jobs, but its analysis of the lay and expert evidence brought about the realization that these actions resulted in a discriminatory bias, as unconscious as it may have been. The judge, drawing abundantly from the evidence, identified the various manifestations that allowed her to find that systemic discrimination existed to the detriment of the complainants. As for the particular case of Ms.

Côté, who had nonetheless passed every stage of the process up to the medical exam (refusal to hire after the medical exam,

once the doctor reported her pregnancy to the employer), the judge found that she suffered direct discrimination.

These conclusions are drawn from the evidence and are not subject to review by an appellate court. [ 57 ] In her analysis, the judge considered both the lay evidence and the expert evidence and referred to it abundantly in the judgment under appeal when assessing the various components of the process to confirm the presence or absence of systemic discrimination in the external hiring process set up by the appellants to promote the hiring of women for the position of network attendant. [ 58 ] The appellants maintain that the Tribunal based itself on non-representative statistics to find that women were underrepresented and to draw an inference as to the discriminatory nature of the recruitment process.

They are of the opinion that the statistical evidence adduced by the defence showed the absence of a discriminatory effect at each step of the process. [ 59 ] The Tribunal's finding regarding the underrepresentation of women in the position of network attendant at Gaz Met at the relevant time rests essentially on an assessment of the expert evidence. This conclusion is hardly impeachable. The representation rate of women at Gaz Met in blue-collar jobs and the availability rate of women for this kind of job clearly allowed the judge to find that there was a marked underrepresentation.

To do so, the judge accepted the testimony of the expert Boukamp-Bosch over that of the expert Perron and gave her explanations as to why she did so. The decision to prefer the testimony of one expert over that of another belongs to the trier of fact, [34] unless the judge commits, in so doing, a palpable and overriding error, which the appellants have failed to prove. [ 60 ] Having noted the underrepresentation of women in blue-collar jobs, the judge then examined the job description for network attendant and its prerequisites.

In her examination, the judge discussed at length the testimony of the Gaz Met representatives who managed the special external hiring program for the relevant period—1995 to 1997—as well as the contradictory expert evidence adduced by the parties. [ 61 ] From this evidence, she made a certain number of observations, including the absence of an actual job description of the position of network attendant from 1995 to 1997 and the lack of evidence clearly identifying the essential skills of the job.

The appellants maintain that the judge erroneously came to this conclusion because she set aside documentary evidence giving a job description on the ground that it was subsequent to the period during which the program was active (the document is dated June of 1998). [ 62 ] Yet, the judgment under appeal includes a great number of facts that the judge did distinguish and consider, in addition to her remarks on both the lay and expert evidence, which explain why she accepted some elements of the evidence and why she set others aside, before she ruled on the underrepresentation of women and the hiring requirements or prerequisites for the position of network attendant.

The judge then proceeded to analyze some of these requirements, including the class 3 driver's licence, the high school diploma, which all the applicants had (it is common ground that none of the applications were rejected on this basis), and the non- traditional experience. [ 63 ] The appellants argue that the Tribunal rejected the evidence of undue hardship on the grounds that an impossibility to accommodate was not shown, especially as regards obtaining a class 3 driver's licence prior to being hired and adapting the practical test to the characteristics of the applicants.

We do not find any reviewable error in the reasoning of the Tribunal on these matters. [ 64 ] Referring especially to Gaz Met's hiring requirements, such as the class 3 driver's licence, [35] the appellants criticize the judge for using the purpose test rather than the job requirement test, adding that there is nothing discriminatory in asking that applicants have this licence when they are hired.

The appellants make what is essentially the same general comment with respect to mechanical knowledge and non-traditional experience. [ 65 ] The appellants maintain, inter alia , that the Tribunal erred in finding that there was no undue hardship connected with the requirement of holding a class 3 driver's licence at the time of hiring, in light of the objectives of efficiency and safety.

This criticism is without merit. [ 66 ] With respect to that hiring requirement, the judge concluded that Gaz Met had not explored the possibility of reasonable accommodation by allowing a period of time for women to obtain their class 3 driver's licence once hired, or proved that such an accommodation would constitute undue hardship for the company. [ 67 ] This conclusion was amply supported by the evidence if we take into account, as the judge noted in her reasons, that it was conceivable for network trainees simply to obtain their class 3 learner's permits during the first months of their apprenticeships, while they worked with a qualified mentor.

The judge described a new employee's training period as follows: [ translation ] [96] For the first six months of his or her training, employees are network trainees. Under the guidance of an experienced attendant, they progress through four separate units on maintenance and repairs, connections, monitoring, and pressure control, each unit including a theoretical portion and a practical one. In the six months that follow, trainees become network apprentices. Then, in the final year, apprentices become junior network attendants and deepen their knowledge of the four units seen during the first six months.

It is only after two years and after having successfully completed each training unit that trainees may attain the position of network attendant. If trainees fail at any stage, they are fired. (Citations omitted) [ 68 ] The prerequisite of having a class 3 driver's licence prior to hiring is excessive, to say the least, when the evidence clearly indicates that in 1995, in Quebec, women represented only 3% of those who held class 1, 2, or 3 licences, an observation that also applies to 1996 and 1997.

As the judge noted, amongst the complainants, only Marie-Claude Côté and Nicole Trudel had this type of driver's licence (class 1) in 1995, the other candidates had class 5 driver's licences instead. [ 69 ] By imposing such a prerequisite, Gaz Met was impeding the hiring of women, especially since this requirement imposed expenses on the applicants that could turn out to be unnecessary if their applications were rejected.

The judge's conclusion that the prerequisite of having a class 3 driver's licence had a discriminatory effect and constituted a major obstacle that discouraged women from applying for the job is not a reviewable error.

[70] Indeed, the judge followed the test developed in Meiorin, supra, before coming to her two-part conclusion: [translation] [164] For these reasons, the Tribunal deems that Gaz Met did not prove the rationality of the connection between the requirement ofholding a class 3 driver's licence when hired and the underlying purpose of this requirement.

But even if we had found the opposite to betrue, the evidence would not allow us to find that the defendants established their defence of undue hardship related to theaccommodation sought, which is the second step of the Meiorin test. [165] Pursuant to this second obligation, Gaz Met also had to try to reasonably accommodate women so they could have equal access tothe position of network attendant.

Indeed, case law is very clear that measures of reasonable accommodation necessary to ensuring thatthe right to equality is fully achieved are an integral part of that right, unless they result in undue hardship [See in particular Andrews v.Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143 at 169; Commission scolaire de Chambly v. Bergevin, (SCC), [1994] 2 S.C.R. 525 at 544; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Sûreté duQuébec, 2007 QCTDP 13 at para. 79; Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Quebec (AttorneyGeneral) (9 March, 2005), Quebec City 200-53-000029-046, J.E. 2005-780 at para. 55 (T.D.P.)].

It was therefore up to Gaz Met toensure that its recruitment standards included reasonable accommodation measures, without undue hardship, to allow substantiveequality for women at the time of hiring [See Meiorin, supra note 56 at para. 68]. [166] In this case, the only measure granted by Gaz Met in 1995 that gave some flexibility to these standards was to agree to considercandidates who did not have the class 3 driver's licence when they applied for the job, although they were to have obtained it by the timethey were hired.

This measure cannot be considered reasonable accommodation insofar as it does not remedy the problem identified,obliging the candidates to take steps and pay for practical courses to obtain a class 3 driver's licence even before knowing whether theywill be hired. ... [174] In short, other large companies have set up measures offering accommodations that concretely facilitate access for women to non-traditional employment. Conversely, Gaz Met has not even studied the possibility of reasonable accommodation, such as allowingwomen a period of time to obtain their class 3 driver's licences once they are hired.

Finally, Gaz Met has not shown that such anaccommodation would constitute undue hardship for the company.

For all these reasons, even if the Tribunal had deemed that therequirement of having a class 3 driver's licence was rationally connected to the purpose of ensuring that the trainees would quickly beready to fill the position, Gaz Met has not established to the satisfaction of the Tribunal that this requirement, which disproportionatelyexcludes female applicants from the position of network attendant, is reasonably necessary. [71] The judge's analysis and her conclusions on the discriminatory nature of this hiring prerequisite are not subject to the Court'sreview. [72] Non-traditional experience was explicitly included among the relevant experience enumerated or considered by Gaz Met duringthe 1995 external recruitment for the position of network attendant. [73] The judge noted that the candidates' applications were rejected because their non-traditional experience was deemed irrelevant.On this matter, she considered the cases of Line Beaudoin and Joan Dupont especially.

In her analysis of the issue, the judge concluded: [translation] [184] As we stated, men did not have to meet this requirement and Gaz Met did not test their "motivation", not from this perspective atleast. The Tribunal finds from the evidence that this differential treatment applied to the women and, based on non-traditional experience,resulted in the exclusion of female candidates who were unable to demonstrate their true qualifications for the position of networkattendant.

What follows from this differentiation between the female and male candidates is a greater "filtering out" of the women's files.It is undeniably a discriminatory element based on sex. [185] The Tribunal considers that, even when considered by itself, this discriminatory requirement is not rationally connected to GazMet's purpose of recruiting more women for the position of network attendant [footnote omitted].

Indeed, by imposing a requirement onwomen that few are likely to meet, when women are already significantly underrepresented in the position offered, Gaz Met is in factimposing a requirement on women that can only fuel this phenomenon. In this context, it is difficult, to say the least, to find therationality of such a requirement. [74] Once again, this conclusion is not affected by any reviewable error. The appellants maintain that the judge erred in concludingthat the recruitment process is discriminatory based on the mere fact that it appears that it could have been improved. This criticism israther reductive.

The judge performed a very detailed analysis of the external selection process, commenting on the testimony of the GazMet representatives or consultants and the testimony of the parties' experts regarding the various components of this evaluation process. [75] Although her particular conclusions regarding each component of or evaluation tool used in the external selection process willnot be detailed here, it can nevertheless be stated that they are based on the judge’s assessment of the evidence, both lay and expert, inaccordance with the analytical approach recommended in Meiorin, supra, where applicable. [76] This lengthy analysis of each of the stages and aspects of Gaz Met's selection process does not lend itself to an intervention bythe Court.

The judge dissected the various evaluation tools used by Gaz Met and considered the separate phases of the selection processbefore reaching her final conclusions on the selection process: [translation] [444] Already on shaky ground because of the unsuitability of the job-related duties, the requirements sought and the means of

selection, Gaz Met's selection process was also contaminated by subjectivity, arbitrariness, and the significant discretionary power wielded by the main representatives of the company assigned to the process.

These elements combine with the underrepresentation of women in blue-collar jobs (especially in the position of network attendant), preconceived notions relating to the presence of women in non-traditional jobs, and the incompetence of the persons charged with recruiting women during special competitions to both fuel and perpetuate a recruitment system tainted by discrimination against women. [445] The Charter urges us to ensure the recognition and actual exercise of a woman's right to substantive equality, which is embodied in an egalitarian hiring system, for example, where an employer's policies, requirements, and decisions are not felt more keenly by women and do not disproportionately exclude them.

Consequently, in order to avoid perpetuating the discriminatory recruitment system for the position of network attendant at Gaz Met, the mechanics of this system, which include the policies, decisions and behaviours contributing to its survival, must be dismantled. [ 77 ] In short, the judge's in-depth analysis and her conclusion that the external selection process set up by Gaz Met to recruit more women was irremediably affected by systemic discrimination was amply demonstrated and is not tainted by any error that could justify the intervention of the Court. [ 78 ] The appellants are of the view that the judge committed a palpable and overriding error when she concluded that it had been proved that Ms.

Côté's application had been rejected because of her pregnancy during the April of 1997 recruitment process. They argue that the Tribunal set aside significant sections of evidence, including the testimony of three of its representatives, who explained that the reasons for this rejection had nothing to do with Ms. Côté’s pregnancy since they did not know about it when they made the decision. [ 79 ] The evidence is sufficient, however, to justify the judge's conclusion on the matter and includes Ms.

Côté's assertion that the doctor told her that he would be informing the employment office of her pregnancy and the doctor's report which noted Ms. Côté's temporary restrictions with regard to some activities. Indeed, in her reasons, the judge explained why she did not accept the appellants' version: [translation] [413] In short, a major contradiction remains in the respective testimonies of Carole Magnan, Jean-Pierre Raymond and Sylvie Richard: initially, they viewed Marie-Claude Côté as an excellent candidate.

Indeed, she corresponded perfectly to the profile sought and was uncommonly motivated to occupy the position of network attendant. Encouraged by the company to successfully complete the selection process, she ultimately did so and was sent on to the medical exam.

It was only after this examination that doubts began to appear, it would seem, regarding her ability to successfully complete the internal training, doubts that multiplied until her eventual failure became an absolute certainty. [ 80 ] We cannot ignore that one of the Gaz Met representatives, Jean-Pierre Raymond, declared that, in principle, a candidate was asked to undergo a medical exam only once his or her application had been accepted.

This is an excerpt of his testimony on the subject: A- Then, afterwards, we would decide whether or not we would keep that person. 251Q- Then, afterwards, what was the final stage? A- To send her to the department...to the medical centre for a...a medical examination... [footnote omitted] A- ... Afterwards, we would make a decision and the persons, in principle, were sent to medical, if they were kept. [footnote omitted] [ 81 ] The judge's conclusion regarding the refusal to hire Ms.

Côté is drafted as follows: [translation] [414] Consequently, although there is no direct evidence that the decision to reject Marie-Claude Côté’s application was based on her pregnancy, the Tribunal considers that the presumption that her application was rejected due to discriminatory considerations is serious, precise and concordant.

The context in which this decision was made, the explanations of Sylvie Richard, Carole Magnan and Jean- Pierre Raymond that the medical exam is a mere formality for the chosen candidates at the end of the selection process, and the contemporaneousness of Marie-Claude Côté's medical exam report with the decision not to hire her all lead to the logical conclusion that this was a discriminatory refusal to hire because it was based on Ms.

Côté's pregnancy, which could be inferred from the information contained in the said report. [415] It should be pointed out that, to ground this conclusion, the evidence need not show that the decision was motivated solely by Marie-Claude Côté's pregnancy.

On the contrary, it is sufficient for this element to have been considered and to have contributed to the rejection of her application for that rejection to be considered discriminatory [citation omitted]. [416] For these reasons, the Tribunal finds that the evidence establishes on a balance of probabilities that Marie-Claude Côté suffered a discriminatory refusal to hire on the grounds of her pregnancy after having successfully completed all the stages of a process tainted by discrimination against women. [ 82 ] Let us now consider the orders made and the damages awarded in consequence of the harm suffered by the complainants.

The Tribunal's orders [ 83 ] The appellants assert that the Tribunal exceeded its jurisdiction by making the following orders: [translation]

CEASE requiring that candidates for the position of Network attendant/network trainee, or its equivalent, have a class 3 driver's licence before being hired; ADAPT the selection tests and the work tools and methods used for recruitment, the Technical network training program, and the position of Network attendant/network trainee or its equivalent to the physical characteristics of women, while ensuring that the various ways of performing that job are safe and efficient: SET UP a committee to counter sexual and sexist harassment in the workplace, which will include women Network attendants/trainees as well as members of the company’s management; [ 84 ] The appellants are of the opinion that these orders affect the conditions of employment set out in the collective agreement and must consequently be struck. [ 85 ] The Union, an impleaded party, agrees with respect to the committee and its composition, noting that this type of committee, at its inception, falls withing the scope of the Union and no evidence was adduced regarding the relevance of the said committee. [ 86 ] The respondent explains the context in which the judge' orders were made, and no more. [ 87 ] The Tribunal’s first two orders do not affect the conditions of employment set out in the collective agreement per se .

They only affect the hiring process. [ 88 ] The judge justified the third conclusion as follows: [translation] [535] Finally, to promote the development at Gaz Met of a corporate culture that displays greater sensitivity to the sometimes insidious and at other times apparent aspects of systemic discrimination against women in employment, the Tribunal also deems that it would be advisable for Gaz Met to set up a mixed committee, made up of representatives from management and women in the position of network attendant, or its present-day equivalent, to counter sexual and sexist harassment in the workplace [footnote omitted]. [ 89 ] As for this order to set up a committee to counter sexual and sexist harassment in the workplace, it should have been drafted as a recommendation, not an order.

It is, at most, an expression of the judge's hope. This order is insufficiently reasoned and its relevance to the evidence adduced is remote. [ 90 ] In consideration of all the observations made by the judge that undoubtedly inspired what should have been limited to a suggestion or, at most, to a recommendation, it is indicated, in these circumstances, to convert this order to a simple recommendation, without any further effects, instead of striking it entirely. Damages [ 91 ] The judge addressed the damages claim for unlawful interference with a right protected under

section 49 of the Quebec Charter . She also assessed the material, moral and punitive damages separately, justifying each one individually for each of the victims.

Neither that assessment nor its legal basis, except as regards the punitive damages, was truly questioned by the appellants, whether in their statement or at the hearing. [ 92 ] The mere interference with a right, however, does not necessarily give rise to damages. [36] Evidence of harm must be established and, absent an error of law, of mixed fact and law, or of fact, which must be palpable and overriding, [37] assessing the damage belongs to the trier of fact. [38] [ 93 ] The judge awarded damages based on the evidence of individualized damages for material prejudice resulting from the loss of opportunity.

She reasoned her decision on the matter as follows: [translation] [546] In this dispute between Gaz Met and seven victims, the Tribunal finds that only Marie-Claude Côté should be compensated for loss of salary. Indeed, unlike the other victims, she was the only one in 1997 who successfully completed every stage of the selection process before undergoing a medical exam.

For reasons already given, the Tribunal does not accept the employer's version whereby what we might call the retroactive rejection of her application was explained by a reasonable doubt as to her ability to finish the training process that was an integral part of the position of network attendant. The Tribunal finds that it is more probable that Gaz Met's about- face, which in these circumstances is astonishing to say the least, can instead be explained by the information revealed in Ms. Côté's medical assessment, specifically, by her pregnancy. [footnote omitted] [547] Therefore, Gaz Met will pay to Ms.

Côté an amount equivalent to the salary she would have received, as of October of 1997, for the first six months of her training as a network trainee, this amount to be established in compliance with the report of Mr. Marc Fortier, the accounting expert called by the Commission, and which is undisputed on this point. Indeed, the Tribunal considers that it cannot award any more under this head since there is no way of knowing for sure whether Ms. Côté would have passed the disqualifying examination at the end of this period. Should this global amount, paid as loss of salary in a single taxation year, cause Ms.

Côté to suffer prejudice from a tax standpoint, Gaz Met will also pay Ms. Côté a lump sum established in compliance with the method included in the report of Mr. Richard Joly, the accounting expert called by Gaz Met. [footnote omitted] [548] The Tribunal also awards $10,000.00, that is, the entire amount sought for loss of opportunity, to both Johanne Bolduc and Shirley Thomas, who, after having passed the theoretical test, were unable to complete the selection process as a result of failing the practical test.

Let us recall that the Tribunal found that the practical test produced disproportionate exclusionary effects for women, preventing them from demonstrating their true qualifications and ability to occupy the position of network attendant.

[549] As for the other victims—Line Beaudoin, Joan Dupont, Nicole Trudel and Tania Plourde—the Tribunal assesses their respectiveloss of opportunity at $5,000.00. Let us recall that the two first complainants were excluded at the preliminary interview stage, whereasthe two last complainants failed the theoretical test.

Consequently, the Tribunal finds that these four victims also lost the opportunity ofbeing hired as network attendants, although to a lesser degree than those who successfully passed these stages of the selection process. [94] With respect to the moral damages, the judge referred extensively to the evidence concerning each of the victims. On that head,she awarded $20,000 to Ms. Côté and $15,000 to the others, excepting Ms. Trudel, to whom she awarded $10,000. [95] The judge's determinations on the award of material and moral damages are at once individualized and amply supported.

Shemade no error that would justify the intervention of the Court. [96] The same cannot be said respecting the punitive damages. On that head, she awarded $10,000 to Ms. Côté and $7,500 to theother victims. [97] The circumstances surrounding the appellants' refusal to hire Ms. Côté are troubling and contribute to an unlawful andintentional interference, as reflected in the judge's reasons: [translation] [576] According to the evidence on the record in this case, Marie-Claude Côté would have been hired as a network attendant had it notbeen for the discrimination she experienced based on her pregnancy.

Consequently, the Tribunal considers that it is appropriate to orderGaz Met to hire her as a network attendant, or in the present equivalent position, as soon as such a position becomes available, withretroactive recognition to October of 1997 of all the rights and privileges attached to this position, including the right to a pension fundand to non-competitive seniority, so as to not affect the rights of third parties. [98] While the award of punitive damages to Ms. Côté is justified and meets the requirements of

section 49 of the Quebec Charter,the same cannot be said of the award to the other claimants. In their cases, the evidence has not shown that there was an unlawful andintentional interference. The reasons for their award are insufficient to meet the requirements of

section 49 of the Quebec Charter.[39] [99] The mere incompetent conduct of the appellants, which was noted by the judge, does not necessarily translate into anintentional interference on their part. The reasons of the judgment with respect to the claimants other than Ms. Côté are not sufficient toshow that the faults committed against them by the representatives of the appellants were intentional: [translation] [577] As for the other victims, two of them were disqualified as of the preliminary interview, two more as of the theoretical test and thelast two as of the written test.

In light of the Tribunal's conclusions regarding the discriminatory nature of both the preliminary interviewand the practical test, all these candidates underwent a selection process from which they were likely to be excluded because of thediscrimination displayed at the very beginning, in the preliminary interview, and at the end, in the practical test.

In this context, none ofthese candidates was able to show that she possessed the qualifications and aptitudes required to perform the duties of the position ofnetwork attendant, or its present-day equivalent. [footnotes omitted] [100] In short, the intervention of the Court appears to be justified with respect to the award of punitive damages to the claimants otherthan Ms. Côté. CONCLUSIONS [101] One last word in closing.

It is clear that the passage of time since the facts leading to the complaints (1995–1997) is likely tocreate difficulties in applying some of the conclusions of the disposition of the judgment under appeal, the hiring and reinstatementorders with retroactive effect, in particular. Absent an application or any particular submissions on these conclusions other than thegeneral application to dismiss all the conclusions of the judgment under appeal, it would be dangerous for the Court to intervene tomodify the content

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