Can an employer rely on an
individual's previous discharge for chronic absenteeism related
to alcoholism, judged by an arbitrator to have been for cause, to
deny him/her subsequent consideration for rehire into another
position, even in the face of apparent sobriety and
That was essentially the question
put by Quebec's Human Rights Commission to the Court of Appeal
in CDPDJv.Centre Hospitalier Université
de Sherbrooke [2012 QCCA 306]. Having lost before Quebec's
Human Rights Tribunal, the CDPDJ argued that the hospital's
refusal to consider the employee for the position under such
circumstances was per se discrimination based on
"handicap". It amounted, so the CDPDJ said, to
stigmatizing the employee forever for a handicap that no longer
existed, notwithstanding the evidence that the employee had been
sober for a number of years. It also argued that evidence of the
Commission's refusal to prosecute claims made by the employee
for analogous discrimination by other employers was improperly
admitted by the Trial Court.
Indeed, Quebec's Chief Justice
held such evidence to be inadmissible, as the CDPDJ's triage of
its files and its decisions to pursue one claim rather than
another, were strictly internal and administrative, and certainly
not quasi-judicial decisions, even when published and/or matters of
public record, being decisions that bound neither the Commission or
the Tribunal with respect to any other future cases. Her colleagues
on the Appellate panel did not address the issue.
On the substantive issues, Chief
Justice Duval-Hesler, found the employer's refusal to afford
the employee "personal re-evaluation" to be neither
arbitrary nor unreasonable in the circumstances. Since the employee
had been held to have been properly discharged on the same grounds
that were invoked to refuse the subsequent application for
employment, the refusal of an "individualized" evaluation
could not be considered any more unjust, arbitrary or unreasonable.
While refusing to label the employee's present claim as an
abuse of process, she viewed the proceedings as an indirect and
collateral attack on the finality of the arbitrator's decision
to uphold the discharge, and therefore barred by something
approaching res judicata.
Dufresne J.A. simply held that the
hospital's mistrust of the candidate's suitability, in view
of the aforesaid discharge, was perfectly reasonable in the
circumstances. Right or wrong, its refusal to consider the new
application, even in the face of sobriety for some time, was not
discriminatory. In any case, the hospital was not required by any
provision of law to grant an interview so as to properly evaluate
the employee's application.
Bouchard J.A. felt differently.
Evidence of sobriety for a number of years was, for him, an element
that the employer was required to properly evaluate. Having refused
to consider same, and without prejudging the employee's right
to the position, he found the employer's conduct, in that
respect, to be discriminatory.
In view of the dissent of Bouchard
J.A. and the Commission's litigious history, a request for
leave to the Supreme Court of Canada is not out of the question.
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